United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER AFTER EVIDENTIARY HEARING REGARDING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT A SENTENCE
MARK W. BENNETT, District Judge.
A. Prior Proceedings
This case is before me after an evidentiary hearing on petitioner Darwin Zoch's November 4, 2013, Motion To Vacate, Set Aside, Or Correct Sentence Pursuant To 28 U.S.C. § 2255 (§ 2255 Motion) (Civ. docket no. 1). Zoch claims that his trial attorney provided him with ineffective assistance of counsel by failing to call his wife to rebut the prosecution's evidence on a "felon in possession of a firearm" charge against him.
As I explained in my Memorandum Opinion And Order (Civ. docket no. 7), filed February 17, 2015, the trial transcript reflects that, on February 1, 2010, while executing a search warrant at the residence of Zoch, his wife Janelle, and Janelle's minor daughter, on a farm in Buena Vista County, Iowa, concerning possible production of pornography, law enforcement officers discovered four loaded firearms and 646 rounds of ammunition at various locations throughout the house. More specifically, a bolt-action.22 caliber rifle was found just inside the door of the home; a 12-gauge shotgun was found in the "spare room, " just outside the house, off a wooden deck; a 20-gauge shotgun was found behind the door in the bedroom used by Zoch and his wife; and a pink.22 caliber rifle was found next to a desk or computer stand in the same bedroom. The ammunition was found in or near the various firearms. Law enforcement officers, knowing that Zoch had previously been convicted of one or more felony offenses, seized the firearms and arrested Zoch.
In an Indictment (Crim. docket no. 2), handed down March 22, 2011, a Grand Jury charged Zoch with one count of being a felon in possession of three of the firearms found at the residence-not including the pink.22 caliber rifle-and the 646 rounds of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After a two-day trial that began on November 15, 2011, the jury returned a verdict of guilty, and found that Zoch unlawfully possessed the 20-gauge shotgun, the 12-gauge shotgun, and the ammunition, but not the.22 caliber rifle charged in the Indictment, which had been found by the front door of the Zochs' residence. Verdict Form (Crim. docket no. 58). On March 12, 2012, I overruled Zoch's objection to application of the "armed career criminal" sentencing enhancement, but granted his motion for a downward variance, and sentenced him to 180 months of imprisonment. Hearing Minutes (Crim. docket no. 82).
On November 4, 2013, new counsel filed Zoch's Motion To Vacate, Set Aside, Or Correct Sentence Pursuant To 28 U.S.C. § 2255 (§ 2255 Motion) (Civ. docket no. 1), which initiated this civil case. Zoch's § 2255 Motion was in the form of a brief, arguing that his trial counsel provided ineffective assistance of counsel by failing to present the testimony of his wife, Janelle, concerning her sole possession of the firearms at issue in the "felon in possession" charge against Zoch. Zoch attached to his § 2255 Motion a Declaration by Janelle (Civ. docket no. 1-1), stating that she was told by Zoch's attorney that she would testify at trial, that she was available to do so, and the content of her testimony at trial, had she been called. After briefing of Zoch's § 2255 Motion was completed, I entered a Memorandum Opinion And Order (Civ. docket no. 7), on February 17, 2015, setting an evidentiary hearing on Zoch's "ineffective assistance of counsel" claim. That hearing was eventually reset for June 29, 2015.
B. The Evidentiary Hearing
At the evidentiary hearing, Zoch presented Janelle's testimony by videoconference. The respondent presented the "live" testimony of Zoch's trial counsel and offered into evidence a copy of Janelle's Plea Agreement leading to her guilty plea to a charge of conspiracy to obstruct justice in violation of 18 U.S.C. §§ 371 and 1503. I now find the following facts.
