United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANT'S 28 U.S.C. § 2255
MOTION TO VACATE, REMAND, OR SET ASIDE RE: DKT. NOS. 151,
152, 154, 161
J. DAVILA UNITED STATES DISTRICT JUDGE
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). Movant's Supplement
(“Supplement”), Dkt. 160.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.
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.
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:
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.
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.
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.
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.
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
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.
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 ...