govinfo:USCOURTS-ksd-6_20-cr-10038-3

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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF KANSAS 
 
UNITED STATES OF AMERICA, 
 
 P l a i n t i f f , 
 
v. Case No. 20-10038-01-JWB 
 
ROGER MOSS, 
 
 Defendant. 
 
MEMORANDUM AND ORDER 
 
 This matter is before the court on Defenda nt’s motion and supplemental motion to vacate 
sentence pursuant to 28 U.S.C. § 2255 and moti on for an evidentiary he aring. (Docs. 190, 194, 
210.) The motions have been fully briefed and are ripe for decision. (Docs. 198, 207, 211, 212.) 
The motions are DENIED for the reasons stated herein. 
I. Facts and Procedural History 
 Defendant Roger Moss (“Defendant” or “P etitioner”) was charged in a June 16, 2020, 
indictment with one count of possession with in tent to distribute methamphetamine, 21 U.S.C. § 
841(a)(1) and (b)(1)(A); one count of possession with intent to distribute heroin, 21 U.S.C. § 
841(a)(1) and (b)(1)(C); one count of possession with intent to distribute cocaine, 21 U.S.C. § 
841(a)(1) and (b)(1)(C); one count of possession of a firearm in relation to a drug trafficking crime, 
18 U.S.C. § 924(c); and one count of prohibited person in possession of a firearm, 18 U.S.C. § 
922(g)
1. (Doc. 1.) Pursuant to the indictment and arrest warrant, Petitioner was arrested on June 
24, 2020. (Doc. 4.) On June 29, 2020, Petitioner was granted release pending trial. (Doc. 10.) 
In August 2021, Petitioner filed several motions to suppress, seeking to suppress evidence 
seized from the traffic stop, the search of his apartment, and the GPS warrant. (Docs. 51, 63, 64, 
 
1 The court will discuss the particular language in the indictment and the statutory subsection cited, infra. 

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65, 66.) Defendant also sought a Franks hearing on the basis that th e affidavit in support of the 
search warrant contained material omissions. (Doc. 99.) The court held a hearing on the motions 
to suppress but denied the requested Franks hearing. Ultimately, the motions to suppress were 
denied.2 
 A jury trial was held in December 2021. The Tenth Circuit’s decision in United States v. 
Moss, No. 22-3101, 2024 WL 4541738, at *1 (10th Cir. Oct. 22, 2024), sets forth the evidence at 
trial pertaining to the items seized during the search of Defendant’s residence as follows: 
Throughout Defendant's residence, officers recovered a total of more than 300 
grams of cocaine, more than 600 grams of methamphetamine in crystal and pill 
form, more than 58 grams of heroin, and more than a kilogram of marijuana. 
Officers also located multiple forms of drug paraphernalia including crack pipes, 
brillo, (used inside a crack pipe as a screen), scales, and baggies. In Defendant's 
bedroom, which was otherwise “tidy,” officers located, among other things, a used 
crack pipe and an unloaded firearm underneath the bed. In dresser drawers, officers 
located another used crack pipe and ba ggies containing cocaine and other drugs. 
Officers also located three loaded semiautomatic handguns in the dresser near the 
bed. A suit jacket pocket located in the be droom closet contained a large quantity 
of methamphetamine pills. In the kitchen, officers recovered two used crack pipes 
in plain view on the counter. Also in th e kitchen, officers f ound baggies of pills 
containing methamphetamine, other ba ggies containing small amounts of 
marijuana, and a digital s cale with white residue. In the oven, officers found 
cooking utensils with residue indicating crack cocaine preparation. Two baggies 
located on top of a checkbook featuring De fendant's name and address contained 
pharmaceutical tablets and pills testing positive for fentanyl. 
 
Id. at *4. 
Notably, law enforcement seized thirteen firearms from Defendant’s residence. Id. at *5. 
There were loaded firearms in the “bedroom's dresser drawer about two feet away from the bed in 
close proximity to a used crack pipe as well as an assortment of drugs. Add to this $25,000 in cash 
located in the bedroom closet.” Id. The jury also heard from Jame s Shaw, one of Defendant’s 
 
2 One motion was denied as moot as the government declined to introduce the evidence seized that was at issue. 
(Doc. 99 at 8.) Another motion was withdrawn by Defendant. (Id. at 1, n.1.) 

