RICHARD G. KOPF, District Judge.
This matter is before me for initial review
Zierke makes four claims. (Filing 182 at CM/ECF pp. 4-5.) Summarized and condensed, these claims are as follows. Claim One: Based upon Zierke III's affidavit, Zierke III lied when he testified against Zierke and he did so because Zierke III had been threatened by the prosecutor and law enforcement agents. Claim Two: The government failed to disclose evidence that it used to corroborate the testimony of Tim Vorhees. Claim Three: Korey Reiman, appointed defense counsel, was ineffective because he refused to use the information about Zierke III (see Claim One) on appeal that had been discovered by Zierke after trial, but before the direct appeal was completed, even though Zierke informed Reiman of this information. Claim Four: Korey Reiman was ineffective because he failed to discover that "during the pre trial [sic], trial and penalty phase" Zierke had been committed to the Hastings Regional Center "for the mentally insane." (Id. at CM/ECF p. 5).
Zierke was charged in a two-count indictment with conspiracy to distribute and possess with the intent to distribute 50 grams or more of methamphetamine between October 1, 2007, and April 17, 2008, in violation of 21 U.S.C. § 846, and distribution of methamphetamine on or about February 14, 2008, in violation of 21 U.S.C. § 841(a)(1) and (b)(1). Zierke's trial lasted four days and culminated with the jury finding Zierke guilty.
A United States Probation officer prepared a presentence report ("PSR"). (Filing 144.) With upward adjustments for a weapon, role in the offense and obstruction of justice, Zierke's total offense level was 39. His criminal history was extensive, racking-up 23 criminal history points even after I sustained an objection to a few criminal history points that should not have been counted. (Filing 152). Zierke was also a career offender. I denied Zierke's primary objections and sentenced him to 360 months in prison. His Guidelines range (capped by the statutory maximum of 40 years) was 360 to 480 months in prison.
Regarding Zierke's mental health, the PSR reported the following:
The PSR also recounted statements Zierke made to the Pretrial Services officer regarding his mental health. He told the officer that he received substance abuse treatment in prison, as well as outpatient treatment in Lincoln, Nebraska,
In short, there was no indication in the PSR or the other court records that Zierke had ever been committed to the Hastings Regional Center at any time while this matter was pending. Incidentally, Zierke made no objections to the foregoing portions of the PSR. (E.g., filing 13.7)
Before I sentenced him, and as was his right, Zierke spoke at length. (Filing 161 at CM/ECF pp. 41-50.) He never claimed to have mental problems or to have been committed to a mental institution. With cool bravado, he did state that during the 27 years he had been in prison, he was consistently and intentionally violent and this violence resulted in numerous mental health sessions during his incarcerations. My observation of Zierke was that he was fully oriented to time, place and person, that he was composed and that his speech was coherent.
Indeed, Zierke seemed to relish the opportunity to speak, boasting, for example, that he had not bought drugs from some of the witnesses as they had testified, but rather he had stolen the drugs from those witnesses because they were weak and because they feared him. The only remorse Zierke expressed was regarding a recorded conversation with his son (detailed below) while Zierke was in jail on these charges. Zierke admitted suggesting to his son that he would "like to see [the witnesses'] asses whipped." Zierke stated that he should not have placed his son "in a place to where he might have to go hurt somebody." (Filing 161 at CM/ ECF p. 49).
The evidence against Zierke was overwhelming. The government presented evidence related to law enforcement interviews with Zierke while he was incarcerated in the Nebraska Department of Corrections in 2006 and 2007. In an interview with Special Agent John Dougherty of the FBI, Zierke expressed his willingness to sell methamphetamine to aid the government in its gang interdiction efforts. When the government balked at the proposal, Zierke told the agents that he would proceed to sell the methamphetamine anyway when he got out of prison.
The government also had a tape recording of an October 31, 2008 phone call Zierke made to his son, Zierke III, while the defendant was incarcerated in the Douglas County Department of Corrections.
(Ex. 15B) (emphasis added.)
Investigator Bradley Hand of the Nebraska State Patrol testified about a controlled purchase of methamphetamine from Zierke on February 14, 2008. Police officers executed a search warrant at Zierke's residence the day of the controlled purchase where they recovered several baggies, some of which were empty and others contained drug residue. They also recovered a glass pipe and a torch— used to smoke methamphetamine—among other items. Investigator Richard Conrad of the Hall County Sheriff's Department testified about the warrant search of Zierke's home and evidence obtained. Investigator Mark Wiegart of the Grand Island Police Department's tactical response team also testified about the search, including methamphetamine found in Zierke's pocket.
