United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION TO TERMINATE AND CANCEL
PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE
Robia Baydoun was charged in an Indictment with sixty-seven
(67) counts alleging: Illegal Distribution of Controlled
Substances, 21 U.S.C. § 841(a)(1); Possession with
Intent to Distribute Controlled Substances, 21 U.S.C. §
841(a)(1); Money Laundering, 18 U.S.C. §§ 1957 and
2; Health Care Fraud, 18 U.S.C. § 1347; and, Criminal
Forfeiture, 18 U.S.C. §§ 981(a)(1)(C), 982(a)(1),
(7), 21 U.S.C. § 853, 28 U.S.C. § 2461. (ECF No. 1,
Indictment) Defendant entered into a Rule 11 Plea Agreement
with the Government, entering a plea of guilty before the
Court to Counts 57, 59 and 61 (Possession with Intent to
Distribute Controlled Substances, Health Care Fraud and Money
Laundering) on November 19, 2009. (ECF No. 57, Plea
Agreement) On March 3, 2010, the Court entered a Judgment
against Defendant, sentencing Defendant to terms of
imprisonment: 37 months on Count 57; 37 months on Count 59;
and 37 months on Count 62, all to run concurrent. (ECF No.
58, Judgment) The Court also ordered two years of supervised
release on each count to run concurrent and
restitution in the total amount of $117, 545.29. On
April 4, 2014, the Court entered an Order Terminating
Supervised Release. (ECF No. 59)
25, 2014, Defendant moved to terminate and cancel his
restitution payments by seeking to have the restitution
amount be satisfied by the assets and property he forfeited.
(ECF No. 61) The Government filed a response to the motion.
(ECF NO. 62)
does not cite any authority as to the Court's
jurisdiction to review the instant post-judgment motion.
Defendant did not appeal this Court's Judgment nor a
§ 2255 motion to challenge the sentence imposed by the
4(b)(1)(A) of the Federal Rules of Appellate Procedure,
“[i]n a criminal case, a defendant's notice of
appeal must be filed in the district court within 14 days
after the later of: (i) the entry of either the judgment or
the order being appealed; or (ii) the filing of the
government's notice of appeal.” Fed. R. App. P.
4(b)(1)(A). 28 U.S.C. § 2255 allows a criminal defendant
to attack a sentence collaterally, if filed within 1-year
from the latest of-
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f). Sentencing challenges generally
cannot be made for the first time in a post-conviction §
2255 motion and are normally made on direct appeal or they
are waived. Weinberger v. United States, 268 F.3d
346, 351 (6th Cir. 2001). A petitioner bringing a § 2255
motion must generally be in custody. United States v.
Watroba, 56 F.3d 28, 29 (6th Cir. 1995). Sentencing
challenges, including restitution, that cannot otherwise be
reviewed for the first time on a § 2255 motion, can be
reviewed as part of a successful claim that counsel provided
ineffective assistance under the standard set forth in
Strickland v. Washington, 466 U.S. 668, 694 (1984).
Weinberger, 268 F.3d at 351, 352 n. 1.
Judgment was entered on March 4, 2010. ECF No. 58, Judgment.
Defendant filed no notice of appeal from the Judgment nor a
28 U.S.C. § 2255 motion within one-year from when the
Judgment became final. The instant motion was filed on June
25, 2014, more than four years after the entry of the
Judgment. ECF No. 61. Defendant was not “in
custody” at the time the instant motion was filed as
required under § 2255 since the Order Termination
Supervised Release ...