USA v. Zierke

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

Plaintiff,

vs.

GARY ZIERKE, JR.,

Defendant.

4:08-CR-3067

MEMORANDUM AND ORDER

The defendant has filed a host of motions, variously challenging the basis
for the judgment against him or asking the Court to reduce his sentence. Those
motions will generally be denied, and his conviction and sentence will stand.
BACKGROUND
The defendant was indicted in 2008 on one count of conspiracy to possess
and distribute methamphetamine, and one count of distributing
methamphetamine mixture. Filing 1. After a few months of case progression,
the defendant—through counsel—filed an unusual motion: A "motion to
determine competency of trial counsel." Filing 47. The motion explained that
the defendant had asked his counsel to "set this matter for a hearing to make
certain [the defendant] is receiving effective assistance of counsel." Filing 47.
That motion was resolved after a hearing with the Magistrate Judge, who
determined that counsel was competent. Filing 59. The minute entry for that
hearing indicates that the defendant and his counsel "agree[d] they will
continue to work together on this case." Filing 58.
The case proceeded to a jury trial, resulting in the defendant's conviction
on both counts. Filing 117. The presentence report—in the "prosecutor's
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version of the offense"—described the conspiracy and identified several co-
conspirators, including: Machelle Sanchez, Kellie Svoboda, Sonia Martinez,
Lance Thomas, Timothy Vorhees, and Gary Zierke III. Filing 144 at 4-7. All
had testified at trial. Filing 114. The PSR also identified all as "related cases."
Filing 144 at 1, 4.
The presentence report determined that the defendant's total offense
level was 39. Filing 144 at 9. The defendant's lengthy criminal history resulted
in a total of 26 criminal history points, including two "status points"—double
the total needed to place him in criminal history category VI. Filing 144 at 9-
17. In addition, the defendant had three prior state convictions for crimes of
violence—assaulting an officer and two different assaults by a confined
person—any two of which made him a career offender, also placing him in
criminal history category VI. Filing 144 at 17. Those findings—combined with
a 40-year maximum sentence—resulted in a guidelines sentencing range of
360-480 months. Filing 144 at 26. The Court adopted those findings, filing 152
at 1, and sentenced the defendant to 360 months' imprisonment, filing 151.
The defendant's convictions and sentence were affirmed on direct appeal.
United States v. Zierke, 618 F.3d 755 (8th Cir. 2010). Before that appeal was
even decided, however, the defendant began filing a lengthy series of
postconviction motions, all to no avail. There are literally dozens of pro se
motions—too many to readily summarize—but here are the important ones:
• A motion under Fed. R. Civ. P. 12(b) and Fed. R. Civ. P. 60(b)
asserting prosecutorial misconduct and fraud on the Court, and
questioning the Court's jurisdiction. Filing 163.
• A motion for a writ of mandamus compelling the U.S. Attorney to
seek an indictment of the Assistant U.S. Attorney who prosecuted
the defendant. Filing 169.
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• A motion to vacate pursuant to 28 U.S.C. § 2255. Filing 182.
• A motion for a certificate of appealability after his § 2255 motion
was denied. Filing 190.
• A motion to appoint counsel and reinstate his direct appeal as to
Count II, claiming that his conviction on that count hadn't been
appealed. Filing 215.
• A motion to reopen his § 2255 motion. Filing 220.
• A motion to reconsider the denial of his motion to reopen. Filing
224.
• Another Rule 60(b) motion, this one seeking relief from the
judgment dismissing his § 2255 motion. Filing 238.
• Two motions to dismiss. Filing 248; filing 251.
• A second § 2255 motion. Filing 270.
1

• A motion for a certificate of appealability after his second § 2255
motion was denied. Filing 277.
• A motion to reduce sentence pursuant to U.S.S.G. Amend. 782.
Filing 289.
• A motion for home confinement. Filing 332.
• A second motion for a reduced sentence pursuant to Amend. 782.
Filing 347.
• A motion for compassionate release pursuant to 18 U.S.C.
§ 3582(c)(1)(A)(i), based on legal arguments regarding his
conviction and sentence and allegations of Judge Kopf's bias
against him. Filing 349.

