United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill, United States District Court Chief Judge.
before the Court is Adrian Dan Briciu's
(“Movant”) Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence (Civ. Dkt. 1) (Crim.
Dkt. 38). Having reviewed the Motion and the Government's
Response (Civ. Dkt. 4), the Court enters the following Order
dismissing the Motion for the reasons set forth below.
October 9, 2013, Movant was charged with (1) unlawful
procurement of citizenship in violation of 18 U.S.C. §
1425(a) (Count 1), and (2) perjury in violation of 18 U.S.C.
§ 1621 (Count 2). Indictment, Crim. Dkt. 1. On
September 25, 2014, Movant entered a plea of guilty to Count
1 in return for the Government's agreement to dismiss
Count 2. Min. Entry, Crim. Dkt. 22; Amended Plea
Agreement, Crim. Dkt. 25. On October 15, 2014, this
Court accepted the plea. Order Adopting Report and
Recommendation, Crim. Dkt. 26. On December 4, 2014, the
Court sentenced Movant to probation to a term of 3 years.
Min. Entry, Crim. Dkt. 33; Judgment, Crim.
Dkt. 34. On February 5, 2015, the Court entered an order
revoking Movant's citizenship. Order, Crim. Dkt.
36. He did not appeal his conviction or sentence. Finally, on
December 3, 2015, Movant, represented by new counsel, filed
the pending § 2255 Motion.
§ 2255 Motion, Movant states that “this case does
not seek to set aside or otherwise disturb his
conviction” and that he does not “seek to set
aside or otherwise disturb the Judgment in this case.”
Rather, he requests that one statement be stricken from the
Amended Plea Agreement: “On that application, the
Defendant made material false statements regarding the
Defendant's residence history in relation to his U.S.
citizen spouse, M.R.” § 2255 Motion at 2.
grounds for the requested relief, Movant alleges (1) that the
statement is untrue; and (2) that defense counsel was
ineffective for failing to recognize the inaccuracy of the
statement and its impact on Movant's hope for
citizenship. Id. Finally, he states that “This
motion will shortly be supplemented with an array of
documented support for Defendant's claim that the
statement in question is untrue.” Id. To date,
approximately eight months later, that documentation has not
been received by the Court.
Response, the Government urges dismissal of the § 2255
Motion on the grounds that the supporting documentation has
not been filed and that the Court cannot excise a statement
in the Plea Agreement because it is an agreement between the
parties and thus Movant has not stated a claim for which
relief can be granted.
28 U.S.C. § 2255 provides four grounds under which a
federal court may grant relief to a federal prisoner who
challenges the imposition or length of his or her
incarceration: (1) “that the sentence was imposed in
violation of the Constitution or laws of the United
States;” (2) “that the court was without
jurisdiction to impose such sentence;” (3) “that
the sentence was in excess of the maximum authorized by
law;” and (4) that the sentence is otherwise
“subject to collateral attack.” 28 U.S.C. §
4(b) of the Rules Governing Section 2255 Proceedings provides
that a federal district court judge must dismiss a §
2255 motion “[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief.” In
order to proceed on a § 2255 motion, the movant must
make “specific factual allegations that, if
true, state a claim on which relief could be granted.”
United States v. Schaflander, 743 F.2d 714, 717 (9th
Cir. 1984) (citation omitted) (emphasis added).
the Court agrees that Movant's § 2255 Motion fails
to state a cause of action for the reasons cited by the
Government, it also finds that it fails to state a cause of
action for a more fundamental reason. Movant is not asserting
a right to release from custody under either of the grounds
asserted in his § 2255 Motion. The Court recognizes that
Movant is serving a term of probation rather than a term of
incarceration. However, terms of probation, parole, or
supervised release satisfy the “in custody”
requirement in habeas actions because they impose significant
restrictions on a defendant's freedom. See Jones v.
Cunningham, 371 U.S. 236, 243 (1963); Chaker v.
Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005);
Matus-Leva v. United States, 287 F.3d 758, 761 (9th
Cir. 2002); United States v. Lopez, 704 F.2d 1382,
1384 n.2 (5th Cir. 1983);United States v. Condit,
621 F.2d 1096, 1092 (10th Cir. 1980).
years ago, the Ninth Circuit joined five other circuits in
holding that “a defendant seeking relief under 28
U.S.C. § 2255 not only must be in custody, he
also must claim the right to be released from
custody.” United States v. Kramer, 195 F.3d
1129, 1129 (9th Cir. 1999) (addressing challenge to
restitution order) (emphasis in original); Id. at
1130 (string citations omitted). See also United States
v. Thiele, 314 F.3d 399, 400 (9th Cir. 2002) (clarifying
that the holding in Kramer bars claims for ...