Sepulveda v. Smith

Full title: GEORGE SEPULVEDA, Petitioner v. JOSEPH V. SMITH, Respondent

Court: United States District Court, M.D. Pennsylvania

Date published: Dec 27, 2004

Civil No. 1:CV-04-2493 (M.D. Pa. Dec. 27, 2004)

Opinion

Civil No. 1:CV-04-2493.

December 27, 2004

ORDER

SYLVIA RAMBO, Senior District Judge

Before the court is a report of the magistrate judge in which he recommends that the captioned action be dismissed. The case originally arose in the United States District Court for the District of Rhode Island. Petitioner's judgment of conviction was appealed and affirmed. Petitioner filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 which was denied by the district court. The First Circuit Court of Appeals affirmed the district court.

The petition before this court challenges the restitution order and is brought pursuant to 28 U.S.C. § 2241. The magistrate judge found that Petitioner could not bring his action pursuant to § 2241 and recommends dismissal of the action. Petitioner has filed objections.

Petitioner argues in his objections to the report and recommendation of the magistrate judge that the magistrate judge is incorrect in finding that Petitioner could not bring his action pursuant to 28 U.S.C. § 2241. He relies heavily on Smullen v. United States, 94 F.3d 20 (1^st Cir. 1996), for the proposition that one can not utilize a § 2255 for raising an illegal restitution order. In Smullen the court recognized that the plain language of 28 U.S.C. § 2255 is available to Petitioner's "in custody" who "claim . . . the right to be released" from custody. Smullen, however, was held not to be able to proceed under § 2255 because he was not in custody at the time the appeal came before the court.

Petitioner requests the court to vacate his sentence and remand for resentencing. He challenges that portion of his sentence ordering restitution, asserting that the restitution was imposed in violation of federal statutory law. The court in Horsley v. Anderson, 2003 WL 22901925 (D. Minn.) stated as follows:

The Federal Sentencing Guidelines require a sentencing court to consider numerous factors when imposing a sentence. 18 U.S.C. § 3553(a). These factors include the nature and characteristics of the offense, the need for the sentence to reflect the seriousness of the offense, and the need to provide restitution to the victims of the offense. Id. A restitution order is thus an integral part of a criminal sentence and any challenge to the lawfulness of the restitution order is a challenge to the lawfulness, or validity, of the sentence. See Alevras v. Snyder, 205 F.3d 1344 (8^th Cir. 1999) (unpublished table decision). Such a challenge must therefore be brought under § 2255. See 28 U.S.C. § 2255 (allowing prisoner to collaterally attack sentence on ground that its imposition violates Constitution or federal laws.)

Id. at *1-*2.

Petitioner's motion is one properly brought under § 2255 and not § 2241. IT IS THEREFORE ORDERED THAT:

1) The court adopts the report and recommendation of Magistrate Judge Blewitt.

2) The petition for writ of habeas corpus is DISMISSED.

3) The court declines to issue a certificate of appealability.

4) The Clerk of Court shall close the file.