D.P.R.: Def’s 2255 claim was based on a fact litigated below and at the trial on the merits; the jury’s determination on credibility can’t be challenged now

In his 2255, defendant claims counsel was ineffective for not moving to suppress on the automobile search or consent search grounds. This was contrary to his defense at trial and the original suppression motion that the officers planted the gun, which the district court rejected in the motion to suppress and the jury rejected at trial. It wouldn’t succeed. Bauzó-Santiago v. United States, 2020 U.S. Dist. LEXIS 16413 (D. P.R. Jan. 27, 2020).*

“Accordingly, the factors indicate that the protective sweep was reasonable under the Fourth Amendment as to the rifle magazine found in the washing machine. The Court declines to make a finding regarding the reasonableness of the discovery of the handgun under Defendant’s mattress during the protective sweep but finds that its discovery was inevitable in light of the subsequent search pursuant to a warrant. Accordingly, neither item will be suppressed.” United States v. Tapp, 2020 U.S. Dist. LEXIS 16474 (E.D. La. Jan. 31, 2020).*