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Kraeger v. United States

United States District Court, M.D. Pennsylvania

December 19, 2017



          A. Richard Caputo, United States District Judge.

         Presently before me is Petitioner Kenneth Kraeger's (“Kraeger”) Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 286.) Kraeger was charged with multiple drug and firearms offenses, proceeded to trial, and was found guilty of 4 counts. He was sentenced to 180 months' imprisonment. The Third Circuit affirmed Kraeger's conviction and sentence on appeal. Because the record demonstrates conclusively that he is not entitled to relief, Kraeger's § 2255 motion will be denied without a hearing.

         I. BACKGROUND

         Kraeger's conviction was the result of drug and firearms charges stemming from two separate searches of his residence located at 162 Hiller Lane in Blooming Grove Township, Pennsylvania. The first search, executed pursuant to a search warrant on May 28, 2009, was the result of an investigation of possible marijuana cultivation, initiated by a tip from a confidential informant. That search allegedly revealed more than 1, 000 marijuana plants, along with marijuana packaged for delivery, growing equipment, three shotguns, and approximately $26, 000 in cash. Kraeger was charged with crimes pursuant to Pennsylvania law and was released on bail.

         While on bail, on October 24, 2010, Kraeger was stopped for speeding in North Hampton, New Hampshire by the New Hampshire State Police. Kraeger was driving his son's vehicle and his son, Daniel Kraeger, was in the front passenger seat (along with a third party in the back seat). As a result of this stop, the New Hampshire State Police obtained and executed a search warrant for the vehicle on October 25, 2010. This search uncovered marijuana, an electric bill (among other documents), and an Apple smartphone. A subsequent search warrant obtained additional information from the smartphone. These findings by the New Hampshire State Police were then transmitted to local authorities in Pennsylvania who used the information to obtain administrative subpoenas for United Parcel Post and PPL Electric Utilities. All of these findings then contributed to a second search warrant for Kraeger's residence, executed on November 4, 2010. During that second search, officers allegedly uncovered more than 200 marijuana plants and various pieces of indoor growing equipment.

         On March 15, 2011, Kraeger was indicted by a federal grand jury and charged with two counts of violating 21 U.S.C. § 841(a)(1) for marijuana seized from his residence on the two separate occasions. (Doc. 21.) Count One, pursuant to 21 U.S.C. § 841(b)(1)(A)(vii) (“1, 000 or more marijuana plants regardless of weight”) resulted from the search of his residence conducted on May 28, 2009. Count Two, pursuant to 21 U.S.C. § 841(b)(1)(B)(vii) (“100 or more marijuana plants regardless of weight”), resulted from the November 4, 2010 search.

         On March 23, 2011, Kraeger pleaded not guilty to the charges before United States Magistrate Judge Thomas M. Blewitt. On November 21, 2011, Kraeger filed four motions: (1) a motion to suppress evidence found during the May 28, 2009 search of his residence; (2); a motion to suppress evidence found during the November 4, 2010 search of his residence; (3) a motion to suppress evidence destroyed by the government; and (4) a motion to sever counts one and two for trial. On March 19, 2012, the Court denied each of these motions except the motion to suppress evidence uncovered during the November 4, 2010 search, which was held in abeyance until a hearing was held on the matter. After such hearing was held on August 23, 2012, this motion was denied as well.

         On September 24, 2013, the Government filed a superseding indictment adding two firearms charges: (1) possession of firearms in furtherance of a drug trafficking crime in violation of 21 U.S.C. § 924(c), and (2) possession of firearms by an unlawful user of controlled substances in violation of 18 U.S.C. § 922(g)(3).

         Kraeger filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 on December 7, 2016. (Doc. 286.) On December 30, 2016, Kraeger made his “Miller” election and chose to have the Court rule on his Motion as filed. (Doc. 288.) On February 3, 2017, with his §2255 Motion pending, the Court received a request from Kraeger to amend his Motion. (Doc. 289.) The amendment sought to add a due process claim based on the Court's denial of a motion for continuance filed by Kraeger prior to his suppression hearing. (See Id. at 1, 4-5.) The Court granted Kraeger's Motion and directed the Government to file a response to the amended §2255 Motion. (Doc. 291.) On March 7, 2017, the Court received a request from Kraeger to further amend his §2255 Motion. (Doc. 294.) The Court granted Kraeger's Motion and directed the Government to file a response to the second amended §2255 Motion. (Doc. 296.) The Government filed its Brief in Opposition on April 17, 2017. (Docs. 299-306.) Kraeger filed his Reply on June 28, 2017 (Doc. 309). Kraeger's motion pursuant to §2255 is now ripe for disposition.


