Odum v. United States Of America

Filing 2

ORDER directing respondent to file an answer or response within 30 days from the date of this Order. ( Compliance due by 11/4/2016.) Signed by Magistrate Judge G. R. Smith on 10/5/16. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
WADE JAMES ODUM,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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CV616-132
CR615-008

ORDER
Convicted as a felon in possession of firearms, doc. 31, Wade
Odum invokes 28 U.S.C. § 2255 to vacate the restitution portion of his
sentence. Doc. 36. As part of his sentence this Court required
restitution under the Victim and Witness Protection Act (VWPA) for a
state burglary charge. Doc. 31 at 5-6. But that charge has since been
dismissed by a state court. Doc. 36-1 (certificate of service of dismissal
by the Middle Judicial Circuit of Georgia District Attorney). The Court
screens his motion under Rule 4 of the Rules Governing Section 2255
Proceedings.
Odum may not utilize § 2255 because that statute affords relief
only to those prisoners claiming the right to be released from custody.

Brown v. United States , 256 F. App’x 258, 262 (11th Cir. 2007);
Mamone v. United States , 559 F.3d 1209, 1211 (11th Cir. 2009) (“The
plain language of the statute indicates § 2255 applies to ‘a prisoner in
custody . . . claiming the right to be released’”) (quoting 28 U.S.C. §
2255); Blaik v. United States, 161 F.3d 1341, 1343 (11th Cir. 1998) (Ҥ
2255 cannot be utilized by a federal prisoner who challenges only the
restitution portion of his sentence”). See also United States v. Thiele ,
314 F.3d 399, 402 (9th Cir. 2002) (“[C]ognizable claims in a § 2255
motion do not run interference for non-cognizable claims. Claims
seeking release from custody can be brought under § 2255; claims
seeking other relief cannot. . . . Non-cognizable claims do not morph into
cognizable ones by osmosis”).
Because he is not authorized to apply for relief from his restitution
order under § 2255, Odum also cannot bring his resentencing motion as
a 28 U.S.C. § 2241 petition. See Arnaiz v. Warden, Fed. Satellite Low ,
594 F.3d 1326, 1329 (11th Cir. 2010) (§ 2241 provides no relief because
“a successful challenge to the restitution part of his sentence would, in
no way, provide relief for the physical confinement supplying the
custody necessary for federal habeas jurisdiction”); Preiser v. Rodriguez,
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411 U.S. 475 (1973) (“It is clear, not only from the language of [the
statutes], but also from the common-law history of the writ, that the
essence of habeas corpus is an attack by a person in custody upon the
legality of that custody”) (emphasis added).
Because Odum is precluded from seeking relief under §§ 2255 or
2241, see United States v. Young , 249 F. App’x 793, 795 (11th Cir. 2007)
(concluding “there [i]s no procedural basis through which [movant]
could bring such a motion”), he could perhaps seek reconsideration of
the restitution calculation, either before the sentencing judge or on
direct appeal -- assuming a remedial statute, rule, or doctrine exists to
enable that. Odum ordinarily would be subject to waiver for failing to
timely challenge the restitution calculation. See Cani v. United States ,
331 F.3d 1210, 1213-14 (11th Cir. 2003) (a defendant cannot contest a
district court’s initial restitution calculation absent direct appeal); Fed.
R. App. P. 4(b)(1)(A)(i) (defendant has 14 days to appeal after the
judgment becomes final). But he did not receive notice of the burglary
charge’s dismissal until after this Court entered its judgment. Compare
doc. 31 (judgment entered on February 29, 2016) with doc. 36-1 (copy of
certificate of service dated May 2, 2016 notifying Odum the charge had
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been dismissed). Nor can he be faulted for failing to timely appeal,
since that relief did not unfold until after his appeal time expired.
The facts of this particular case -- restitution imposed as a result
of charges that were later dismissed -- warrant a response from the
government, even if relief under § 2255 itself is ultimately
inappropriate. See Hughey v. United States , 495 U.S. 411 (1990) (the
“language and structure of the [VWPA] make plain Congress’s intent to
authorize an award of restitution only for the loss caused by the specific
conduct that is the basis of the offense of conviction”) (footnote omitted
and emphasis added).
Therefore, in the interest of justice, respondent is ORDERED to
file an answer or response within 30 days from the date of this Order.
Odum shall furnish the United States Attorney in Savannah, Georgia,
with copies of all further motions or papers filed in this case.

SO ORDERED, this 5th day of October, 2016.

UNITED STATES MAGISTRATE JUDGE
SOUTI-IER}'T DISTRICT OF GEORGIA

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