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buyers. Shaw testified that he purchased drugs from Defendant and that he witnessed Defendant 
engaging in drug transactions. 
The jury heard this evidence and more for five days and deliberated and returned a verdict 
of guilty on all counts. The court then instructed the jury on forfeiture. The jury found that the 
firearms were used or involve d in the crimes and that the $25,000 was proceeds of the crimes. 
(Doc. 121.) The court sentenced Defendant to 255 months imprisonment. Notably, in sentencing 
Defendant, the court found that Defendant’s tes timony during trial was not credible and that he 
deliberately lied under oath, warr anting an obstruction of justice enhancement under U.S.S.G. § 
3C1.1. (Doc. 135 at 1–2.) Defendant timely appealed his convictions and forfeiture. The Tenth 
Circuit affirmed the convictions but reve rsed the $25,000 forfeiture finding. (Doc. 159.) 
Defendant filed a petition for writ of certiorari to the United States Supreme Court which was 
denied on March 24, 2025. (Doc. 185.) Defendant timely filed a motion to vacate on October 28, 
2025. Defendant also moved to supplement that filing on December 29, 2025. 
II. Standard 
Section 2255(a) of Title 28 of the United States Code provides in part that “[a] prisoner in 
custody under sentence of a court established by Act of Congress claiming the right to be released 
upon the ground that the sentence was imposed in vi olation of the Constitution or laws of the 
United States ... or is otherwise subject to collateral attack, may move the court which imposed the 
sentence to vacate, set aside, or correct the sentence.” Unless the motion and the record of the case 
conclusively show the prisoner is entitled to no relief, the court must promptly grant a hearing. 28 
U.S.C. § 2255(b). However, if it plainly appears from the motion, any attached exhibits, and the 
record that the moving party is not entitled to relief, the judge must dismiss the motion. Rule 4(b), 

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Rules Governing Section 2255 Proceedings. See United States v. Santiago , No. 19-10055-JWB, 
2021 WL 663201, at *3 (D. Kan. Feb. 19, 2021). 
 “The Sixth Amendment guarant ees a defendant the effective assistance of counsel at 
‘critical stages of a criminal proceeding.’” Lee v. United States, 582 U.S. 357, 363 (2017) (citation 
omitted). “To demonstrate that counsel was cons titutionally ineffective, a defendant must show 
that counsel's representation ‘fell below an objective standard of reasonableness’ and that he was 
prejudiced as a result.” Id. (quoting Strickland v. Washington, 466 U.S. 668, 688, 692 (1984)). A 
court considering a claim of ineffective assi stance must apply a “str ong presumption” that 
counsel's representation was with in the “wide range” of reasonable professi onal assistance. 
Strickland, 466 U.S. at 689. To establish prejudice , a defendant must show a “reasonable 
probability that, but for counsel's unprofessional errors, the result of the proceeding would have 
been different. A reasonable probability is a probability sufficient to undermine confidence in the 
outcome.” Id. at 694. 
III. Analysis 
A. § 2255 Motion 
Petitioner’s initial § 2255 motion raises sixteen separate claims of ineffective assistance of 
counsel. The court will address the arguments in turn. 
Ground One: Failure to challenge Petitioner’s arrest and evidence flowing from the arrest. 
Petitioner argues that his counsel was ineffectiv e for failing to challenge his arrest when 
he was two miles away from his apartment and any evidence flow ing from that arrest including 
evidence seized during the execution of the search warrant and his statements to law enforcement. 
As pointed out by the government, however, defe nse counsel did file a motion to suppress 
concerning Petitioner’s arrest and also challenged the search of his apartment. (Docs. 63, 65, 99.) 

