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Cuch v. United States

United States District Court, D. Utah, Central Division

October 3, 2019

JARVIS CHARLIE CUCH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER

          DALE A KIMBALL, UNITED STATES DISTRICT JUDGE

         This matter is before the court on Petitioner Jarvis Charlie Cuch's Motion to Amend or Alter Judgment. On October 25, 2018, Petitioner filed a motion under 28 U.S.C. § 2255 to vacate his sentence. On March 18, 2019, the court denied Petitioner's motion. On March 29, 2019, Petitioner filed a motion to have the case reopened or his judgment set aside due to the United States of America's (the “Government”) failure to serve him with a copy of its response to his § 2255 motion. On April 3, 2019, the court denied Petitioner's motion to reopen the case. Nevertheless, the court directed the Government to serve Petitioner with its response and permitted Petitioner time to file a reply once the Government had done so.

         On April 12, 2019, Petitioner filed the present Motion to Amend or Alter judgment. In addition, he filed his reply on April 25, 2019. In both his motion and his reply, Petitioner raised new arguments that had not yet been addressed by the Government. Consequently, the court directed the Government to file a sur-reply responding to those arguments. The Government filed its sur-reply on July 4, 2019.

         Now that Petitioner's arguments have been fully addressed by the Government, the court issues the following Memorandum Decision and Order denying Petitioner's Motion to Amend or Alter Judgment.

         DISCUSSION

         Petitioner's motion boils down to two arguments. First, he contends that because the Government failed to serve him with a copy of its response to his § 2255 motion, he was denied his constitutional right to due process. Second, while he concedes that he waived his right to challenge his sentence in his plea agreement, he avers that the plea agreement does not preclude him from challenging his conviction.

         As the court concluded in its April 3, 2019 Memorandum Decision and Order [Dkt. No. 10], Petitioner's first argument is without merit. The Tenth Circuit has opined that “[a] defendant is not entitled to relief from the denial of a § 2255 petition based on the government's failure to serve him with its response unless he can demonstrate that he was prejudiced by that failure.” United States v. Braimah, 559 Fed.Appx. 698, 700 (10th Cir. 2014). Because Petitioner has failed to establish that he was prejudiced, the court need not explore this argument any further.

         As to Petitioner's second argument, although more compelling than the first, the court finds it equally unavailing. Preliminarily, Petitioner argues that he does not attack his sentence, only his conviction. However, in Petitioner's original motion to set aside his sentence under § 2255, he specifically attacked both his sentence and his conviction. See Dkt. No. 1-1 at 2, 4, and 11. The court is therefore wary of Petitioner's attempt to pivot and recharacterize the relief that he originally sought. With this in mind, the court will proceed with its analysis regarding the substance of Petitioner's argument.

         The first question a court must resolve when a petitioner collaterally attacks his conviction or sentence despite having waived his right to do so in a plea agreement is whether the waiver is enforceable. United States v. Pam, 867 F.3d 1191, 1200 (10th Cir. 2017). To ascertain whether a plea agreement waiver is enforceable, courts examine “(1) whether the disputed [collateral attack] falls within the scope of the waiver of [collateral attack] rights [, ] (2) whether the defendant knowingly and voluntarily waived his [collateral attack] rights[, ] and (3) whether enforcing the waiver would result in a miscarriage of justice.” Id. at 1200-01 (alterations in original) (quoting United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004)). To determine whether the collateral attack falls within the scope of the waiver, courts “apply principles of contract law and examine the plain language of the plea agreement.” Id. at 1201 (citing United States v. Taylor, 413 F.3d 1146, 1151 (10th Cir. 2005)).

         For the first prong, Petitioner relies heavily on the Tenth Circuit's holding in Pam. In that case, the petitioner had signed a plea agreement that included a waiver on collateral attacks. Id. Importantly, the waiver provided:

[T]he Defendant agrees to waive any collateral attack to the Defendant's conviction(s) pursuant to 28 U.S.C. § 2255, except on the issue of counsel's ineffective assistance in negotiating or entering this plea or this waiver.

Id. (emphasis in original). The court concluded that the waiver only precluded the defendant from attacking his conviction, not his sentence. Id. The court therefore held that the district court had erred in dismissing the defendant's § 2255 motion based on the wavier. Id.

         This case involves the reverse situation. Here, Petitioner's waiver mentions the term “sentence” but does not explicitly state the term “conviction.” Petitioner's waiver provides, in relevant part:

(2) I also knowingly, voluntarily, and expressly waive my right to challenge my sentence, unless the sentence imposed is greater than the sentence set forth in this agreement, in any collateral review motion, writ or other procedure, including but not limited to a motion brought under 28 U.S.C. ...

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