1
A third § 2255 motion was filed by the Federal Public Defender based on Johnson v. United
States, 576 U.S. 591 (2015), filing 309, but it was denied based on Beckles v. United States,
580 U.S. 256 (2017), see filing 322.
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• A second motion for compassionate release pursuant to
§ 3582(c)(1)(A)(i), based on alleged medical conditions and the
COVID-19 pandemic. Filing 361.
• A third motion for a reduced sentence pursuant to U.S.S.G.
Amend. 782. Filing 365.
• A third motion for compassionate release pursuant to
§ 3582(c)(1)(A)(i). Filing 384.
DISCUSSION
That brings the Court to the pending motions, which present a number
of different arguments—although the Court has seen several of them before.
MOTION FOR COMPASSIONATE RELEASE
First up is a fourth motion for compassionate release pursuant to
§ 3582(c)(1)(A)(i), although it also asserts the right to a sentence reduction
pursuant to Amend. 782. Filing 403. As the Court understands the defendant's
argument, it goes like this: He's no longer a career criminal because his prior
convictions are no longer considered "crimes of violence," and he would then be
entitled to an Amend. 782 reduction because his sentence would be based on
his specific offense conduct, not the career criminal guideline. Filing 403; see
filing 144 at 9, 17.
That doesn't work, for a number of reasons. The first is that it's not clear
why the defendant thinks his prior offenses wouldn't be crimes of violence
under the current guidelines. True, it's possible that two out of the three
assaults were offenses that could have been committed "recklessly," meaning
they wouldn't be "aggravated assault," or satisfy the "force" clause of the
current version of U.S.S.G. § 4B1.2(a). See Neb. Rev. Stat. §§ 28-930, 28-931,
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and 28-932;
2
see also Borden v. United States, 593 U.S. 420, 429 (2021). But
the defendant hasn't made that explicit, or pointed to anything in the record
proving it.
Even if he had, however, that showing would be insufficient. The
defendant cannot use a motion under 18 U.S.C. § 3582(c) to collaterally attack
the accuracy of the presentence report. United States v. Crandall, 25 F.4th 582,
586 (8th Cir.), cert. denied, 142 S. Ct. 2781 (2022); United States v. Turner, No.
4:17-CR-3121, 2024 WL 2846142 (D. Neb. June 5, 2024), aff'd, No. 24-2300 (8th
Cir. June 27, 2024). And in the absence of an applicable, retroactive guidelines
amendment, the Court cannot recalculate the defendant's guidelines range.
Nor—to the extent that the defendant is arguing that his sentence is unusually
long—has he established that there is a separate extraordinary and compelling
reason for a sentence reduction, that there is a "gross disparity" between the
bottom-of-the-guidelines-range sentence he received and the sentence that
would be imposed today, or that any such disparity resulted from a change in
law other than a nonretroactive guidelines amendment. See U.S.S.G. §
1B1.13(b)(6).
3

