Cortes-Gomez v. USA

1
In the United States District Court
for the District of Kansas
In re CCA Recordings 2255 Litigation,
Petitioners,
v. Case No. 19-cv-2491-JAR-JPO
(This Document Relates to Case No. 16-
40091-DDC, United States v. Marco
Antonio Cortes-Gomez, and Case No. 20-
4052-JAR-JPO, Marco Antonio Cortes-
Gomez v. United States)
United States of America,
Respondent.
MEMORANDUM AND ORDER
Petitioner Marco Antonio Cortes-Gomez filed a Motion to Vacate and Discharge with
Prejudice Pursuant to 28 U.S.C. 2255 (Doc. 127), alleging that the government violated the Sixth
Amendment by intentionally and unjustifiably becoming privy to his attorney-client
communications.1 As a remedy, he asks the Court to grant him an evidentiary hearing, and to
either vacate his judgment or reduce his sentence. This motion has been fully briefed, including
supplemental briefs recently filed by the parties.2 For the reasons explained in detail below, the
Court denies Petitioner’s motion.
1 After this motion was filed in Petitioner’s underlying criminal case and in his civil habeas case, the Court
directed the parties to make all related filings in the consolidated case that contains the many motions under 28
U.S.C. § 2255 raising the same Sixth Amendment claims, Case No. 19-2491-JAR-JPO. Thus, while the docket
number for the motion is from that underlying criminal case, subsequent docket entries are to the consolidated case
file. Unless otherwise indicated, Docket Entry number references in this Order are to the consolidated matter, Case
No. 19-2491-JAR.
2 Docs. 624, 640, 1247, 1249.
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I. Background
Petitioner was indicted in this case on two drug charges on October 19, 2016.3 At the
time of his arrest, he had been detained pending trial on charges in another criminal case in this
district since January 16, 2016.4 On March 1, 14, and 21, 2016, Petitioner’s defense counsel,
Lance Sandage, visited him at his detention facility—Corrections Corporation of America
(“CCA”). They discussed matters related to legal advice or strategy.5
The case proceeded to trial before United States District Judge Daniel D. Crabtree, and
on December 2, 2016, a jury found Petitioner guilty on both counts.6 Judge Crabtree sentenced
Petitioner to a controlling term of 294 months’ custody and five years of supervised release, and
entered judgment on April 11, 2018.7 Petitioner filed a direct appeal, and the Tenth Circuit
affirmed.8
In August of 2016, this Court discovered in a different case, United States v. Black,9 that
the United States Attorney’s Office (“USAO”) for the District of Kansas had obtained soundless
video recordings from the attorney visitation rooms at CCA. The Black case charged multiple
defendants with drug and contraband trafficking inside CCA. The investigation included
obtaining audio recordings of telephone conversations and the soundless video recordings of
meetings between attorneys and their clients who were detained at CCA. These soundless videos
3 Case No. 16-40091-DDC, Doc. 7.
4 See Case No. 16-40004-DDC, Doc. 10. That case was dismissed on the government’s motion after the
court empaneled the jury but before it was sworn. This second case alleged the same facts and charges as the earlier
case. See Doc. 26.
5 Case No. 16-40091-DDC, Doc. 127-1 ¶¶ 3, 7–9.
6 Id., Doc. 38.
7 Id., Doc. 104.
8 Id., Doc. 117.
9 Case No. 16-20032-JAR [hereinafter Black].
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include the three meetings between Petitioner and Mr. Sandage in March 2016. The
government’s counsel in Petitioner’s case—Anthony W. Mattivi and Skipper S. Jacobs—both
attest that they were unaware of the video recordings and did not view them.10
The Court ultimately determined in the Black case that the government’s possession of
the video recordings began when the United States Secret Service picked up DVR 6 from CCA
on May 17, 2016.11 And there is no dispute that the USAO disgorged the video recordings to the
Court on August 9, 2016. Nor is there evidence that the government maintained copies of the
video recordings after that date.12
The Court eventually conducted a full evidentiary hearing on all pending matters in Black
in October and November 2018. And on August 13, 2019, the Court issued the Black Order,
which detailed, among other things, the government’s view that soundless video recordings are
not protected communications and rejected the government’s argument that the communication
in the videos is too rudimentary to discern whether it involves legal advice or strategy or to
disclose the content of any accompanying verbal communication.13
The Order also addressed the governing standard for an intentional-intrusion Sixth
Amendment claim in the Tenth Circuit.14 The Order discussed the elements required to prove a
per se violation of the Sixth Amendment under the Tenth Circuit’s then-governing decision in
Shillinger v. Haworth,15 which held that a per se Sixth Amendment violation occurs when: (1)
10 Docs. 624-1, 624-2.
11 Black, Doc. 784 at 13.
12 Doc. 546 (Consolidated Petitioners’ Notice of Errata withdrawing any such allegations individually or
collectively advanced).
13 Black, Doc. 758 at 164–65.
14 Id. at 145–62.
15 70 F.3d 1132 (10th Cir. 1995), overruled by United States v. Hohn, 123 F.4th 1084 (10th Cir. 2024), cert.
denied, 2025 WL 2906501 (Oct. 14, 2025).
