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United States v. Wade

United States District Court, N.D. California, San Jose Division

October 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BOBBY WADE, Defendant.

          ORDER DENYING DEFENDANT'S 28 U.S.C. § 2255 MOTION TO VACATE, REMAND, OR SET ASIDE RE: DKT. NOS. 151, 152, 154, 161

          EDWARD J. DAVILA UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Bobby Wade's 28 U.S.C. § 2255 motion to set aside, vacate, or remand his sentence. Title 28 U.S.C. Section 2255 Motion (“Mot.”), Dkt. 152. On January 8, 2019, the Government filed an answer replying to Defendant's motion. United States' Response to Defendant's Motion (“Answer”), Dkt. 155. Defendant submitted a reply to this answer. Petitioner's Response to the Government's Response (“Reply”), Dkt. 159. He also submitted a supplement to his original Section 2255 motion, arguing the supplemental “relates back” pursuant to Rule of Civil Procedure 15(a)(c)(2)(B).[1] Movant's Supplement (“Supplement”), Dkt. 160.[2]Defendant argues his sentence should be vacated or his case remanded for an evidentiary hearing because: (1) his Fourth Amendment rights were violated by an illegally forged search warrant that lacked probable cause and (2) his trial counsel was ineffective.

         The Court holds that Defendant may not bring a new theory of forgery pursuant to Federal Rule of Civil Procedure 15. Further, Defendant's objections to the warrants have already been litigated, both on appeal and at trial. Finally, because Defendant cannot show deficiency and prejudice, as required by Strickland v. Washington, 466 U.S. 668 (1984), Defendant's motion is DENIED.

         I. BACKGROUND

         A. Factual Background

         Defendant Bobby Wade was found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) following a jury trial in May 2016. Judgment in a Criminal Case, Dkt. 125. At trial, the Government introduced evidence to establish the following:

         On June 29, 2015, San Jose Police Department officers received a 911 call reporting that two men pulled a gun on someone. Dkt. 139 at ECF 15, 32-33. A responding officer saw two men who matched the caller's description and ordered the men to the ground. Id. at ECF 33. One of the men complied; the other, Defendant, “took off running.” Id. After briefly losing sight of Defendant, he was found and arrested in a parking lot near an eight-foot chain-link fence. Id. at ECF 36. While no firearm was found on Defendant, he was arrested because he had two outstanding warrants. Id. at ECF 42-43. Less than an hour later, a resident of the neighborhood where Defendant was arrested found a Smith & Wesson .380 caliber pistol in a parking lot on the other side of the fence from where Defendant was arrested. Id. at ECF 98.

         Defendant was then booked at jail. Id. at ECF 118-19. That night, Defendant called his sister from the jail and, after describing what happened, said “You may have to double you feel me? . . . . [N]ot where you be normally, because the people be watching out for you, but uh-feel me? Like, if you um-if you at the end, all the way to the left, the beginning, you feel me?” Dkt. 70-1, ECF at 12. Later, his sister confirmed Defendant was arrested “in the parking lot.” Id. at ECF 15. That night, the citizen who found the gun called the police again around midnight to report seeing two people in the parking lot who were searching for something. Dkt. 139 at ECF 120-21. Shortly after midnight, the same night, Defendant called his sister again. His sister said, “Yeah, I just talked to Keece. He told me you dropped your phone, but I didn't see it.” Dkt. 70-2, ECF at 5. Defendant responded, “Yeah, that's what I was trying to tell you. . . . My phone . . . . it's-it, like, to the front is a black fence and to the left is, like, barbed wire fence and there's cars back there. . . . So I think my phone is over that fence to the left. You feel me? Probably in back. All the way to the left-hand side.” Defendant's sister states she “went over there” and couldn't find the “phone.” Defendant's phone, in fact, was with him when he was arrested, and he signed a form acknowledging receipt of his phone at the jail later that evening. Dkt. 139 at ECF 24. The Government thus contended at trial that “phone” really meant “gun” and that is why two people were seen searching the area where Defendant was arrested.

         The following morning, Defendant spoke to his girlfriend again from jail. She stated that “Tay” (Defendant's sister) had gone back to the parking lot but had not found anything. Dkt. 70-4 at ECF 19-20. Defendant replied, “That's crazy. That's a lot of money man.” Id. at ECF 20. He added, “That baby almost got [me] sent away forever, though. . . . There's too many [] cowards in the world. That's why man. . . . I wish [people] would get back into fighting like, you feel me? Everybody's cowards. Everybody need a gun, you feel me?Id. (emphasis added). The Government argued at trial that this confirmed Defendant was talking about his handgun the entire time.

         Next, the Government obtained a search warrant for the contents of Defendant's cell phone, which was lawfully seized by San Jose police incident to his arrest. Dkt. 14-11. There “was a substantial basis for finding probable cause to search text messages, photographs, account information, and contacts.” United States v. Wade, 717 Fed.Appx. 656, 657 (9th Cir. 2017). Text message data on Wade's cell phone provided further evidence that the handgun found in the parking lot on the night of the arrest belonged to him. Two weeks before his arrest, Defendant told an acquittance that he had a “2015 .380 with a beam built in.” Dkt. 140 at ECF 148-49. The firearm in this case was a .380 caliber handgun with a built-in laser sighting device. Id. at ECF 149-50.

         At trial, DNA evidence provided final, conclusive confirmation that Defendant possessed the firearm found in the parking lot in June 2015. The Government procured a search warrant to obtain Defendant's DNA. Dkt. 155-1, Ex. A. That DNA was tested against DNA obtained from the grip of the Smith & Wesson pistol. A criminalist from the Santa Clara Crime Laboratory testified that Defendant was a major contributor to the DNA profile obtained from the grip of the gun. Dkt. 140, ECF at 54. The chance that a random person would match to the pistol in the same way was “1 in at least 300 billion.” Id.

         B. Procedural History

         After hearing this evidence, the jury returned a guilty verdict. Verdict Form, Dkt. 109. Defendant was sentenced to 96 months imprisonment and 24 months of concurrent imprisonment for violating supervised release. See Dkt. 124, 125.

         During the trial, Defendant (through his counsel) objected to the introduction of DNA evidence, the jail calls, and the search of the cell phone. Defendant then appealed his case to the Ninth Circuit. On appeal, Defendant argued: (1) the district court erred by denying his motion to suppress evidence collected from his cell phone; (2) the district court erred when it determined his base offense level; and (3) the sentence for his supervised release violation should be vacated if the sentence on the firearms conviction was vacated. Wade, 717 Fed.Appx. at 657. The Ninth Circuit affirmed Defendant's conviction after finding the warrant was supported by probable cause, resolved the district court's offense level ...


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