Memorandum Decision and Order, Staying Section 2255 Motion — Ukashat v. United States (Dkt. 10)

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Memorandum Decision and Order Staying Section 2255 Motion, Document 10, filed 10/06/25, in Case 2:25-cv-00759-HCN, from Judge Nielson in the District of Utah. Petitioner Mubarak Sulaiman Ukashat moves under 28 U.S.C § 2255 to vacate, set aside, or correct his sentence; the order recites that on August 21, 2025 he was sentenced to 24 months' imprisonment and three years' supervised release after pleading guilty to a felony information, and that he then filed a notice of appeal to the Tenth Circuit. The court finds that no "extraordinary circumstances" justify considering the motion while the direct appeal is pending and stays the motion pending resolution of the appeal. It denies Docket Number 4, Motion for Leave to File Second Supplemental Statement, as moot.

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Case 2:25-cv-00759-HCN Document 10 Filed 10/06/25 PageID.232 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

MUBARAK SULAIMAN UKASHAT,
Petitioner, MEMORANDUM DECISION
AND ORDER
v. STAYING SECTION 2255 MOTION

Case No. 2:25-cv-759
UNITED STATES OF AMERICA,
Respondent. Howard C. Nielson, Jr.
United States District Judge

The Petitioner, Mubarak Sulaiman Ukashat, moves to vacate, set aside, or correct his

sentence under 28 U.S.C § 2255. See Dkt. No. 6. The court stays the motion pending resolution

of Mr. Ukashat’s direct appeal to the Tenth Circuit.

On March 22, 2023, Mr. Ukashat was charged by indictment with four counts of wire

fraud in violation of 18 U.S.C. § 1343, aggravated identity theft in violation of 18 U.S.C.

§ 1028A, and two counts of money laundering in violation of 18 U.S.C. § 1957(a). See Case No.

2:23-cr-111, Dkt. No. 1. The United States subsequently filed three superseding indictments,

through which it collectively added an additional count of money laundering and alleged aiding

and abetting liability under 18 U.S.C. § 2 for all counts. See id., Dkt. No. 71.

On February 4, 2025, Mr. Ukashat was charged by felony information with failure to file

currency and other monetary instruments reports in violation of 31 U.S.C. § 5324(c)(1). See id.,

Dkt. No. 203. Two days later, Mr. Ukashat entered a plea of guilty to the felony information

before Magistrate Judge Romero. See id., Dkt. No. 207. Mr. Ukashat’s guilty plea was part of an

agreement he had reached with the United States under Federal Rule of Criminal Procedure
Case 2:25-cv-00759-HCN Document 10 Filed 10/06/25 PageID.233 Page 2 of 4

11(c)(1)(C). As part of the same agreement, the parties stipulated to a sentence of not more than

36 or less than 12 months’ imprisonment and the United States agreed to dismiss the indictments.

See id., Dkt. No. 209 at 5. Finally, as relevant here, Mr. Ukashat agreed to a broad waiver of his

right to appeal his sentence, stating in relevant part,

I knowingly, voluntarily, and expressly waive my right to appeal any sentence
imposed upon me, except that I do not waive the right to appeal as set forth in 18
U.S.C. § 3742(c)(l), which states that I may not file a notice of appeal unless the
sentence imposed is greater than the sentence set forth in this agreement. . . .

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, and my conviction, in any collateral review motion, writ or other
procedure, including but not limited to a motion brought under 28 U.S.C. § 2255,
except on the issue of ineffective assistance of counsel.

Id.

On August 21, 2025, Mr. Ukashat appeared for sentencing. The court accepted the plea

agreement, granted the Government’s motion for leave to dismiss the original and superseding

indictments, and sentenced Mr. Ukashat to 24 months’ imprisonment and three years’ supervised

release. See id., Dkt. No. 229. Four days later, Mr. Ukashat filed a notice of appeal to the U.S.

