United States v. Vargem

• Decision Date: 29 March 2019
• Docket Number: Case No. 5:10-cr-00729-EJD-1
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. STEVEN LEE VARGEM, Defendant.
• Court: U.S. District Court — Northern District of California

UNITED STATES OF AMERICA, Plaintiff, v. STEVEN LEE VARGEM, Defendant.

Case No. 5:10-cr-00729-EJD-1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

March 29, 2019

ORDER DENYING DEFENDANT'S SECTION 2255 MOTION

Re: Dkt. No. 123

Steven Lee Vargem ("Mr. Vargem") was convicted of possessing an unregistered machine gun and sentenced to thirty months in prison. Presently before the court is Mr. Vargem's motion pursuant to 28 U.S.C. § 2255 challenging his conviction and sentence. Dkt. No. 123. Mr. Vargem is proceeding pro se. Having reviewed the relevant documents and pertinent law, the court denies Mr. Vargem's motion for reasons set forth below.

I. BACKGROUND

Mr. Vargem's action stems from an alleged domestic violence incident that occurred at his house in June of 2010. When police officers arrived to his house, Mrs. Vargem reported that her husband had physically assaulted her. Mr. Vargem was not at the house. A Santa Clara judicial officer subsequently issued an emergency protective order ("EPRO") valid through June 25, 2010. The EPRO prohibited Mr. Vargem from owning, possessing, purchasing, receiving, or attempting to purchase a firearm.

San Jose police officer Duane Tuell, who was assigned to investigate the incident, discovered that Mr. Vargem had multiple weapons registered in his name. On June 24, 2010, Officer Tuell contacted Mrs. Vargem inquiring about the weapons. Officer Tuell learned that Mr. Vargem's firearms were in a safe in the home to which Mrs. Vargem did not have access. Mrs. Vargem also relayed to Officer Tuell that Mr. Vargem might be driving a white van registered to his business.

That same day, Officer Tuell contacted Mr. Vargem by phone and asked him about the weapons in the house. Mr. Vargem confirmed he knew of the EPRO and its limitations. Officer Tuell sought consent from Mr. Vargem to search the house. Mr. Vargem stated he wished to speak with his attorney first and that he would call the officer right back. After not receiving a return call, Officer Tuell sent a unit to Mr. Vargem's house. Arriving officers saw a white van parked in the driveway and Mr. Vargem loading items into the van. The officers waited for Mr. Vargem to drive away and then conducted a traffic stop. The officers searched Mr. Vargem's van and found an unloaded pistol.

Officer Tuell next obtained a search warrant for Mr. Vargem's house issued by Superior Court Judge Paul Teilh. Dkt. No. 62 at 2. The search of Mr. Vargem's home, pursuant to the warrant uncovered twenty-seven weapons, including an unregistered machine gun. The federal government charged Mr. Vargem with: (1) unlawful possession of a machine gun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2), and (2) unlawful possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Dkt. No. 9.

Mr. Vargem waived his right to a jury trial and agreed to a bench trial. Dkt. No. 62 at 8. On August 27, 2012, the court convicted Mr. Vargem on both counts. Dkt. No. 65. On December 5, 2012, the court sentenced Mr. Vargem to a custodial term of 30 months, three years supervised release, a $12,500 fine, and a $200 special assessment. Dkt. No. 80. Mr. Vargem also forfeited his 9mm pistol/machine gun.

On December 7, 2012, Mr. Vargem appealed, challenging both the conviction and sentence. Dkt. No. 82. The Ninth Circuit affirmed in part, vacated in part, and remanded for resentencing. Dkt. Nos. 104, 105. Mr. Vargem was resentenced, and the District Court amended the judgment on May 21, 2014. Dkt. No. 117. Mr. Vargem was released from custody and began supervised release in the Eastern District of California on October 14, 2014. Dkt. No. 122.

On May 8, 2015 Mr. Vargem filed the instant § 2255 motion. See Dkt. No. 123 ("Mot"). On September 8, 2015, the government filed a response. Dkt. No. 128 ("Opp."). On October 6, 2015 Mr. Vargem filed a traverse. Dkt. No. 131 ("Reply"). In addition to his § 2255 motion, Mr. Vargem filed a Petition Requesting a Hearing (Dkt. No. 145), a motion to compel discovery (Dkt. No. 146), and a motion for relief from judgment (Dkt. No. 148).

