United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
ROGER W. TITUS, District Judge.
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.
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 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. At the sentencing hearing on June 11, 2008, the Court found a base offense level of 36. 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). 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.
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. 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 ...