Opinion
2:21-cr-0182 KJM KJN P
01-30-2023
UNITED STATES, Plaintiff/Respondent, v. DORU GABRIEL TRIFU, Defendant/Petitioner.
ORDER
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
Doru Gabriel Trifu, a former federal prisoner currently on probation, filed a “Motion to Vacate Restitution,” styled “Motion to Dismiss, Vacate, or Set Aside Judgment . . . with Regard to Restitution, Court Fees, and/or Fines.” (ECF No. 2 at 1.) On September 24, 2021, jurisdiction of Trifu's probation was transferred to the Eastern District of California, where Trifu currently resides. (ECF No. 1.)
The undersigned construes Trifu's motion as an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, rather than a motion under 28 U.S.C. § 2255, because the sole relief sought by Trifu requests review of his restitution obligations, not the legality of his conviction. United States v. Dohrmann, 36 Fed.Appx. 879 (9th Cir. 2002) (unpublished).
Because Trifu may be entitled to the requested relief if the claimed violation of constitutional rights is proved, the government is directed to file an answer or a motion to dismiss.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Respondent is directed to file an answer or a motion to dismiss within sixty days from the date of this order. If an answer is filed, respondent shall include with the answer any and all transcripts or other documents relevant to the determination of the issues presented in the application.
2. Petitioner's traverse, if any, is due on or before thirty days from the date respondent's answer is filed; an opposition to a motion to dismiss is due within thirty days of service of the motion to dismiss; and
3. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on the United States Attorney.