United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
Perdichizzi (“movant') brings a motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. ECF No. 58. The government has filed an
opposition thereto. ECF No. 63. Movant has also filed a
motion for appointment of counsel. ECF No. 64. For the
reasons set forth below, the motion for appointment of
counsel is denied and the section 2255 motion must be denied.
Motion for Appointment of Counsel
is no constitutional right to appointment of counsel for
petitioners mounting collateral attacks on their convictions.
See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)
(“we have never held that prisoners have a
constitutional right to counsel when mounting collateral
attacks upon their convictions”); Sanchez v. United
States, 50 F.3d 1448, 1456 (9th Cir. 1995) (“there
is no constitutional right to counsel at a collateral,
post-conviction section 2255 proceeding”). And, in this
case, counsel is unnecessary. Movant's claim is not
legally complex, and he has proven capable of articulating it
without assistance of counsel. Thus, this motion is denied.
Section 2255 Motion
plead guilty to distribution of child pornography (18 USC
§ 2252(a)(2)) on March 7, 2017. ECF Nos. 26, 27. He was
sentenced on January 9, 2018 (ECF No. 43) and, as part of his
sentence, ordered to pay a $5, 000 special assessment under
the Justice for Victims of Trafficking Act of 2015. 18 U.S.C.
§ 3014(a); ECF Nos. 43, 44. Movant challenged that
assessment on January 23, 2018, arguing that he was indigent
within the meaning of 18 U.S.C. § 3014. ECF No. 45. On
February 20, 2018, the Court denied the motion, reasoning
that the passage of time had divested the district court of
jurisdiction to act on a claim of clear error. ECF No. 53.
December 3, 2018, movant filed the present section 2255
motion which raises two claims: (1) that the court erred in
imposing the $5000 assessment and; (2) that his counsel was
ineffective in failing to challenge the assessment. ECF No.
58 at 13-15.
government argues that movant cannot challenge the foregoing
assessment by way of a section 2255 motion. The court agrees.
The U.S. Court of Appeals for the Ninth Circuit has held that
“by its plain terms, § 2255 is available only to
defendants who are in custody and claiming the right to be
released. It cannot be used solely to challenge a restitution
order.” United States v. Kramer, 195 F.3d
1129, 1130 (9th Cir. 1999); see also United States v.
Thiele, 314 F.3d 399, 400 (9th Cir. 2002) (“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.”). The same reasoning applies here where the
relief sought is from the imposition of a fine. As noted
supra, movant challenges only that assessment; he
does not seek release. In light of the foregoing, the court
need not reach the government's alternative arguments
addressing procedural default and merit.
the government filed its response, movant filed a petition
for writ of error coram nobis (ECF No. 65) wherein he argues
that, if his claims regarding the restitution order are found
not to be cognizable under section 2255, the court should
construe his motion as a coram nobis petition. The court will
not recommend doing so.
qualify for relief under a writ of coram nobis, a petitioner
must show, inter alia, that the error underlying his
request is “of the most fundamental character.”
See Hirabayashi v. United States, 828 F.2d 591, 604
(9th Cir. 1987). It is unclear whether an error affecting
restitution, like the one at bar, rises to that level.
See, e.g. United States v. Sloan, 505 F.3d
685, 697-98 (7th Cir. 1989) (“[A]n order of restitution
is no different than an award of damages in a civil
litigation. ‘It is a sunk cost rather than a continuing
disability producing additional injury as time
passes.'”); United States v. Tonagbanua,
706 Fed.Appx. 744, 747-48 (3d Cir. 2017) (petitioner's
claim that restitution amount could have been reduced had
counsel challenged the presentence report findings did not
show a fundamental error meriting coram nobis relief);
see also United States v. Wilkozek, 822 F.3d 364,
368 (7th Cir. 2016) (“A fundamental error that
invalidates a criminal proceeding is one that undermines our
confidence that the defendant is actually guilty.”).
Regardless and more importantly, coram nobis relief is not
available to an individual who, like movant, is still in
custody. See United States v. Brown, 413 F.2d 878,
879 (9th Cir. 1969) (“Coram Nobis is not available,
since he is still in custody.”); Matus-Leva v.
United States, 287 F.3d 758, 761 (9th Cir. 2002)
(“Predictably, appellate courts, including ours, have
consistently barred individuals in custody from seeking a
writ of error coram nobis.”).
it is ORDERED that movant's motion for appointment of