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The seizure at issue involved Petitioner’s deten tion about one hour prior to the execution of the 
search warrant at his residence and two miles away from his residence. The search warrant was 
not based on any statements made during this seizure. However, Petitioner’s key was used in order 
to enter the residence as opposed to breaking in. As noted in the court’s order, the government 
represented that it “did not plan to use any evidence obtained during the seizure at trial. 
Specifically, the government agreed not to introduce Moss’s cel lphone, his statements claiming 
ownership of the phone, or his apartment key–the only evidence to which Moss objected.” (Doc. 
99 at 8.) The court further noted that the use of the key was not significant as officers could gain 
entry by breaking down the door and defe nse counsel agreed with this. ( Id. at n. 5.) Therefore, 
defense counsel was not ineffective for failing to challenge Petitioner’s seizure because he actually 
did so. Further, defense counsel was successful in his challenge as the government agreed not to 
use the evidence to which he objected. 
Petitioner further argues that trial counsel should have argued that the detention tainted the 
search of his residence. As noted by the government, however, the search warrant was obtained 
before Petitioner’s seizure. Therefore, his trial counsel was not ineffective for failing to argue that 
the items seized from Petitioner’s residence sh ould be suppressed on the basis that they were 
tainted by the seizure. Further, this court has already determined that the search warrant was lawful 
and that decision was affirmed on appeal. United States v. Moss, 2024 WL 4541738, *2–3 (10th 
Cir. Oct. 22, 2024); United States v. Moss, 2021 WL 5371491, *2–4 (D. Kan. Nov. 17, 2021). It 
is clear from the r ecord that trial counsel filed multiple motions to suppress challenging the 
admission of evidence seized by the government. The court does not find counsel’s performance 
to be deficient. 
 Ground Two. Failure to assert a challenge to the indictment regarding methamphetamine. 

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 Next, Petitioner argues that trial counsel wa s ineffective for failing to argue that the 
government constructively amended the indictment to change the possession with intent to 
distribute charge from a mixture of methamphetamine to actual methamphetamine. Reviewing the 
indictment, it is clear th at it charges a count of possession with intent to distribute 50 grams or 
more of “methamphetamine.” (Doc. 1 at 1.) The indictment does not charge a “mixture and 
substance containing a detectable amount of methamphetamine.” Moreover, the jury was 
instructed as to posse ssion of methamphetamine and not a mixture. (Doc. 114.) The jury then 
returned a verdict finding that Petitioner had possessed more than 50 grams of methamphetamine. 
There was no constructive amendment to the indictment. 
 Petitioner also argues that the government asserted that he possessed “950” grams of 
methamphetamine in closing argument. The transcript reflects that government counsel made that 
statement during closing. (Tr. at 1154.) There was no objection to the statement; however, it was 
likely a misstatement that had no prejudicial eff ect on the trial. The evidence regarding the 
laboratory results was submitted to the jury and th at was considered. Further, the jury made a 
finding of more than 50 grams, which was supported by the evidence. 
 Petitioner has not shown that defense counsel was ineffective for challenging a constructive 
amendment to the indictment as no such amendment occurred. 
 Ground Three . Defense counsel failed to challe nge a constructive amendment to the 
indictment as to Count 5. 
 Petitioner further asserts that the govern ment amended the § 922(g) charge in the 
indictment to a user in possessi on of a firearm in violation of § 922(g)(3) but the indictment 
originally charged a violation of possession of a fi rearm by a felon in viol ation of § 922(g)(1). 

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Petitioner asserts that this was a violation of his Fifth and Sixt h Amendments because he did not 
have notice of the charges against him. 
 Reviewing the indictment, Count 5 contai ned a heading which stated “18 U.S.C. § 
922(g)(1)(Possession of a firearm by a prohibited person).” (Doc. 1 at 3.) The text of the charge, 
however, stated that Defendant knowingly possesse d firearms while “knowing that he was an 
unlawful user of a controlled substance as defined in Title 21, United States Code, Section 802.” 
(Id.) On the day of trial, the court recognized the error in the indictment and asked defense counsel 
what charge he was prepared to defend. Defense c ounsel stated that he had prepared for trial to 
defend against a charge of “possession of a prohibited person based on being an unlawful user of 
a controlled substance.” (Tr. at 4.) The c ourt recognized that under Federal Rule of Criminal 
Procedure 7(c)(2), an error in a citation is not grounds to dismiss an indi ctment or to reverse a 
conviction unless Defendant was misled and prejudiced. Here, although there was a mistake as to 
the subsection of § 922(g) in the heading of the charge, the facts set forth in the charge clearly state 
that it was for being an unlawful user in possession of a firearm. Therefore, defense counsel was 
not ineffective for failing to seek dismissal base d on a constructive amendment. The text in the 
charge clearly advised Defendant of the charge against him and the typographical error did not 
prejudice him as his counsel was prepared to de fend against the charge. There is no merit to 
Defendant’s contention that he was unaware of the basis of the charge in Count 5. 
 Ground Four. Defense counsel was in effective for failing to challenge the GPS search 
warrant. 
 Petitioner asserts that defense counsel was in effective because the GPS search warrant did 
not establish probable cause and James Shaw’s stat ements were not corroborated and he was not 
a reliable witness. (Doc. 190-1 at 6–7.) Petitioner further asserts that the issuance of the first 

