1 J S-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 KYLE JASON KORTE, Case No. 8:20-CV-02023-JLS Case No. 8:16-CR-00156-JLS 11 Petitioner, 12 ORDER DENYING MOTION TO v. VACATE OR CORRECT 13

FEDERAL SENTENCE (DOC. 1)

14 UNITED STATES OF AMERICA,

15 Respondent. 16 17 18

19 20 21 22 23 24 25 26 27 28 1 This matter is before the Court on Petitioner’s Motion to Vacate or Correct 2 Federal Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) Specifically, Petitioner 3 moves to modify the federal sentence imposed upon him by this Court on February 6, 4 2018 in United States v. Korte, SACR 16-00156-JLS (C.D. Cal.). The Government 5 filed an Opposition brief (Doc. 9), and Petitioner filed a Reply (Doc. 10). 6 As set forth below, the Court DENIES the Motion to Vacate or Correct Federal 7 Sentence. Separately, the Court enters judgment. 8 I. BACKGROUND 9 On November 23, 2016, Petitioner was charged with attempted bank robbery 10 and armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). (See CR. Doc. 11 11, Indictment.) 12 Prior to trial, defense counsel filed three Motions to Suppress. (See CR Docs. 13 32, 36, 49.) First, on various theories, defense counsel moved to suppress the contents 14 of the trunk of Petitioner’s car, including a toy gun that appeared similar to that used 15 in the three robberies. (See CR Doc. 32; Doc. 35, Opp. at 4-5; Doc. 35-3, Exs. 3-5 16 (still shots from surveillance videos).) Second, defense counsel moved to suppress 17 cell tower records and global positioning system (“GPS”) information. (CR Doc. 36.) 18 The last Motion to Suppress further addressed GPS evidence. (CR Doc. 49.) After a 19 hearing, the Court denied all three motions. (See CR Doc. 106, Transcript of Sept. 29, 20 2017 hearing on motions (“Tr.”).) 21 After a three-day jury trial, Petitioner was found guilty on all four counts. (See 22 Docs. 75, 83.) On February 6, 2018, the Court sentenced Petitioner to 210 months’ 23 imprisonment. (CR Doc. 95.) 24 II. LEGAL STANDARD 25 A. Statutory Authority 26 Petitioner moves pursuant to 28 U.S.C. § 2255, which permits federal prisoners 27 who “claim[] the right to be released upon the ground that the sentence was imposed 28 in violation of the constitution or laws of the United States” to file a motion “to 1 vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). The motion must be 2 filed in “the court [that] imposed the sentence.” Id. 3 B. Timeliness 4 To be timely, the motion must be filed within one year of the “date on which 5 the judgment of conviction becomes final.”1 28 U.S.C. § 2255(f)(1). Where an 6 appeal court affirms, and a Petitioner files an unsuccessful petition for certiorari, the 7 judgment of conviction “becomes final” on day that the Supreme Court denies the 8 petition for certiorari. Clay v. United States, 537 U.S. 522, 527 (2003) (“Finality 9 attaches when this Court affirms a conviction on the merits on direct review or denies 10 a petition for a writ of certiorari, or when the time for filing a certiorari petition 11 expires.”) 12 IV. TIMELINESS 13 Here, Petitioner’s petition for certiorari was denied on October 7, 2019. See 14 Korte v. United States, Case No. 18-50051 (9th Cir.) (Doc. 51). Therefore, calculating 15 the time in accordance with Federal Rule of Civil Procedure 6(a)(1)(A)-(C),2 the one- 16 year period for timely filing began the next day, on October 8, 2019, and expired one 17 year later, on October 7, 2020. In accordance with the § 2255 Rule regarding 18 timeliness, motions by pro se inmates are considered timely if they are “deposited in 19 the institution’s internal mailing system on or before the last day for filing.” Rule 20 3(d), Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. § 2255. 21 Petitioner has represented that he deposited his motion in the prison mailing 22 system the same day he signed it, on October 8, 2020. (See Mot. at 10 (“this Motion 23 . . . was placed in the prison mailing system on 10/08/2020”).)3 This is one day too 24 late.

