United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR
WRIT OF HABEAS CORPUS
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
is a federal prisoner proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. Petitioner challenges the implementation and
collection of restitution and felony assessments under the
Inmate Financial Responsibility Program (“IFRP”)
by private prison employees.
Plaintiff asserts that the employees of Taft Correctional
Institution (“TCI”) violated his due process
rights based on their lack of authority to set or collect
restitution payments through the IFRP program. Second, he
asserts that the action of taking his restitution was an
abuse of process in light of the language of federal
regulations including 28 C.F.R. § 545.10 which limits
the authority of the Bureau of Prisons to collect
restitution. (Pet. at 3, ECF No. 1.)
filed his petition on July 20, 2015. Respondent filed an
answer to the Petition on October 5, 2015. (Answer, ECF No.
12.) Petitioner filed a traverse to the answer on October 28,
2015. (Traverse, ECF No. 13.)
December 2, 2013, Petitioner was sentenced by the United
States District Court, Southern District of Texas, to 96
months in federal custody for Wire Fraud. (Decl. of Dale
Patrick (“Patrick Decl.”), Ex. A, ECF No. 12-1);
United States v. Trifu, Case No. 6:12CR00081-S-001.)
In addition to his federal prison sentence, Petitioner was
assigned a felony assessment of $3, 300.00 and $562, 239.78
in restitution. (ECF No. 12-1 at 11.) The schedule of
[C]riminal monetary penalties is due as follows: Lump sum
payment of $3, 300.00 due immediately, balance due in
accordance with F below.
F - Special Instructions regarding payment of criminal
monetary penalties: The restitution shall be paid during the
term of supervised release at a rate of $300.00 per month,
beginning 30 days after placement on supervised release.
Unless the court has expressly ordered otherwise, if this
judgment imposes imprisonment, payment of criminal monetary
penalties is due during imprisonment. All criminal monetary
penalties, except those payments made through the Federal
Bureau of Prisons' Inmate Financial Responsibility
Program, are made to the clerk of the court.
(Id., at 17.)
arrived in custody at TCI on February 7, 2014. (Patrick
Decl., Ex. B.) August 21, 2014, Petitioner signed an Inmate
Financial Responsibility Program Inmate Financial Plan
contract (“IFRP Contract”) to voluntarily
participate in the IFRP. (Patrick Decl., Ex. C.) His payment
schedule was set at $50 a month. (Patrick Decl., Exh. G.) On
July 23, 2015, Petitioner signed another IFRP Contract
reducing his payment schedule to $25 a month. (Id.)
IFRP Contracts signed by Petitioner contained the following
A staff member has provided me with information regarding the
potential consequences of refusal on my part to participate
in the inmate financial responsibility program. I agree to
submit payments toward satisfaction of the financial
obligation(s) indicated on the form in accordance with the
payment plan outlined below. I agree to have funds
automatically withdrawn from my account. I agree to follow
this payment plan until the financial obligation(s) is
(Patrick Decl., Ex. C.)
entering into the above IFRP Contracts, on August 25, 2014,
Petitioner requested that the prison stop deducting money
from his account. (Patrick Decl., Ex. D). TCI responded on
August 27, 2014, stating that Petitioner's financial
obligation was determined based on the IFRP policy,
Management and Training Corporation
(“MTC”)policy 4B2, and Program Statement 5380.08.
(Id., Ex. E.)
next sent a Request for Administrative Remedy, stating that
“MTC's employees cannot lawfully use the IRFP to
collect payments from me because privately-run prison [MTC]
may not schedule or set its own payment plan.” (Patrick
Decl., Ex. F.) In support of his position, Petitioner cited
Ward v. Chavez, 678 F.3d 1042 (9th Cir. 2012).
September 5, 2014, TCI responded, stating:
In Ward v. Chavez, 678 F.3d 1042 (9th Cir. 2012),
the Ninth Circuit held that where the sentencing court has
failed to consider whether the defendant has the financial
resources to pay restitution immediately, ordering immediate
payment impermissibly delegates to the BOP the court's
obligation to set a payment schedule. However, it appears you
have misread your J&C and the Ninth Circuit decision in
Ward v. Chavez. Ward v. Chavez dealt
specifically with restitution orders and only restitution
orders. Special assessments (felony assessments), Fines and
court costs, and State or local court obligations are not
included in the Ward v. Chavez ruling. Any court
imposed obligation in one or more of the aforementioned areas
will be handled by staff in accordance with the provisions
set forth in Program Statement 5308.08, and TCI Policy 4-B-2.
Therefore, staff will continue to monitor your progress in
meeting your court imposed financial obligation with regards
to your $3, 300.00 felony assessment. However, staff will not
collect any part of your $562, 239.78 restitution as the
sentencing court specifically set the schedule for payment of
the restitution to begin 30 days after placement on
supervised release in the amount of $300.00 per month.
The Ninth Circuit has held that the Bureau of Prison's
operation of the IFRP does not constitute an unlawful
delegation of authority and that an inmate's
participation in the IFRP is voluntary even though he may be
denied certain privileges if he refuses to join the program.
See United States v. Lemoine, 546 F.3d 1042, 1046
(9th Cir. 2008).
(Patrick Decl., Ex. G.)
March 3, 2015 Petitioner sent a request that his repayment of
the $3, 300.00 Felony Assessment be reviewed. (Patrick Decl.,
Ex. H.) On March 11, 2015, Warden Craig Apker responded:
Records indicate the matter regarding your $3, 300 felony
assessment was appropriately addressed on the response to
Administrative Remedy 201481-F1 dated September 5, 2014.
However, you appear to be requesting a review of your $50.00
per month IFRP payment currently being made towards your
felony assessment. . .Records indicate your next program
review is currently scheduled for August 2015. [A]t that time
staff will review your IFRP status as required by policy.
(Patrick Decl., Ex. I.)
next filed the instant petition for writ of habeas corpus
under 28 U.S.C. § 2241.
Standard of Review
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's claims are
proper under 28 U.S.C. § 2241 and not 28 U.S.C. §
2255 because they concern the manner, location, or conditions
of the execution of Petitioner's sentence and not the
fact of Petitioner's conviction or sentence. Tucker
v. Carlson, 925 F.2d 330, 331 (9th Cir.1990) (stating
that a challenge to the execution of a sentence is
"maintainable only in a petition for habeas corpus filed
pursuant to 28 U.S.C. § 2241");
Montano-Figueroa v. Crabtree, 162 F.3d 548, 549 (9th
Petitioner is challenging the execution of his sentence at
Taft Correctional Institution in Taft, California, which is
within the Fresno Division of the Eastern District of
California; therefore, the Court has jurisdiction over this
petition. See Brown v. United States, 610 F.2d 672,
677 (9th Cir. 1990).