Begay v. USA

Filing 15

**ORDER granting 12 Motion to expand the record; denying 14 Motion to expand the record. Case referred to Judge Burns for further consideration.(see order for details). Signed by Judge David G Campbell on 11/4/2013.(TCA) * Modified on 11/5/2013 to clean up text (TCA).

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Plaintiff,

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ORDER

v.

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No. CV-12-08237-PCT-DGC (MHB)

Kendrick Begay,

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Defendant/Movant.

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Following a jury trial in June 2006, Defendant Kendrick Begay was found guilty

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of two counts of first-degree murder and two counts of using, brandishing, or discharging

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a firearm in relation to a crime of violence. Doc. 8 at 4. Defendant was sentenced to life

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imprisonment on the murder counts, followed by consecutive sentences of 120 months

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and 300 months for the firearm convictions. Id.

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Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence alleging that

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his trial counsel was ineffective in violation of his Sixth Amendment rights. Doc. 1. The

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Court referred the petition to United States Magistrate Judge Michelle H. Burns for a

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report and recommendation (“R&R”). Doc. 5. Judge Burns recommended that the Court

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deny the motion because Defendant failed to satisfy the standard articulated in Strickland

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v. Washington, 466 U.S. 668 (1984), with respect to any of the claims raised in his

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motion. Doc. 8 at 14.

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Defendant filed objections to the R&R (Doc. 11) and a Motion to Expand the

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Record (Doc. 12). The government has also filed a Motion to Expand the Record.

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Doc. 14. For the reasons that follow, the Court will grant Defendant’s Motion to Expand

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the Record, deny the government’s Motion to Expand the Record, and refer the case back

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to Magistrate Judge Burns to consider the expanded record.

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I.

Standard of Review.

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Section 2555 requires the Court to grant a hearing “[u]nless the motion and the

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files and records of the case conclusively show that the prisoner is entitled to no relief[.]”

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28 U.S.C. § 2255(b) (West 2013). If a motion under section 2255 is “based on alleged

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occurrences entirely outside the record, which if true would support relief, the court must

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conduct a hearing on those allegations ‘unless, viewing the petition against the record, its

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allegations do not state a claim for relief or are so patently frivolous or false as to warrant

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summary dismissal.’” Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988) (quoting

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Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982)). Courts may expand the

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record in considering section 2255 motions through discovery and documentary

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evidence. Blackledge v. Allison, 431 U.S. 63, 81-83 (1977); see also Rule 7 of the Rules

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Governing Section 2255 Proceedings. Whether to hold a hearing or conduct discovery

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are matters committed to the Court’s discretion, Machibroda v. United States, 368 U.S.

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487, 495 (1962), as long as the Court gives the claim “careful consideration and plenary

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processing, including full opportunity for presentation of the relevant facts,” Blackledge,

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431 U.S. at 82-83.

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II.

Analysis.

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Defendant presents two documents for the Court’s consideration in his Motion to

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Expand the Record – an FBI report summarizing an interview of Defendant conducted on

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March 28, 2002, and a printout of pawn transactions from T & R Market, Inc. dated

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April 12, 2002. Although it is unclear why Defendant did not submit these documents

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with his original motion, Defendant did contend that “[h]ad trial counsel conducted

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adequate investigation he would have been able to present the jury with admissible

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evidence tending to suggest that [Defendant] did not physically possess a semi-automatic

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rifle firing the sort of ammunition believed to have been used in this case[.]” Doc. 2 at

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11. Judge Burns found that Defendant “offered no basis for this claim.” Doc. 8 at 13.

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The Court finds this new evidence relevant to the consideration of Defendant’s

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ineffective assistance of counsel claim. Under Rule 7(c) of the Rules Governing Section

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2255 Proceedings, the Court is required to “give the party against whom the additional

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materials are offered an opportunity to admit or deny their correctness.” Because the

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government has filed a reply to Defendant’s objection and its own motion seeking to

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expand the record, the Court finds the government has had such an opportunity. The

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government has not opposed Defendant’s motion to expand the record. The Court will

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therefore exercise its discretion and grant the motion.

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Governing 2255 Proceedings.

See Rule 7(a) of the Rules

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The Court will deny the government’s motion to expand the eecord as the

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documents submitted by the government as a part of its motion were also attached to its

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response to Defendant’s initial motion in this case. Accordingly, these documents are

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already part of the record. See Doc. 6-1, 6-2, and 6-3.

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The Court will refer the case to Judge Burns for consideration of the expanded

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record. The Court will deny Defendant’s objections (Doc. 11) as moot. Defendant may

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file new objections after Judge Burns has updated her R&R in light of the expanded

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record.

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IT IS ORDERED that Defendant’s motion to expand the record (Doc. 12) is

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granted and the case is referred to Judge Burns for further consideration. It is further

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ordered that the government’s motion to expand the record (Doc. 14) is denied.

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Dated this 4th day of November, 2013.

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