Zoch's trial counsel was an experienced criminal defense attorney. In trial counsel's view-and, indeed, in the view of Zoch's § 2255 counsel-the critical issue in Zoch's criminal case was whether or not he possessed the charged firearms and ammunition. The theory of the defense was that Zoch did not exercise and had no intent to exercise sufficient dominion or control over the firearms and ammunition to be found guilty of constructively possessing them. Components of that theory were that the guns and ammunition were Janelle's, that she had a constitutional right to possess them, and that only she and/or her daughter exercised any dominion or control over them. Trial counsel understood that Janelle could provide important testimony in support of that theory of defense. That potential testimony included that Janelle was familiar with firearms and had used them since she was a child; that all of the firearms in the house were hers or, in the case of the firearm found by the door, loaned to her by Zoch's father; that only she or her daughter ever handled them and that Zoch never had any intention of possessing, handling, or using them; that she possessed the firearms to protect Great Dane puppies, which she was raising, from other animals; that she had placed the firearms around the house, with ammunition, to make it easier for her to get to them, if she needed them, because of her physical limitations (arthritis and fibromyalgia); and that Zoch knew she had the firearms, but may not have known where she had placed them around the house. Trial counsel also knew that there was no other witness who could have testified to the inner workings of the Zoch household, particularly in relation to the firearms.
Trial counsel also knew, however, that Janelle initially had an extreme physical reaction to the suggestion that she should testify, said that she had mental issues that would make it impossible for her to testify, and that she vehemently declined to do so. Trial counsel believed that it was his decision whether or not to call Janelle as a witness, not Zoch's. He reserved his final decision on whether or not to call Janelle, but he listed her as a witness to keep that option open, notwithstanding her reluctance to testify, and to avoid tipping off the prosecution that she would not testify.
More importantly, trial counsel learned from further discussions with Janelle that she had seen Zoch use a firearm, which trial counsel understood was one of the shotguns charged, to kill a raccoon. He also learned that Zoch had helped Janelle learn how to use her pink.22 caliber rifle, although this information was somewhat inconsistent with testimony from a prosecution witness that he had come to the Zochs' residence, while Zoch was not at home, to help Janelle "scope" her pink.22 caliber rifle and learn to shoot it. Trial counsel admits that he did not ask follow-up questions to clarify which firearm Zoch had used to shoot the raccoon or the precise timeframe of that incident, nor to clarify whether or not Zoch had handled or fired the pink.22 caliber rifle while showing Janelle how to use it. Trial counsel's explanation for not asking follow-up questions about the pink.22 caliber rifle was that he "did not want to know" the answers to those questions, at least while he was still uncertain about whether or not to call Janelle as a witness. Ultimately, trial counsel concluded that he could not put Janelle on the stand, because her knowledge about the incidents in which she had seen Zoch use a firearm and her emotional reaction to the thought of testifying made her a "loose cannon"; he could not let Janelle lie about the incidents in which she had seen Zoch use a firearm, if they came up; and Janelle's testimony would effectively "sink" his theory of defense, if Janelle told the truth about those incidents.
In light of trial counsel's testimony, the potential importance of Janelle's testimony, Janelle's behavior while testifying, and her convictions for other offenses involving dishonesty, I do not find credible Janelle's assertion that trial counsel only talked to her once about testifying, and that he said that she would be a witness. Nor, in the absence of any written documentation or other corroboration, like mileage records, sign-in sheets, affidavits from the federal public defender staff, etc., do I find completely credible trial counsel's assertion that he met with Janelle and Zoch face-to-face a "dozen" times. I am surprised that trial counsel did not make even a single written note or memorandum to file to memorialize the topics of any of the "dozen" conversations, which I believe would have been common practice. Nevertheless, notwithstanding Janelle's testimony that she was never told that she would not testify at the trial, I find that trial counsel informed both Janelle and Zoch, prior to trial, of his intention not to call Janelle, and the reasons why. I also find that trial counsel informed the Zochs that he would, instead, concentrate on impeaching a prosecution witness who would testify that he had seen Zoch in possession of one or more firearms. Trial counsel chose to leave Janelle on the witness list and, thus, to keep ...