Court of Appeals for the Tenth Circuit, challenging the “judgment and sentence entered by this

Court on August 21, 2025.” Id., Dkt. No. 235.

Mr. Ukashat then filed this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct

his sentence. See Dkt. No. 6. He argues that “[h]e was denied due process by prosecutorial

misconduct, including suppression of exculpatory evidence, and deprived of effective assistance

of counsel at critical stages,” and that “[t]he cumulative effect of these constitutional violations

renders his guilty plea involuntary and his sentence unlawful.” Id. at 1.

2
Case 2:25-cv-00759-HCN Document 10 Filed 10/06/25 PageID.234 Page 3 of 4

II.

Under 28 U.S.C. § 2255(a), “[a] prisoner in custody . . . claiming the right to be released

upon the ground that the sentence was imposed in violation of the Constitution or laws of the

United States, . . . or is otherwise subject to collateral attack, may move the court which imposed

the sentence to vacate, set aside or correct the sentence.”

But while “there is no jurisdictional barrier to a district court entertaining a § 2255

motion while a direct appeal is pending, . . . it should only do so in extraordinary circumstances

given the potential for conflict with the direct appeal.” United States v. Prows, 448 F.3d 1223,

1228 (10th Cir. 2006) (emphasis added). “Justification for proceeding with the § 2255 motion is

most likely when the § 2255 issues are completely distinct from the issues on appeal.” United

States v. Rangel, 519 F.3d 1258, 1265 (10th Cir. 2008) (emphasis added); see also Prows, 448

F.3d at 1228–29 (holding that a “completely different and non-overlapping issue” raised in a

Section 2255 motion may be heard by the district court).

When the “direct appeal directly implicate[s] issues contained in the § 2255 motion, . . . a

district court [can] exercise its discretion to stay the § 2255 motion.” Prows, 448 F.3d at 1229.

III.

Mr. Ukashat currently has a direct appeal pending before the Tenth Circuit, in which he

challenges “the judgment and sentence entered by this Court on August 21, 2025.” Case No.

2:23-cr-111, Dkt. No. 235. Based only on this notice of appeal, the court cannot determine with

certainty what issues Mr. Ukashat intends to pursue on appeal. The court is thus unable to assess

the precise degree of overlap between the issues in his Section 2255 motion and those that will

be raised on direct appeal.

3
Case 2:25-cv-00759-HCN Document 10 Filed 10/06/25 PageID.235 Page 4 of 4

Even so, the court has substantial reason to believe that there will be at least some—if not

complete—overlap between the two proceedings. On appeal, Mr. Ukashat will first need to

overcome the appellate waiver in his plea agreement. To do so, he must show that the appeal falls

outside the scope of the waiver of appellate rights, that he unknowingly or involuntarily waived

his appellate rights, or that enforcing the waiver would result in a miscarriage of justice. See

United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). It is likely that Mr. Ukashat will

raise at least some, and possibly all, of the issues he raises in his Section 2255 motion to

overcome the appellate waiver. Indeed, he states in his motion that “[t]he cumulative effect of

these constitutional violations renders his guilty plea involuntary and his sentence unlawful.”

Dkt. 6 at 1 (emphasis added). Under these circumstances, the court finds that no “extraordinary

circumstances” justify consideration of the Section 2255 motion while the direct appeal remains

pending. The court therefore “exercise[s] its discretion to stay the § 2255 motion” pending

resolution of the direct appeal.

* * *

For the foregoing reasons, Docket Number 6, Motion to Vacate, Set Aside, or Correct

Sentence Pursuant to 28 U.S.C. § 2255, is STAYED pending resolution of Mr. Ukashat’s direct

appeal to the Tenth Circuit. In light of this ruling, Docket Number 4, Motion for Leave to File

Second Supplemental Statement, is DENIED as moot.

IT IS SO ORDERED.

Dated this 6th day of October, 2025.
BY THE COURT:

Howard C. Nielson, Jr.
United States District Judge

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