IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

UNITED STATES OF AMERICA : Criminal No. 04-619 

 : Civil No. 07-0903 

 : 

 

 v. : 

 : 

 : 

PRESTON LIT, : 

SUPPLEMENTAL RESPONSE TO GOVERNMENT’S RESPONSE 

OPPOSING HIS SECTION 2255 MOTION TO VACATE, 

SET ASIDE OR CORRECT SENTENCE 

 PRESTON LIT submits the following supplemental response to the 

Government’s response opposing his Section 2255 motion to Vacate, Set Aside and/or 

Correct his Sentence. All previous submissions by Movant are incorporated by reference 

as if set forth at length herein. 

I. SUPPLEMENTAL SUPPORT FOR CLAIM THAT INEFFECTIVE 

ASSISTANCE OF COUNSEL SURVIVES THE WAIVER 

There is no valid waiver of the right to file a collateral attack. A plea agreement 

is contractual in nature and principles of contract law govern. United States v. Hodge, 

412 F3d 479, 485 (3d Cir. 2005). If the contract is capable of more than one reasonable 

interpretation, it is ambiguous. United States v. Gebbie, 294 F3d 540, 551 (3d Cir. 

2002). If the contract is ambiguous, the court may look to the facts of the case to 

determine what the parties reasonably understood to be the terms. Gebbie, Id. If the 
extrinsic evidence does not resolve the ambiguity, the ambiguity is construed against the 

government, which drafted the agreement. Gebbie at 552. 

 Applying the law to the facts of this case, there was no valid waiver of the right to 

collaterally attack Mr. Lit’s conviction and sentence. Paragraph 9 of the Guilty Plea 

agreement reads, in pertinent part, as follows: 

9. In exchange for the undertakings made by the government in entering this 

plea agreement, the defendant voluntarily and expressly waives all rights to 

appeal or collaterally attack the defendant’s conviction, sentence, or any 

other matter relating to this prosecution whether such right to appeal or 

collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 

2255, or any other provision of the law. (Plea agreement, paragraph 9, pages 20-

21) (Emphasis supplied) 

 While this may appear unambiguous on its face, the government also drafted the 

“Acknowledgement of Rights” that Mr. Lit signed as a part of the plea agreement. 

Paragraph 6 of the “Acknowledgement of Rights” reads as follows: 

6. I understand that if I plead guilty, I have waived my right to appeal, except 

as set forth in Paragraph 9 of the guilty plea agreement. 

 (Acknowledgement of Rights, page 2, paragraph 6). (Emphasis supplied) 

 There is not a single word in the “Acknowledgement of Rights” regarding giving 

up the right to collaterally attack the conviction and sentence and in signing the 

“Acknowledgement of Rights”, Mr. Lit gave up the right to appeal, only. 

 The interpretation that Mr. Lit gave up his right to appeal, but not to collateral 

attack is reinforced by the transcript of the plea colloquy at pages 38-40. 

THE COURT: Now, I’m going to talk to you about your right of appeal. Ordinarily 

with a guilty plea you have a right to appeal from errors committed in this proceeding 

and to an illegal or unreasonable sentence. If you were to go to trial your appellate 

rights cover all errors at trial, everything that you say the Court handled improperly or 

did improperly at trial. And of course, you can appeal an illegal or unreasonable 

sentence if you go to trial. 

2
 Now, it is my understanding, Ms. Winter, that under this plea agreement with the 

defendant the defendant has further limited his right to appeal in return for what the 

Government has agreed to do. Is that correct? 

MS. WINTER: Certainly, your Honor. Specifically, in Paragraph 9 the defendant 

agrees that he’s waiving all rights to direct appeal as well as a collateral attack on his 

conviction, sentence or any other matter related to the prosecution, whether this 

arises under 18 USC 3742, 1291 or 2255 or any other provision of law. 

Notwithstanding that waiver, if the Government appeals then the defendant can 

file a direct appeal of his sentence. If the Government does not appeal, however, the 

defendant may still file a direct appeal, but his claims are limited to two, that his sentence 

exceeded the statutory maximum, which in this case is life, or that this Court 

unreasonably departed upward from the otherwise recommended Sentencing Guideline 

range. 

 If the defendant doesn’t appeal pursuant to these two limitations then no other 

issue may be presented on appeal by the defendant. 

THE COURT: Do you understand that, Mr. Lit, the further limitations on your right to 

appeal? (Transcript of Plea, May 23, 2005, pp. 38-40). 

 There is not another word in the transcript explaining to Mr. Lit the meaning of 

“collateral attack” or “2255”. There is no inquiry as to whether Mr. Lit understands 

whether there are any limitations on the right to file a collateral attack. The only 

limitations described are those relating to direct appeal. The colloquy at sentencing is in 

keeping with paragraph 6 of the “Acknowledgement of Rights”- that is, that Mr. Lit has 

waived his right to appeal except in limited circumstances. 

 Applying Hodge and Gebbie, supra. to the facts of this case, the plea agreement 

is ambiguous because a provision at paragraph 9 of the Agreement requires that Mr. Lit 

give up his right to collateral attack and the “Acknowledgement of Rights” attached to 

the plea agreement does not. 

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The plea colloquy establishes that Mr. Lit reasonably understood that he was 

giving up his absolute right to appeal in pleading guilty but did not reasonably understand 

that he was giving up the right to a collateral attack. 

 If the Court finds that the intrinsic evidence does not resolve the ambiguity, then 

the ambiguity must be construed against the government as the drafter of the agreement 

and Mr. Lit must be found not to have waived his right to a collateral attack. 

II. CONCLUSION 

 There is no valid waiver of the right to make a collateral attack under 28 U.S.C. 

Section 2255. Therefore, the Court should reach the merits of the claims raised in the 

2255 motion. 

Dated: May 1, 2007 Respectfully submitted, 

 /s/Cheryl J. Sturm

 Cheryl J. Sturm 

 Attorney at Law 

 387 Ring Road 

 Chadds Ford, Pa. 19317 

 484-771-2000 

 484-771-2008 

 Sturmcj@aol.com

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CERTIFICATE OF SERVICE 

Cheryl J. Sturm, Attorney at Law, hereby certifies that on the 1st day of May, 

2007 she cased a copy of the Supplemental Response to Government’s Response 

Opposing His Section 2255 Motion to Vacate, Set Aside or Correct Sentence to be served 

upon opposing counsel by Federal Express next day delivery, pre-paid and addressed as 

follows: 

 Nancy Beam Winter, AUSA 

 U.S. Attorney’s Office 

 615 Chestnut Streets 

 Suite 1250 

 Philadelphia, Pa. 19106 

 

Dated: May 1, 2007 /s/Cheryl J. Sturm

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