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warrant tainted the extension that was granted in the GPS extension warrant. (Doc. 207 at 6–7.) 
As noted by the government, defense counsel did argue that the GPS search warrant lacked 
probable cause. He also argued that Shaw did not provide any information that would corroborate 
his story and there was no basis to determine his reliability. (Doc. 64 at 3.) This court found that 
there was probable cause for the GPS warrant. The Tenth Circuit affirmed. Petitioner’s arguments 
lack merit as defense counsel did challenge the G PS warrant and also raised the issue of Shaw’s 
reliability and lack of corroboration.3 
 Ground Five . Defense counsel was ineffective for failing to request a lesser included 
offense of simple possession. 
 Petitioner argues that there was evidence to support that hi s possession of the controlled 
substances was for his own use an d that his counsel should have requested an instruction on the 
lesser included offense of simple possession. As noted by the government, however, Petitioner’s 
defense was that someone else put the drugs in his house and they were not his. Therefore, defense 
counsel was not ineffective for failing to reque st the instruction. It was not supported by the 
evidence. Moreover, the court would not have gi ven such an instruction in any event; given the 
extraordinary quantities of drugs found in Defendant’s apartment, the suggestion that these were 
personal-use quantities is utterly preposterous. 
 Ground Six. Defense counsel failed to argue that there was a lack of connection between 
the methamphetamine and Defendant due to joint occupancy of the apartment. 
 
3 The government initially construed Petitioner as potentially arguing that defense counsel should have moved to 
suppress the second GPS warrant. The government argued that this claim should be denied as Petitioner has failed to 
provide the court with the warrant. (Doc. 198 at 18.) In reply, Petitioner argued that the government misconstrued 
his argument and that he was arguing that the first warrant lacked probable cause and that the issuance of that warrant 
tainted the issuance of the second warrant. (Doc. 207 at 6–7.) Petitioner, however, does not appear to assert that 
defense counsel should have made another argument other than it was tainted by the issuance of the first warrant. 
Because there was probable cause to issue the first warrant, the second warrant was not tainted by its issuance. 

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 Petitioner asserts that defense counsel failed to argue that Petitioner did not have possession 
of the methamphetamine because it was found in a location that was jointly occupied. Petitioner’s 
argument is completely without merit. Defense counsel raised this issue and sought and received 
an instruction on joint occupancy. (Doc. 114 at 21.) As noted by the government, the jury was 
not persuaded. 
 Ground Seven. Defense counsel failed to challenge the § 924(c) charge. 
 Petitioner argues that defense counsel was ineffective because he failed to challenge the § 
924(c) charge on the basis that there was no evid ence of actual distribution or possession with 
intent to distribute. Again, Petitioner’s argume nts are contradicted by the record as defense 
counsel did raise these arguments to the jury. This claim is also meritless. 
 Ground Eight . Defense counsel failed to object to the government suborning perjury 
through the testimony of James Shaw. 
 Petitioner argues that the government suborned false test imony from James Shaw. The 
court has reviewed Petitioner’s motion and quotes from the trial record. At no point does Petitioner 
offer any evidence that Mr. Shaw was lying or th at the government knew that he was lying. 
Petitioner rambles on about the statements contained in the affidavit, which are separate from trial 
testimony and therefore the court need not address those. Petitioner then quotes a discussion of 
Mr. Shaw’s visits to Defendant’s residence on 21
st Street. (Doc. 190 at 32–33.) Petitioner takes 
issue with Mr. Shaw’s statement that he was “buzzed” upstairs when Petitioner could not answer 
the door. Petitioner asserts that this statement is false because he did not have a door with a buzzer. 
Petitioner cites to other trial testimony and exhibits that would show that there was no door buzzer. 
The testimony at issue, however, clearly states that Mr. Shaw was either buzzed in or the door was 
open. (Doc. 190 at 34; Tr. at 785.) To the extent that there is not a buzzer on the door, Mr. Shaw’s 

