Opinion
CAUSE NO. 3:06-CR-120 RLM
12-03-2013
UNITED STATES OF AMERICA v. DONALD ZAWADA
OPINION and ORDER
Donald Zawada has filed a motion pursuant to Federal Rule of Civil Procedure 59(e) asking the court to reconsider its denial of his September 20, 2013 motion for appropriate relief. A Rule 59(e) motion for reconsideration may be based on three substantive grounds: newly discovered evidence, an intervening change in the law, or a manifest error of law. Sigsworth v. City of Aurora, 487 F.3d 506, 511-512 (7th Cir. 2007). Mr. Zawada bases his request for reconsideration on a manifest error of law: he claims the court misconstrued and mistakenly denied his September 20 filing as a successive petition under 28 U.S.C. § 2255. Mr. Zawada says his motion contained newly discovered evidence showing his actual innocence, so no prior appellate approval was necessary.
Mr. Zawada filed his September 20 motion under 28 U.S.C. § 2244(b)(2)(B), claiming that the evidence upon which he relied couldn't have been discovered sooner because changes in technology and computer forensics "substantially altered the original conclusion reached by the jury" and the facts upon which he relied, "if proven and viewed in light of the true evidence as a whole, would now be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found [him] guilty of the crimes, had the evidence been properly presented." Memo. [docket # 207], at 2-3. Mr. Zawada asked the court to "re-evaluate" the "purported overwhelming evidence" presented at trial. According to Mr. Zawada, "when viewed in the correct context, [that evidence] actually revealed that [he] is not the person who committed the crimes charged." Memo. [docket # 207], at 5. In support, Mr. Zawada reported he received the documents upon which he relied from Courtney J. "Rip" Van Riper, Jr. in September 2012, a year before he filed his motion. A copy of Mr. Van Riper's letter to Mr. Zawada is found in Exhibit A, together with thirty-five pages of trial evidence that contains hand-written notes, comments, and questions. Mr. Zawada concluded that his reevaluation of internet protocol addresses, e-mail evidence, and telephone call evidence from his trial was newly discovered evidence that would support a finding of actual innocence.
Mr. Zawada argued on appeal and in his first Section 2255 petition that the evidence at trial showed that someone else registered and used the internet accounts at issue to commit the crimes with which he was charged. See United States v. Zawada, 552 F.3d 531, 535 (7th Cir. 2008) ("Zawada's primary argument, both before the district court and on appeal, has always been that the evidence was not sufficient to show that he was 'plannerdude97' and 'becker003.'"); Feb. 1, 2010 Op. and Ord. denying initial § 2255 petition [docket # 185], at 21 ("Mr. Zawada lists several scenarios he claims might have suggested his innocence - that 'someone else' might have used his computer, infiltrated his computer, and/or used his Internet credentials and name - and complains that his counsel didn't prove any of those theories. . . . Mr. Lenyo was able to suggest to the jury that someone other than Mr. Zawada used his computer to commit the acts charged; that the jury didn't believe that Mr. Zawada's identity had been stolen or his computer infiltrated doesn't establish ineffective assistance of counsel."). Mr. Zawada's January 2011 request to the Seventh Circuit Court of Appeals to file a second or successive Section 2255 petition was denied because the evidence he sought to rely on wasn't new. See Jan. 18, 2011 Ord. of 7th Cir. [docket # 206] ("He now submits numerous documents that he asserts proves someone else registered the user-names of the perpetrator. Zawada claims that the government failed to disclose the alleged evidence. Neither the evidence nor the claim is new. Zawada included both in his initial § 2255 motion. Section 2244(b)(1) prohibits authorization of claims previously presented to a court, and § 2255(h)(1) requires claims of innocense to rest on newly discovered evidence."). For that same reason, Mr. Zawada's September 20 motion didn't meet the requirements of 28 U.S.C. § 2244(b)(2)(B) — the evidence upon which he relied was presented at his trial, so the evidence wasn't "newly discovered," and his "reevaluation" of that evidence via questions and comments didn't convert it to "newly discovered" evidence. Thus, Mr. Zawada was required to request authorization from the court of appeals to file a second or successive Section 2255 petition pursuant to 28 U.S.C. § 2244(b)(3)(A) before filing a motion in this court.
Mr. Zawada hasn't established a manifest error of law that would require the court to reconsider the denial of his September 20 motion. The court, therefore, DENIES his motion to reconsider [docket # 209].
SO ORDERED.
Robert L. Miller , Jr.
Judge, United States District Court
cc: D. Zawada
AUSA Schaffer; AUSA Lowery