         “Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). Section 2255 permits a prisoner sentenced by a federal court to move the court that imposed the sentence to “vacate, set aside, or correct the sentence” where: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a).

         Section 2255(b) generally entitles a petitioner to a hearing on their motion:

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

28 U.S.C. § 2255(b). The district court is given discretion in determining whether to hold an evidentiary hearing on a prisoner's motion under § 2255. See United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008). In exercising that discretion, the Court must decide whether the petitioner's claims, if proven, would entitle petitioner to relief and then consider whether an evidentiary hearing is needed to determine the truth of the allegations. See Gov't of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574 (3d. Cir. 1994). Accordingly, a district court may summarily dismiss a motion brought under § 2255 without a hearing where the “motion, files, and records, ‘show conclusively that the movant is not entitled to relief.'” United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (quoting United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)); see also Forte, 865 F.2d at 62.


         Kraeger seeks to vacate his sentence pursuant to 28 U.S.C. § 2255 on the basis that (1) his various counsel rendered ineffective assistance during his suppression hearing, trial and appeal, and (2) the District Court abused its discretion in denying his request for a continuance of his suppression hearing.

         Kraeger claims his trial counsel was ineffective for (1) failing to properly cross-examine the Government's witnesses at trial; (2) failing to call an expert witness for the defense; (3) failing to seek the exclusion of “obviously tampered with evidence;” (4) failing to assert bad faith on the part of the officers who conducted the 2009 search; and (5) committing ten enumerated errors regarding the firearms charges against Kraeger. He alleges that his suppression counsel was ineffective for (1) failing to properly challenge the two search warrants that led to his arrest and prosecution under Pennsylvania state law in 2009; (2) failing to properly call witnesses, conduct cross-examination, or object to a “blatantly false and prejudicial statement” by the prosecutor during the August 23, 2012 suppression hearing; and (3) failing to immediately appeal the District Court's denial of his multiple motions to suppress evidence and motion to continue the suppression hearing. Finally, Kraeger argues that his appellate counsel was ineffective for (1) filing an inadequate brief with the Third Circuit, and (2) failing to file a petition with the Third Circuit for a rehearing en banc. Kraeger argues that as a result of counsels' failings, either individually or cumulatively, there is a reasonable probability that, but for those errors, the result of his trial would have been different.

         To prevail on a claim of ineffective assistance of counsel, a petitioner must establish that (1) the performance of trial counsel fell below an objective standard of reasonableness, and (2) the performance of counsel unfairly prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 691 (1984). “Both Strickland prongs must be satisfied.” George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001) (citing United States v. Nino, 878 F.2d 101, 104 (3d Cir. 1989)).

         The first Strickland prong requires a defendant to “establish . . . that counsel's performance was deficient.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001.) Proving such a deficiency “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed defendant by the Sixth Amendment.” Id. (quoting Strickland, 466 U.S. at 687). “In assessing counsel's performance, ‘every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'” Id. “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is to say, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689. It is well-settled that the benchmark for judging any claim of ineffectiveness of counsel is “whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id.

         The second prong of Strickland requires a defendant to show that counsel's performance unfairly prejudiced the defendant, meaning that counsel's errors were so serious as to deprive the defendant of a trial the result of which is reliable. Strickland, 466 U.S. at 687. It is not enough to show that the error had some conceivable effect on the outcome of the proceeding, for virtually every act or omission would meet such a test. Id. at 693. Rather, the defendant must show there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Id. at 694. A reasonable probability is sufficient to undermine confidence in the outcome of the trial. Id.

         The Supreme Court has noted that application of the Strickland standard does not require that the performance prong be addressed first. Rather,

Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that ...

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