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testimony was not false but rather a mis-recollection and he clarified that he was either buzzed in 
or the door was open. Therefore, there was no basis for defens e counsel to believe that the 
government had suborned perjury. 
 Moreover, as reflected in th e trial transcript, defense couns el vigorously cross examined 
Mr. Shaw. The court finds that defense counsel’s conduct was objectively reasonable. 
 Ground Nine. Defense counsel failed to object to prosecutorial misconduct. 
 In ground nine, Petitioner argues that defense counsel was ineffective for failing to object 
to government counsel’s use of the phrase “drug proceeds,” failing to correct Mr. Shaw’s false 
testimony, suggesting Petitioner was a liar, and a reference to 950 grams of methamphetamine in 
closing. Reviewing the record, Petitioner’s citations do not support his assertion that government 
counsel used the phrase “drug proceeds” in the presence of the jury. Rather, government counsel 
questioned witnesses regarding the money/currency/funds seized. Such questioning was entirely 
proper. 
With respect to Mr. Shaw, Petitioner contends that government counsel failed to correct 
Mr. Shaw’s testimony when he testified that he was not testifying solely for the purpose of 
receiving a sentence reduction. (Doc. 190-1 at 17.) Petitioner a sserts that counsel should have 
corrected his testimony but fails to identify how his response to the question “you’re here today 
hoping to reduce your sentence” was false. ( Id.) Next, Petitioner argues that defense counsel 
should have objected to government counsel’s closing argument regarding Petitioner’s testimony 
during trial. Although Petitioner asserts government counsel implied he was a “liar,” government 
counsel did not call him a liar but stated the following: 
What I would suggest is ju st remember how difficult it was, almost impossible to 
get a straight answer out of him through most of his testimony. Is that somebody 
whose testimony you can rely upon in deciding the facts of this case? Look at the 

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elements of the instructions. Look at the evidence in this case that's been presented 
to you. 
 
(Tr. at 1200.) 
 Contrary to Petitioner’s asse rtion, defense counsel’s decision to refrain from objecting was 
entirely reasonable. This statement in closing argument is appropriate a nd it is also an accurate 
statement regarding Petitioner’s testimony. 
 Finally, Petitioner asserts that defense couns el was ineffective for failing to object to 
government counsel’s statement during cl osing that Petitioner had 950 grams of 
methamphetamine. The court has already addressed this supra. While this statement was 
inaccurate, it did not prejudice the proceedings. The jury was presented with evidence of the 
weights of the methamphetamine during trial. The jury was also instructed that attorneys’ 
statements are not evidence. The court does not find that defense counsel’s performance was 
deficient here. And, in any event, he has not established prejudice. 
 Ground Ten. Defense counsel failed to argue that the application of U.S.S.G. § 3C1.1 was 
a violation of Petitioner’s First Amendment rights. 
 The government sought an enhancement unde r § 3C1.1 on the basis that Defendant’s 
Facebook post before trial threatened or intimidated a witness and for lying on the witness stand. 
(Doc. 131 ¶ 210.) Ground ten atta cks defense counsel’s conduct regarding the Facebook post. 
Petitioner argues that defense counsel was ineffec tive for failing to argue that the sentencing 
enhancement under § 3C1.1 violated his rights to protected speech because his Facebook post was 
not a threat. As noted by the government, defense counsel did argue that a sentencing enhancement 
was not intended to punish a criminal defendant for exercising his constitutional right to testify at 
trial and also argued that the image posted by Petitioner was a publ icly accessible image and not 
posted for the purpose of inti midating the witness. ( Id. at 49–50.) Clearly, defense counsel 

