Kilgore v. USA - 2255

Filing 2

MEMORANDUM OPINION AND ORDER DENYING 529 Motion to Vacate (2255) as to Bruce Kilgore (11); a certificate of appealability SHALL NOT BE ISSUED. Related criminal case RWT-06-66. Signed by Judge Roger W Titus on 3/31/2015. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

BRUCE KILGORE, # 04855-036,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

*
*
*
*
*
*
*
*
*
*
*

Criminal No. RWT-06-0066
Civil No. RWT-12-0557

MEMORANDUM OPINION AND ORDER
Pending before the Court is Petitioner Bruce Kilgore’s petition under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. In it, Petitioner contends the following: (1) this Court
improperly admitted testimony from witness Donald Greene that Petitioner discussed murdering
a co-conspirator and denied Petitioner the opportunity to confront this witness; (2) the
prosecutors engaged in multiple instances of misconduct; (3) the Government improperly
introduced photographs of Petitioner’s van, bought post-indictment, and admitted evidence of
Petitioner’s prior perjury; and (4) the Court improperly instructed the jury. The Court will deny
Petitioner’s § 2255 because all four contentions were, or could have been, brought on direct
appeal and are therefore not cognizable under a § 2255 motion. Petitioner’s third contention that
prosecutors engaged in multiple instances of misconduct may only be brought in a § 2255
motion when the remarks are both improper and are so prejudicial to a defendant’s substantive
rights that the defendant was denied a fair trial. United States v. Wilson, 135 F.3d 291, 297
(4th Cir. 1998). Because prosecutors’ statements did not deny Kilgore due process, Petitioner
could have raised this claim on direct appeal but may not raise it in a § 2255 motion.

1

BACKGROUND
On June 13, 2008, a grand jury returned a Second Superseding Indictment charging
Kilgore and thirteen others with one count of conspiracy to distribute and possess with intent to
distribute five kilograms or more of cocaine and 1,000 kilograms or more of marijuana.
ECF No. 106. All defendants except Petitioner and Timothy Moody entered guilty pleas. The
joint trial of Petitioner and Moody began on February 14, 2008, ECF No. 253, and a jury
convicted both on the indicting charges on March 7, 2008, ECF No. 288. In a sentencing hearing
conducted on June 11, 2008, the Court sentenced Petitioner to 240 months incarceration and five
years of supervised release. ECF No. 356.
From at least January 1994 through about February 11, 2006, Ruben Lopez was the
leader of an extensive cocaine and marijuana trafficking conspiracy.

Gov’t Resp. 2.

ECF No. 558. With drugs originating from Mexico, the trafficking conspiracy was responsible
for the distribution of hundreds of kilograms of cocaine and thousands of kilograms of
marijuana, primarily by means of tractor trailers, from Tucson, Arizona to customers in
Maryland, Ohio, Georgia, and elsewhere. Id. In 2004, Kilgore began transporting loads of drugs
on behalf of and supplied by Lopez. Each trip Kilgore would drive a cover load of produce to
“the yard” in Tucson, Arizona.

Id. at Ex. 2, 131–41 (Trial Tr. 2/27/08); Id. at Ex. 3

(Trial Tr. 2/29/08), 100–02. Moody would load drugs onto the truck and Kilgore would deliver
the drugs to various customers, but primarily to Martin Pollard in Maryland and Moody in
Maine. In November 2006, Kilgore and co-defendant Moody were arrested in Maine. Id. at 3.
On February 14, 2008, the trial against Kilgore and co-defendant Moody began.
Cooperating defendants John Pollard and James Vines testified as to the identification of
Kilgore’s car. Pollard testified that on one occasion Kilgore delivered drugs to him in a “dark

2

color blue” van with a name like “Kilgore” on the license plate.

Id. at Ex. 5

(Trial Tr. 2/20/2008), 72, 79. Vines corroborated this testimony stating the van was a “dark
color” and had a name on the license plate. Id. at Ex. 7, 235–38 (Trial Tr. 2/26/2008). The
Government then introduced into evidence photographs that Special Agent Edmund Kelly had
taken outside the Courthouse of a blue van with the license plate “Kilgore.” Id. at Ex. 8
(Trial Tr. 2/19/2008), 130–31. Kilgore’s wife, Cindy Kilgore, testified that Kilgore bought this
van on June 29, 2006 but had previously owned a black van of the same make, model, and with
the license plate “Kilgore.” Id. at 4, Ex. 9, 85–86 (Trial Tr. 3/5/2008).
During the trial, Kilgore elected to testify. In Kilgore’s testimony, the Government
questioned him about previous bankruptcy proceedings, which his wife had discussed in her
testimony.

Id. at 48–49.

Kilgore admitted to having committed perjury during those

proceedings. Id. at 220.
On March 7, 2008, the jury returned a guilty verdict finding Kilgore responsible for
conspiracy to distribute and possess with intent to distribute at least five kilograms of cocaine
and at least 1,000 kilograms of marijuana.

