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Zmuda v. United States

United States District Court, D. Hawaii

July 28, 2017

MATTHEW ZMUDA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Cv. No. 16-00556 HG-KSC

          ORDER DENYING PETITIONER'S 28 U.S.C. § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE (ECF NO. 145) AND DENYING A CERTIFICATE OF APPEALABILITY

          HELEN GILLMOR UNITED STATES DISTRICT JUDGE.

         On January 10, 2014, after a five-day trial, Petitioner was found guilty of the three counts in the Superseding Indictment charging: (1) a conspiracy to possess with intent to distribute methamphetamine; (2) a conspiracy to possess with intent to distribute heroin; and, (3) attempting to possess with intent to distribute methamphetamine.

         On October 11, 2016, Petitioner filed a Motion entitled, “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody.” (ECF No. 145). Petitioner challenges his conviction on the basis of ineffective assistance of counsel.

         Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 145) is DENIED. A Certificate of Appealability is DENIED.

         PROCEDURAL HISTORY

         On March 20, 2013, a grand jury returned an Indictment, charging Petitioner Matthew Zmuda with one count of conspiracy to distribute fifty grams or more of methamphetamine and one count of attempting to possess with the intent to distribute fifty grams or more of methamphetamine. (ECF No. 1).

         On May 21, 2013, Petitioner made his initial appearance before a Magistrate Judge. Attorney Alvin K. Nishimura was appointed as counsel to represent the Petitioner. (ECF No. 14).

         On September 19, 2013, Attorney Nimishmura made an Oral Motion to Withdraw as Counsel based on a breakdown in communication. (ECF No. 24). The Motion to Withdraw was granted by the Magistrate Judge. (Id.)

         On September 20, 2013, Attorney Megan Kau was appointed as counsel to represent Petitioner. (ECF No. 29).

         On September 21, 2013, Attorney Kau filed a MOTION TO CONTINUE TRIAL. (ECF No. 27).

         On September 26, 2013, the Court held a hearing and granted Petitioner's Motion to Continue. (ECF No. 30).

         On October 30, 2013, the Government filed UNITED STATES' MOTION TO CONTINUE TRIAL AND TO EXCLUDE TIME. (ECF No. 32).

         On October 31, 2013, the Court held a hearing and granted the Government's Motion to Continue Trial. (ECF No. 34).

         On November 20, 2013, the Government provided documents to the Court for in camera review. (ECF Nos. 36, 37).

         On November 26, 2013, a grand jury returned a Superseding Indictment. (ECF No. 38). The Superseding Indictment expanded the length of the conspiracy charged in Count 1 and added further detail to the overt acts. An additional count was added charging conspiracy to possess with intent to distribute heroin. The Counts charged:

Count 1: knowingly and intentionally conspiring with others to possess with intent to distribute fifty (50) grams or more or methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A);
Count 2: knowingly and intentionally conspiring with others to distribute and possess with intent to distribute some quantity of a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C);
Count 3: knowingly and intentionally attempting to possess with intent to distribute fifty (50) grams or more of methamphetamine.

(ECF No. 38).

         On December 3, 2013, the Court issued an ORDER REGARDING GOVERNMENT'S EX PARTE IN CAMERA DISCLOSURES. (ECF No. 44).

         On December 6, 2013, the Government filed THE GOVERNMENT'S MOTION IN LIMINE REGARDING TASK FORCE OFFICER THAYNE COSTA. (ECF No. 47).

         On December 9, 2013, a Final Pretrial Conference was held before the Magistrate Judge. (ECF No. 49).

         On December 10, 2013, the Government filed its Witness List, Exhibit List, Proposed Voir Dire, and Statement of the Case. (ECF Nos. 51, 56, 57, 54).

         On the same date, Attorney Kau, on behalf of Petitioner, filed Defendant's Witness List and Proposed Voir Dire. (ECF Nos. 52, 53).

         Also on December 10, 2013, the Parties filed their Joint Jury Instructions. (ECF No. 55).

         On December 11, 2013, the Government filed a Notice of 404(b) Evidence. (ECF No. 59).

         On December 12, 2013, the Government filed SPECIAL INFORMATION AS TO PRIOR DRUG CONVICTION PURSUANT TO 21 U.S.C. § 851. (ECF No. 60).

         On December 13, 2013, Attorney Kau, on behalf of Petitioner, filed an EX PARTE MOTION FOR APPLICATION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM to produce Deborah Zmuda as a witness for trial. (ECF No. 61).

         On December 16, 2013, Petitioner's EX PARTE MOTION FOR APPLICATION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM was granted and the writ was issued. (ECF Nos. 64, 65).

         On December 17, 2013, the Government filed SUPPLEMENTAL NOTICE OF INTENT TO OFFER SIMILAR ACTS EVIDENCE PURSUANT TO RULE 404(b). (ECF No. 66).

         Also on December 17, 2013, the Court held its FINAL PRETRIAL CONFERENCE. (ECF No. 67).

         On December 18, 2013, the Court issued a Minute Order Granting the Government's Motion in Limine Regarding Task Force Officer Thayne Costa. (ECF No. 68).

         Also on December 18, 2013, Attorney Kau, on behalf of Petitioner, filed DEFENDANT'S MOTION IN LIMINE. (ECF No. 69).

         On December 20, 2013, Attorney Kau, on behalf of Petitioner, filed DEFENDANT'S OBJECTIONS TO GOVERNMENT'S EXHIBIT LIST. (ECF No. 72).

