Opinion
3:01-CR-131-M(01), (3:03-CV-0715-M).
April 16, 2003.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a motion to vacate, set aside or correct the sentence brought pursuant to 28 U.S.C. § 2255. Movant is a federal prisoner within the federal prison system.
Statement of the Case: On August 2, 2002, following a plea of guilty to making false or fraudulent claims in violation if 18 U.S.C. § 287 (Count 2 of the indictment), Movant was sentenced to twenty-seven months imprisonment and a three-year term of supervised release, and was ordered to pay restitution in the amount of $568,043. Movant did not appeal.
In this § 2255 motion, filed on March 26, 2003, Movant challenges the restitution order. He asserts his attorney rendered ineffective assistance when he persuaded Movant to stipulate to $568,043 in restitution without requesting a judicial determination of whether he would be financially able to pay that amount upon his release from custody.
Findings and Conclusions: Movant's motion pursuant to 28 U.S.C. § 2255 is subject to summary dismissal pursuant to Rule 4(b), of the Rules Governing Section 2255 Proceedings for the United States District Courts. That Rule provides that "[i]f it plainly appears from the face o the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading. . . ."
Section 2255 is available only to individuals who are "in custody" and who "claim the right to be released" from custody. Specifically § 2255 provides that "[a] prisoner in custody under sentence of a [federal] court claiming the right to be released . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." Although Movant is presently in custody, he does not seek release from custody. Rather he requests the court to vacate or modify the restitution order.
The Fifth Circuit Court of Appeals is consistent with other circuit courts in holding that § 2255 may not be utilized for the sole purpose of attacking fines and orders of restitution because in such cases the person is not "claiming the right to release" from custody. See U.S. v. Hatten, 167 F.3d 884, 887 (5th Cir. 1999); United States v. Gaudet, 81 F.3d 585, 592 (5th Cir. 1996); United States v. Segler, 37 F.3d 1131, 1136-37 (5th Cir. 1994); see also United States v. Thiele, 314 F.3d 399, 402 (9th Cir. 2002); Blaik v. United States, 161 F.3d 1341, 1342-43 (11th Cir. 1998); Barnickel v. United States, 113 F.3d 704, 705-706 (7th Cir. 1997); Smullen v. United States, 94 F.3d 20, 25-26 (1st Cir. 1996); U.S. v. Watroba, 56 F.3d 28, 29 (6th Cir. 1995); U.S. v. Michaud, 901 F.2d 5, 7 (1st Cir. 1990).
In Segler, the Fifth Circuit concluded that "§ 2255's limitation on who may seek release from federal custody also implies a limitation on the claims they may assert to obtain a release." 37 F.3d at 1137 (holding that person in custody cannot bring an ineffective assistance claim in a § 2255 motion challenging a fine because that person is not "claiming the right to release" from custody). Specifically, the court held that the types of claims cognizable under § 2255 were limited to "claims relating to unlawful custody," not those relating "only to the imposition of a fine." Id.
In the instant case Movant's request to vacate or modify the restitution order because of counsel's ineffectiveness does not affect his custody in any way. His release is not conditioned on the payment of the restitution. Rather Movant seeks to challenge the restitution amount because he lacks the financial ability to pay it in the future. Movant's claim falls squarely within the Fifth Circuit's prohibition of § 2255 claims which relate solely to the trial court's imposition of restitution. Therefore, Movant's claims are not cognizable under § 2255.
RECOMMENDATION:
For the foregoing reasons, the Magistrate Judge recommends that Movant's motion to vacate pursuant to 28 U.S.C. § 2255 be denied and dismissed. See Rule 4, of the Rules Governing § 2255 Proceedings.
A copy of this recommendation will be mailed to Movant.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.
ORDER AND INSTRUCTIONS TO PARTIES IN A MOTION UNDER 28 U.S.C. § 2255
IT IS ORDERED that the clerk shall file the pleadings received from the above named Movant as a motion to vacate, set aside, or correct the sentence imposed against him in the above styled and numbered cause. No filing fee is required. The motion and all further pleadings shall be styled and numbered as set forth above. The clerk shall take such further action and the parties shall comply with the following directives as indicated:
SERVICE OF PROCESS: The Clerk shall forthwith serve by mail a true copy of this Order on Movant and a true copy of this Order, together with a true copy of the motion, shall be served by mail on the United States Attorneys for the Northern District of Texas. The case shall then be referred to Magistrate Judge Sanderson.
RESPONSIVE PLEADINGS: Responsive pleadings shall be as follows:
( X) The United States Attorney shall not be required to answer this motion or otherwise move with respect to it except on further Order of the court.
() The United States Attorney shall, within 60 days from the date of this order, respond to this motion. A true copy of the response, together with a copy of any brief filed therewith shall be served by mail on Movant and a certificate shall be filed with the clerk evidencing such service.
TRAVERSE PLEADINGS: No traverse shall be filed except as required or permitted by further written order of the court.
BRIEFS: Briefs, as required or permitted by the provisions of this paragraph, should be submitted on letter size paper, 8 1/2" × 11", and should be doubled spaced. Each argument with supporting citations advances in the brief should clearly specify the specific ground of the motion or numbered paragraph of the pleading it seeks to support or oppose. A copy of any brief must be served by mail on the opposing party or counsel, if he is represented by counsel, and a certificate reflecting such service shall be included in the brief.