United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
L. Miller, Jr., United States District Court Judge
Culver pleaded guilty to producing and distributing child
pornography, in violation of 18 U.S.C. §§ 2251(a)
and 2252(a)(2), and was sentenced to an aggregate term of 30
years' imprisonment pursuant to a binding plea
agreement-a sentence half as long as the range recommended by
the Sentencing Guidelines. Although he waived the right to
challenge his conviction and sentence on appeal or in
post-conviction proceedings in his plea agreement, Mr. Culver
is now before the court requesting that the court vacate his
conviction and sentence under 28 U.S.C. § 2255 [Doc. No.
130], and seeking leave to amend his petition. [Doc. No.
140]. For the following reasons, the court denies Mr.
Culver befriended an 11-year-old boy through Big Brothers Big
Sisters of America, showed the boy child pornography he had
collected and traded through a file-sharing internet program,
and photographed the boy during sexual activity with Mr.
Culver. Mr. Culver pleaded guilty to one count of production
of child pornography in violation of 18 U.S.C. § 2251(a)
and one count of distributing child pornography in violation
of 18 U.S.C. § 2252(a)(2).
court calculated Mr. Culver's final adjusted offense
level under the Sentencing Guidelines as 43 and his criminal
history category as I. Because the maximum sentence
permissible under the statutes of conviction was 60 years,
the guidelines recommended a 60-year sentence. The plea
agreement included a binding recommended sentence of 30 years
with 20 years of supervised release to follow. Mr. Culver was
represented by a different attorney at the sentencing hearing
than he had when he pleaded guilty, and asked for a
continuance of the sentencing hearing so that he could move
to withdraw his guilty plea because, among other things, he
had received ineffective assistance of, and coercion from,
counsel. The court reviewed Mr. Culver's sworn comments
at the change of plea hearing and the number of previous
last-minute continuances of the sentencing hearing, and the
day-of-sentencing motion to continue.
attorneys urged the court to accept the plea agreement and
sentence Mr. Culver for 30 years. The court invited Mr.
Culver's allocution; he began by citing authority for his
contemplated motion to withdraw his guilty plea, then
indicated he also wanted to challenge the court's
jurisdiction over him (an argument that somehow was tied to
the Uniform Commercial Code and maritime jurisdiction). He
seemed to refer to himself as a trust and as a corporation.
But in his entire allocution, he mentioned not a single fact;
the entirety of his allocution consisted of what he believed
the law to be. He made no mention of diagnosis of chronic
mental illnesses such as schizophrenia, bi-polar disorder, or
depressive disorder. He made no mention of symptoms of those
disorders, such as depression, hallucinations, anxiety,
inability to concentrate, flashbacks, suicidal ideation and
thoughts of self-harm. Mr. Culver's allocution didn't
include reference to a history of childhood sexual abuse,
past medical conditions or military service, or the traumatic
head injury he incurred during his military service. In the
petition to be decided today, Mr. Culver said his counsel
should have obtained all that information from the Bureau of
Prisons and the Veterans' Administration.
court found the binding recommended sentence reasonable
because it spared Mr. Culver's most direct victims - the
child he molested and photographed, and the child's
family - the further trauma of trial preparation and trial,
including testimony by the boy and his mother. The court
accepted the plea agreement, and sentenced Mr. Culver to a
term of 30 years on count 1 and 20 years on count 2, to be
served concurrently, with 20 years of supervised release on
each count to follow. Mr. Culver filed an appeal, but it was
voluntarily dismissed. He then filed this petition to vacate
his conviction and sentence under 28 U.S.C. §
Motion to Amend
Culver moves to amend his' 2255 motion to add a new
ground arguing that his plea agreement should be vacated
based on a mutual mistake. The Rules Governing Section 2255
Proceedings don't contain a provision for amending
motions for collateral review, so the court must look to
Fed.R.Civ.P. 15(a) to determine whether leave to amend should
be granted in this case. Johnston v. United States,
196 F.3d 802, 805 (7th Cir. 1999). Rule 15(a)(2) provides
that leave to amend should be freely granted “when
justice so requires.” “Under Rule 15, a court may
deny the amendment due to undue delay, bad faith, dilatory
motive, prejudice or futility.” Rodriguez v. United
States, 286 F.3d 972, 980 (7th Cir. 2002) (citing
Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854,
861 (7th Cir.2001)).
Culver seeks to add a fifth ground to his petition and argues
that his plea agreement suffers from a fatal mutual mistake
in paragraph 5(j), which describes the mandatory restitution
required by 18 U.S.C. § 2259. As Mr. Culver acknowledges
in his motion to amend, a mutual mistake can only invalidate
a plea agreement if the purported mutual mistake relates to
the meaning of an essential term of the agreement. United
States v. Cieslowski, 410 F.3d 353, 362 (7th Cir. 2005).
To invalidate the plea agreement, “the mistake of both
parties must go to ‘a basic assumption on which the
contract was made [which] has a material effect on the agreed
exchange of performances.' ” Id. (quoting
Restatement (Second) Of Contracts § 152(1)).
5(j) of the plea agreement describes the court's
obligation, pursuant to 18 U.S.C. § 2259 “to order
restitution for the full amount of any victims'
compensable losses.” Through its repeated use of
“I acknowledge” statements, the plain language of
Paragraph 5(j) demonstrates that it is describing legal
requirements that Mr. Culver acknowledged, rather than an
essential element to which the parties agreed.
Mr. Culver doesn't claim a mutual mistake related to an
essential element of the plea agreement, it can't
succeed, so it would be futile for him to amend his' 2255
petition to include it. Accordingly, the court denies the
motion to amend. See Indep. Tr. Corp. v. Stewart Info.
Servs. Corp., 665 F.3d 930, 943 (7th Cir. 2012)
(“it is well settled that a district court may refuse
leave to amend where amendment would be futile”).
rules governing petitions filed under 28 U.S.C. § 2255