2
The Court cites to the current versions of the relevant Nebraska statutes for convenience;
they weren't materially different when the offenses were committed.
3
The defendant expressly advances an argument that his sentence is "unusually long" in a
motion for leave to amend that he filed after U.S.S.G. Amend. 814 was adopted. Filing 418.
The Court understands the defendant's motion to be asking the Court to consider that
argument as supporting his pending motion for compassionate release (filing 403). The Court
will grant the motion for leave to amend based on that understanding—in other words, the
Court has carefully considered the defendant's argument, but is not giving him permission to
file a new amended motion. The defendant also raised an issue with respect to "related cases"
that will be dealt with below in disposing of his motion to correct the presentence report.
Compare filing 418 at 14-16, with filing 428.
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That's because, perhaps most importantly: None of this would actually
affect the guidelines sentencing range, even if everything the defendant says
is true. He was a criminal history category VI whether or not he was a career
offender. And even if the Court removed the career offender guideline and gave
the defendant an Amend. 782 reduction, it would only reduce the offense level
from 39 to 37—which wouldn't move the guidelines range at all. See U.S.S.G.
Ch. 5 Pt. A. The advisory guidelines range would be 360-480 months, no matter
what. In the absence of a meaningful amendment to the statutes or reduction
of the guidelines range, there's no factual basis for the defendant's argument.
The Court has also reviewed the defendant's reply brief (filing 412),
which goes well beyond the scope of the claims asserted in his initial motion
(filing 403). Primarily, the defendant's new arguments comprise collateral
attacks on his conviction and sentence. See filing 412. They provide no support
for a compassionate release motion, and the Court does not consider them.
MOTION FOR DOCUMENTS
The defendant has filed a motion in this long-closed criminal case
essentially seeking discovery he says is relevant to a long-closed civil case he
filed against the Assistant U.S. Attorney who prosecuted this case. Filing 405.
The defendant's motion specifically requests that some documents be provided
by the government. Filing 405 at 1.
But the basis for that demand is that the documents are allegedly
relevant to a separate civil case, no. 4:21-cv-3187, that the defendant filed
against several defendants including the Assistant U.S. Attorney in his
individual capacity. Discovery in a civil case, to the extent available, belongs
in that civil case subject to the Federal Rules of Civil Procedure—not in a
demand for documents from the opposing party in a collateral case. Moreover,
that civil case was dismissed in February 2022, and the Eighth Circuit
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summarily affirmed that judgment in April 2022. Zierke v. Molsen, No. 4:21-
CV-3187, 2022 WL 464520 (D. Neb. Feb. 15, 2022), aff'd, No. 22-1593, 2022
WL 4293097 (8th Cir. Apr. 15, 2022). In other words, not only is the defendant
seeking discovery in the wrong place, he's seeking it for a case that's long since
closed. There's no basis to compel the government to provide evidence here.
One of the documents sought is a court filing—the "motion to determine
competency of trial counsel" (filing 47) filed early in the progression of this
case. But the defendant doesn't have the right to receive copies from the court
without payment, even if he's indigent. See 28 U.S.C. § 1915; Lewis v. Precision
Optics, Inc., 612 F.2d 1074, 1075 (8th Cir. 1980). And for the reasons explained
above, the defendant has provided no good reason to demand one.
4

The defendant has also asked for a transcript of closing arguments, and
it's not entirely clear whether the defendant is seeking that from the
government or the Court. Filing 405 at 2-3. But no transcript of the closing
arguments (filing 112) has been prepared, so the Court can't provide him with
one. See filing 134 at 31. The defendant is free, however, to order a transcript
at his own expense. Should he wish to do so, he will need to know that closing
argument was held on January 16, 2009 and was digitally recorded before
Judge Kopf. A request for transcript form is enclosed with this order.
MOTION TO REDUCE SENTENCE
Next, the defendant filed a motion to reduce his sentence based on
U.S.S.G. Amend. 821. Filing 420. Or at least that's what the first sentence
says—but nothing in the rest of the motion has anything to do with Amend.

