United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
Benson, District Judge
the Court is Petitioner Jeffrey Lane Mowen's Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.
§ 2255. Having considered the motion and pleadings,
having reviewed the file, and being otherwise fully informed,
the court enters the following Memorandum Decision and Order.
February 19, 2009, a federal grand jury returned an
indictment against Petitioner alleging three counts of Wire
Fraud, pursuant to 18 U.S.C. § 1343, arising out of a
Ponzi scheme related to a real estate leveraging and foreign
currency trading program. (Case No. 2:09-cr-98, Dkt. No. 1.)
Defendant made his initial appearance on May 22, 2009, before
Magistrate Judge Warner. (2:09-cr-98, Dkt. No. 12.) Judge
Warner appointed Jamie Zenger from the Utah Federal
Defender's Office to represent Petitioner. (Id.)
On September 30, 2009, Ms. Zenger filed a motion to withdraw
from representing Petitioner, due to a conflict of interest
within the Federal Defender's Office. (2:09-cr-98, Dkt.
No. 29.) Judge Warner held a hearing on the motion on October
7, 2009, and granted Ms. Zenger's request to withdraw.
(2:09-cr-98, Dkt. No. 32.) The court then appointed Stephen
R. McCaughey, CJA counsel, to represent Petitioner.
(Id.) Because of the volume of discovery and
complexity of Petitioner's case, the court also appointed
a second attorney to assist Mr. McCaughey in his
representation of Petitioner. (2:09-cr-98, Dkt. No. 36.)
Petitioner awaited trial in federal custody at the Davis
County Jail, Petitioner allegedly attempted to hire a hit man
to murder four material witnesses, with the intent of
preventing their attendance and testimony at his trial.
(2:09-cr-98, Dkt. No. 52.) Based on this alleged conduct, on
November 18, 2009, a federal grand jury returned a
superseding indictment against Petitioner, adding one count
each of Solicitation to Commit a Crime of Violence (18 U.S.C.
§ 373(a)), Tampering with a Witness (18 U.S.C. §
1512(a)(1)(A)), and Retaliating Against a Witness (18 U.S.C.
§ 1513(a)(1)(B)). (Id.) Petitioner was
arraigned on December 14, 2009, and ordered to remain in
federal custody. (2:09-cr-98, Dkt. No. 63.)
March 17, 2011, Petitioner pleaded guilty to one count of
Wire Fraud. (2:09-cr-98, Dkt. Nos. 141, 142.) As part of the
plea agreement, the United States agreed to dismiss the
remaining counts at sentencing. (Id.) On April 28,
2011, petitioner was sentenced to 120 months imprisonment,
followed by 60 months of supervised release. At the
sentencing hearing, the government moved to dismiss the
remaining counts. (Id.) The court held the issue of
restitution open and requested additional briefing from the
parties. (2:09-cr-98, Dkt. Nos. 147, 148.)
September 28, 2011, the United States filed its memorandum
regarding restitution. (2:09-cr-98, Dkt. No. 175.) On
September 29, 2011, at Petitioner's request, the court
appointed new counsel for Petitioner, Jared G. Parkinson, and
set a briefing schedule regarding restitution. (2:09-cr-98,
Dkt. No. 177.) On October 7, 2011, Petitioner moved the court
for additional time to file a response to the
government's memorandum regarding restitution.
(2:09-cr-98, Dkt. No. 180.) On October 11, 2011, Petitioner
filed his sentencing memorandum concerning restitution,
noting that the court had not yet ruled on his request for an
extension of time. (2:09-cr-98, Dkt. No. 182.) On October 11,
2011, the court entered an order allowing petitioner an
extension of time to November 10, 2011, “only for the
purpose of filing a response to the United States'
Sentencing Memorandum Concerning Restitution.”
(2:09-cr-98, Dkt. No. 184.) On October 21, 2011, the United
States filed a response to Petitioner's memorandum
regarding restitution. (2:09-cr-98, Dkt. No. 187.)
November 9, 2011, Petitioner's counsel, Mr. Parkinson,
filed a motion seeking to withdraw as counsel, noting
difficulties communicating with Petitioner, Petitioner's
desire to proceed pro se, and Petitioner's
directive to Mr. Parkinson to withdraw as counsel.
(2:09-cr-98, Dkt. No. 189.) On February 3, 2012, the court
held a hearing on the Motion to Withdraw, and a motion by
Petitioner for leave to appear pro se. (2:09-cr-98,
Dkt. No. 208.) At that hearing, the court granted both
motions, and Petitioner made a formal waiver of counsel on
the record. (Id.)
February 25, 2014, following extensive filings related to the
assets at issue and third party claimants, the court issued
an Order, setting the restitution amount at $9, 799, 790, and
adopting the government's breakdown of restitution among
the victims as reflected in the Final Victim Restitution List
submitted by the United States. (2:09-cr-98, Dkt. No. 304.)
On February 28, 2014, the court entered an Amended Judgment,
consistent with that Order. (2:09-cr-98, Dkt. No. 305.)
September 2, 2014, Petitioner filed a “Notice of
Motion; to Vacate - Aberrant Sentencing & Resulting
Abeyant Judgment.” (2:09-cr-98, Dkt. No. 316.) On
September 15, 2015, the court issued an order denying
Petitioner's motion, reasoning:
To the extent the motion is seeking the withdrawal of
defendant's guilty plea, it is denied because defendant
has already been sentenced and therefore may not withdraw his
plea. Defendant's plea may be set aside only on direct
appeal or collateral attack.
Defendant has several options regarding a possible §
2255 motion. He may (1) file a letter or pleading indicating
that the court may characterize his request as a § 2255
motion, (2) supplement his request, or (3) withdraw his
request. The Court will not consider Defendant's possible
§ 2255 request unless and until the court receives
permission from Defendant.
(2:09-cr-98, Dkt. No. 317.) The court also provided
Petitioner with a copy of United States v. Kelly,
235 F.3d 1238 (10th Cir. 2000) and a Form 2255 Petition.
Petitioner did not file anything with the court in response
to its September 16 Order.
March 11, 2016, Petitioner filed a “Motion to Be
Construed Liberally as a Pro Se Defendant.”
(2:09-cr-98, Dkt. No. 316.) The court denied the motion,