United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
KIMBALL, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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.
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)).
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
[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
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.
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.