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vigorously objected to the sent encing enhancement and made arguments in support of his 
objection. (Docs. 131 at ¶¶ 250–51; 151 at 40–41.) Petitioner’s belief that defense counsel should 
have made a different argument does not amount to ineffective assistance of counsel. Strategic or 
tactical decisions on the part of counsel are presumed correct, unless they were “completely 
unreasonable, not merely wrong, so that [they] bear no relationship to a possible defense strategy.” 
Fox v. Ward , 200 F.3d 1286, 1296 (10th Cir. 2000) (quota tion and citations omitted). Here, 
counsel made a strategic decision on the objecti ons based on his experience and the record. 
Moreover, defense counsel objected on the basis that Petitioner’s conduct did not amount to a 
threat. Therefore, the court finds that defense co unsel’s performance with respect to these issues 
was not deficient. 
 Ground Eleven. Defense counsel failed to object to the application of U.S.S.G. § 3C1.1 
based on perjury. 
 Petitioner argues that defe nse counsel was ineffective fo r failing to object to the 
enhancement because the government “did not specify which portion of Mr. Moss’ testimony was 
false.” (Doc. 190 at 42.) Petitioner’s claim is completely without merit. Defense counsel objected 
to the enhancement and argued against its appli cation. Further, it was clear what testimony the 
government believed was false as set forth in the presentence report and found by the court on the 
record. (Docs. 131 ¶¶ 219–249; 151 at 55–57.) Petitioner’s claim on this count is denied and not 
supported by the record. 
 Ground Twelve. Defense counsel failed to argue for the safety valve reduction. 
 Petitioner argues that defense counsel was ineffe ctive for failing to argue for the application 
of the safety valve reduction. As discussed by the government, Petitioner did not qualify for the 
reduction. (Doc. 198 at 28.) Therefore, this claim is without merit. 

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 Ground Thirteen. Defense counsel failed to raise a Brady claim as to alleged missing GPS 
data. 
 Petitioner asserts that the government withhe ld GPS data from the car stop of December 
18, 2019, which would have “been proof positive that Mr. Moss did stop at the stop sign.” (Doc. 
190-1 at 26.) In support of his motion that the data was not disclosed, he cites to the government’s 
statement in a January 14, 2021, filing that states the following: 
As for the lack of GPS data for 12/18/2019, the government advises the Court and 
defense counsel that prior to reading th e defendant’s motion, the government was 
not aware that any data was missing. Th e government contacted the appropriate 
officers. The officers reported that they do not have data for that date. The officers 
contacted the company that provides the data to find out w hy it was not provided 
along with the other GPS data. One offi cer advised that sometime during the 
monitoring period the GPS device was rem oved in order to perform maintenance 
on the device. The officer is attempting to identify that date(s) for maintenance. 
When that information is provided, or if it cannot be provided to counsel, the 
government will convey this information to defense counsel. 
 
(Doc. 37 at 9.) 
 Clearly, the government’s re sponse contemplated obtaining the missing data from the 
company that maintained it. The government states in response that the data was provided to 
defense counsel on June 23, 2021. (Doc. 198 at 29.) In reply, Petitioner asserts that the 
government lied and committed fra ud in the response because it contradicts the statement 
previously made on January 14, 2021. (Doc. 207 at 10.) Nothing about the government’s response 
contradicts the statement made in January 2021. Rather, the response in January 2021 states that 
the government was not aware of missing data and that the government would contact the company 
to obtain the data and then provide it to defense counsel. That data was then provided at a later 
date. Petitioner’s sole basis fo r arguing that he did not have the data was government counsel’s 
statement in January 2021, which clearly stated that the data would be provided to defense counsel. 

