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Kalac v. United States

United States District Court, W.D. Washington, Seattle

April 18, 2018

JOSEPH R. KALAC, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          THE HONORABLE RICHARD A. JONES UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner Joseph R. Kalac's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody. Dkt. # 1. For the reasons that follow, the Court DENIES Mr. Kalac's motion. Dkt. ## 1, 7.

         I. BACKGROUND

         On July 24, 2013, the grand jury returned an indictment against Mr. Kalac. United States v. Joseph R. Kalac, Case No. CR13-224-RAJ, Dkt. # 1 (W.D. Wash. July 24, 2013). On November 14, 2013, the grand jury returned a seven-count superseding indictment against Mr. Kalac, charging Mr. Kalac with (1) Possession of Heroin with Intent to Distribute, (2) Possession of Methamphetamine with Intent to Distribute, (3) Possession of Cocaine Base with Intent to Distribute, (4) Possession of a Firearm, (5) Felon in Possession of a Firearm, (6) Felon in Possession of Ammunition, and (7) Failure to Surrender for Service of Sentence. Id. at Dkt. # 34. The Court severed Count 7. Id. at Dkt. # 134. On September 15, 2014, the jury trial commenced on Counts 1 through 6. Id. at Dkt. # 15.

         Before trial, Mr. Kalac's trial counsel filed several motions, including motions in limine, a motion to sever counts, a discovery motion, a motion to suppress evidence, and a motion to dismiss. Id. at Dkt. ## 20-22, 54, 78. Mr. Kalac requested a Franks hearing, contending that a search warrant affidavit utilized to secure a search warrant contained reckless or intentional false statements. Id. at Dkt. # 21 at 6. The Court determined that Mr. Kalac did not meet the materiality standard to warrant a Franks hearing. Id. at Dkt. # 42 at 2. Mr. Kalac's motions in limine were granted and denied in part. Id. at Dkt. ## 46, 63. Mr. Kalac also moved to suppress the physical evidence seized by the Snohomish County Sherriff's Office. Id. at Dkt. # 21. Following an evidentiary hearing on the matter, Mr. Kalac's motion to suppress evidence was denied. Id. at Dkt. ## 49, 53.

         The Court sentenced Mr. Kalac to a total term of imprisonment of 168 months and one day. Id. at Dkt. # 169. Following entry of judgment, Mr. Kalac appealed his conviction on Counts 1 through 6, arguing that the Court abused its discretion in admitting evidence of his prior possession of cocaine charge. Id. at Dkt. # 170. The Ninth Circuit disagreed, finding that the district court “undertook a careful and considered balancing of the probative value of the prior conviction and the potential for unfair prejudice to the defendant, ” and thus concluded that the district court did not abuse its discretion in admitting evidence of Mr. Kalac's prior conviction. United States v. Kalac, 655 Fed.Appx. 559, 561 (9th Cir. 2016).

         On July 18, 2017, Mr. Kalac filed the instant § 2255 petition contending that he was denied a Franks hearing and alleging prosecutorial misconduct. Dkt. # 1. Mr. Kalac also contends that his trial counsel was ineffective. Id. The Government opposes the motion. Dkt. # 7.

         II. LEGAL STANDARD

         Under 28 U.S.C. § 2255(a), a federal prisoner may file a motion to vacate, set aside, or correct his or her sentence “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .” Under 28 U.S.C. § 2253(c), there is no right to appeal from a final order in a proceeding under section 2255 unless a circuit judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B).

         III. DISCUSSION

         A. Fourth Amendment

         In the instant habeas petition, Mr. Kalac contends that he was denied a Franks hearing. Dkt. # 1 at 4. Mr. Kalac is procedurally barred from raising this Fourth Amendment claim because he had a full and fair opportunity to litigate this claim. Mr. Kalac filed a pre-trial motion requesting a Franks hearing, contending that the search warrant affidavit utilized to secure a search warrant contained reckless or intentional false statements. Kalac, Case No. CR13-224-RAJ, Dkt. # 21. To obtain a Franks hearing, the defendant must make a substantial showing that the alleged misrepresentations or omissions were false statements made deliberately or recklessly. United States v. Gonzales, Inc., 412 F.3d 1102, 1110 (9th Cir. 2005).

         The Court denied Mr. Kalac's pre-trial motion for a Franks hearing in part because the three alleged omissions presented in his motion collectively or individually did not meet the materiality standard to warrant a Franks hearing. Kalac, Case No. CR13-224-RAJ, Dkt. # 42 at 2. Because Mr. Kalac had an opportunity to litigate this claim, his request for relief on Ground 1 in the instant habeas petition is DENIED. See Stone v. Powell, 428 U.S. 465, 494 (1978) (stating that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial).

         B. ...


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