The opinion of the court was delivered by: Hon. William W Schwarzer United States District Judge
ORDER DENYING IN PART AND GRANTING IN PART § 2241 PETITION
Richard E. Marks, a federal prisoner proceeding pro se, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Marks was convicted by a jury in 2005 of one count of conspiracy to defraud, one count of conspiracy to commit mail and wire fraud, twenty-three counts of aiding and assisting the filing of materially false income tax returns, ten counts of mail fraud, and nine counts of wire fraud "arising from his involvement in . . . an organization that created, promoted, and implemented schemes to assist U.S. taxpayers in the evasion of their income tax liabilities and that also defrauded its own clients." United States v. Marks, 530 F.3d 799, 803, 805 (9th Cir. 2008). In his § 2241 Petition, Marks challenges the Inmate Financial Responsibility Program ("IFRP") and contends that the sentencing court failed to set a restitution schedule. The court denies the Petition in part, grants the Petition in part, and directs the sentencing court to set a restitution schedule.
On April 22, 2005, the district court sentenced Marks to fifteen years imprisonment, three years supervised release, and ordered Marks to make restitution in the amount of $42,311,742.00, and pay a fine of $25,000, assessment of $4,400, and the cost of prosecution of $66,488. Opp'n, Ex. 2 at 3--7. Marks timely appealed his conviction and sentence. Marks, 530 F.3d at 805.
While his appeal was pending, the sentencing court modified its judgment on October 20, 2005, reducing the amount of restitution to $30,738,395.28, and removing some of the conditions of supervised release. Opp'n, Ex. 3 (Amended Judgment) at 6. The sentencing court ordered payment "due immediately" and that any unpaid amount "shall be paid  [d]uring the period of imprisonment, pursuant to the Bureau of Prisons' Inmate Financial Responsibility Program." Id. at 8.
The IFRP is a Bureau of Prisons ("BOP") program that "applies to nearly all post-trial inmates in federal facilities," United States v. Lemoine, 546 F.3d 1042, 1046 (9th Cir. 2008), and "encourages each sentenced inmate to meet his or her legitimate financial obligations," 28 C.F.R. § 545.10. The prison staff develops a financial plan for each inmate and monitors the inmate's progress. Lemoine, 546 F.3d at 1047; 28 C.F.R. § 545.11. "An inmate is free to decline to participate in the IFRP, but the failure either to participate or to comply with a financial plan created pursuant to the program carries certain consequences." Lemoine, 546 F.3d at 1047. These consequences include not receiving certain benefits, such as furlough, pay beyond the maintenance pay level, assigned work detail outside the prison, a higher commissary spending limit, placement in a community-based program, or a release gratuity. 28 C.F.R. § 545.11(d); see Lemoine, 546 F.3d at 1047, 1049.
After Marks began his sentence, he enrolled in the IFRP in November 2005 and agreed to pay $25.00 per quarter beginning in March 2006. Opp'n, Ex. 6. Marks was placed in IFRP "refusal status" because he had insufficient funds to make his first $25.00 payment in March 2006. Opp'n, Exs. 4 & 7. Marks filed his § 2241 Petition on July 6, 2007, challenging the IFRP and contending that the sentencing court failed to set a restitution schedule.
In his direct appeal, Marks argued that he did not receive a fair trial, the restitution order was entered more than 90 days after sentencing, the district court's ex parte entry of the restitution order violated his right to be present and his right to speak on his behalf, the district court erred in failing to sua sponte examine Marks's competence to stand trial, and Marks did not waive his right to counsel. Marks, 530 F.3d at 803. On June 13, 2008, the Ninth Circuit affirmed Marks's conviction, sentence, and judgment. Id. at 817. The Ninth Circuit did not address the amended judgment's restitution schedule.
Marks's claims are proper under § 2241 because they concern the manner, location, or conditions of the execution of his sentence, not the underlying conviction or sentence. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000); Lemoine, 546 F.3d 1042(§ 2241 petition challenging the IFRP).The Antiterrorism and Effective Death Penalty Act of 1996 does not apply to § 2241 habeas petitions.
At the time Marks filed his Petition, he was incarcerated at the Taft Correctional Institute, in Taft, California, which is located within the jurisdiction of this court. 28 U.S.C. § 2241(a); Malone v. Calderon, 165 F.3d 1234, 1237 (9th Cir. 1999).Marks was subsequently transferred to the Federal Correctional Institution Low in Forrest City, Arkansas. The court retains jurisdiction "because 'jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change.'" Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990) (quoting Santillanes v. United States Parole Comm'n, 754 F.2d 887, 888 (10th Cir. 1985)); see Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir. 2005).
Marks's first two grounds for habeas relief challenge the IFRP. Marks challenges his placement on IFRP refusal status and claims that the regulations do not authorize the BOP to "punish" Marks for his refusal to participate in the IFRP. In his final ground for habeas relief, Marks contends that the sentencing court failed to set a restitution schedule as required. Marks's Br. 14 (citing United States v. Gunning (Gunning II), 401 F.3d 1145 (9th Cir. 2005)); Pet. at 4; see also Pet. at 3, 6. As the government concedes, Marks has exhausted his administrative remedies. Opp'n 3; Exs. 4 & 5.
A. Challenges to the IFRP
Marks challenges his placement on IFRP refusal status for his refusal to voluntarily make payments under the restitution order. Marks claims that because the IFRP is a voluntary program, the imposition of measures under 28 C.F.R. § 545.11 for non-participation in the IFRP constitutes an unlawful punishment. Marks also appears to challenge the ...