Kaminski v. U.S.

• Decision Date: 06 August 2003
• Docket Number: Docket No. 01-2141.
• Citation: 339 F.3d 84
• Parties: John F. KAMINSKI, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

339 F.3d 84

John F. KAMINSKI, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Docket No. 01-2141.

United States Court of Appeals, Second Circuit.

Argued: November 25, 2002.

Decided: August 6, 2003.

Robert A. Culp, New York, New York, for Appellant.

Elizabeth S. Riker, Assistant United States Attorney, for Joseph A. Pavone, United States Attorney for the Northern District of New York, Syracuse, New York, for Appellee.

Before: WALKER, Chief Judge, and LEVAL and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge.

The question raised by this appeal is whether a federal habeas corpus petition made under 28 U.S.C. § 2255 may include a challenge to an order of restitution imposed as part of the sentence, where that order does not amount to custody. We conclude that it may not.

I. Background

Petitioner-Appellant, John F. Kaminski, was sentenced to a term of imprisonment in the United States District Court for the Northern District of New York (Pooler, J.) and ordered to pay restitution after pleading guilty to one count of arson. Restitution to Kaminski's insurance company was ordered in the amount of $21,180 on a schedule that required Kaminski to pay ten percent of his gross income while in prison and thereafter the greater of $100 per month or ten percent of his gross income. Kaminski did not take a direct appeal from his sentence or conviction.

Two years ago, while incarcerated, Kaminski filed a habeas corpus petition under 28 U.S.C. § 2255 challenging both his sentence of incarceration and the order of restitution. The district court (Scullin, C.J.) denied the petition in its entirety. With respect to Kaminski's claims relating to the restitution order, the court reasoned that since an attack on an order of restitution does not assert the right of the petitioner to be released from custody but, rather, only the right to be free of a monetary penalty, § 2255 does not, by its terms, provide a basis for the claim.

The district court noted, however, that "the Second Circuit has not definitively ruled on the issue of whether § 2255 is limited to claims of unlawful custody and therefore does not extend to the monetary penalties imposed by the judgment." In view of this, the court granted a certificate of appealability as to whether § 2255 may be used to challenge the restitution order, with respect to which Kaminski claimed that the trial court had failed to consider statutorily mandated factors and had wrongly considered certain legislative amendments enacted after Kaminski's guilty plea.¹

II. Does the restitution order constitute custody?

We review de novo a district court's denial of a 28 U.S.C. § 2255 petition. Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002). We begin by examining the relevant statutory text.

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255. It is not disputed that Kaminski was "in custody" by virtue of his imprisonment at the time his petition was filed. It is clear, therefore, that Kaminski's attacks on his sentence of incarceration were properly considered on their merits as part of his § 2255 petition. See Scanio v. United States, 37 F.3d 858, 860 (2d Cir.1994).

But the question remains: How does the phrase "claiming the right to be released" affect the meaning of the text that follows it? If the phrase had omitted the words "the right to be released upon the ground," and had said simply "a prisoner . . . claiming. . . that the sentence was imposed in violation of the Constitution or laws of the United States," then § 2255 might comfortably be read to permit a federal prisoner to challenge any allegedly illegal aspect of his or her sentence. The words "claiming the right to be released" are in the statute, however. And, in order to give them meaning, it is argued that they must be read to exclude from federal habeas review at least those petitions that contain no claims relating to a prisoner's custody, no claims, that is, that cannot be construed as demands to be "released" from custody. On this reading, it would follow that a petitioner who challenges just the restitution portion of his sentence is asserting his right to be released from custody only if the restitution order itself amounts to a form of custody.

