United States District Court, M.D. Pennsylvania
the Court is Petitioner Franklyn Benjamin Molina
(“Petitioner”)'s motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255.
(Doc. No. 153.) For the reasons that follow, the Court will
dismiss Petitioner's motion.
11, 2016, a grand jury returned a superseding indictment
charging Petitioner with two counts of receiving and
distributing child pornography in violation of 18 U.S.C.
§ 2252(a)(2) & (b)(1), and one count of conspiracy
to publish a notice or advertisement seeking child
pornography in violation of 18 U.S.C. § 2251(d) and (e).
See United States v. Molina, No. 1:16-cr-82 (M.D.
Pa.) (Doc. No. 143). On February 28, 2017, the Government
filed an information charging Petitioner with receipt and
distribution of child pornography in violation of 18 U.S.C.
§ 2252(a)(2) and (b)(1). See United States v.
Molina, No. 1:17-cr-72 (M.D. Pa.) (Doc. No. 1.) John A.
Abom (“Attorney Abom”) represented Petitioner in
these matters, and Petitioner entered into plea negotiations
that resulted in a plea agreement. The agreement called for
Petitioner to plead guilty to Count Thirteen of the
indictment, charging him with conspiracy to publish a notice
or advertisement seeking child pornography, as well as the
one-count information charging him with receipt and
distribution of child pornography. (Doc. No. 2 ¶¶
1- 2.) In the plea agreement, Petitioner
acknowledged that he understood that the “Government
[would] seek and the [C]ourt may impose an order of
restitution as to victims of [his] relevant conduct.”
(Id. ¶ 20.) Petitioner further agreed “to
pay minimum restitution[, jointly and severally with any
other co-defendants also ordered to pay restitution, ] in the
amount of $50, 000 per identified victim of the
defendant's offense conduct, in accordance with a
schedule to be determined by the [C]ourt.”
(Id. ¶ 21.)
March 24, 2017, Petitioner appeared before Magistrate Judge
Schwab for a change of plea hearing. (Doc. No. 11.)
Magistrate Judge Schwab concluded that Petitioner was fully
competent to enter an informed plea, understood the
consequences of his plea, that he was pleading guilty
knowingly and voluntarily, and that the plea was supported by
an independent basis in fact. (Id.) On that date,
Magistrate Judge Schwab recommended that this Court accept
Petitioner's guilty plea. (Id.) On May 23, 2017,
this Court accepted Petitioner's guilty plea. (Doc. No.
parties appeared before the Court for Petitioner's
sentencing on September 20, 2017. (Doc. No. 23.) The Court
noted that Petitioner's offense level was thirty-four
(34) and he fell within criminal history category two (2),
resulting in a Sentencing Guidelines range of 180 to 210
months' imprisonment. (Id. at 2.) Ultimately,
the Court sentenced Petitioner to 195 months'
incarceration on each count, to run concurrently.
(Id. at 9; Doc. No. 21.) The Court also ordered
Petitioner to make restitution in the amount of $40, 000.00.
(Doc. No. 23 at 9.) Petitioner did not appeal.
September 24, 2018, Petitioner, acting pro se, filed
a motion seeking an extension of time to file a motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. (Doc. No. 24.) In an Order dated November
9, 2018, the Court granted his motion and directed him to
file his § 2255 motion on or before January 15, 2019.
(Doc. No. 27.) On December 10, 2018, Petitioner filed a
motion for an extension of time to secure transcripts. (Doc.
No. 30.) On January 15, 2019, Petitioner filed his §
2255 motion, alleging that counsel rendered ineffective
assistance by failing to inform Petitioner that he could
challenge the amount of restitution at sentencing, that the
Government failed to show that his mere possession of the
child pornography harmed the victims to whom restitution was
awarded, and that the restitution amount is excessive and
Petitioner is unable to pay it. (Doc. No. 31.) As relief,
Petitioner seeks either dismissal or reduction of the imposed
restitution. (Id. at 6, 9.) On August 6, 2019, the
Court directed the Government to file a response to
Petitioner's § 2255 motion. (Doc. No. 33.) The
Government filed its response on August 23, 2019. (Doc. No.
37.) Petitioner has filed neither a reply brief nor an
extension of time to do so. Accordingly, because the time
period for filing a reply brief has expired, Petitioner's
§ 2255 motion is ripe for disposition.
28 U.S.C. § 2255(a), a federal prisoner may file a
motion requesting that the sentencing court vacate, set
aside, or correct his sentence on the basis “that the
sentence was imposed in violation of the Constitution or laws
of the United States, or that the [C]ourt 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.” See
28 U.S.C. § 2255(a). However, Section 2255 does not
afford a remedy for all errors that may have been made at
trial or during sentencing. See United States v.
Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993) (citing
United States v. Addonizio, 442 U.S. 178, 185
(1979)). Rather, Section 2255 is implicated only when the
alleged error raises “a fundamental defect which
inherently results in a complete miscarriage of
justice.” See Addonizio, 442 U.S. at 185.
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a petitioner has one year from the
time his conviction becomes final to file a Section 2255
motion. See 28 U.S.C. § 2244.
Petitioner's Challenges to the Restitution
noted above, Petitioner raises three (3) claims in his §
2255 motion challenging the $40, 000.00 in restitution he was
directed to pay. (Doc. No. 31.) Section 2255 provides that
that a prisoner “in custody under a sentence of a court
established by Act of Congress” may file a § 2255
motion on the basis “that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the [C]ourt 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.” See 28 U.S.C. § 2255(a). The
United States Court of Appeals for the Third Circuit has
concluded, however, “that the monetary component of a
sentence is not capable of satisfying the ‘in
custody' requirement of federal habeas statutes.”
See United States v. Ross, 801 F.3d 374, 380 (3d
Cir. 2015) (collecting cases); see also Obado v. New
Jersey, 328 F.3d 716, 718 (3d Cir. 2003) (noting that
“[t]he payment of restitution or a fine, absent more,
is not the sort of ‘significant restraint on
liberty' contemplated in the ‘custody'
requirement of the federal habeas corpus statutes”).
Accordingly, “a restitution order cannot be challenged
in a § 2255 motion, either directly or indirectly
through a claim of ineffective assistance of counsel.”
See United States v. Tonagbanua, 706 Fed.Appx. 744,
746 (3d Cir. 2017). Here, Petitioner is challenging only the
restitution order, as evidenced by his request that the
restitution order either be dismissed or reduced.
Consequently, Petitioner is not challenging his custody, and
his claims are, therefore, not cognizable under § 2255.
2255(b) advises that a petitioner may be entitled to a
hearing on his motion. The decision to hold a hearing is
wholly within the discretion of the district court. See
Gov't of Virgin Islands v. Forte, 865 F.2d 59, 62
(3d Cir. 1989). Where the record affirmatively indicates that
a petitioner's claim for relief is without merit, the
claim may be decided on the record without a hearing. See
Gov't of Virgin Islands v. Nicholas, 759 F.2d 1073,
1075 (3d Cir. 1985). Here, as discussed above, the Court
finds that “the motion and files and records of this
case show conclusively that the movant is not entitled to
relief.” See ...