United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion to
Vacate under 28 U.S.C. § 2255. Filing No. 52. Nunez
(“Defendant”) has also filed a Motion for
Disclosure of Supplemental Information to Police Report and a
Motion for Leave to Conduct Discovery. Filing Nos. 63, 65.
The Court initially reviewed this case and ordered the
government to file an answer addressing defendant's
constitutional claims. Filing Nos. 55 and 58.
was indicted for drug related offenses after Omaha Police
officers stopped his vehicle for not having a license plate
and searched the vehicle and his person, where they
ultimately found thousands of dollars in cash, a loaded
firearm, a drug scale, and numerous drugs including
methamphetamine and hydrocodone pills in Omaha, Nebraska.
Filing Nos. 1, 32. In January 2016, he was charged with
conspiracy to distribute 50 grams or more of a mixture of
methamphetamine in violation of Title 21 U.S.C. § 846
and Title 21 U.S.C. § 841(a)(1), (b)(1)(B) for an
offense that occurred on October 13, 2015 (Filing No. 3).
entered a plea of guilty to the charge of conspiracy to
distribute 50 grams or more of a mixture of methamphetamine
(Count I) and admits the forfeiture allegation as set forth
in the Indictment. Filing No. 32. Defendant was sentenced to
120 months of imprisonment and 5 years of supervised release
with special conditions. Filing No. 39.
brief in support of his § 2255 motion, Defendant asserts
that the Government failed to provide the required
Brady/Giglio disclosures prior to entering into his
guilty plea. Filing No. 53. Defendant alleges that the
Government failed to disclose information regarding
sufficient credibility information about Amber Max
(“Max”) and her relationship to Christopher Adams
(“Adams”)-both Government witness. Further,
Defendant alleges that the information regarding Max's
inconsistent testimony was both material and exculpatory,
therefore, he did not enter into his plea knowingly,
intelligently, and voluntarily.
response, the Government argues that it did not have any
obligation to provide the defendant with impeaching
information because the Constitution does not require the
Government to disclose impeachment information prior to
entering plea agreements with a criminal defendant.
United States v. Ruiz, 536 U.S. 622 (2002). Filing
No. 58. Further, the Government argues that in order to
demonstrate a Brady violation the defendant must
show "the government suppressed evidence that was both
favorable to the defense and material to the issue of guilt
or punishment." United States v. Williams, 577
F.3d 878, 882 (8th Cir. 2009). The Government contends that
Max's inconsistent testimony regarding her relationship
with Adams is not material and not relevant to
federal prisoner who seeks relief from a conviction and
sentence under § 2255 must establish a violation that
constitutes “‘a fundamental defect which
inherently results in a complete miscarriage of
justice.'” United States v. Gomez, 326
F.3d 971, 974 (8th Cir. 2003) (quoting United States v.
Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)). Section
2255 is intended to provide federal prisoners a remedy for
jurisdictional or constitutional errors. Sun Bear v.
United States, 644 F.3d 700, 704 (8th Cir. 2011). It is
not intended to be a substitute for appeal or a vehicle for
relitigating matters decided on appeal. See
Bousley v. United States, 523 U.S. 614, 621 (1998);
Davis v. United States, 417 U.S. 333, 346-47 (1974).
A constitutional claim of a Brady violation is
cognizable under § 2255. See Mandacina v.
United States, 328 F.3d 995 (8th Cir. 2003).
court may grant a new trial to the defendant “if the
interest of justice so requires.” Fed. R. Crim. P. 33.
Generally, the standard for a new trial on the basis of newly
discovered evidence “is ‘rigorous' because
these motions are ‘disfavored.'” United
States v. Baker, 479 F.3d 574, 577 (8th Cir. 2007). In
order to receive a new trial based on newly discovered
evidence, a defendant must show: (1) the evidence must have
been unknown or unavailable to the defendant at the time of
trial; (2) the defendant must have been duly diligent in
attempting to uncover it; (3) the newly discovered evidence
must be material; and (4) the newly discovered evidence must
be such that its emergence probably will result in an
acquittal upon retrial. Id. A standard more
favorable to the defendant is applied, however, if a
Brady violation has occurred. United States v.
Duke, 50 F.3d 571, 577 (8th Cir. 1995).
government's failure to disclose evidence that is
material to the issue of guilt and is exculpatory in nature
violates a defendant's right to due process.
Brady, 373 U.S. at 87. The government has an
obligation to disclose evidence that is favorable to the
accused and material to either guilt or punishment, and this
duty extends to impeachment evidence. United States v.
Ladoucer, 573 F.3d 628, 636 (8th Cir. 2009). The
constitutional obligation is not measured by the moral
culpability of the prosecutor. United States v.
Agurs, 427 U.S. 97, 109 (1976).
a Brady violation, the defendant must establish that
(1) the evidence was favorable to the defendant, (2) the
evidence was material to guilt, and (3) the government
suppressed evidence. Strickler v. Greene, 527 U.S.
263, 281 (1999). Evidence is “material” within
the meaning of Brady when there is a reasonable probability
that, had the evidence been disclosed, the result of the
proceeding would have been different. Cone v. Bell,
129 S.Ct. 1769, 1783 (2009). “In other words, favorable
evidence is subject to constitutionally mandated disclosure
when it ‘could reasonably be taken to put the whole
case in such a different light as to undermine confidence in
the verdict.'” Id. (quoting Kyles v.
Whitley, 514 U.S. 419, 435 (1995)).
evidence, as well as exculpatory evidence, falls within the
Brady rule, and it is subjected to the same
materiality analysis. United States v. Bagley, 473
U.S. 667, 676-78 (1985) (noting that “such evidence is
‘evidence favorable to an accused,' so that, if
disclosed and used effectively, it may make the difference
between conviction and acquittal”) (citations omitted).
The government must disclose matters that affect the
credibility of prosecution witnesses. See
Giglio, 405 U.S. at 153-55; United States v.
Garcia, 562 F.3d 947, 952 n.7 (8th Cir. 2009).
the non-disclosure of Giglio evidence only justifies
a retrial if the withheld information is deemed material.
United States v. Spinelli, 551 F.3d 159, 164 (2d
Cir. 2008). Undisclosed Brady/Giglio information is
deemed material so as to justify a retrial only if there is a
reasonable probability that, had the material been disclosed
to the defense, the result of the proceeding would have been
different. Garcia, 562 F.3d at 953. A reasonable
probability of a different result is shown when the
government's failure to disclose undermines confidence in
the outcome of the trial. I ...