25 1 Subsection (f)(1) applies in this instance. Subsections (f)(2)-(4) allow for other starting dates for 26 the one-year limitations period, but they are not applicable here. 2 “The Federal Rules of Civil Procedure apply in § 2255 cases in district court to the extent that they 27 are not inconsistent with the § 2255 rules.” United States v. Reves, 774 F.3d 562, 565 n.2 (9th Cir. 2014). Rule 6 is not inconsistent with the § 2255 rules. 28 3 The internal pagination of Petitioner’s filings is inconsistent. The page numbers cited herein are 1 In certain circumstances, the one-year limitations period may be equitably 2 tolled. Such tolling requires diligent pursuit by the petitioner of his rights, and 3 extraordinary circumstances that stood in the way. Pace v. DiGuglielmo, 544 U.S. 4 408, 418 (2005). Here, Petitioner has given the Court no basis upon which to find 5 equitable tolling. 6 In setting a briefing schedule, the Court expressly directed Petitioner to address 7 any “details regarding any obstacles he encountered in preparing his Motion.” (Doc. 8 4.) In response, Petitioner refers generally to a lack of access to the law library and 9 legal files. (Reply at 6.) He also refers to memoranda to inmates from the warden of 10 FCC Victorville dated June 1, 2020 and July 13, 2020. (Id.; Mot. at 17-18.) From 11 these memoranda, it appears that Petitioner’s facility of incarceration (and indeed, all 12 Bureau of Prison facilities) experienced lockdowns and modified operations in the 13 summer of 2020 due to both the COVID-19 pandemic and the civil unrest that 14 followed the murder of George Floyd by a Minneapolis law enforcement officer. (See 15 id.) 16 Here, Petitioner’s Motion, filed one day late, sets forth all the required 17 information and the legal grounds for his Motion. The Motion itself is uncomplicated, 18 and asserts only two grounds for relief: One based on ineffective assistance of 19 counsel relating to a Franks hearing and one based on parolee privacy rights. (See 20 generally Mot.) Petitioner’s legal argument regarding ineffective assistance of 21 counsel is based on his counsel’s failure to seek a Franks hearing, a basis which 22 Petitioner demonstrated knowledge of long before his motion was due. (See Reply at 23 8-11 & Exs. C-D (demonstrating Petitioner’s understanding of the Franks argument 24 pre-dating the filing of his appellate brief in June 2018).) And Petitioner’s argument 25 regarding parolee privacy rights derives from the concurring opinion from appellate 26 review of his own conviction. 27 Thus, it appears Petitioner was sufficiently prepared to file his Motion at least 28 one day earlier. Petitioner does not explain how any lack of access to legal or other 1 materials prevented him from meeting his deadline. Therefore, under the high legal 2 standard for finding equitable tolling, circumstances warranting it are not found here. 3 But even if the Court were to consider Petitioner’s claims on the merits, they 4 would be denied. 5 V. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS 6 Claims not raised on direct appeal are generally procedurally defaulted. See 7 United States v. Frady, 456 U.S. 152, 167-68 (1982). To overcome procedural 8 default, a petitioner must demonstrate “cause and prejudice.” See Bousley v. United 9 States, 523 U.S. 614, 622 (1998) (internal quotation marks omitted). Ineffective 10 assistance of counsel constitutes “cause” sufficient to excuse a procedural default. 11 Murray v. Carrier, 477 U.S. 478, 488 (1986) (“Ineffective assistance of counsel, then, 12 is cause for a procedural default.”); Walker v. Martel, 709 F.3d 925, 938 (9th Cir. 13 2013) (“Constitutionally ineffective assistance of counsel plus actual prejudice will 14 satisfy this test and allow habeas review of a procedurally defaulted claim.”). 15 Petitioner raises an ineffective assistance of counsel claim based on defense 16 counsel’s failure to seek a Franks hearing.4 To establish ineffective assistance of 17 counsel, a petitioner must demonstrate that (1) counsel’s performance was deficient 18 and (2) the deficient performance prejudiced his or her defense. See Strickland v. 19 Washington, 466 U.S. 668, 687-96 (1984); see also Rompilla v. Beard, 545 U.S. 374, 20 380 (2005) (“Ineffective assistance under Strickland is deficient performance by 21 counsel resulting in prejudice, . . . with performance being measured against an 22 objective standard of reasonableness under prevailing professional norms . . . .”)

