Mallard v. Collins

• Decision Date: 06 January 2015
• Docket Number: CIVIL ACTION NO. 5:14-13094
• Court: U.S. District Court — Southern District of West Virginia
• Parties: WILLARD MALLARD, Petitioner, v. M. COLLINS, Warden, et al., Respondents.

WILLARD MALLARD, Petitioner, v. M. COLLINS, Warden, et al., Respondents.

CIVIL ACTION NO. 5:14-13094

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION

January 6, 2015

PROPOSED FINDINGS AND RECOMMENDATION

Pending is Petitioner's Motion to Proceeding Without Prepayment of Fees or Costs (Document No. 1) and Application Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody (Document Nos. 2 and 3.).¹ By Standing Order, this matter was referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 6.) Having examined Petitioner's Motion and Section 2241 Application, the undersigned finds, and hereby respectfully recommends, that Petitioner's Motion and Application should be denied.

FACT AND PROCEDURE

On March 13, 2003, Petitioner pled guilty in the United States District Court for the Western District of Washington to eight counts of armed bank robbery (Counts 1, 2, 3, 4, 5, 6, 8, and 9), in violation of 18 U.S.C. § 2113(a) and (d); and one count of use of a firearm during a crime of violence (Count 7), in violation of 18 U.S.C. § 924(c)(1)(A). United States v. Mallard, Case No.2:03-cr-00014 (W.D.Wash. Nov. 23, 2004), Document No. 21. On November 23, 2004, the District Court sentenced Petitioner to a total term of 171 months imprisonment to be followed by a five year term of supervised release. Id., Document No. 73. The District Court also imposed an $800 special assessment and imposed restitution in the amount of $49,718.28. Id., Document No. 73, 81, and 84. Petitioner filed his Notice of Appeal on November 30, 2004. Id., Document No. 73. On October 17, 2005, the Ninth Circuit Court of Appeals granted the United States' unopposed motion to vacate and remand to the District Court in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Id., Document No. 93. By Order entered on January 27, 2006, the District Court determined that "there would be no material difference in Petitioner's sentence had the Court considered factors that were previously disfavored or forbidden by the Guidelines." Id., Document No. 98. On November 21, 2013, Petitioner filed a Motion to Amend Judgment requesting that the District Court recommend 12 months RRC placement. Id., Document No. 100. The United States filed its Response on November 29, 2013. Id., Document No. 101. By Order entered on December 5, 2013, the Western District of Washington denied Petitioner's Motion. Id., Document No. 102.

On March 25, 2014, Petitioner, acting pro se and incarcerated at FCI Beckley, located in Beaver, West Virginia, filed his instant Motion to Proceed Without Prepayment of Fees and Costs, an Application Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in State or Federal Custody, and Memorandum in Support. (Document Nos. 1 - 3.) In his Petition, Petitioner alleges that the BOP is improperly attempting to collect restitution payments from Petitioner through the Inmate Financial Responsibility Program [IFRP] because the Sentencing Court did not set a schedule of payments. (Document No. 2, p. 6 and Document No. 3, p. 6.) Petitioner argues that the Sentencing Court "cannot delegate its authority to the BOP for collection of payments through the IFRP." (Id.)Petitioner contends that "a lawful order of restitution was not established" because the Sentencing Court failed to set a schedule for payment of restitution during his imprisonment as required by the Mandatory Victims Restitution Act ["MVRA"]. (Id.) Petitioner complains that the Judgment Order merely stated that his special assessment and restitution were due "immediately" and "shall be paid during the period of imprisonment pursuant to the BOP's Inmate Financial Responsibility Program." (Document No. 3, pp. 1 - 2.) Citing United States v. Gunning, 401 F.3d 1145 (9^th Cir. 2005) and Ward v. Chavez, 678 F.3d 1042 (9^th Cir. 2012), Petitioner contends that the Sentencing Court failed to "set forth a proper payment schedule in the restitution order" because the Sentencing Court merely ordered that payment was due "immediately." (Id., p. 6.) Petitioner states that he arrived at FCI Beckley on March 12, 2013, and on March 19, 2013, his Unit Team initiated an IFRP plan of $25.00 a quarter beginning on June 1, 2013. (Id., p. 2.) Petitioner asserts that he "does not have enough institution earnings or trust fund account deposits to make a minimum IFRP payment of $25 per quarter after applying the formula set forth in Program Statement [5380.08]." (Id., p. 3.) Thus, Petitioner concludes that the Sentencing Court improperly delegated its authority to the BOP for collection of payments through the IFRP. (Id., pp. 6 - 8.) As relief, Petitioner requests that the Court "issue a Writ of Habeas Corpus commanding Respondent to cease collecting payments, or attempted collection of payments through the IFRP program from him on the basis that the BOP does not have the authority to require him to pay his restitution because the Sentencing Court did not fix a restitution payment schedule for his period of imprisonment pursuant to 18 U.S.C. § 3664(f)(2) and place Petitioner on 'no obligation' status or 'IFRP Exempt.'"² (Id., p. 8.)