4
In addition, there's nothing in the motion that seems relevant to the defendant's civil claims,
because there's not a lot in the motion at all. See filing 47. The part quoted above is pretty
much the whole thing.
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821. That amendment, as applied retroactively, amended U.S.S.G. § 4A1.1 to
limit the criminal history impact of "status points," and created U.S.S.G. §
4C1.1 to provide a two-level reduction to the offense level for certain "zero-
point" offenders. See U.S.S.G. Amend. 825. While the defendant was assessed
two "status points," he would have been criminal history category VI
regardless, and he obviously wasn't a zero-point offender. See filing 144 at
16-17. Amend. 821 simply doesn't apply to him, and he doesn't really seem to
contend otherwise. See filing 420; see also filing 431; filing 432.
Instead, the defendant offers a lengthy argument about inchoate offenses
that, frankly, the Court can make little sense of. He suggests that at the time
of his sentencing, inchoate offenses such as conspiracy "were not included in
the guidelines" and as a result, were he resentenced, "Count I of his indictment
would not exist." Filing 420 at 3.
The defendant might be referring to a burgeoning circuit split about
whether the definition of "controlled substance offense" found in § 4B1.2(b)
includes inchoate crimes. See generally United States v. Rivera, 76 F.4th 1085,
1088-91 (8th Cir. 2023), cert. denied, 144 S. Ct. 861 (2024); see also United
States v. Cupples, No. 23-1606, 2024 WL 3194339, at *1 (8th Cir. June 27,
2024). If so, he's misreading those cases—they address what is or isn't a
predicate "controlled substance offense" for purposes of determining career
offender status. See § 4B1.1. That's not at issue here: The predicate offenses
establishing the defendant's career offender status weren't inchoate crimes,
and they weren't controlled substance offenses. See filing 144 at 17.
5
The only
inchoate controlled substance offense that's relevant in this case is the offense
of conviction, for which he was properly sentenced.