23 4 Generally, evidence seized pursuant to an invalid warrant, and the fruits thereof, are subject to 24 suppression under the exclusionary rule. See United States v. Henderson, 906 F.3d 1109, 1114-15 (9th Cir. 2018). But the exclusionary rule is subject to a good faith exception that permits 25 introduction of evidence obtained where officers act on an objectively reasonable search warrant that is subsequently invalidated. United States v. Leon, 468 U.S. 897, 919 (1984). The good faith 26 exception does not apply where “the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for 27 his reckless disregard of the truth.” Id. at 923 (citation omitted). To challenge applicability of the good faith exception, a defendant may seek a Franks hearing. See Franks v. Delaware, 438 U.S. 28 154, 155-56 (1978). 1 (internal quotation marks omitted). “The essence of an ineffective-assistance claim is 2 that counsel’s unprofessional errors so upset the adversarial balance between defense 3 and prosecution that the trial was rendered unfair and the verdict rendered suspect.” 4 Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). 5 To establish deficient performance, a petitioner must show that, in light of all 6 the circumstances, counsel’s performance was “outside the wide range of 7 professionally competent assistance.” Strickland, 466 U.S. at 690. “Judicial scrutiny 8 of counsel’s performance must be highly deferential,” and must be evaluated from 9 counsel’s perspective at the time of the challenged conduct rather than with the benefit 10 of hindsight. Id. at 689. Counsel’s conduct must be “reasonable[] under prevailing 11 professional norms.” Id. at 688; accord Wiggins v. Smith, 539 U.S. 510, 522-23 12 (2003). Due to the difficulties inherent in making this evaluation, there is a “strong 13 presumption that counsel’s conduct falls within the wide range of reasonable 14 professional assistance.” Strickland, 466 U.S. at 689. A petitioner for post-conviction 15 relief “must overcome [this] presumption.” Id. (internal quotation marks omitted). 16 To establish Strickland-type prejudice, a petitioner must show a “reasonable 17 probability that, but for counsel’s unprofessional errors, the result of the proceeding 18 would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is 19 a probability sufficient to undermine confidence in the outcome.” Id. Stated 20 otherwise, to prove prejudice, a petitioner must show more than “the errors had some 21 conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693. 22 Courts are concerned with whether “the particular proceeding is unreliable because of 23 a breakdown in the adversarial process that our system counts on to produce just 24 results.” Id. at 696. “The likelihood of a different result must be substantial, not just 25 conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). 26 To be entitled to a Franks hearing, the accused must make a “substantial 27 preliminary showing” that law enforcement officers made a false statement or material 28 omission “knowingly and intentionally, or with reckless disregard for the truth,” and 1 that the statement or omission was “necessary to the finding of probable cause.” 2 Franks, 438 U.S. at 155-56. The Ninth Circuit has identified five parts of this 3 showing: 4 (1) the defendant must allege specifically which portions of the warrant 5 affidavit are claimed to be false; (2) the defendant must contend that the 6 false statements or omissions were deliberately or recklessly made; (3) a 7 detailed offer of proof, including affidavits, must accompany the 8 allegations; (4) the veracity of only the affiant must be challenged; and 9 (5) the challenged statements must be necessary to find probable cause. 