The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE [ECF No. 1]
Petitioner is a federal prisoner proceeding pro se in a habeas corpus action pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States magistrate judge. Local Rule 305(b).
Following a jury trial in the United States District Court for the Middle District of Tennessee, case number 3:96-cr-00128, Petitioner was convicted of one count of conspiracy to commit carjacking in violation of 18 U.S.C. § 371; six counts of carjacking in violation of 18 U.S.C. § 2119; six counts of using or carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1); and aiding and abetting in violation of 18 U.S.C. § 2. Answer, Declaration of Jennifer Vickers Declaration (hereinafter "Vickers Decl."), at ¶ 5.
On May 30, 1997, Petitioner was sentenced to a 1,410-month term of imprisonment and ordered to pay a special assessment of $650 and $12,099.50 in restitution. Vickers Decl., at ¶ 6.
As reflected on the judgment and commitment order, the sentencing court ordered that "Restitution is due immediately." Id.
Petitioner filed the instant petition for writ of habeas corpus on September 19, 2012 and challenges the collection of restitution payments ordered in his underlying criminal case through the Inmate Financial Responsibility Program (IFRP). More specifically, he contends the BOP lacks a lawful restitution order to collect restitution because the sentencing court ordered immediate payment without consideration of his financial status. (Pet. at 3.)
Respondent filed an answer to the petition on December 3, 2012, and Petitioner filed a traverse on January 28, 2013.
Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. Writ of habeas corpus relief is available if a federal prisoner can show he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Petitioner is currently incarcerated at the United States Penitentiary in Atwater, California. Since Atwater is located within the Eastern District of California, venue is proper in this Court.
II. Subject Matter Jurisdiction
Respondent contends Petitioner's challenge to the ordering of his restitution to be payable "in full immediately" without consideration of his financial circumstances, is a challenge to the judgment and sentence, and the proper forum for such challenge is on direct appeal. In support of his argument, Respondent cites to the Ninth Circuit's recent decision in Ward v. Chavez, 678 F.3d 1042, 1044 (9th Cir. 2012), which held that "where the sentencing court failed to consider whether the defendant has the financial resources to pay restitution immediately, ordering immediate payment impermissibly delegates to BOP the court's obligation to set a payment schedule." Respondent argues Ward is distinguishable because the court did not consider jurisdiction since the Government waived such argument by failing to assert it. Id. at 1052 n.6.
The Court does not find Respondent's argument persuasive. Because in Ward the Ninth Circuit reviewed on the merits the exact challenge Petitioner raises in the instant petition, this Court finds no authority to determine subject matter jurisdiction is lacking. Indeed, the Ninth Circuit has allowed challenges to the execution of a prisoner's sentence by way of § 2241. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curiam) ("petitions that challenge the manner, location, or conditions of a federal sentence's execution must be brought pursuant to § 2241 in the custodial court."); Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1990); MontanoFigueroa v. Crabtree, 162 F.3d 548, 549 (9th Cir. 1998) (per curiam) (allowing a federal prisoner to use § 2241 to challenge the BOP's restitution policies). Thus, Petitioner's assertion that the BOP is unlawfully withdrawing funds from his prison account without the sentencing court taking into ...