Kalac v. United States of America

Filing 13

ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255). The Court DENIES Mr. 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 ) and directs the clerk to DISMISS this action and enter judgment for the Government. The Court declines to issue a certificate of appealability. Signed by Judge Richard A Jones. (cc: Petitioner via first class mail)(TH)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JOSEPH R. KALAC,

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Petitioner,
Case No. 17-1090-RAJ

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v.
ORDER
UNITED STATES OF AMERICA,

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Respondent.

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This matter comes before the Court on Petitioner Joseph R. Kalac’s Motion under

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28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal

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Custody. Dkt. # 1. For the reasons that follow, the Court DENIES Mr. Kalac’s motion.

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Dkt. ## 1, 7.

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I.

BACKGROUND
On July 24, 2013, the grand jury returned an indictment against Mr. Kalac. United

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States v. Joseph R. Kalac, Case No. CR13-224-RAJ, Dkt. # 1 (W.D. Wash. July 24,

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2013). On November 14, 2013, the grand jury returned a seven-count superseding

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indictment against Mr. Kalac, charging Mr. Kalac with (1) Possession of Heroin with

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Intent to Distribute, (2) Possession of Methamphetamine with Intent to Distribute, (3)

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Possession of Cocaine Base with Intent to Distribute, (4) Possession of a Firearm, (5)

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Felon in Possession of a Firearm, (6) Felon in Possession of Ammunition, and (7) Failure

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to Surrender for Service of Sentence. Id. at Dkt. # 34. The Court severed Count 7. Id. at

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ORDER – 1

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Dkt. # 134. On September 15, 2014, the jury trial commenced on Counts 1 through 6. Id.

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at Dkt. # 15.

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Before trial, Mr. Kalac’s trial counsel filed several motions, including motions in

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limine, a motion to sever counts, a discovery motion, a motion to suppress evidence, and

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a motion to dismiss. Id. at Dkt. ## 20-22, 54, 78. Mr. Kalac requested a Franks hearing,

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contending that a search warrant affidavit utilized to secure a search warrant contained

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reckless or intentional false statements. Id. at Dkt. # 21 at 6. The Court determined that

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Mr. Kalac did not meet the materiality standard to warrant a Franks hearing. Id. at Dkt. #

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42 at 2. Mr. Kalac’s motions in limine were granted and denied in part. Id. at Dkt. ## 46,

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63. Mr. Kalac also moved to suppress the physical evidence seized by the Snohomish

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County Sherriff’s Office. Id. at Dkt. # 21. Following an evidentiary hearing on the matter,

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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

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one day. Id. at Dkt. # 169. Following entry of judgment, Mr. Kalac appealed his

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conviction on Counts 1 through 6, arguing that the Court abused its discretion in

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admitting evidence of his prior possession of cocaine charge. Id. at Dkt. # 170. The Ninth

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Circuit disagreed, finding that the district court “undertook a careful and considered

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balancing of the probative value of the prior conviction and the potential for unfair

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prejudice to the defendant,” and thus concluded that the district court did not abuse its

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discretion in admitting evidence of Mr. Kalac’s prior conviction. United States v. Kalac,

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655 F. App’x 559, 561 (9th Cir. 2016).
On July 18, 2017, Mr. Kalac filed the instant § 2255 petition contending that he

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was denied a Franks hearing and alleging prosecutorial misconduct. Dkt. # 1. Mr. Kalac

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also contends that his trial counsel was ineffective. Id. The Government opposes the

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motion. Dkt. # 7.

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II.

LEGAL STANDARD
Under 28 U.S.C. § 2255(a), a federal prisoner may file a motion to vacate, set

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aside, or correct his or her sentence “upon the ground that the sentence was imposed in

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violation of the Constitution or laws of the United States, or that the court was without

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jurisdiction to impose such sentence, or that the sentence was in excess of the maximum

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authorized by law, or is otherwise subject to collateral attack . . . .”

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Under 28 U.S.C. § 2253(c), there is no right to appeal from a final order in a

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proceeding under section 2255 unless a circuit judge issues a certificate of appealability.

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28 U.S.C. § 2253(c)(1)(B).

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III.

DISCUSSION
A. Fourth Amendment

In the instant habeas petition, Mr. Kalac contends that he was denied a Franks

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hearing. Dkt. # 1 at 4. Mr. Kalac is procedurally barred from raising this Fourth

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Amendment claim because he had a full and fair opportunity to litigate this claim. Mr.

