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Ernest Nelson v. United States of America

December 6, 2012

ERNEST NELSON
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: Present: The Honorable A. Howard Matz, U.S. District Judge

O; JS-6

CIVIL MINUTES - GENERAL

Stephen Montes Not Reported

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys NOT Present for Plaintiffs: Attorneys NOT Present for Defendants:

Proceedings: IN CHAMBERS (No Proceedings Held)

The Court hereby DENIES Defendant Ernest Nelson's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.

Nelson pleaded guilty to one count of subscribing to a false tax return in violation of 26 U.S.C. § 7206(1). After concluding that the government had breached its plea agreement with Nelson but declining to enforce the agreement as written or transfer the case to a different judge for sentencing, the Court sentenced Nelson to 30 months imprisonment, with 28 months to be served concurrently with a separate state sentence and 2 months to be served consecutive to the state sentence, followed by one year of supervised release. The Court also ordered Nelson to pay $433,031.92 in restitution to the United States.

With the assistance of counsel, Nelson appealed the restitution order, but no other aspect of his conviction or sentence, to the Ninth Circuit, which affirmed the order of restitution in a memorandum opinion. United States v. Nelson, 454 Fed. Appx. 574, 576 (9th Cir. 2011). The Ninth Circuit expressly determined that "the record shows that Nelson agreed to restitution in the amount of $433,031.92." Id. Nelson's subsequent petitions for panel rehearing in the Ninth Circuit and for writ of certiorari to the Supreme Court were denied.

Nelson, proceeding pro se, filed this § 2255 petition on July 3, 2012.*fn1 Although the four specific grounds on which the petition is made are unclear, Nelson requests the following relief in his response to the government's opposition: (1) that the Court vacate the restitution order, (2) that the one-year period of supervised release be vacated, and (3) that the Court vacate certain additional terms of his sentence, specifically the requirement that he file past years' tax returns and work with the IRS to pay any additional back taxes owed. Reply at 9. Nelson contends that this relief is required as a result of the government's breach of the plea agreement. He does not argue that the period of confinement imposed was unlawful, that he is actually innocent, or that he received ineffective assistance of counsel.

1. Defendant May Not Collaterally Attack Restitution in a § 2255 Motion

The Ninth Circuit has held that "28 U.S.C. § 2255 is available to prisoners claiming the right to be released from custody. Claims for other types of relief, such as relief from a restitution order, cannot be brought in a § 2255 motion, whether or not the motion also contains cognizable claims for release from custody." United States v.

, 314 F.3d 399, 400 (9th Cir. 2002). Thiele is a clear bar to Nelson's request for relief from the Court's restitution order.

Moreover, Nelson brought the same challenge to the restitution order on direct review of his sentence, and the Ninth Circuit expressly rejected it. Nelson, 454 Fed. Appx. at 576. Nelson may not now ...


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