II. LEGAL STANDARDS

A. Section 2255

Section 2255 authorizes a "prisoner in custody under sentence of a court established by Act of Congress" to "move the court which imposed the sentence to vacate, set aside or correct the sentence" based on a violation of federal law. 28 U.S.C. § 2255(a). Relief under § 2255(a) is limited to the particular grounds listed in the statute—namely, "that the sentence was imposed in violation of the Constitution or laws of the United States" or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or "is otherwise subject to collateral attack." See United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010) (internal citations omitted). If a court finds error on one of these enumerated grounds, then "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).

Following the submission of a § 2255 motion, the court must grant an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Id.; see also United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994). In other words, a court need not hold an evidentiary hearing where the prisoner's allegations, when viewed against the record, either do not state a claim for relief or are so palpably incredible as to warrant summary dismissal. United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004). "[C]onclusory statements in a § 2255 motion are not enough to require a hearing." United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993) (quoting United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980)). "Although section 2255 imposes a fairly lenient burden on the petitioner,the petitioner is nonetheless 'required to allege specific facts which, if true, would entitle him to relief.'" United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (quoting United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996).

B. Procedural Default

Under the doctrine of procedural default, relief for a claim under § 2255 is waived unless the defendant previously raised it on direct appeal. See, e.g., Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998) (holding that a claim is procedurally defaulted if it could have been "fully and completely addressed on direct review"); United States v. Dunham, 767 F.2d 1395, 1397 (9th Cir. 1985) ("Section 2255 is not designed to provide criminal defendants repeated opportunities to overturn their convictions on grounds which could have been raised on direct appeal."). "If a criminal defendant could have raised a claim of error on direct appeal but nonetheless failed to do so, he must demonstrate both cause excusing his procedural default, and actual prejudice resulting from the claim of error." United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 168 (1982)); Massaro v. United States, 538 U.S. 500, 504 (2003). When applying the "cause and actual prejudice" standard, a showing of possible prejudice is not enough, the defendant must show that the error "worked to his actual and substantial disadvantage." Frady, 456 U.S. at 170. Additionally, "[t]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Murray v. Carrier, 477 U.S. 478, 486 (1986).

III. DISCUSSION

Mr. Vargem raises the following nineteen grounds for relief under § 2255.

(1) "Conviction obtained by violations of the 10th amendment. The United States had no jurisdiction in this mat[t]er. Conviction obtained by violations of 5th amendment. The protection against double jeopardy."

(2) "Conviction obtained by violations of 6th amendment and Violation of 'Speedy Trial Act'."

(3) "Conviction obtained by the use of Fraud, deception, and conspiracyby the AUSA."

(4) "Vargem was convicted with unconstitutional statute 26 U.S.C. 5861 (d)."

(5) "Conviction obtained by violations of the Second and Fifth Amendment."

(6) "Conviction obtained by use of an EPRO which is a bill of attainder/Ex-post facto law, in violation of Article one section 10 of the United States Constitution and rights guaranteed the by State."

(7) "Conviction obtained by the issue of a unconstitutional warrant issued by a State magistrate who's qualifications are questionable, and did not act as neutral, or detached, and is biased toward law enforcement."

(8) "Conviction obtained by Officer D. Tuell being negligent in his duties by not following protocol, requirements of his training, and mandated instructions of SJPD, CLETS, NCIC, and the Department of Justice."

(9) "Conviction obtained from D. Tuell's violations of Vargem's rights under the 4th, 5th, 6th, 8th, & 14th amendments of the United States constitution, and articles I sections 1, 3, 6, 11, 13 a, b, & c, 14, 16, 19, 21, & 22 of California constitution and committed false arrest and imprisonment."

(10) "Conviction was obtained by the use of a CLETS document presented and only relied upon by D. Tuell which is hearsay evidence and not to be relied upon per the Department of justice. CLETS is supposed to be a 'Verbatim' representation of the order. The wording and format are inconsistent with CLETS format."

(11) "Conviction was obtained by evidence of an EPRO never served on Vargem, and no proof of service or existence of this order exists in any court of record."

(12) "Conviction obtained because California Judicial Council was negligent and acted irresponsibly by not taking immediate corrective action to revise the standard issued EPRO form when known illegal, problematic, lack of

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