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Kalac filed a pre-trial motion requesting a Franks hearing, contending that the search

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warrant affidavit utilized to secure a search warrant contained reckless or intentional false

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statements. Kalac, Case No. CR13-224-RAJ, Dkt. # 21. To obtain a Franks hearing, the

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defendant must make a substantial showing that the alleged misrepresentations or

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omissions were false statements made deliberately or recklessly. United States v.

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Gonzales, Inc., 412 F.3d 1102, 1110 (9th Cir. 2005).

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The Court denied Mr. Kalac’s pre-trial motion for a Franks hearing in part

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because the three alleged omissions presented in his motion collectively or individually

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did not meet the materiality standard to warrant a Franks hearing. Kalac, Case No.

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CR13-224-RAJ, Dkt. # 42 at 2. Because Mr. Kalac had an opportunity to litigate this

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claim, his request for relief on Ground 1 in the instant habeas petition is DENIED. See

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Stone v. Powell, 428 U.S. 465, 494 (1978) (stating that where the State has provided an

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opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may

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not be granted federal habeas corpus relief on the ground that evidence obtained in an

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unconstitutional search or seizure was introduced at trial).

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ORDER – 3

B. Prosecutorial Misconduct

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Mr. Kalac contends that his Due Process rights were violated when the federal

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prosecutor knowingly introduced false testimony at his trial through Deputy Phillips. Dkt.

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# 1 at 4. To establish a Mooney-Napue claim 1 for false testimony, Mr. Kalac must show

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that: “(1) the testimony (or evidence) was actually false; (2) the prosecution knew or

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should have known that the testimony was actually false; and (3) the false testimony was

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material.” United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003). The Mooney-

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Napue materiality standard is “less demanding” than the materiality standard for a Brady 2

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claim. Reis-Campos v. Biter, 832 F.3d 968, 976 (9th Cir. 2016). Under the Mooney-

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Napue line of cases, “a conviction must be set aside whenever there is any reasonable

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likelihood that the false testimony could have affected the judgment of the jury.” Id.

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(internal quotations, citation, and emphasis omitted).

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For his Mooney-Napue claim, Mr. Kalac made no specific allegations to support

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his contention that the federal prosecutor knowingly allowed false testimony at his trial.

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In addition, Mr. Kalac failed to show how any alleged false testimony affected the

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judgment of the jury. Further, Mr. Kalac had an opportunity to challenge the testimony of

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Deputy Phillips at trial. In fact, Mr. Kalac’s trial counsel successfully argued for Final

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Jury Instruction No. 12. 3 Kalac, Case No. CR13-224-RAJ, Dkt. 118 at 11. The jury

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In Mooney, the Supreme Court found that a conviction obtained through the use of perjured
testimony violates due process. Mooney v. Holohan, 294 U.S. 103, 112 (1935). Napue expanded Mooney
to encompass false testimony bearing only on the credibility of a witness. Napue v. People of State of Ill.,
360 U.S. 264, 269 (1959). For convenience, courts within the Ninth Circuit refer to Mr. Kalac’s
prosecutorial misconduct claim as a “Mooney-Napue claim.” See Morris v. Ylst, 447 F.3d 735, 743 (9th
Cir. 2006); United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003) (discussing elements of a
“Mooney-Napue claim”).
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Under Brady v. Maryland, 373 U.S. 83 (1963), suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to guilt or
punishment.
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Instruction No. 12 reads:
You have heard evidence that Snohomish County Sheriff’s Deputy Ryan
Phillips has testified under oath in prior cases in which the judges hearing
those cases found that his testimony was not credible. You may consider
this evidence in deciding whether or not to believe this witness and how
much weight to give the testimony of this witness.

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instruction stated in part that Deputy Phillips “testified under oath in prior cases in which

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the judges hearing those cases found that his testimony was not credible,” and that the

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jury “may consider this evidence in deciding whether or not to believe this witness and

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how much weight to give the testimony of this witness.” Id. Nonetheless, Mr. Kalac has

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not demonstrated that the testimony of Deputy Phillips was false, and he has not

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established that the federal prosecutor knew the alleged false testimony was false. Mr.

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Kalac failed to carry his burden on his Mooney-Napue claim, and therefore the Court

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DENIES this claim.