Several circuits have held that neither a fine nor an order of restitution amounts to custody. See, e.g., Barnickel v. United States, 113 F.3d 704, 706 (7th Cir.1997); United States v. Michaud, 901 F.2d 5, 7 (1st Cir.1990) ("A monetary fine is not a sufficient restraint on liberty to meet the `in custody' requirement for § 2255 purposes."). We have noted holdings like these. See Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 894 (2d Cir. 1996) (citing cases, from other circuits, in which "modest fines" did not suffice to find custody). But we have, to date, not adopted a rule declaring fines and restitution orders to be, ipso facto, noncustodial. That is, we have not as yet foreclosed the possibility that a restitution order might entail a sufficiently severe restraint on liberty, not shared by the public at large, as to amount to a form of custody. Cf., e.g., Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973); Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Poodry, 85 F.3d at 894 ("[T]he inquiry into whether a petitioner has satisfied the jurisdictional prerequisites for habeas review requires a court to judge the `severity' of an actual or potential restraint on liberty.").

Whether a fine or restitution order could ever be such a restraint on the liberty of a petitioner as to amount to custody is a question we need not reach today, however. The order in the instant case, limited as it is to payment on a monthly basis of the greater of ten percent of Kaminski's monthly income or $100, plainly does not come close to doing so. That being so, we conclude that the restitution order before us does not bring about custody, and, therefore hold that an attack on that order would not, without more, seek release from custody.

III. Are challenges solely to noncustodial punishments cognizable in § 2255 habeas?

That said, we agree with the other circuits that have held that § 2255 may not be used to bring collateral challenges addressed solely to noncustodial punishments like the one at issue here. See Blaik v. United States, 161 F.3d 1341, 1343 (11th Cir.1998) ("[Section] 2255 cannot be utilized by a federal prisoner who challenges only the restitution portion of his sentence because § 2255 affords relief only to those prisoners who `claim[ ] the right to be released' from custody." (emphasis added) (second alteration in original)); see also United States v. Kramer, 195 F.3d 1129, 1130 (9th Cir.1999) (same). We agree with these circuits because the language of § 2255 is best read as requiring a challenge to custody. But more fundamentally, we agree with them also because collateral challenges have historically been permitted through habeas only when an interest as compelling as freedom from custody is at stake.

IV. Are challenges to noncustodial punishments cognizable in a § 2255 petition when joined with challenges to custody?

The above cited cases do not, however, suffice to decide the appeal before us. Kaminski's petition not only attacks the restitution order, it also contains claims that his sentence of incarceration was, in part, illegal. We must, therefore, decide whether, pursuant to § 2255, a claim that does not seek the release of the petitioner from custody may, nonetheless, be raised in a petition that also includes at least one claim challenging custody.

The statute's text does not unambiguously answer the question. Kaminski proposes a reading of § 2255 under which a prisoner who files a § 2255 petition seeking release may also ask that other, noncustodial aspects of his sentence be "vacate[d], set aside or correct[ed]," 28 U.S.C. § 2255. The government, instead, urges an interpretation of § 2255 that would limit § 2255 attacks to the custodial aspects of sentences that impose both custodial and noncustodial punishments. Kaminski's reading may not be the most natural construction of the provision, but, looking solely at the text of § 2255, it is a plausible one. We must, therefore, examine the statute contextually to see which meaning is more consistent with its purpose. See United States v. Orlandez-Gamboa, 320 F.3d 328, 330-31 (2d Cir.2003).

Nearly every circuit to consider the issue has concluded that an order of restitution may not be attacked in a § 2255 petition, even if the petition also alleges error in the sentence of imprisonment. See United States v. Hatten, 167 F.3d 884, 887 (5th Cir.1999); Barnickel, 113 F.3d at 706; Smullen v. United States, 94 F.3d 20, 25-26 (1st Cir.1996).² There is in these opinions the suggestion that permitting attacks on restitution orders so long as such attacks are included in petitions that also challenge a custodial sentence would encourage petitioners to bring frivolous claims against sentences of incarceration when, in fact, the only colorable claims available are against restitution orders.

Along these lines, the Ninth Circuit has recently expanded its holding in Kramer, and now bars claims relating to an order of restitution even when those claims are accompanied in the petition by challenges to the petitioner's incarceration. The court stated, "To determine whether a given claim is cognizable under § 2255, we focus on the relief...