The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge
MEMORANDUM AND ORDER DENYING RESPONDENT'S MOTION TO DISMISS
On May 8, 2008, Tyrone McDaniels (hereinafter referred to as "Petitioner") filed a "Petition for Writ of Habeas Corpus by a Person in Federal Custody," pursuant to 28 U.S.C. §2241 ("Petition"). On June 12, 2008, Respondent filed "Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §2241; Declaration of Harvinder S. Anand and Exhibit Thereto." On June 27, 2008, Petitioner filed "Petitioner's Motion in Opposition [to] Respondent's Motion to Dismiss Petitioner's Motion 28 U.S.C. §2241" ("Reply").
On February 10, 2009, the Court issued a Minute Order ordering Respondent to file any and all documents in the Bureau of Prisons' control reflecting Petitioner's participation in the Inmate Financial Responsibility Program ("IFRP"). On February 24, 2009, Respondent filed a document entitled "Respondent's Submission of Bureau of Prisons Records Pursuant to the Court's Minute Order Dated February 10, 2009" ("Respondent's Response"). On February 25, 2009, Petitioner filed a document entitled "Responsive Document in Support of Petitioner's Motion Entitled 28 U.S.C. [§]2241."
Having reviewed the allegations in the Petition, Respondent's Motion to Dismiss, Petitioner's Reply, Respondent's Response and Petitioner's Response, it is hereby ordered that the Motion to Dismiss is DENIED.
On April 24, 2000, Petitioner was sentenced by United States District Court Judge Howard G. Munson in the United States District Court for the Northern District of New York. Petitioner pled guilty to a total of nine counts in indictments filed in four Districts. (See Criminal Docket attached to Declaration of Harvinder S. Anand dated June 12, 2008 ["Anand Dec."], Exhibit ["Ex."] A.) The Court sentenced Petitioner to 324 months (27 years) of imprisonment, five years of supervised release and ordered that Petitioner pay restitution in the amount of $111,598.04. (Id.; Petition at 2.)
The Court further ordered that restitution "shall be payable at a minimum rate [of] 10% of [Petitioner's] gross income while incarcerated and at a minimum rate $100.00 per month or 10% of [Petitioner's] gross income, whichever is greater, following release from imprisonment." (Id.)
Petitioner is a federal inmate currently incarcerated at the United States Penitentiary ("USP") in Victorville, California. (Petition at 1.)
Petitioner alleges when he arrived at USP-Victorville, the Bureau of Prisons began withdrawing restitution payments of $25 per quarter from his prison bank account, pursuant to the IFRP. See 28 C.F.R. §545.10, et seq. Petitioner requests the Court to "issue a Writ of Habeas Corpus commanding Respondent to cease collecting and [sic] restitution payments because the sentencing court did not fix a restitution payment schedule for his period of imprisonment." (Petition at 2.) Petitioner "also asks the Court to command Respondent to identify Petitioner as "IFRP - Exempt," to vacate his "IFRP - Refusal Status," to vacate associated sanctions imposed upon him, and restore him to ... "the position he would have been but for the wrongful actions of the Respondent." (Id.) Petitioner contends that "the BOP has changed the rate of payment [for restitution] repeatedly from one month to the other, and without any set payment schedule which results in duress of [sic] the Petitioner." (Id. at 2-3.)
Respondent contends that the Petition should be dismissed on the following grounds: (1) it is unclear whether Petitioner is attacking the validity or legality of the sentencing court's restitution order or seeking relief because he is unhappy with the Bureau of Prisons' application of a lawful order; (2) the Court lacks jurisdiction to hear Petitioner's Petition under §2241 because he does not challenge the fact or duration of his custody; (3) Petitioner waived his right to collaterally ...