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C. Exculpatory Evidence

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Mr. Kalac also alleges that a backpack and currency are missing, and the alleged

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loss of exculpatory evidence deprived him of a fair trial. Dkt. # 1 at 4. The government

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violates a defendant’s due process rights if the unavailable evidence possessed

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“exculpatory value that was apparent before the evidence was destroyed, and is of such

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nature that the defendant would be unable to obtain comparable evidence by other

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reasonably available means.” United States v. Cooper, 983 F.2d 928, 931 (9th Cir. 1993)

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(quoting California v. Trombetta, 467 U.S. 479, 489 (1984)). A defendant must

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“demonstrate that the police acted in bad faith in failing to preserve the potentially useful

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evidence.” Id. (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).

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Mr. Kalac alleges that the government violated his due process rights when sheriff

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deputies failed to preserve a backpack and currency found during his arrest. However,

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Mr. Kalac failed to demonstrate the alleged exculpatory value of these items. Even if he

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had demonstrated that the evidence had apparent exculpatory value, Mr. Kalac failed to

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show the presence of bad faith on the part of the police. See Arizona, 488 U.S. at 58

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(stating that unless a criminal defendant can show bad faith on the part of the police,

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failure to preserve potentially useful evidence does not constitute a denial of due process

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of law). Mr. Kalac failed to carry his burden on this claim and therefore the Court

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DENIES the claim.

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ORDER – 5

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D. Ineffective Assistance of Counsel
Finally, Mr. Kalac’s § 2255 petition seeks relief based on a claim of ineffective

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assistance of trial counsel. Dkt. # 1 at 5. To establish a claim for ineffective assistance of

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counsel, Mr. Kalac must show that (1) counsel’s representation fell below an objective

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standard of reasonableness, and (2) he was prejudiced by the inadequate performance.

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Strickland v. Washington, 466 U.S. 668, 687 (1984). The first step requires showing “that

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counsel made errors so serious that counsel was not functioning as the ‘counsel’

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guaranteed the defendant by the Sixth Amendment.” Id. In applying this first step, courts

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“must apply a strong presumption that counsel’s representation was within the wide range

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of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011)

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(quotation marks and citation omitted). The second step requires showing “that counsel’s

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errors were so serious as to deprive the defendant of a fair trial, a trial whose result is

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reliable.” Strickland, 466 U.S. at 687. “Judicial scrutiny of counsel’s performance must

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be highly deferential.” Id. at 689.

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Mr. Kalac cannot make the requisite showing for ineffective assistance of counsel

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under Strickland. Mr. Kalac contends that his trial counsel was ineffective because she

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did not file a motion for reconsideration of the suppression motion, obtain a material

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witness warrant, and that his trial counsel did not properly defend him despite having

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well over a year to prepare for trial. Dkt. # 1 at 5. Specifically, Mr. Kalac contends that

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trial counsel was deficient because she failed to seek a material witness warrant to call

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Ms. Tolbert to testify at trial. Dkt. # 1 at 5. This issue implicates attorney strategy. Mr.

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Kalac’s trial counsel had an opportunity to seek a material witness warrant for Ms.

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Tolbert but decided not to call her to testify at trial. Kalac, Case No. CR13-224-RAJ,

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Dkt. # 161 at 5. Mr. Kalac’s disagreement with trial counsel’s strategy after conviction

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does not constitute deficient performance on the part of trial counsel. See Strickland, 466

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U.S. at 689-91. Nonetheless, even assuming that Mr. Kalac’s bald allegations are true,

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they are too vague and conclusory to sufficiently bring a claim for ineffective assistance

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of counsel. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989) (stating that

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vague and conclusory allegations of ineffective assistance of counsel do not require an

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evidentiary hearing in denying a clearly inadequate allegation). Because Mr. Kalac failed

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to demonstrate that his trial counsel’s performance was inadequate or prejudicial, the

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Court DENIES his Strickland claim.

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IV.

CONCLUSION
For the reasons stated above, the Court DENIES Mr. Joseph R. Kalac’s Motion

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under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in

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Federal Custody (Dkt. # 1) and directs the clerk to DISMISS this action and enter

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judgment for the Government. The Court finds that reasonable jurists would not debate

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the resolution of this motion. Accordingly, the Court declines to issue a certificate of

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appealability. See Fed. R. Governing § 2255 Proceedings, Rule 11(a); Slack v.

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McDaniel, 529 U.S. 473, 484 (2000).

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DATED this 18th day of April, 2018.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 7