10 United States v. DiCesare, 765 F.2d 890, 894-95 (9th Cir. 1985). A determination of 11 entitlement to a Franks hearing has two steps. “First, the district court determines 12 whether the affiant officer intentionally or recklessly made false or misleading 13 statements or omissions in support of the warrant.” Martinez-Garcia, 397 F.3d at 14 1215. Next, if the court concludes the officer made misleading statements, the court 15 then examines whether, “‘with the affidavit’s false material set to one side, the 16 affidavit’s remaining content is insufficient to establish probable cause.’” Id. (quoting 17 Franks, 438 U.S. at 156). “If the corrected warrant is lacking in probable cause, then 18 ‘the search warrant must be voided and the fruits of the search excluded to the same 19 extent as if probable cause was lacking on the face of the affidavit.’” Frimmel Mgmt., 20 LLC v. United States, 897 F.3d 1045, 1052 (9th Cir. 2018) (quoting Franks, 438 U.S. 21 at 156). 22 Petitioner believes there were three misstatements in the search warrant 23 affidavits that would entitle him to a Franks hearing. (See Mot. at 4-5 (describing 24 issues related to a license plate, bank videos, and vehicle); cf. Mot. at 11-14 defense 25 counsel decl. dated Aug. 21, 2017).) Counsel was aware of these inaccuracies but 26 nevertheless determined that they did not support the filing of a motion for a Franks 27 hearing. Specifically, after notice to Petitioner that continuing to pursue his 28 ineffective assistance of counsel claims would effect a waiver of the attorney-client 1 privilege, and after no response from Petitioner indicating a desire to withdraw his 2 claims, the Court issued its Order Declaring Partial Waiver of Attorney-Client 3 Privilege. (Doc. 8.) Defense counsel thereafter submitted a declaration regarding his 4 communications with Petitioner about whether there were grounds to seek a Franks 5 hearing. (See Doc. 9-1, Feb. 22, 2021 Steward Decl. ¶¶ 2-6; see also Mot. at 15-16 6 (letter from counsel to Petitioner discussing merits of Franks issue).) In the exercise 7 of his professional judgment, counsel determined that the Franks issue was not 8 meritorious, communicated this to Petitioner more than once, and purposefully chose 9 not to seek a Franks hearing. This determination fell “within the wide range of 10 reasonable professional assistance,” Strickland, 466 U.S. at 689, and there was no 11 ineffective assistance of counsel on the failure to seek a Franks hearing. 12 VI. SECOND GROUND FOR RELIEF: PAROLEE SEARCHES 13 Petitioner’s second ground for relief, related to the fact that he was on parole 14 when he committed the offenses of conviction, was inspired by the concurring opinion 15 of his appellate case. (Mot. at 6-7.) Therein, while concurring in both the reasoning 16 and result of reached by the majority, one judge of the three-judge panel suggested 17 that case law should, in light of continuing technological advances making law 18 enforcement intrusion on private affairs easier, continue to develop guiding principles 19 as to the Fourth Amendment rights of probationers and parolees. United States v. 20 Korte, 918 F.3d 750, 759-60 (9th Cir.) (Nelson, J., concurring op.), cert. denied, 140 21 S. Ct. 264 (2019). Petitioner merely quotes a portion of the concurring opinion; he 22 does not articulate an argument based thereon. 23 Petitioner did not challenge parolee searches based on general privacy concerns 24 in his direct appeal; instead, he challenged two specific types of searches—the search 25 of the trunk of his car and the GPS tracking him—as beyond the scope of the 26 permissible searches of a parolee. See Korte, 918 F.3d at 754-57. To the extent 27 Petitioner attempts to relitigate any issue not decided in his favor on direct appeal, that 28 issue is not a proper basis for a § 2255 motion. See United States v. Redd, 759 F.2d 1 701 (9th Cir. 1985). And to the extent that Petitioner may now be attempting to 2 ||raise a less concrete, more generalized challenge to the constitutionality of parolee 3 || searches along the lines suggested by Judge Nelson’s concurrence, this too is barred. 4 || Having not raised any such argument on direct appeal, it is procedurally defaulted, 5 Petitioner has not demonstrated cause and prejudice to overcome procedural 6 || default. 7 Thus, Petitioner’s second ground likewise provides no basis for relief. 8 || VI. CONCLUSION 9 As set forth herein, the Court DENIES Petitioner’s Motion. Separately, the 10 ||Court entered Judgment. 11 IT IS SO ORDERED. 12 Dated: November 24, 2021 13 we □□ 14 es el id 15 Hon. Josephine Les taton United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28