Briciu v. USA

Filing 5

MEMORANDUM DECISION AND ORDER Adrian Dan Briciu's Motion to Vacate/Set Aside/Correct Sentence Pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1 ) and (Crim. Dkt. 38) is DISMISSED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,
Plaintiff-Respondent

Case No. 1:15-cv-00565-BLW
1:13-cr-00234-BLW
MEMORANDUM DECISION AND
ORDER

v.
ADRIAN DAN BRICIU,
Defendant-Movant.

INTRODUCTION
Pending 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.
BACKGROUND
On 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
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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.
In his § 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.
As 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.
In its 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

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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.
STANDARD OF LAW
Title 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. § 2255(a).
Rule 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).
DISCUSSION
While 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
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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).
Several 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 relief other
than the right to be released from custody even if the § 2255 motion also contains
cognizable claims for release from custody).
Here, even in his ineffective assistance of counsel claim, Movant seeks only to
have a sentence from his Plea Agreement excised. Because he is not seeking to be
released from custody in the form of his term of probation, Movant fails to state a cause
of action, and his § 2255 Motion is subject to dismissal.

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CERTIFICATE OF APPEALABILITY
A § 2255 movant cannot appeal from the denial or dismissal of his § 2255 motion
unless he has first obtained a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R.
App. P. 22(b). A certificate of appealability will issue only when a movant has made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
satisfy this standard when the court has dismissed a § 2255 motion (or claims within a
§ 2255 motion) on procedural grounds, the movant must show that reasonable jurists
would find debatable (1) whether the court was correct in its procedural ruling, and (2)
whether the motion states a valid claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). When the court has denied a § 2255 motion or
claims within the motion on the merits, the movant must show that reasonable jurists
would find the court’s decision on the merits to be debatable or wrong. Id.; Allen v.
Ornoski, 435 F.3d 946, 951 (9th Cir. 2006).
After carefully considering the record and the relevant case law, the Court finds
that reasonable jurists would not find the Court’s decision to be debatable or wrong.
ORDER
IT IS ORDERED:
1. Adrian Dan Briciu’s Motion to Vacate/Set Aside/Correct Sentence Pursuant
to 28 U.S.C. § 2255 (Civ. Dkt. 1) and (Crim. Dkt. 38) is DISMISSED.
2. No certificate of appealability shall issue. Movant is advised that he may
still request a certificate of appealability from the Ninth Circuit Court of
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Appeals, pursuant to Federal Rule of Appellate Procedure 22(b) and Local
Ninth Circuit Rule 22-1. To do so, he must file a timely notice of appeal.
3. If Movant files a timely notice of appeal, and not until such time, the Clerk
of Court shall forward a copy of the notice of appeal, together with this
Order, to the Ninth Circuit Court of Appeals. The district court’s file in this
case is available for review online at www.id.uscourts.gov.

DATED: September 12, 2016
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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