As Exhibits, Petitioner attaches the following: (1) A copy of page 8 of his Judgment Order (Id., p. 11.) ; (2) A copy of pertinent pages from Program Statement ["P.S."] 5380.08 (Id., pp. 12 - 13, 23.); (3) A copy of Petitioner's "Request for Administrative Remedy Informal Resolution Form" dated April 17, 2013 (Id., p. 14.); (4) A copy of Petitioner's "Request for Administrative Remedy" dated April 17, 2013 (Id., p. 15.); (5) A copy of Warden Joel Ziegler's Response dated May 9, 2013 (Id., p. 16.); (6) A copy of Petitioner's "Regional Administrative Remedy Appeal" dated May 10, 2013 (Id., p. 17.); (7) A copy of Regional Director C. Eichenlaub's Response dated June 13, 2013 (Id., p. 18.); (8) A copy of Petitioner's "Inmate Inquiry" dated May 10, 2013 (Id., pp. 19 - 20.); and (9) A copy of pertinent pages from Petitioner's sentencing transcripts (Id., pp. 21 - 22.).

Also on March 25, 2014, Petitioner paid his $5.00 filing fee. (Document No. 5.)

ANALYSIS

1. Challenge to Sentencing Order:

In considering an inmate's application for habeas relief under 28 U.S.C. § 2241, the Courtmust consider whether the inmate is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975). The Court notes that Section 2241 is merely a general grant of habeas corpus authority. See Medberry v. Crosby, 351 F.3d 1049, 1062 (11^th Cir. 2003). More specific grants of habeas corpus authority are found in 28 U.S.C. § 2254 (state prisoners) and 28 U.S.C. § 2255 (federal prisoners). See Thomas v. Crosby, 371 F.3d 782, 785 (11^th Cir. 2004). Section 2255 is the exclusive remedy for testing the validity of federal judgments and sentences unless there is a showing that the remedy is inadequate or ineffective. In Re Jones, 226 F.3d 328, 333 (4th Cir. 2000). The remedy under Section 2241 is not an additional, alternative or supplemental remedy to that prescribed under Section 2255. Rather, Section 2241 applies to circumstances factually quite different from those properly considered under Section 2255. While the validity of Petitioner's conviction and/or sentence is in issue under Section 2255, matters pertaining to Petitioner's "commitment or detention" are properly the subject under 28 U.S.C. § 2241. See 28 U.S.C. § 2242. Thus, in addition to those very narrow circumstances under which Section 2255 is "inadequate and ineffective," issues arising out of the allegedly unlawful or incorrect computation of Petitioner's sentence and resulting in an unconstitutional restraint upon his liberty are properly considered under 28 U.S.C. § 2241. Allegations that a federal conviction or sentence is invalid are therefore appropriately considered under Section 2255, and allegations respecting the execution of a federal sentence are properly considered under Section 2241.

In the instant case, Petitioner argues that the restitution portion of his Judgment Order is unlawful. Citing United States v. Gunning, 401 F.3d 1145 (9^th Cir. 2005) ["Gunning II"] and Ward v. Chavez, 678 F.3d 1042 (9^th Cir. 2012), Petitioner contends that the Sentencing Court entered itsJudgment Order in violation of MVRA, 18 U.S.C. §§ 3663-64. Thus, Petitioner is clearly challenging the validity of his sentence. The undersigned notes, however, that Section 2255 is not an available means to challenge solely the restitution portion of a sentence.³ United States v. Kramer, 195 F.3d 1129, 1130 (9^th Cir. 1999). Therefore, to the extent Petitioner is claiming that Section 2255 is inadequate or ineffective, the undersigned will consider his claims under Section 2241. Although a Section 2255 Motion is the proper vehicle for challenging a federal conviction or sentence, Section 2241 may be used by a federal prisoner to challenge the legality of his conviction if he can satisfy the mandates of the Section 2255 "savings clause." Section 2255 contains a "savings clause" that allows an individual to file a petition challenging his conviction in a venue other than the sentencing court if the Petitioner can establish that his remedy under Section 2255 is "inadequate or ineffective." In re Jones, 226 F.3d at 333("[W]hen § 2255 proves 'inadequate or ineffective to test the legality of . . . detention,' a federal prisoner may seek a writ of habeas corpus pursuant to § 2241."); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). The Petitioner bears the burden of showing the inadequacy or ineffectiveness of a Section 2255 Application. See McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979). The fact that relief under Section 2255 is barred...