Putting to one side for a moment the testimony of Zierke III, five other percipient witnesses testified to doing drug deals with the defendant. Timothy Vorhees testified about his controlled purchase of drugs from Zierke, as well as prior purchases. Lance Thomas testified that he purchased methamphetamine from Zierke several times. Sonia Martinez testified that she sold methamphetamine to
Vorhees testified that the night prior to the controlled purchase, Vorhees received approximately a half-gram to three-quarters of a gram of methamphetamine from Zierke on a front. Vorhees also testified that he first began purchasing methamphetamine from Zierke around December 2007. Vorhees further stated that he bought "8-balls"—3.5 grams—of methamphetamine from Zierke on two occasions; one purchase occurred during the controlled buy. Vorhees also testified that he once bought a "teener"—1.75 grams—from Zierke.
Thomas testified that he began purchasing methamphetamine from Zierke around Christmas of 2007. Thomas purchased approximately 3.5 grams of methamphetamine from Zierke on several occasions, but not more than six times. Thomas described a purchase of drugs from Zierke where the defendant pulled a gun out of his waist band and laid it on the dresser near them.
Martinez testified that she sold 8-balls of methamphetamine to Zierke daily for one-and-a-half to two weeks beginning in early November 2007. Martinez further testified that on four or five occasions, she sold Zierke two 8-balls—7 grams—in a day. Martinez also explained that on six or seven occasions from December 2007 to January 3, 2008, she sold Zierke half-ounce amounts of methamphetamine. Martinez also testified that from December 2007 to January 2, 2008, she sold 8-balls to Zierke. Finally, Martinez said that on seven or eight occasions from December 2007 to January 3, 2008, Martinez bought half ounces of methamphetamine from Zierke, but that once or twice it was an 8-ball short.
Sanchez testified that she sold methamphetamine to Zierke from approximately the end of November 2007 until about three weeks prior to her arrest on February 14, 2008. For the first two to three weeks, Sanchez was selling Zierke two 8-balls at varying rates—from more than once per day to once every few days. Sanchez further testified that starting in December 2008, she sold Zierke half ounces of methamphetamine at varying frequencies —from daily to every few days. Sanchez also testified that she sold him one ounce of methamphetamine on a rare occasion. Sanchez finally stated that she sold Zierke an 8-ball on February 14, 2008.
Svoboda testified that starting in mid-October to November 27, 2008, she sold Zierke 8-balls of methamphetamine daily. Svoboda further testified that Zierke would often return a second time in the same day. Svoboda also testified that she sold Zierke half-ounce amounts of methamphetamine on two or three occasions. Finally, Svoboda said that starting in mid-January, she sold Zierke an 8-ball a couple of times and gram quantities on other occasions.
The sixth percipient witnesses to testify against Zierke was his son. Zierke III testified that he saw Zierke selling methamphetamine every day after he began living with his father. Zierke III also stated that at least as early as December 2007, he was selling methamphetamine for Zierke every day. Zierke alone supplied Zierke III with methamphetamine. Zierke III said that he would sell about an 8-ball or two per day for Zierke. Zierke III and Zierke also used methamphetamine together. Zierke III, like Thomas, stated that the defendant pulled a gun out while the defendant was dealing with Thomas and placed it on a dresser.
Prior to the decision of the Court of Appeals, and on January 11, 2010, Zierke filed a document in the District of Nebraska Clerk's office that appears to be a copy of a notarized statement authored by Zierke III and dated December 2, 2009. (Filing 167 at CM/ECF p. 2.) It reads in substance as follows:
On August 18, 2010, Zierke filed additional papers. (Filing 169.) Among other things, those papers included a copy of a letter from the Nebraska Counsel on Discipline, the lawyer assigned by the Nebraska Supreme Court to investigate state ethics complaints.
The letter described a state ethics complaint
My analysis need only be brief. Zierke's claims have no merit.
Zierke claims that the affidavit submitted by his son, Zierke III, establishes that the boy lied because the prosecutor and law enforcement officers threatened the young man. That claim, and the assertions in the supporting affidavit, are preposterous.
