United States v. Zareck

Decision Date23 September 2021
Docket NumberCRIMINAL 09-168
PartiesUNITED STATES OF AMERICA, v. RAYMOND ZARECK, Defendant
CourtU.S. District Court — Western District of Pennsylvania
OPINION

JOY FLOWERS CONTI, SENIOR UNITED STATES DISTRICT COURT JUDGE

I. Introduction

Currently pending before the court are three motions filed by petitioner and defendant Raymond Zareck (“Zareck ” defendant or petitioner). The motions all concern Zareck's motion to vacate his conviction and sentence filed under 28 U.S.C. 2255 (the “ 2255 motion”). (ECF No. 348.) Zareck asserts there are thirty-seven[1] grounds upon which this court should vacate his conviction and sentence. The government opposes each motion, including each of Zareck's grounds for relief. As set forth fully in this opinion, Zareck's motion for expansion of the record and for enlargement of page limit for his reply will be granted. Zareck's 2255 motion will be denied because he did not show entitlement to habeas relief, i.e., that his trial or appellate counsel provided him ineffective assistance of counsel in violation of his rights guaranteed by the Sixth Amendment to the United States Constitution or that the assistant United States attorneys that prosecuted his case engaged in prosecutorial misconduct in violation of his rights guaranteed by the Fifth Amendment to the United States Constitution. Zareck's motion to supplement his 2255 motion will denied because the decision upon which he relies, Rehaif v. United States, 139 S.Ct. 2191 (2019), is not applied retroactively to collateral attacks under § 2255.

II. Background

On May 13, 2009, a federal grand jury returned a one-count indictment against Zareck charging him with possession of a firearm by a convicted felon on or about April 4, 2009, in violation of 18 U.S.C. § 922(g)(1). On November 25, 2009, Zareck filed, among other motions, a motion to suppress evidence (“first suppression motion). (ECF No. 37.) In the first suppression motion, Zareck raised three arguments: (1) the search of his vehicle was conducted without a warrant, probable cause, or exigent circumstance, thereby violating his constitutional rights under the Fourth Amendment to the Constitution of the United States; (2) he made statements while in police custody relating to the purchase or assembly of firework or improvised explosive devices without first being read his Miranda warnings, which violated his constitutional rights under the Fifth Amendment to the Constitution of the United States; and (3) the search of his residence was premised on a fatally flawed affidavit of probable cause, thereby violating his constitutional rights under the Fourth Amendment to the Constitution of the United States. (ECF No. 143 at 1.) On May 27, 2010, and June 29, 2010, the court held a suppression hearing. On July 2, 2010, Zareck filed a Motion for Franks hearing (Franks motion). (ECF No. 84.)

On July 21, 2010, the court held a continued suppression hearing and a hearing on the Franks motion. The court on the record denied the Franks motion. On December 3, 2010, after the parties filed proposed findings of fact and conclusions of law, the court issued a memorandum opinion and order denying the motion to suppress. (ECF No. 108.) The court found, among other things, that the search warrant issued by a magistrate judge for Zareck's home, pursuant to which law enforcement found a firearm and ammunition, was supported by probable cause and there was no basis to suppress the evidence of the gun, which was found in plain view during the search of Zareck's home. (ECF No. 108 at 33.)

On December 22, 2010, Zareck filed a “supplemental” motion to suppress in which he raised the following four arguments: (1) his arrest was illegal because the police officers did not have probable cause to arrest him on a misdemeanor; (2) the arrest was illegal because it was based upon information provided by an informant who was not a credible or reliable source of information; (3) the stop of Zareck‘s vehicle was pretextual and therefore without reasonable suspicion or probable cause; and (4) the government should be compelled to reveal the informant's identity. (ECF No. 111.) On February 25, 2011, and May 2, 2011, the court held an evidentiary hearing on the supplemental motion to suppress. On October 26, 2011, after the parties filed proposed findings of fact and conclusions of law, the court in an opinion and order denied the supplemental motion to suppress. (ECF No. 143.)

After additional motions practice and various continuances, this case was set for a jury trial to commence on August 6, 2012. On August 1, 2012, however, a federal grand jury returned a two-count superseding indictment against Zareck, charging him with: (1) possession of a firearm and/or ammunition by a convicted felon, in and around 2004 through April 4, 2009, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e); and (2) possession of a firearm and/or ammunition by an unlawful user of a controlled substance, in and around 2004 through April 4, 2009, in violation of 18 U.S.C. § 922(g)(3). (ECF No. 195.) On August 28, 2012, Zareck filed various pretrial motions, including motions to dismiss the superseding indictment and motions for reconsideration of the court's decisions to deny the suppression motion and Franks motion. (ECF Nos. 206-210, 220-221.)