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Therefore, defense counsel was not ineffective for failing to raise a Brady violation as the 
information was provided. 
 In any event, there is no prejudice to Petit ioner from data pertaining to the stop as the 
government did not introduce evidence from the stop and the motion to suppress the stop was 
withdrawn. 
 Ground Fourteen. Defense counsel failed to argue th at the investigation was federal in 
character and failed to object to the warrants on the basis of Fede ral Rule of Criminal Procedure 
41 because the officer obtained the second warrant from a different judge. 
 As noted by the government, defense counsel did challenge the second GPS warrant on the 
basis that it was obtained from a di fferent judge. (Docs. 51; 99 at 7–8.) Further, contrary to 
Petitioner’s belief, the investigation was done by state offici als and they were not required to 
comply with Rule 41. These assertions lack me rit and Petitioner has failed to show that his 
counsel’s performance fell below an objective standard of reasonableness. 
 Ground Fifteen. Defense counsel failed to raise a constitutional challenge to the jury pool 
because the panel of jurors were all white. 
 Petitioner asserts that defense counsel was inef fective for failing to raise a challenge to the 
composition of jurors in that none of the potential jurors were black and that they were all white. 
Petitioner is black and asserts that his constituti onal rights were violated for not having a jury 
composition that reflected the comm unity. According to Petitioner, he raised this issue with his 
defense counsel who did not make an objection. Petitioner contends that the 2020 census for 
Wichita reported that there are 8.9% blacks in the community. This fact is not relevant inasmuch 
as the jury pool for Defendant’s tr ial was not limited to Wichita; the jury pool for trials in this 
division are drawn from multiple counties in s outh-central Kansas. Ac cordingly, Petitioner’s 

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assertion that “African American s have been under-represented in the jury selection process due 
to systematic exclusion” is conclusory. (Doc. 190-1 at 33.) 
 In response, the government asserts that Peti tioner does not have a constitutional right to a 
jury composed in whole or in part of individual s of his race and that he has failed to establish a 
violation of the fair cross section requirement. The court agrees. 
“To establish a violation of the fair cross se ction requirement, [Petitioner] must show (1) 
that the group alleged to be ex cluded is a ‘distinctive’ group in the community; (2) that the 
representation of this group in venires from which juries are selected is not fair and reasonable in 
relation to the number of such persons in the community; and (3) that this under-representation is 
due to systematic exclusion of the group in th e jury-selection process.” United States v. Orange, 
447 F.3d 792, 797 (10th Cir. 2006) (citing Duren v. Missouri, 439 U.S. 357, 364 (1979)). “The 
Fifth Amendment requires a substantially similar showing, that th e district's system resulted in 
substantial under-representation of a distinct group over a substantial period of time.” Id. Here, 
Petitioner has not put forth facts to establish the sec ond and third elements. Rather, Petitioner 
merely makes conclusory statements regarding these elements. Therefore, he has not shown that 
there was a violation of his Fifth and Sixth Amendment rights on the basis that there were no black 
jurors in the panel. His counsel was not ineffective for failing to make an objection regarding the 
panel. 
Ground Sixteen. Petitioner asserts that the cumulative errors from his counsel prejudiced 
him. 
Finally, Petitioner asserts that he is entitled to relief from the cumulative errors. “A 
cumulative-error analysis aggregat es all errors found to be harm less and analyzes whether their 
cumulative effect on the outcome of the trial is such that collectively they can no longer be 

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determined to be harmless.” Cargle v. Mullin , 317 F.3d 1196, 1206 (quoting United States v. 
Toles, 297 F.3d 959, 972 (10th Cir. 2002)). Because th ere was no finding of error by the court, 
there is no need for a cumulative error analysis. Smith v. Jones, 226 F. App'x 814, 816 (10th Cir. 
2007). 
B. Supplemental § 2255 Motion 
Defendant’s supplemental motion raises an additional claim regarding the § 922(g)(3) 
charge and the instructions. The supplement is timely as it was filed prior to the one year statute 
of limitations running. Therefore, the court will address the additional claim raised. 
Ground Seventeen . Defense counsel failed to object to the § 922(g)(3) charge, the 
instructions, and the jury question. 
Petitioner asserts that defense counsel was ineffective for failing to argue that § 922(g)(3) 
was unconstitutional, “because it was inconsistent w ith historical traditi on.” (Doc. 212 at 1.) 
Petitioner then cites to United State v. Daniel , 124 F.4th 967 (5th Cir. 2025). Petitioner’s 
arguments rely on the Supreme Court’s decision in New York State Rifle & Pistol Ass'n, Inc. v. 
Bruen, 597 U.S. 1 (2022), which was issued after the trial in this case. Defense counsel’s strategic 
decision not to challenge a statute which had been held constitutional by courts in this circuit and 
others prior to Bruen was not objectively unr easonable. Defense couns el is not required to 
challenge statutes that are presumed constitutional especially in light of the state of the law at the 
time. 
Petitioner also asserts that defense counsel was ineffective for failing to object, or expound, 
or challenge the questio n from the jury and/or the judge’s answer. (Doc. 194 at 2.) During 
deliberation, the jury submitted a question about the definition of an “unlawful user of a controlled 
substance.” (Doc. 115.) The jury questioned whether that definition was in Title 21 U.S.C. § 802. 

