United States District Court, D. Minnesota
N. ERICKSEN UNITED STATES DISTRICT JUDGE
Zack Zafer Dyab pleaded guilty in 2010 to conspiracy to
commit wire fraud and money laundering in connection with a
mortgage-fraud scheme. The amount of restitution owed by Dyab
was left open in the plea agreement. Prior to sentencing, the
Court concluded, after full consideration of arguments
presented by both Dyab and the government, that Dyab owed
about $6.4 million in connection with 26 properties. Judgment
was entered accordingly. See ECF No. 166.
2014, the government requested two changes to the restitution
portion of the criminal judgment. See ECF No. 222.
First, the government asked that certain of the payees be
changed to reflect sales on the secondary market of the
mortgages at issue. Second, the government asked that
approximately $1.37 million of Dyab's restitution
obligation be made joint and several with Barbara Puro, a
defendant from a related criminal matter. The Court granted
the request without conducting a hearing or otherwise seeking
input from Dyab. See ECF No. 224. Neither the total
amount of restitution owed by Dyab nor his payment schedule
was altered in the amended judgment.
year later, Dyab filed a motion pursuant to 28 U.S.C. §
2255 contending, among other things, that his due process
rights were violated when the restitution order was amended
without an opportunity to be heard. See ECF No. 237.
The Court concluded that the restitution challenges were not
cognizable under § 2255. See ECF No. 242. The
Eighth Circuit agreed. “Because a dispute about
restitution does not involve a claim of a right to be
released from custody, a prisoner cannot challenge the
restitution portion of his sentence under § 2255.”
Dyab v. United States, 855 F.3d 919, 922 (8th Cir.
Eighth Circuit did, however, leave the door open for
challenging the amendment of the restitution portion of the
criminal judgment through the All Writs Act, 28 U.S.C. §
1651. Id. Dyab now returns requesting that the Court
“re-open the restitution portion of my judgment”
and correct allegedly incorrect information in that amended
judgment. See ECF No. 274 at 7. Dyab also requests
that counsel be appointed to represent him in the prosecution
of his motion. See ECF No. 275.
requests are denied. As an initial matter, the Court stresses
the minuteness of the changes affected by the amended
judgment. Not one penny was added to Dyab's restitution
obligations. No new factual findings were incorporated. And
the Court had already clarified at sentencing that any
restitution amounts owed by Dyab would be “due joint
and severally with your co-defendant or, if there's
another one, co-defendants.” ECF No. 174 at 11.
important for three reasons. First, in order to establish (as
he alleges) that his due process rights were violated, Dyab
“must show that he has been deprived of a
constitutionally protected life, liberty or property
interest.” Mulvenon v. Greenwood, 643 F.3d
653, 657 (8th Cir. 2011) (quotation omitted). It is difficult
to see how any protected interest of Dyab's could have
been affected through the amendment of the judgment. Dyab
remains responsible for the exact same amount that he did at
the time the original sentencing judgment was entered, and he
must meet those obligations under the exact same conditions
as previously imposed.
and relatedly, “most due process claims require [a]
specific showing of prejudice.” Ford v.
Fortenberry, 39 F.3d 1184, at *1 (8th Cir. 1994)
(unpublished table disposition) (citing Estes v.
Texas, 381 U.S. 532, 542-43 (1965)). Dyab cannot
possibly have been prejudiced by the amendments made to the
sentencing judgment; indeed, he may benefit, insofar as a
portion of his restitution obligations are now shared jointly
and severally with Puro. The remaining changes to the
sentencing judgment affect only where the money owed by Dyab
must go after it is first paid to the Court, a matter of no
legitimate concern to Dyab. See Fuchs v. United
States, No. 13C50099, 2014 WL 1652151, at *8 (N.D. Ill.
Apr. 24, 2014); cf. United States v. Grimes, 173
F.3d 634, 639 (7th Cir. 1999).
Dyab's motion is as much a cat's paw intended to
challenge the original restitution judgment as it is
an attempt to challenge the amended restitution
judgment. For example, Dyab contends in his reply brief that
his motion “is based, at least in part, on the
incoreect [sic] formula that was used to determine actual
loss.” ECF No. 284 at 2. But Dyab had an opportunity to
contest the overall loss calculations on direct appeal. He
declined. “By failing to file a direct appeal, [Dyab]
waived his opportunity to challenge the restitution component
of his sentence, as imposed.” United States v.
Williams, No. 04-CR-0254 (ADM/AJB), 2007 WL 1424663, at
*1 (D. Minn. May 10, 2007) (collecting cases). Insofar as the
All Writs Act avails Dyab of an exception to that rule, it
can only apply, if at all, with respect to the portions of
the judgment that were amended, as any arguments relating to
other aspects of the judgment could have been raised on
direct appeal at the time the original judgment was entered.
And as explained above, the amended portions of the
sentencing judgment did not prejudice Dyab in any respect.
has not and cannot establish a violation of his due process
rights through the amendment of the sentencing judgment in
this matter. His motion for relief is therefore denied.
Because further prosecution of Dyab's motion would be
futile, Dyab's motion for appointment of counsel is
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY ORDERED THAT:
Defendant Zack Zafer Dyab's motion to amend judgment ...