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Thomas Clifford Whitmore v. Richard B. Ives

December 2, 2011

THOMAS CLIFFORD WHITMORE, PETITIONER,
v.
RICHARD B. IVES,
RESPONDENT.



ORDER

Petitioner is a federal prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn1 Therein petitioner seeks an order requiring respondent to classify him as being exempt from the federal Inmate Financial Responsibility Program ("IFRP"), and to cease all collection activities under his IFRP payment contract. In opposing the granting of relief, respondent contends that: (1) this court lacks subject matter jurisdiction over the petition; (2) petitioner has failed to exhaust his administrative remedies; and (3) petitioner's participation in the IFRP is not subject to judicial review. Upon careful consideration of the record and the applicable law, the court concludes that petitioner is not entitled to federal habeas relief. Accordingly, his petition will be denied.

BACKGROUND

Petitioner is currently incarcerated at the Federal Correctional Institution in Herlong, California (hereinafter Herlong), pursuant to his conviction in the United States District Court for the Central District of California for multiple violations of federal drug laws. (Doc. No. 1 at 2; Doc. No. 14 at 1.)*fn2 Petitioner was sentenced to life in prison without the possibility of parole and was ordered to pay a fine in the amount of two million dollars with respect to one of the counts upon which he was convicted. (Doc. No. 14 at 1; Doc. No. 13-1 at 8.) The Judgment and Commitment Order entered in the United States District Court for the Central District of California on April 16, 1991, provided that upon release from imprisonment, petitioner shall "pay the fine imposed by this judgment and that remains unpaid at the commencement of the term of community supervision as directed by the Probation Officer." (Doc. No 13-1 at 10.) Petitioner was also ordered to pay "a special assessment to the United States in the amount of $800.00." (Id.) The sentence imposed in petitioner's case did not include a restitution order. (Doc. No. 13 at 4.)

Shortly after petitioner's arrival at Herlong on September 7, 2006, he entered into an IFRP payment contract "with fixed quarterly payments of $25 . . ." in order to begin payment of the fines imposed as part of his sentence. (Doc. No. 1 at 3.) Pursuant to that contract, petitioner's account has been credited with payments on his fine totaling $2,026.00. (Doc. No. 13 at 4.)

Petitioner filed this federal habeas petition on June 3, 2009. Therein, petitioner argues that he was coerced into entering the IFRP payment contract and that the United States Bureau of Prisons ("BOP") does not have the legal authority to collect his financial obligations under the circumstances of his case. (Doc. No. 1 at 3; Doc. No. 14 at 3.) Respondent filed an answer to the petition on February 23, 2010. (Doc. No. 13.) Petitioner filed a traverse on March 15, 2010. (Doc. No. 14.)

ANALYSIS

I. Standards of Review Applicable to Habeas Corpus Claims Under § 2241 Relief by way of a writ of habeas corpus extends to a prisoner in custody under the authority of the United States who shows that his custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). A federal prisoner who challenges the validity or constitutionality of his underlying conviction must file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. On the other hand, a federal prisoner challenging the manner, location, or conditions of the execution of a sentence, as petitioner does here, must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000); see also Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008).

II. Petitioner's Claim for Relief

Petitioner's sole claim for federal habeas corpus relief is stated in his petition, in full, as follows:

BOP's unlawful authority to fix financial obligation payment method pursuant to 18 U.S.C. § 3572(d) & 18 U.S.C. § 3664(f)(2). Shortly after Petitioner's arrival at FCI-Herlong, Respondent and his subordinates, under threat of retalitory [sic] IFRP "refusal status", coerced Petitioner to enter into an IFRP payment "contract" with fixed quarterly payments of $25.00 in violation of 18 U.S.C. § 3572(d); 18 U.S.C. § 3664(f)(2); & United States v. Gunning - 410 F.3d 1145 (9th Cir. 2005). (Doc. 1 at 3.)*fn3 Petitioner requests that this court enter an order requiring respondent to classify him as "IFRP exempt" and to "cease all collection activities immediately and throughout Petitioner's period of incarceration" or, in the alternative, an order directing the sentencing court "to set a payment schedule during the period of Petitioner's incarceration." (Doc. 14 at 3.)

In his traverse, relying on the decisions in United States v. Lemoine, 546 F.3d 1042, 1046 (9th Cir. 2008) and Montano-Figueroa v. Crabtree, 162 F.3d 548 (9th Cir. 1998), petitioner argues that the BOP has jurisdiction to collect any financial obligation imposed as part of an inmate's sentence pursuant to the IFRP program only if the judgment orders that the fine be paid "immediately" or "during the period of incarceration." (Id.) Petitioner argues that only the sentencing court can determine the amount, time and method of payment by which an inmate must fulfill his financial obligation where, as here, the sentence imposed calls for the fine to be satisfied as a condition of his supervised release and not during the period of incarceration. (Id.) In this regard, petitioner alleges that:

. . . as in the instant matter where there is no Court ordered financial obligation during the term of imprisonment the BOP is in clear violation of 18 U.S.C. § 3742(a) and 18 U.S.C. § 3664(n) which require that the District Courts determine the amount, time, and method of payment by which a defendant must fulfill his/her Court ordered financial obligations.

In the instant matter the District Court ordered the fine and Court assessment be satisfied as a condition of Petitioner's supervised release. . . . Had the District Court for the Central District of California intended that Petitioner satisfy his Court ordered obligations during the term of imprisonment the Court would have ordered payment "due immediately" as is the standard practice in cases with Court ordered financial obligations to be fulfilled during the period of incarceration.

Therefore it is the Petitioner's contention pursuant to the facts contained in the judgment and commitment order that the BOP is in violation of the law and the District Court's order by setting and enforcing the amount, time, and method of ...


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