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Culver v. United States

United States District Court, N.D. Indiana, Hammond Division

February 12, 2019

JEREMY CULVER, Petitioner
v.
UNITED STATES OF AMERICA, Respondent

          OPINION AND ORDER

          Robert L. Miller, Jr., United States District Court Judge

         Jeremy 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's motions.

         I. Background

         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).

         The 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.

         Both 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.

         The 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. § 2255.[1]

         II. Motion to Amend

         Mr. 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)).

         Mr. 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)).

         Paragraph 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.

         Because 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”).

         III. 2255 Petition

         The rules governing petitions filed under 28 U.S.C. § 2255 ...


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