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After receiving the questi on, the court met with the attorneys to discuss an appropriate answer. 
The court ultimately answered the question by stating “Title 21 U.S.C. Section 802 defines, among 
other terms, a ‘controlled substa nce,’ not an ‘unlawful user of a controlled substance.’ The 
definition of an unlawful user of a controlled substance is as provided in instruction 15. You should 
give the words used in that definition their plain and ordinary meaning.” (Id. at 3.) 
Although Petitioner asserts that defense counsel should have objected, Petitioner fails to 
show that the court’s response was an incorrect st atement of the law. It was not. Therefore, 
defense counsel’s conduct was objectively reasonable. 
Finally, Petitioner asserts that there was some defect in the instruction pertaining to the § 
924(c) count. Petitioner objects to the language in Instruction N o. 14 which told the jury to 
consider various factors to de termine whether the possession of a firearm furthered a drug 
trafficking crime. (Doc. 114 at 16–17.) Specifically, the instruction told juro rs to consider “the 
status of the possession (legitimate or illegal).” (Id. at 17.) Petitioner objects to this language and 
asserts that the jury finding on his § 922(g)(3) count resulted in a guilty finding on the § 924(c) 
count. The court highly doubts that this language resulted in his conviction on the § 924(c) count. 
As noted by the Tenth Circuit, this is a case where Defendant was “facing overwhelming evidence 
of his guilt.” Moss, 2024 WL 4541738, * 6. In any event, that language was taken directly from 
the Tenth Circuit Pattern Jury Instruction 2.45.1 and is the law in this circuit. Therefore, defense 
counsel acted entirely reasonably by not objecting to the language. 
The court finds that the allegations in the petition and supplemental petition fail to show 
that defense counsel’s representation fell below an objective standard of reasonableness and fail 
to show that Petitioner suffered any prejudice as a result. 
C. Evidentiary Hearing 

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The court must “grant a prompt hearing” unless “the [§ 2255] motion and the files and 
records of the case conclusively show that the pris oner is entitled to no re lief[.]” 28 U.S.C. § 
2255(b). As the Tenth Circuit has explained, “[t]he decision not to hold an evidentiary hearing is 
essentially the equivalent of a dismissal for a failure to state a claim or a summary judgment, 
because the district court has conc luded that the record does not en title the prisoner to relief[.]” 
United States v. Ciocchetti , 480 F. App'x 912, 914 (10th Cir. 2012) (quoting In re Lindsey , 582 
F.3d 1173, 1175 (10th Cir. 2009)). This is because “either the prisone r has failed to allege facts 
on which relief could be predicated, or the r ecord conclusively contradicts the prisoner's 
allegations.” Id. 
Petitioner moves for an evidentiary hearing on the basis that his allegations entitle him to 
relief. (Doc. 210.) However, as shown throughout this order, Petitioner’s claims of ineffective 
assistance of counsel are not s upported because the record cl early contradicts his factual 
allegations. Moreover, it is clear that the files a nd records in this case conclusively show that 
Petitioner is not entitled to relief. Therefore, he is not entitled to an evidentiary hearing. 
IV. Conclusion 
Petitioner’s motion to vacate sentence (Doc. 190) and supplemental motion to vacate (Doc. 
194) are DENIED. Petitioner’s motion for an evidentiary hearing (Doc. 210) is DENIED. 
 An appeal from a final order on a § 2255 motion may not be taken absent a certificate of 
appealability, which may issue only if a petitioner has made a substantial showing of the denial of 
a constitutional right. 28 U.S.C. § 2253(c)(2). The court concludes Petitioner has failed to make 
such a showing and accordingly a certificate of appealability is DENIED. 
 
 

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IT IS SO ORDERED. Dated this 9th day of June, 2026. 
 
s/ John W. Broomes 
JOHN W. BROOMES 
CHIEF UNITED STATES DISTRICT JUDGE
 

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