5
And even if they were, in the Eighth Circuit, inchoate offenses still count. See Cupples, 2024
WL 3194339, at *1; Rivera, 76 F.4th at 1091.
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BILL IN EQUITY
Next up is a filing captioned as a "Bill in Equity." Filing 423. It seeks to
set aside the defendant's conviction based on fraud. Filing 423. But a bill in
equity isn't available here.
The independent action in equity derives its name from the portion
of Fed. R. Civ. P. 60(d) which states that the "rule does not limit a
court's power to entertain an independent action to relieve a party
from a judgment, order, or proceeding." The independent action, or
original bill, to impeach a judgment is founded upon an
independent and substantive equitable jurisdiction, as
distinguished from other forms of relief from judgment such as by
a motion for rehearing, a motion for a new trial, or other motions
by which a court exercises supervisory power over its judgment. A
party cannot relitigate in the independent equitable action issues
that were open to litigation in the former action where he had a
fair opportunity to make his claim or defense in that action.
Sinesterra v. Roy, 347 F. App'x 9, 10 (5th Cir. 2009) (citations and quotations
omitted). As a result, there is no "bill in equity" allowing a criminal defendant
to collaterally attack a conviction in equity. A defendant can attack a judgment
of conviction on direct appeal or in a § 2255 motion, but "[n]othing authorizes
the federal courts to add new equitable remedies to the federal post-conviction
remedial scheme." Sinesterra, 347 F. App'x at 10.
Rather, a post-conviction filing that fits the description of § 2255 is a
motion under § 2255, and subject to its restrictions, no matter what the pleader
says. Rey v. United States, 786 F.3d 1089, 1091 (8th Cir. 2015). And the
defendant's motion here is squarely described by the plain text of § 2255(a):
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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.
The defendant's "bill in equity" is in fact an unauthorized § 2255 motion and,
for reasons the Court is about to explain, will be dismissed. See United States
v. Fine, 982 F.3d 1117, 1118 (8th Cir. 2020).
SECTION 2255 MOTION
The defendant also filed what is expressly a § 2255 motion. Filing 427.
Presumably seeking to evade the need for certification of a second or successive
motion, see § 2255(h), the defendant invokes Fed. R. Civ. P. 15(c) in an attempt
at "relation back" to his first § 2255 motion. Filing 427; see filing 182.
That attempt fails. It is true that Rule 15(c) can be used, under certain
circumstances, to permit amended claims in a § 2255 to "relate back" to an
earlier motion for statute of limitations purposes. See United States v.
Hernandez, 436 F.3d 851, 856-57 (8th Cir. 2006). But that's as far as it goes.
When a claim "relates back" under Rule 15(c), that just means that a claim
asserted in an amended pleading is treated as if it was filed at the time of a
superseded pleading when determining whether it was timely filed. See Rule
15(c)(1). It's not a vehicle for reopening a closed proceeding.
After judgment, a party can only ask for leave, under Rule 15(a), to
amend a pleading. See Geier v. Missouri Ethics Comm'n, 715 F.3d 674, 677 (8th
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Cir. 2013). There's no basis for leave here. The defendant is simply reasserting
the claims that the Court previously denied, and insisting that the Court erred
in denying them. That motion is in fact an unauthorized successive § 2255
motion, and will be dismissed as such. See Louis v. United States, No. 0:02-CV-
4757, 2003 WL 721674, at *1 (D. Minn. Feb. 26, 2003); see also United States
v. Hunter, No. 0:12-CR-185, 2023 WL 7017772, at *2 (D. Minn. Oct. 25, 2023);
cf. Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002).
MOTION TO CORRECT PRESENTENCE REPORT
The defendant's final motion insists that something is wrong with the
presentence report, because it lists several alleged co-conspirators as "related
cases." Filing 428. The Court questions its authority to entertain such a motion
so long after judgment. See United States v. Leath, 711 F.2d 119, 120 (8th Cir.
1983); see also Risken v. United States, 899 F.2d 728, 730 (8th Cir. 1990). But
regardless, there's nothing wrong with the presentence report.
The defendant wants the Court to "clarify for the record" whether the
other cases listed in the presentence report "are related cases or co-
conspirators." Filing 428 at 2; see filing 144 at 1. But that's based on a false
assumption: That they have to be one or the other. Cases involving co-
conspirators can, and often are, related. The defendant complains that the
sentencing guidelines don't define "related cases," filing 428 at 1, but they're
defined by this Court's local rules: "Open or closed criminal cases are related
when some or all of the charges arise from the same general set of events."
NEGenR 1.4(a)(4)(C)(i).
Semantically, the co-conspirators are people, while the "related cases"
are the separate cases in which those people were prosecuted. But it doesn't
really matter—identifying the "related cases" in the presentence report has no
direct legal significance. It's just to help the sentencing judge remember how
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these often complicated conspiracy cases fit together. Nor does it matter that
the cases weren't consolidated: Joinder under Fed. R. Crim. P. 8 is permissive,
not mandatory. See United States v. Rabbitt, 583 F.2d 1014, 1021 (8th Cir.
1978), abrogated on other grounds by McNally v. United States, 483 U.S. 350
(1987); see also United States v. Hill, 604 F. App'x 759, 767 (10th Cir. 2015).
Even if there was a way to correct an error in a 2009 presentence report,
the defendant has identified no error. His motion will be denied.

IT IS ORDERED:
1. The defendant's fourth motion for compassionate release
(filing 403) is denied.
2. The defendant's motion for documents (filing 405) is denied.
3. The defendant's motion for status (filing 413) is denied as
moot.
4. The defendant's second motion for status (filing 414) is
denied as moot.
5. The defendant's motion to amend (filing 418) is granted.
6. The defendant's fourth motion to reduce sentence (filing 420)
is denied.
7. The defendant's "bill in equity" (filing 423), construed as a
§ 2255 motion, is dismissed.
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8. The defendant's motion to appoint counsel (filing 424) is
denied.
9. The defendant's fifth § 2255 motion (filing 427) is dismissed.
10. The defendant's motion to correct the presentence report
(filing 428) is denied.
11. The Federal Public Defender's motion to withdraw (filing
431) is granted.
12. The Clerk of the Court shall provide the defendant with a
copy of this order and a request for transcript form.
Dated this 2nd day of July, 2024.

BY THE COURT:

John M. Gerrard
Senior United States District Judge

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