On November 9, 2012, the court held a pretrial motions conference during which it denied Zareck's pretrial motions. On November 13, 2012, a jury trial commenced against Zareck. On November 20, 2012, the jury returned guilty verdicts on each of counts one and two of the superseding indictment. (ECF No. 243.) On May 21, 2013, the court sentenced Zareck to a term of imprisonment of 188 months[2] at each of counts one and two of the superseding indictment, to concurrently run, for a total term of imprisonment of 188 months, and a term of supervised release of five years at each of counts one and two of the superseding indictment, to concurrently run, for a total term of supervised release of five years. (ECF No. 275.)

On May 23, 2013, Zareck appealed his convictions and sentences to the Third Circuit Court of Appeals. (ECF Nos. 277, 278.) On July 24, 2015, the court of appeals affirmed petitioner's convictions, but vacated the judgment of sentence because this court erred when it imposed a sentence at each of counts one and two. (ECF No. 310 at 2.) In accordance with the court of appeals' decision, count two was merged into count one. (ECF No. 328.) On January 25, 2016, the court resentenced petitioner to, among other things, a term of imprisonment of 188 months at count one and a term of supervised release of five years at count one. (ECF No. 329.)

On January 29, 2016, petitioner appealed his new sentence. (ECF No. 331.) On September 29, 2016, the court of appeals affirmed the judgment of sentence entered by this court. (ECF Nos. 335, 336.) On November 3, 2016, the Third Circuit Court of Appeals denied petitioner's request for rehearing. (Court of Appeals for the Third Circuit, Docket No. 16-1215, Order dated November 3, 2016.) On November 11, 2016, petitioner submitted a “notice of appeal” of his sentence. (ECF No. 337.) The court of appeals did not act on that notice.[3] (ECF No. 338 at 2.)

On February 1, 2017, Zareck filed in the Supreme Court of the United States a petition for writ of certiorari. (Court of Appeals for the Third Circuit, Docket No. 16-1215, Notice dated February 8, 2017.) On March 6, 2017, the Supreme Court of the United States denied Zareck's petition for writ of certiorari. (Court of Appeals for the Third Circuit, Docket No. 16- 1215, Notice dated March 6, 2017.) On February 23, 2018, the Third Circuit Court of Appeals denied Zareck's “Recall Mandate and Amend Judgment of Appeal with Appointment of New Counsel for Failure of CJA Counsel to File Petition Upon Petitioner's Request and Timely Withdraw Pursuant to 18 U.S.C.S Section 3006A and Third Circuit CJA Plan[.] (Court of Appeals for the Third Circuit, Docket No. 16-1215, Order dated February 23, 2018.)

On March 6, 2018, petitioner filed in this court a motion to vacate under 28 U.S.C. § 2255. (ECF No. 340.) On March 9, 2018, petitioner filed a motion to supplement his § 2255 motion. (ECF No. 342.) On April 20, 2018, the government filed a motion requesting the court to issue a notice to petitioner pursuant to United States v. Miller, 197 F.3d 644, 649 (3d Cir. 1999). (ECF No. 344.) On May 2, 2018, the court issued a Miller notice in the form provided by the government in which one sentence referred to petitioner by an incorrect name. (ECF No. 345.) On May 11, 2018, petitioner filed a motion for clarification and extension of time. (ECF No. 346.) On June 8, 2018, petitioner filed a second motion for clarification. (ECF No. 347.) On June 20, 2018, petitioner-in an effort to comport with the court's order dated May 2, 2018-filed a second amended § 2255 motion (the “second amended § 2255 motion), which, according to petitioner, only reasserts the claims he raised in the initial § 2255 motion and the motion to supplement. (ECF No. 348 at 12.)

On July 12, 2018, this court issued an opinion and order granting in part and denying in part the motion for clarification and enlargement of time and denying as moot the second motion for clarification. (ECF No. 349.) The court provided clarification with respect to the Miller notice and explained that unless the government raised an objection to the timelines of Zareck's filings, the first § 2255 motion and the supplement thereto would be denied as moot because Zareck filed an all-inclusive document setting forth his thirty-six grounds for relief, which would be considered the operable § 2255 motion in this case. (ECF No. 349 at 6-7.) The government did not object to the timeliness of...

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