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there is a protected attorney-client communication; (2) the government purposefully intruded
into the attorney-client relationship; (3) the government becomes “privy to” the attorney-client
communication because of its intrusion; and (4) the intrusion was not justified by any legitimate
law enforcement interest.16 Under Shillinger, once those elements are established, prejudice is
presumed.17
The Black Order reassigned all Black-related § 2255 motions pending before other judges
in the District to the undersigned for determination of the merits of petitioners’ Sixth
Amendment claims and for consolidated discovery.18 It was this Court’s intent that by
reassigning the habeas actions to the undersigned and consolidating the cases for discovery, the
process for seeing over 100 cases to completion would be streamlined for all parties. This
instant case was transferred from Judge Crabtree to the undersigned in the consolidated action
after it was filed on September 10, 2020.
II. Discussion
Petitioner originally moved to vacate and discharge based on the structural-error rule in
Shillinger. His motion argued that the four elements of a Shillinger Sixth Amendment violation
are met here, so he is not required to show prejudice resulting from the intrusion. The Court held
this case in abeyance while the Tenth Circuit considered in a related appeal the government’s
challenge to the Shillinger decision that governed the Sixth Amendment inquiry in this case.19
16 Black, Doc. 758 at 162 (citing Shillinger, 70 F.3d at 1142).
17 Id.
18 Doc. 1.
19 See Doc. 1234.
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On December 16, 2024, the Tenth Circuit, sitting en banc, overruled Shillinger in United
States v. Hohn.20 The appellant in Hohn filed a petition for certiorari before the Supreme Court,
which was recently denied.21 In Hohn, the Tenth Circuit comprehensively reconsidered
Shillinger in light of Supreme Court precedent on structural error. It held “that a Sixth
Amendment violation of the right to confidential attorney-client communications requires the
defendant to show trial prejudice resulting from the government’s intrusion into the attorney-
client relationship, even when the intrusion was purposeful and done without any law-
enforcement justification.”22 After the United States Supreme Court denied Hohn’s petition for
certiorari on October 14, 2025, this Court directed the parties to file supplemental briefs
addressing how the Tenth Circuit’s decision in Hohn impacted the remaining issues in this case.
In those supplemental briefs, both parties confirm that Hohn is dispositive because Petitioner
relies on the structural error rule to establish prejudice in this case.
Assuming Petitioner is able to establish the other elements of his Sixth Amendment
claim, he concedes that he is unable to demonstrate prejudice from the government’s intrusion
into his three confidential communications with Mr. Sandage in March 2016. Hohn makes clear
that Petitioner must “tether governmental intrusion to a realistic possibility of injury from the use
of confidential communications at trial.”23 And, “not all attorney-client conversations contain
information that would prejudice the defendant if used at trial.”24 To show prejudice, Petitioner
needed to “connect something that he and his attorney discussed . . . to anything used during the
20 123 F.4th 1084 (10th Cir. 2024), cert. denied, 2025 WL 2906501 (Oct. 14, 2025).
21 Id.
22 Id. at 1109.
23 Id. at 1112.
24 Id. at 1108 n.25.
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criminal proceedings that either disadvantaged him or advantaged the prosecution.”25 In this
case, Petitioner would need to connect something on the soundless video recordings to
something used at trial, such as gesturing, or something that the government could see on Mr.
Sandage’s laptop. Petitioner fails to make this showing, and there is no evidence in the record
that suggests or allows the Court to infer that the government used the soundless video
recordings at trial in a way that disadvantaged him or advantaged the government.
Moreover, as both parties discuss in the supplemental briefs, there was strong evidence of
Petitioner’s guilt at his trial, including a controlled delivery of more than two kilograms of
methamphetamine and the testimony of four cooperating co-conspirators.26
In light of the court’s holding in Hohn overruling Shillinger, Petitioner’s motion must be
denied for failure to demonstrate prejudice associated with any Sixth Amendment intrusion that
may have occurred.27 And given that Petitioner declined to demonstrate even a minimal amount
of prejudice, no evidentiary hearing is warranted.28
III. Certificate of Appealability
Rule 11 of the Rules Governing Section 2255 Proceedings states that the Court must
issue or deny a certificate of appealability when it enters a final order adverse to the applicant.
“A certificate of appealability may issue . . . only if the applicant has made a substantial showing
of the denial of a constitutional right.”29 To satisfy this standard, the movant must demonstrate
25 Id. at 1110.
26 See Case No. 16-40091-DDC, Doc. 72 (reciting the evidence in support of Petitioner’s conviction at
trial).
27 Because Petitioner’s motion is foreclosed by Hohn, the Court does not reach the procedural defenses
raised by the government in its original response. Assuming those defenses are not meritorious, Petitioner would
not be able to establish a Sixth Amendment claim.
28 Hohn, 123 F.4th at 1116–17 (citing United States v. Kelly, 790 F.2d 130, 137 (D.C. Cir. 1986))
(discussing minimal amount of showing that might entitle a petitioner to an evidentiary hearing on prejudice).
29 28 U.S.C. § 2253(c)(2).
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that “reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.”30 For the reasons stated above, the Court finds that Petitioner has not made
this showing and, therefore, denies a certificate of appealability as to its ruling on his § 2255
motion.
IT IS THEREFORE ORDERED BY THE COURT that Petitioner Marco Antonio
Cortes-Gomez’s Motion to Vacate and Discharge with Prejudice Pursuant to 28 U.S.C. 2255
(Doc. 127) is denied without an evidentiary hearing. Petitioner is also denied a certificate of
appealability.
IT IS SO ORDERED.
Dated: December 18, 2025
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
30 Saiz v. Ortiz, 392 F.3d 1166, 1171 n.3 (10th Cir. 2004) (quoting Tennard v. Dretke, 542 U.S. 274, 282
(2004)).
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