First, I heard and saw Zierke III testify. From that observation, I recall no reason to think that Zierke III was particularly frightened or was testifying with any motive different from any other cooperating witness. Second, Zierke III's testimony —that he was involved in a drug business with his father—is extensively corroborated by the record. For example, Zierke III recalled his father displaying a weapon during a drug transaction and placing it on a dresser when dealing with Thomas. So did Thomas. Moreover, the taped conversation between Zierke and Zierke III convincingly establishes that the defendant and his son were in the drug business together, and that Zierke treated Zierke III as his puppet in that enterprise. Third, recantations by a witness who has given testimony under oath and who has been subject to cross examination are viewed with great suspicion, especially when the recantation involves a family member such as Zierke III.
In summary, after a thorough review of the files and records, I reject Zierke's first claim because it is refuted by the files and record and because I find Zierke III's affidavit to be incredible. I also conclude that an evidentiary hearing is unnecessary regarding that claim. See, e.g., Wadlington v. United States, 428 F.3d 779, 783-84 (8th Cir.2005) (trial court did not abuse its discretion in denying a § 2255 motion and refusing to hold an evidentiary hearing where the judge who heard the motion was also the trial judge
The second claim is hard to decipher. Seemingly, Zierke claims that the government failed to disclose evidence that the government used to corroborate the testimony of Timothy Vorhees. It is unclear specifically what evidence Zierke contends should have been disclosed by the government or what provision of the law Zierke thinks was violated by the alleged non-disclosure. It is clear that Zierke's counsel had been given discovery material regarding Vorhees and that defense counsel used some of it to impeach Vorhees. (E.g., filing 132 at CM/ECF p. 29-3.0) Still further, there is nothing in the record to show that the government failed to meet its Brady or Giglio obligations. Additionally, there is no reason to think that the government failed to meet its obligations under the Jenks Act. And, most importantly, there is no reasonable probability that the government's failure to disclose the alleged information (whatever that might have been) undermines confidence in the outcome of the trial. After all, Vorhees was only one witness in the tsunami of evidence establishing beyond any reasonable doubt that the defendant was guilty as charged.
In order to prevail on his claims that defense counsel rendered ineffective assistance of counsel, Zierke must show that "`counsel's representation fell below an objective standard of reasonableness,'" and that "`there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Nguyen v. United States, 114 F.3d 699, 703-04 (8th Cir.1997) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Furthermore, an evidentiary hearing is unnecessary if the defendant makes an insufficient preliminary showing on either or both prongs. See, e.g., Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995) (affirming denial of § 2255 motion without a hearing in the face of an ineffective assistance of counsel claim). In particular, no evidentiary hearing is required in cases involving the allegation of ineffective assistance of counsel where: (1) the allegations accepted as true would not entitle the defendant to relief or (2) the allegations cannot be accepted as true because they are (a) contradicted by the record or (b) inherently incredible or (c) conclusions rather than statements of fact. United States v. Regenos, 405 F.3d 691, 694 (8th Cir.2005.)
There are two reasons why this claim must be denied. First, I find and conclude that there was no malpractice, assuming (without deciding), that defense counsel was aware of and failed to raise on direct appeal the issue of Zierke III's alleged lie. The Supreme Court has held that defense counsel assigned to prosecute an appeal from a criminal conviction does not have a constitutional duty to raise every nonfrivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Here, there were compelling reasons not to raise the "Zierke III" argument because, as demonstrated earlier, the argument is laughable and because it would have only served to punctuate Zierke's control over Zierke III. In short, counsel was exercising sound appellate strategy in the "process of `winnowing out weaker arguments on appeal and focusing on' those more likely to prevail." Smith v.
The assertion that Zierke's trial counsel was ineffective—because he failed to discover that his client had been committed to a mental institution during the prosecution and sentencing phase of this case—is easily resolved. First, the record affirmatively refutes that claim and, moreover, it is inherently incredible. That record includes, among other things, a presentence investigation that found no such hospitalization. Moreover, Zierke's own statements to the Pretrial Services officer omit such an assertion. Second, even if Zierke had been committed to a mental institution at some time in the past, that fact alone would be meaningless, particularly given the perfectly sane (but chilling) statements that Zierke made to me immediately prior to the imposition of sentence. From the trial evidence, the presentence report, and otherwise, it is clear that Zierke is a cold and calculating predator who was perfectly competent. It is also plain that Zierke was entitled to no leniency beyond the low-end sentence that I imposed even if he had been hospitalized at an earlier date. In sum, zealous and dedicated counsel was not ineffective regarding the "mental institution" claim, and, even if he was, there is no showing of prejudice.
Accordingly,
IT IS ORDERED that:
The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.