ECF No. 288.

June 11, 2008, the Court found a base offense level of 36.

At the sentencing hearing on
Gov’t Resp. at Ex. 1, 37

(Sentencing Tr.). Due to Kilgore’s “incredible” and “perjurous” testimony, the Court applied a
two-level upward adjustment for obstruction of justice bringing his sentence to 240 months.
ECF No. 356.
Petitioner filed a notice of appeal on June 16, 2008, ECF No. 362, and a motion to correct
his sentence on June 18, 2008, which the Court denied. ECF No. 274. The U.S. Court of
Appeals for the Fourth Circuit affirmed Petitioner’s conviction and sentence on
November 19, 2010.

United States v. Kilgore, 401 Fed. App’x 842 (4th Cir. 2010).

3

The

Petitioner did not file a petition for a writ of certiorari in the Supreme Court but timely filed this
§ 2255 motion pending before the Court.
DISCUSSION
Under 28 U.S.C. § 2255, a petitioner must prove by a preponderance of the evidence 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.”

28 U.S.C. § 2255 (2012); Miller v. United States,

261 F.2d 546, 547 (4th Cir. 1958). If the § 2255 motion, along with the files and records of the
case, “conclusively show that [he] is entitled to no relief,” a hearing on the motion is unnecessary
and the claims raised in the motion may be dismissed summarily.
I.

Petitioner’s claims may not be asserted in a § 2255 motion, because all four of his
grounds for relief either were, or could have been, brought on direct appeal.
Issues brought on direct appeal, in addition to issues that could have been brought, but

were not, may not be raised in a collateral attack. A petitioner may not circumvent a proper
ruling on direct appeal “by re-raising the same challenges in a § 2255 motion.” See United
States v. Linder, 552 F.3d 391, 397 (4th Cir. 2009); see also Boeckenhaupt v. United States,
537 F.2d 1182, 1183 (4th Cir. 1976) (“[Petitioner] will not be allowed to recast, under the guise
of collateral attack, questions fully considered by [the] court.”). Because a § 2255 motion
“[may] not be allowed to do service for an appeal,” non-constitutional claims that could have
been raised on appeal, but were not, may not be asserted in collateral proceedings. Stone v.
Powell, 428 U.S. 465, 477 n.10 (1976) (citing Sunal v. Large, 332 U.S. 174, 178 (1947)).
The Supreme Court recognizes an exception permitting collateral attack of issues that
could have, but were not, brought on direct appeal when the petitioner can show cause and actual
prejudice, resulting from the absence of directly appealing the issue(s), or actual innocence.

4

United States v. Mikalajunas, 186 F.3d 490, 492–93 (1999). Cause must turn on something
external to the defense, “such as the novelty of the claim or a denial of effective assistance of
counsel,” id., and actual prejudice must show not merely the creation of “the possibility of
prejudice” but demonstrate that the error worked to petitioner’s “actual and substantial
disadvantage.” Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997) (quoting Murray v. Carrier,
477 U.S. 478, 494 (1986)).
All four of Petitioner’s grounds for relief were, or could have been, brought on direct
appeal. In Petitioner’s first ground for relief, he asserts that this Court admitted Donald Greene’s
testimony alleging Petitioner discussed murdering a co-conspirator in violation of Federal Rule
of Evidence 404(b), that the admission of Greene’s testimony resulted in a violation of Federal
Rules of Evidence 104(b) and 806, and that he was denied his Constitutional right to confront
Greene as a witness against him. Mot. 2–6. Petitioner brought the Rule 404(b) claim for
admissibility of evidence on direct appeal.

The Fourth Circuit rejected Petitioner’s claim,

finding this Court did not abuse its discretion by admitting the challenged evidence. United
States v. Kilgore, 401 Fed. App’x 842, 844 (4th Cir. 2012) (“[T]he evidence was intrinsic to the
charged conspiracy and was relevant to the issues of intent, motive, and opportunity.”). Further,
the alleged violations of Federal Rules of Evidence 104(b) and 806 and “confrontational denial”1
could have been, but were not, brought on direct appeal. Petitioner, therefore, waived his right to
litigate the claims on appeal and is prohibited from bringing the claims in a § 2255 motion. See
Stone v. Powell, 428 U.S. 465, 477 (1976).
Petitioner’s third and fourth asserted grounds for relief also could have been, but were
not, brought on appeal. Petitioner’s third claim asserts the Court improperly admitted evidence

1

Petitioner was not denied his Sixth Amendment right to confront a witness against him; Petitioner’s counsel
cross-examined Greene at trial. Gov’t Resp. at Ex. 2, 176 (Trial Tr. 2/29/08).

