U.S. v. Johnson

Full title: UNITED STATES OF AMERICA, Plaintiff-Respondent, v. DANIEL TIMOTHY JOHNSON…

Court: United States District Court, W.D. Oklahoma

Date published: Sep 21, 2010

Case No. CR-08-222-M, (CIV-10-229-M) (W.D. Okla. Sep. 21, 2010)

Opinion

Case No. CR-08-222-M, (CIV-10-229-M).

September 21, 2010

ORDER

VICKI MILES-LaGRANGE, District Judge

Defendant-Movant Daniel Timothy Johnson ("Johnson"), a federal prisoner, filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody on March 8, 2010. On March 26, 2010, plaintiff-respondent United States of America filed its response to Johnson's motion. On April 14, 2010, Johnson filed his reply.

I. Introduction

II. Discussion

17 U.S.C. § 50618 U.S.C. § 2United States v. Johnson329 Fed. Appx. 182^th

In an unpublished decision, the Tenth Circuit has held that a restitution award can not be challenged under § 2255 because there is no claim to a right to be released from custody based upon that challenge. United States v. Papa, 97 Fed. Appx. 848, 851 (10^th Cir. 2004). Additionally, other courts that have considered this issue have held that § 2255 may not be utilized for the purpose of attacking fines and orders of restitution. See e.g., United States v. Kramer, 195 F.3d 1129 (9^th Cir. 1999); Blaik v. United States, 161 F.3d 1341 (11^th Cir. 1998); Barnickel v. United States, 113 F.3d 704, 706 (7^th Cir. 1997); Smullen v. United States, 94 F.3d 20, 25-6 (1^st Cir. 1996); United States v. Segler, 37 F.3d 1131, 1136-37 (5^th Cir. 1994).

In his reply, Johnson asserts that he is seeking a release from custody. However, having carefully reviewed Johnson's § 2255 motion, and construing said motion liberally as this Court must pursuant to Haines v. Kerner, 404 U.S. 519, 520-21 (1972), the Court finds that in his § 2255 motion Johnson makes no claim to a right to be released from custody but is solely challenging the amount of his restitution. Johnson further asserts in his reply that he is not only challenging the amount of loss that was used for restitution purposes but is also challenging the amount of loss that was used for sentencing purposes. While Johnson is clearly challenging the amount of loss for sentencing purposes in his reply, the Court finds that such a challenge is not made in his original motion.¹ Having carefully reviewed his motion and construing said motion liberally, the Court finds that in every ground for relief set forth in his § 2255 motion Johnson is only challenging the amount of restitution awarded.

1 As a general rule, a court will not consider issues raised for the first time in a reply brief. See Plotner v. AT T Corp., 224 F.3d 1161, 1175 (10^th Cir. 2000). This Court, therefore, will not consider Johnson's challenge to the amount of loss for sentencing purposes raised for the first time in his reply.

Accordingly, because Johnson is solely challenging the amount of restitution awarded, the Court finds that Johnson's § 2255 motion should be denied.

III. Evidentiary Hearing

IV. Conclusion

United States v. Galloway 56 F.3d 12391240^th United States v. Marr 856 F.2d 1471 ^th28 U.S.C. § 2255 28 U.S.C. § 2255

IT IS SO ORDERED this 21st day of September, 2010.