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Trifu v. Apker

United States District Court, E.D. California

March 21, 2017

DORU GABRIEL TRIFU, Petitioner,
v.
CRAIG APKER, Administrator, Respondent.

          FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         First, 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.)

         Petitioner 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.)

         I. Factual Background

         On 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 payments stated:

[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.)

         Petitioner 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.)

         The IFRP Contracts signed by Petitioner contained the following advisement:

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 satisfied.

(Patrick Decl., Ex. C.)

         Despite 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”)[1]policy 4B2, and Program Statement 5380.08. (Id., Ex. E.)

         Petitioner 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). (Id.)

         On 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.)

         On 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.)

         Petitioner next filed the instant petition for writ of habeas corpus under 28 U.S.C. § 2241.

         II. Standard of Review

         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'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 Cir. 1998).

         Further, 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).

         III. Review ...


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