5

of his prior, uncharged perjury in bankruptcy proceedings and pictures of his van, bought post
indictment. Petitioner’s fourth claim asserts the Court improperly failed to provide a limiting
instruction regarding post-indictment evidence, improperly provided a jury instruction regarding
his previous perjury, and provided conflicting jury instructions. Mot. 24–28. ECF No. 529. The
Court provided a limiting instruction for co-defendant Moody, prohibiting the jury from relying
solely on evidence of drug transactions that occurred after the end-date of the charged
conspiracy. ECF. No. 295, at 13–14. This limiting instruction was unnecessary for Petitioner
because the limiting instruction was given in relation to the testimony of Evelyn Lopez Gomez.
Gomez did not testify about drug transactions regarding Petitioner after the end-date charged.
Petitioner did indeed testify to previously perjuring himself on the stand, so the cautionary jury
instructions were proper. Lastly, there was no conflict in the jury instructions. Petitioner’s third
and fourth claim are meritless and could have been asserted on direct appeal.

Petitioner,

therefore, does not assert a cognizable § 2255 claim.
II.

Petitioner’s asserted second ground for relief—that prosecutors engaged in
multiple instances of misconduct—is meritless and must rise to the level of a
constitutional violation to be asserted in a § 2255 claim.
Kilgore argues that the prosecutors improperly vouched for the credibility of witnesses,

misstated the evidence in closing argument, and made improper remarks, which amounted to
prosecutorial misconduct. Mot. 6–10. For a prosecutor’s remarks to amount to a denial of due
process, the remarks must have been (1) improper and (2) so prejudicial to a defendant’s
substantive rights that the defendant was denied a fair trial.

United States v. Wilson,

135 F.3d 291, 297 (4th Cir. 1998); United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995). A
court may find a prosecutor’s remarks improper while still finding they were not so prejudicial as
to deprive a defendant of a fair trial. See Darden v. Wainwright, 477 U.S. 169, 179–80 (1986)

6

(explaining that the prosecutor’s comments “undoubtedly were improper” but “[t]he relevant
question is whether the prosecutors' comments so infected the trial with unfairness as to make the
resulting conviction a denial of due process.”) (internal quotations omitted); see also
Bennett v. Angelone, 92 F.3d 1336, 1346 (4th Cir. 1996) (“[N]ot every improper trial argument
amounts to a denial of due process.”).
Courts look to four factors to determine whether an improper statement deprives the
defendant of a fair trial. The Court examines, (1) the degree to which the prosecutor’s remarks
have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were
isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to
establish the guilt of the accused; and (4) whether the comments were deliberately placed before
the jury to divert attention to extraneous matters. United States v. Wilson, 135 F.3d 291, 297
(4th Cir. 1998).
The alleged instances of prosecutorial misconduct are meritless; even if there existed
prosecutorial misconduct, it would not rise to the level of a constitutional violation. The alleged
instances are isolated, and there is no evidence the prosecutor’s remarks were made to
deliberately mislead the jury. Also, there was strong proof to establish guilt. This Court noted
this at sentencing when discussing the speed at which the jury deliberated, stating, “I don’t think
the speed was any indication of lack of caution; it was reflective of the overwhelming evidence
in the case.” Govt. Resp. at Ex. 1, 49 (Sentencing Tr.).
Kilgore’s claims that the remarks were improper do not rise to the level of constitutional
violations and thus should have been brought on direct appeal. Because they were not, Kilgore
waived his right to assert them, and they may not be brought here. See Stone v. Powell,
428 U.S. 465, 477 (1976).

7

CERTIFICATE OF APPEALABILITY
Kilgore may not appeal this Court’s denial of relief under 28 U.S.C. § 2255 unless it
issues a certificate of appealability. United States v. Hardy, 227 Fed. Appx. 272, 273
(4th Cir. 2007).

A certificate of appealability will not issue unless Kilgore has made a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c); Hardy,
227 Fed Appx. at 273. “A prisoner satisfies this standard by demonstrating that reasonable
jurists would find that any assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by the district court is likewise
debatable.” United States v. Riley, 322 Fed. Appx. 296, 297 (4th Cir. 2009).
This Court has assessed the claims in Kilgore’s motion to vacate his sentence on the
merits and found them deficient. No reasonable jurist could find merit in any of Kilgore’s
claims, and thus no certificate of appealability shall issue.
CONCLUSION
The Court finds that Petitioner’s claims that prosecutors’ remarks were improper do not
rise to the level of a denial of due process, and that all claims either were, or could have been,
but were not, brought on direct appeal. Kilgore’s motion will be denied and no certificate of
appealability shall issue. Accordingly, it is, this 31st day of March, 2015, by the United States
District Court for the District of Maryland,
ORDERED, that Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence under
28 U.S.C. § 2255 [ECF No. 529] is hereby DENIED; and it is further
ORDERED, that a certificate of appealability SHALL NOT BE ISSUED; and it is
further

8

ORDERED, that the Clerk is hereby DIRECTED to mail a copy of this Memorandum
Opinion and Order to Petitioner; and it is further
ORDERED, that the Clerk is hereby DIRECTED to close Civil Action No.
RWT-12-0557.

/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE

9