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Zander v. United States

United States District Court, D. Utah

April 20, 2017

JEFFREY CHARLES ZANDER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER DENYING AND DISMISSING § 2255 MOTION

          David Nuffer District Judge

         Petitioner Jeffrey Charles Zander seeks to vacate and correct his prison sentence under 28 U.S.C. § 2255.[1] Zander bases his motion on a number of grounds related to trial testimony by two of the government's witnesses[2] and to statements the government made in its closing argument.[3]

         Because Zander failed to raise these issues on his direct appeal and because he has failed to show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains, the motion is DENIED.

         Procedural Background ................................................................................................................... 2

         Discussion ....................................................................................................................................... 4

A. Zander's miscellaneous arguments are meritless .................................................... 6
B. Zander fails to show cause and prejudice for not raising these issues in his direct appeal. . .................................................................................................................... 7
1. There was no cause for failing to raise these issues on direct appeal. . ....... 8
2. Even if Zander had cause for not raising the grounds in this motion in his direct appeal, he was not prejudiced by the alleged errors. . ..................... 10
C. Zander does not show that a fundamental miscarriage of justice will occur if his claim is not addressed. . ......................................................................................... 11

         Order ........................................................................................................................................... 11

         PROCEDURAL BACKGROUND

         A jury found Zander guilty on two counts of mail fraud, two counts of wire fraud, one count of money laundering, and three counts of willful failure to file federal tax returns.[4] Zander was sentenced to sixty-eight months of imprisonment and ordered to pay $202, 543.92 in restitution to the Paiute Indian Tribe of Utah.[5]

         On December 4, 2013, Zander appealed his conviction, sentence length, and restitution amount. The 10th Circuit affirmed his conviction, [6] but reversed in part because of errors in the loss calculation and the amount of restitution.[7] The case was remanded for resentencing.[8]

         On January 21, 2014, Zander filed his First § 2255 Motion.[9] This motion was denied[10] because

Zander's Motion is premature and should not be considered until resolution of his Appeal. Zander has failed to show that the issues raised in his Motion are completely distinct from the issues raised in his Appeal, and Zander's interpretation of alleged prosecutorial misconduct during his criminal trial does not create a substantial question about the integrity of the government's prosecution.[11]

         While awaiting resentencing, Zander filed this second § 2255 Motion. Zander bases the Motion on eight grounds. Many of them seem to overlap. In ground one Zander argues that there was a “[d]enial of due process” because the United States failed to “correct the false testimony of Ms. Delores Furniss.”[12] Zander argues that the United States “knew or should have known” Furniss's testimony was false, but instead of correcting it, the United States “capitaliz[ed] on that false testimony in its closing and rebuttal arguments.”[13] In ground two Zander argues that there was a “[d]enial of due process” because the United States failed to “correct the false testimony of Ms. Gayle Rollo and capitaliz[ed] on that false testimony in rebuttal argument.”[14] In ground three, Zander argues that “in violation of the confrontation clause of the sixth amendment, and in response to this court's order, the government falsely notified the defendant that there would be no rule 404(b) evidence presented in the government's case-in-chief.”[15] Similarly, in ground four Zander argues that “[i]n violation of this court's order the government falsely notified the defendant that there would be no rule 404(b) evidence presented in the government's case-in-chief.”[16] In ground five Zander argues that there was a “[d]enial of due process” because of the United States' “repeated accusations during closing argument that the defendant was guilty of the crime of embezzlement.”[17] Similarly, in ground six Zander argues that there was “a violation of the laws of the United States” because the United States “repeatedly stated in its closing argument that [Zander] was guilty of the crime of embezzlement.”[18] In grounds seven and eight Zander argues that there were violations of due process and the “laws of the United States” because of the “cumulative errors of” the foregoing grounds.[19]

         While this second § 2255 Motion was pending, Zander filed a Motion for Release.[20] That motion was denied.[21] Zander appealed the denial of the Motion for Release.[22] In a per curiam decision, the Tenth Circuit affirmed[23] the denial and observed:

[W]e agree with the district court that Mr. Zander has failed to demonstrate a clear case on the merits of his § 2255 motion. Mr. Zander admits that none of the claims he seeks to raise in his § 2255 motion were raised on direct appeal . . . . It therefore appears that Mr. Zander faces a procedural hurdle before the district court can even reach the merits of his claims.[24]

         The United States responded in opposition to the Motion on the merits.[25] The United States later filed a supplemental response arguing that the Motion was procedurally barred.[26] Zander filed a motion to strike the United States' supplemental response.[27] Zander later filed a reply to the United States' supplemental response.[28] In the Reply to Supplemental Response Zander addresses the procedural defense.

         DISCUSSION

         “The exclusive remedy for testing the validity of a judgment and sentence, unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.”[29] For all motions brought pursuant to § 2255, “[u]nless the motion and the files and records of the case conclusively show that the petitioner is entitled to no relief, ” a hearing must be granted and notice must be provided to the government.[30] Section 2255 states:

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 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.[31]

         The Tenth Circuit has held that “[s]ection 2255 motions are not available to test the legality of matters which should have been raised on direct appeal.”[32] There are two exceptions:

1. if the petitioner “can show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains”;[33] or
2. if the petitioner “can show that a fundamental miscarriage of justice will occur if his claim is not addressed.”[34]

         The respondent can raise this procedural defense, or the court can raise the defense sua sponte.[35] Either way, the petitioner must have “an opportunity to respond to the defense.”[36]

         The United States raised the procedural defense in its Supplemental Response.[37] Zander responded to the procedural defense in his Reply to Supplemental Response.[38]

         “The motion and the files and records of the case, ”[39] “conclusively show”[40] that Zander is not entitled to relief. There will be no hearing.

         A. Zander's miscellaneous arguments are meritless.

         Zander makes numerous miscellaneous arguments why the procedural default rule does not apply. Each is meritless.

         First, Zander argues that the procedural default rule is limited to instances where “no contemporaneous objections [were] made” at trial.[41] The procedural default rule also applies to circumstances when the petitioner fails to raise arguments on direct appeal.[42] Therefore, this argument is meritless.

         Second, Zander argues that the United States fails to “meet its burden of proof for assertion of the procedural default affirmative defense.”[43] Zander string-cites numerous Tenth Circuit cases that allegedly support this argument.[44] None, however, imposes a burden on the United States to do anything other than raise the procedural default defense, and even then, many of the cases Zander cites emphasize that the district court may raise the defense sua sponte.[45] Therefore, this argument is meritless.

         Third, Zander argues that he was procedurally barred from raising certain grounds in his direct appeal because his first § 2255 motion was pending before this court. This argument is treated below.[46]

         Fourth, Zander argues that the Order Denying First § 2255 Motion, stating “Zander's motion is premature and should not be considered until resolution of his Appeal, ”[47] indicated that he could not raise these issues on his direct appeal; i.e., that he would have to wait until after his direct appeal had been resolved before he could raise these issues in the first instance.[48] This mischaracterizes the Order Denying First § 2255 Motion. The Order Denying First § 2255 Motion only indicated that Zander could not bring a § 2255 motion before making a direct appeal.

         And fifth, Zander argues that Bousley v. United States precludes the procedural default defense because the eight grounds raised in the Motion could not be presented without further factual development.[49] Zander then lists specific facts “which are dehors the record” for the Motion's first four grounds. This argument is treated below.[50]

         B. Zander fails to show cause and prejudice for not raising these issues in his direct appeal.

         In his Reply to Supplemental Response, Zander discusses each ground for his motion and argues that there was both cause for failing to raise these grounds in his direct appeal and that he was actually prejudiced from the alleged errors.

         1. There was no cause for failing to raise these issues on direct appeal.

         Zander argues that he did not raise these arguments in his direct appeal for three reasons: first, there was an insufficient record on appeal;[51] second, there was an insufficient “factual and legal basis”;[52] and third, he was procedurally barred from raising issues on direct appeal while resolution ...


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