United States District Court, W.D. Washington, Seattle
JOSEPH R. KALAC, Petitioner,
UNITED STATES OF AMERICA, Respondent.
HONORABLE RICHARD A. JONES UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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).
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.
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).
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).
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).