1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SUSAN ANN SEARS, an individual, Case No.: 21-CR-03189-GPC Related Case No.: 24-CV-01732-GPC 12 Plaintiff,

13 v. ORDER DENYING AND

DISMISSING PETITIONER’S

14 UNITED STATES OF AMERICA

MOTION TO VACATE, SET ASIDE,

15 Defendant. OR CORRECT SENTENCE

PURSUANT TO 28 U.S.C § 2255

16

17 [ECF No. 1]

18 19 On April 27, 2024, the Court entered a judgment against Susan Ann Sears 20 following her conviction for multiple counts of wire fraud. ECF No. 56. Following Ms. 21 Sears’ conviction, the Court entered an Order of Criminal Forfeiture, ECF No. 44, and an 22 Order of Restitution, ECF No. 55. On September 19, 2024, Ms. Sears filed the instant 23 motion to vacate pursuant to 28 U.S.C. § 2255. ECF No. 87. In her motion, Ms. Sears 24 challenges both the forfeiture and restitution orders. Id. 25 At the outset, the Court notes that Ms. Sears’ motion is untimely, as it was filed 26 over a year after the judgment became final. See 28 U.S.C. § 2255(f). Even if it was 27 1 timely, Ms. Sears has not presented a cognizable § 2255 claim because she does not seek 2 ||release from custody. See United States v. Kramer, 195 F.3d 1129, 1130 (9th Cir. 1999) 3 || (“[b]y its clear terms, § 2255 is applicable only to prisoners in custody claiming the right 4 || to be released”); United States v. Thiele, 314 F.3d 399, 402 (9th Cir. 2002) (“[c]laims 5 || seeking release from custody can be brought under § 2255; claims seeking other relief 6 || cannot’). 7 Specifically, Ms. Sears’ challenge of the forfeiture order is not cognizable because 8 ||1t seeks only to challenge the forfeiture and does not seek release from custody. See 9 || United States v. Finze, 428 F. App’x 672, 677 (9th Cir. 2011) (“Finze’s forfeiture claim is 10 a cognizable § 2255 claim, because it does not seek release from custody”); Oranga- 11 || Zuniga v. United States, 2014 WL 3056800, at *2 (W.D. Wash. July 7, 2014) 12 || (“Petitioner’s motion plainly seeks to challenge the Court’s prior order of forfeiture. 13 || Petitioner’s claim is not cognizable through a § 2255 motion.”) (citing Thiele, 314 F.3d at 14 ||402). Nor does Ms. Sears’ challenge of the restitution order present a cognizable § 2255 15 ||}claim. See Kramer, 195 F.3d at 1130 (holding that § 2255 “cannot be used solely to 16 || challenge a restitution order’); Thiele, 314 F.3d at 401 (“[w]e agree with the district court 17 ||that Kramer controls and that Thiele cannot collaterally attack his restitution order in a § 18 motion”); Tong v. United States, 81 F.4th 1022, 1026 (9th Cir. 2023) (finding that 19 || the petitioner’s restitution challenge was not cognizable under § 2255). Because Ms. 20 || Sears has not stated a cognizable claim under § 2255, she is not entitled to the relief she 21 seeks. 22 Accordingly, Ms. Sears’ motion to vacate her sentence is DENIED. 23 IT IS SO ORDERED. 24 25 || Dated: September 30, 2024 26 Hon. athe Coke 27 United States District Judge 28 21-CR-03189-GPC