The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER SETTING FURTHER STATUS CONFERENCE ON PETITIONER'S MOTION TO MODIFY CONDITIONS OF PAYMENT OF RESTITUTION
Documents Nos. 17, 19 and 21
Defendant Jack Richard Ward ("Ward") was convicted by plea of guilty to nine counts of bank robbery and one count of attempted bank robbery. Judgment was entered on December 13, 2002. As part of the judgment, Ward was ordered to pay restitution totaling $27,885 "due immediately" to six listed banks. The amount of restitution due each bank was specified. Ward was sentenced to a term of imprisonment of 300 months. On January 17, 2007, Ward filed a pleading titled "Motion for Deferral and/or Reduction in Restitution Payments. Doc. # 17. A second motion requesting the same relief was filed on December 26, 2007, and a third similar pleading was filed on June 17, 2008. Ward is currently incarcerated at a federal corrections institution in Arizona.
The factual background for Ward's motions was set forth in Ward's motion that was filed on January 17, 2007. As of January 17, 2007, Ward was employed in prison by Unicor*fn1. Ward alleges that, pursuant to a determination by the Bureau of Prisons ("BOP") as part of their Financial Responsibility Program, fifty percent of Ward's pay from Unicor was withheld for application to Ward's restitution obligation. Ward alleges that, during the term of his incarceration his health has declined and he is required to pay for is own treatment, including prescription drugs, from his earnings. Ward also alleges that hardships within his family require him to send at least $100 to $200 home per month. Ward's motions request that his restitution payments be suspended or reduced until his good time release date in 2024. Ward was 53 years old as of January 17, 2007.
Ward set forth the legal basis for his motions for modification of restitution payment in his motion filed December 26, 2007, and added further case authority in his motion filed June 17, 2008. The crux of Ward's legal argument is that, pursuant to the Mandatory Victims Restitution Act of 1996, the scheduling of mandatory restitution payments is a duty of the district court; a duty that cannot be delegated to probation or to the Bureau of Prisons. Ward therefore contends that BOP's attachment of fifty percent of the wages he earned by working for Unicor was without authority. For the reasons discussed below, the court concludes Ward is correct.
Ward's motions are filed simply as motions. Although he alleges that BOP's withholding of his earnings was without authority, Ward alleges no jurisdictional authority for his claim. At first blush, Ward's claim appears to pertain to the condition of his confinement, not to the judgment or sentence, since Ward is not disputing the imposition of restitution or its amount. The core problem, however, is that the judgment does not provide the authority for the BOP to administer its financial responsibility program in accordance with existing regulations. Thus, in order to address both Ward's claim and the legitimate interests of the BOP, the court will be required to correct its judgment. Because Ward's claim, as well as the needs of the BOP in administering their programs, require the court to address the adequacy of the judgment itself, the court construes Ward's pleadings as a motion pursuant to 28 U.S.C. § 2255. More specifically, the court construes the motion filed by Ward on January 17, 2007, to be a motion pursuant to section 2255, and construes the motions filed on December 26, 2007, and June 17, 2008, to be amendments to the motion.
Section 2255 provides that the one-year statute of limitations for the section begins to run at the latest of: (1) the date of the judgment of conviction becomes final; (2) the date on which a government-created impediment to bringing a section 2255 action is removed; (3) the date on which a right to bring the action was initially recognized by the Supreme Court, if the right has been newly recognized and made retroactively applicable to cases on collateral review; or, (4) the date on which the facts supporting a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255 (1)-(4). In the instant case, the facts supporting Ward's claim--that is, the fact that the judgment did not authorize BOP's withholding of Ward's pay--did not become known and could not reasonably have become known until the fact of the withholding was brought to Ward's attention. The court assumes for present purposes that Ward's motion followed within a year of the time BOP began withholding fifty percent of his pay from Unicor.
The court finds Ward's motions, which the court construe to be pursuant to 28 U.S.C. § 2255, are timely. The court finds the jurisdictional requirements of section 2255(a) are satisfied.
II. Judgment and Restitution
The contours of the court's authority and duty to order restitution has been interpreted for courts in the Ninth Circuit by a trio of cases. As the Circuit Court has explained:
The Mandatory Victims Restitution Act of 1996 ("MVRA") provides, among other things, that: "In each order of restitution, the court shall order restitution to each victim in the full amount of each victim's losses as determined by the court and without consideration of the economic circumstances of the defendant," 18 U.S.C. § 3664(f)(1)(A). It goes on to say: "Upon determination of the amount of restitution owed to each victim, the court shall, pursuant to section 3572, specify in the ...