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Challenges to noncustodial punishments cannot be brought in a petition for habeas corpus relief, the 2nd U.S. Circuit Court of Appeals has ruled. Dealing with a prisoner who was challenging the restitution portion of his sentence, the court said it agreed with other circuits that the language of the federal habeas statute “is best read as requiring a challenge to custody.” “But more fundamentally,” Judge Guido Calabresi wrote for the court, “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.” The court’s ruling in Kaminsky v. United States, 01-2141, dealt with a petition that had been denied by Northern District Chief Judge Frederick J. Scullin Jr. John F. Kaminsky was sentenced to serve a prison term for arson and was also ordered to pay his insurance company $21,180 in restitution on a schedule that covered both his time in prison and a period after his release. Kaminsky did not file a direct appeal challenging his conviction or sentence. Instead, his petition under 28 U.S.C. � 2255, filed while he was in prison two years ago, attacked both his prison sentence and the restitution order. Judge Scullin denied the petition, finding that Kaminsky was not making a plea to be released from custody, but instead was asking to be relieved of the restitution order. Scullin nonetheless granted Kaminsky a certificate of appealability because “the Second Circuit has not definitively ruled on the issue of whether Sec. 2255 is limited to claims of unlawful custody and therefore does not extend to the monetary penalties imposed by the judgment.” On the appeal, Judge Calabresi first said the court need not decide what is another open question in the 2nd Circuit: whether a restitution order constitutes “custody,” because “the order in this case, limited as it is to payment on a monthly basis of the greater of ten percent of Kaminsky’s monthly income or $100, plainly does not come close to doing so.” After agreeing with other circuits that � 2255 may not be used to bring collateral challenges “addressed solely to noncustodial punishments,” Calabresi turned to the question of whether noncustodial punishments can be attacked in a habeas petition when joined with challenges to custody. AMBIGUITY Noting that the statute “does not unambiguously answer the question,” he said the government urged an interpretation that limits habeas challenges to just the custodial aspect of a sentence. And the judge said that “nearly every other circuit” has agreed. “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,” the judge said. Because “Habeas lies to allow attacks on wrongful custodies,” Calabresi said, “there is therefore no reason why the presence of a plausible claim against custodial punishment should make noncustodial punishment more amenable to collateral review than it otherwise might be.” And just because a sentencing judge imposes incarceration in addition to restitution, that does not “distinguish the defendant from someone who, having been convicted, received a punishment that did not include any custodial element,” he said. “This is the position that most of the circuit courts that have considered the matter have taken, and it is the position to which we adhere today.” Chief Judge John M. Walker Jr. and Judge Pierre Leval joined in the opinion. Robert A. Culp represented Kaminsky. Assistant U.S. Attorneys Elizabeth S. Riker and Joseph A. Pavone represented the government.

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