         On December 27, 2013, the Government filed GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE. (ECF No. 75).

         On December 30, 2013, the Government filed GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO GOVERNMENT'S EXHIBIT LIST. (ECF No. 76).

         On December 31, 2013, the Court held a Continued Final Pretrial Conference. (ECF No. 80).

         On January 1, 2014, Attorney Kau, on behalf of Petitioner, filed DEFENDANT'S MOTION IN LIMINE No. 2. (ECF No. 77).

         On January 2, 2014, the Government filed GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE 2. (ECF No. 78).

         On the same date, the Government filed NOTICE REGARDING SUBMISSION OF GIGLIO DOCUMENTS AND PRIOR CONVICTION DOCUMENTS. (ECF No. 79).

         On January 3, 2014, Attorney Kau, on behalf of Petitioner, filed DEFENDANT'S OBJECTIONS TO THIRD AMENDED JUDGMENT OF CONVICTION IN CR. NO. 10-1-0223. (ECF No. 81).

         Also on January 3, 2014, the Government filed GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO THIRD AMENDED JUDGMENT OF CONVICTION IN CR. NO. 10-1-0223. (ECF No. 82).

         On the same date, the Government filed its Amended Exhibit List and Amended Witness List. (ECF Nos. 83, 84).

         On January 6, 2014, Attorney Kau, on behalf of Petitioner, filed Defendant's Exhibit List. (ECF No. 86).

         Also on January 6, 2014, the First Day of Trial was held. (ECF No. 88). The Court held jury selection and Opening Statements were made by the Government and the Defendant. (Id.)

         On January 7, 2014, the Government filed GOVERNMENT'S OBJECTION TO DEFENDANT'S EXHIBITS. (ECF No. 87).

         Also on January 7, 2014, the Second Day of Trial was held. (ECF No. 89).

         On January 8, 2014, the Third Day of Trial was held. (ECF No. 90).

         On January 9, 2014, the Fourth Day of Trial was held. (ECF No. 91). The Government rested. (Id.) Attorney Kau made an oral motion for judgment of acquittal, which was denied. (Id.) Petitioner testified in his own defense and the Defense rested. (Id.)

         On January 10, 2014, the Fifth Day of Trial was held. (ECF No. 93). Attorney Kau made an oral motion for a mistrial, which was denied. (Id.) The Court instructed the jurors. (ECF No. 92). The Parties made closing arguments. (ECF No. 93). The case was submitted to the jury. (Id.)

         On the same date, the jury returned its verdict. (ECF No. 95). Petitioner was found guilty of all three counts in the Superseding Indictment. (Id.)

         On April 3, 2014, Attorney Kau filed DEFENDANT'S OBJECTION TO SPECIAL INFORMATION AS TO DRUG CONVICTION PURSUANT TO 21 U.S.C. § 851. (ECF No. 106).

         On May 6, 2017, Attorney Kau filed a Motion to Withdraw as Attorney following sentencing, so as not to be Petitioner's attorney for appeal. (ECF No. 111).

         On May 28, 2014, the Court held an evidentiary hearing as to Petitioner's Objection to the Special Information. (ECF No. 116).

         On June 18, 2014, the Government filed GOVERNMENT'S SUPPLEMENTAL RESPONSE TO DEFENDANT'S OBJECTION TO SPECIAL INFORMATION REGARDING 21 U.S.C. § 851. (ECF No. 117).

         On July 2, 2014, Attorney Kau filed DEFENDANT'S REPLY TO GOVERNMENT'S SUPPLEMENTAL RESPONSE TO DEFENDANT'S OBJECTION TO SPECIAL INFORMATION REGARDING 21 U.S.C. § 851 ENHANCEMENT. (ECF No. 118).

         On July 9, 2014, the Court held a sentencing hearing. (ECF No. 119). The Court sustained Petitioner's Objection to Special Information Regarding 21 U.S.C. § 851 Enhancement. (Id.) The Court agreed with Attorney Kau that Petitioner's 2010 Hawaii state court conviction for “unlawful use of drug paraphernalia” did not qualify as a prior felony drug offense for purposes of sentence enhancement. The Court found that Petitioner was not subject to a mandatory minimum sentence of 20 years pursuant to 21 U.S.C. § 851. (Id.)

         Petitioner was sentenced to a term of imprisonment of 150 months as to each of Counts 1 through 3, to be served concurrently. (Id.)

         Attorney Kau's Motion to Withdraw as Attorney for appellate purposes was granted. (Id.)

         On July 9, 2014, Judgment was entered. (ECF No. 120).

         On July 15, 2014, Petitioner filed a Notice of Appeal to the Ninth Circuit Court of Appeals. (ECF No. 121).

         On October 20, 2015, the Ninth Circuit Court of Appeals affirmed Petitioner's conviction on direct appeal. (ECF No. 143).

         On October 11, 2016, Petitioner filed MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY. (ECF No. 145).

         On October 14, 2016, the Court issued a briefing schedule. (ECF No. 147).

         On October 20, 2016, the Government filed a Motion for Order Finding Limited Waiver of Attorney-Client Privilege. (ECF No. 148).

         On October 21, 2016, the Court issued an ORDER FINDING WAIVER OF ATTORNEY-CLIENT PRIVILEGE. (ECF No. 149).

         On December 7, 2016, the Government filed a MOTION FOR EXTENSION OF TIME, which was granted. (ECF Nos. 150, 151).

         On January 24, 2017, the Government filed a MOTION FOR SECOND EXTENSION OF TIME, ...


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