Phillips v. Booker

• Decision Date: 19 November 1999
• Docket Number: No. 98-3314-RDR.,98-3314-RDR.
• Citation: 76 F.Supp.2d 1183
• Parties: Thomas M. PHILLIPS, Petitioner, v. J.W. BOOKER, Warden, Respondent.
• Court: U.S. District Court — District of Kansas

76 F.Supp.2d 1183

Thomas M. PHILLIPS, Petitioner, v. J.W. BOOKER, Warden, Respondent.

No. 98-3314-RDR.

United States District Court, D. Kansas.

November 19, 1999.

COPYRIGHT MATERIAL OMITTED

Thomas M. Phillips, Leavenworth, KS, pro se.

Mary K. Ramirez, Office of United States Attorney, Topeka, KS, for JW Booker, Warden, respondent.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 by an inmate of the United States Penitentiary, Leavenworth, Kansas. Phillips asserts that he is challenging the execution of his sentence on the basis that the Bureau of Prisons has improperly delegated payments of court-ordered restitution through the Inmate Financial Responsibility Program (IFRP). Phillips seeks to have his sentence vacated. He further seeks to be resentenced "without the delegation of restitution" to the BOP. He wants to "maintain his status within Unicor," but have the BOP cease all IFRP deductions, and not retaliate.

Petitioner was granted leave to proceed in forma pauperis, and an order to show cause issued. Respondent filed an Answer and Return to which petitioner filed a Response. Having considered all pleadings and attachments in the file together with the criminal file [U.S. v. Phillips, D.C. No. 95-10044-01 (D.Kan.)] containing the Judgment, the transcript of sentencing and the plea agreement, the court makes the following findings and order.

FACTS

The court finds the facts to be as follows. Pursuant to a plea agreement, petitioner pled guilty to one count of bank robbery and one count of using a firearm during a crime of violence. On December 1, 1995, he was sentenced to 138 months in prison and five years of supervised release.

The "Judgment in a Criminal Case" (Crim.file, Doc. 27), is a form order. On page 4 of the Judgment, a box is marked indicating that "defendant shall make restitution to the following payees in the amounts listed below." The Amount of Loss and the Amount of Restitution Ordered are listed as $3,870.00. On page 5 of the Judgment, under "Schedule of Payments" which provides "Payment of the total ... shall be due as follows," the box has been marked: "A. in full immediately...." Although there were options specifying installments, they were not marked by the court. A footnote at the bottom of the page provides:

Unless the court has expressly ordered otherwise in the special instructions above, if this judgment imposes a period of imprisonment payment of criminal monetary penalties shall be due during the period of imprisonment. (Emphasis added). All criminal monetary penalty payments are to be made to ... (address given) .., except those payments made through the Bureau of Prisons' Inmate Financial Responsibility Program.

Petitioner did not object concerning the restitution portion of this criminal judgment at the sentencing proceeding or by direct appeal. On June 17, 1997, he filed a Motion to Suspend, Vacate or Reschedule Restitution Payments before the sentencing court (Crim.file, Doc. 30). He asserted jurisdiction under 18 U.S.C. § 3664(a). In that motion Phillips stated:

Movant was deemed indigent by this court. To be ordered to pay said restitution immediately, ... created a hardship on him. The court assumed ... that movant would be able to earn monies working for the B.O.P. while incarcerated, and therefore gave it's immediate payment order based on that ... speculation.

(Crim.file, Doc. 30, p. 2). Petitioner also complained in the motion that the court lacked authority to delegate the setting of a payment plan to the BOP and that the IFRP is discriminatory and coercive. The sentencing court denied this motion (Crim. file, Doc. 31), on the ground that it had no authority to change the restitution order because Phillips had not alleged a material change in his economic circumstances.

Phillips appealed the denial. The Tenth Circuit Court of Appeals opined that Phillips "raises a serious issue in his motion to the district court...." However, the Circuit dismissed the appeal on the ground that it could not reach the merits, because the district court lacked jurisdiction to consider the motion. The Circuit reasoned that 18 U.S.C. § 3664, cited by petitioner, is not a jurisdictional statute. Nevertheless, because Phillips was proceeding pro se, the court construed Phillips motion liberally and examined "whether the district court could exercise jurisdiction over Defendant's motion by any other means (emphasis added)." (Crim.file, Doc. 43, p. 3). The Circuit concluded that the motion could not be considered a timely appeal, a timely Rule 35(c) motion, or a timely motion to vacate or correct sentence under 28 U.S.C. § 2255.

Phillips is employed at the USP, Leavenworth, in a Federal Prison Industries (UNICOR) job assignment. He apparently was given the choice of signing an authorization permitting prison officials to take fifty percent of his income and apply it towards his financial obligations, or of not participating in UNICOR. He chose to sign the authorization and participate.

The IFRP first became effective in 1987, to encourage inmates to meet their "legitimate financial obligations." 28 C.F.R. § 545.10; Prows v. Dept. of Justice, 938 F.2d 274, 275 (D.C.Cir.1991); Kelley v. Federal Bureau of Prisons, 835 F.Supp. 1316, 1317 (D.Kan.1993) aff'd 21 F.3d 1121 (10th Cir.1994, Table). Under the IFRP, as a part of initial classification, staff assist the inmate in developing a financial plan; and inmates with UNICOR work assignments are required to devote a portion of their earnings toward their "legitimate financial obligations." 28 C.F.R. § 545.11(a)¹; Prows, 938 F.2d at 275; Kelley, 835 F.Supp. at 1317. Court-ordered restitution is specifically included among the obligations that are subject to collection through the IFRP. 28 C.F.R. § 545.11(a)(2). "Inmates assigned grades 1 through 4 in UNICOR ordinarily will be expected to allot not less than 50% of their monthly pay" toward their obligations. 28 C.F.R. § 545.11(b)(2). Refusal to participate in the IRFP "ordinarily shall" result in removal from UNICOR with performance pay at a maintenance level only, along with notification to the Parole Commission of non-participation, denial of furlough and outside work detail, restrictions on purchases and future UNICOR placement, lowest status housing and denial of other incentives. 28 C.F.R. § 545.11(d).

EXHAUSTION

Respondent answers the petition only by asserting that the action should be dismissed because administrative remedies have not been exhausted. As respondent points out, the Bureau of Prisons has established administrative remedy procedures by which a federal inmate may seek formal review of a complaint relating to imprisonment. Petitioner alleges that he initiated administrative grievances at the BP-8 and BP-9 levels, but was informed that if he persisted it would be construed as refusal to participate in the IFRP program, he would be removed from Unicor, and receive pay at maintenance level only. Petitioner decided to discontinue the administrative process and proceed to federal court.

It is clear that Phillips has not fully utilized the administrative remedy process. However, he seeks exception to the requirement of exhaustion by contending that the process is futile, that the warden has refused to provide him with a written response to his BP-8, and that forms have been withheld.

Although this court ordinarily will dismiss a habeas action when an inmate has not completed the BP-9, 10 and 11 steps of the process, it is not convinced that exhaustion should be required under these facts. Here, the petition raises only issues of law upon which respondent has already articulated its position as that mandated by BOP regulations. Consequently, exhaustion of administrative remedies would be a futile exercise. See Alevras v. Snyder, 49 F.Supp.2d 1112, 1113 (E.D.Ark.1999). Moreover, there is no function to be served by further development of the factual record. See Mujahid v. Crabtree, 999 F.Supp. 1398, 1399 (D.Or. 1998) aff'd, 172 F.3d 57 (9th Cir.1999, Table). For these reasons, the court declines to dismiss this action for failure to exhaust alone. Nevertheless, for the following reasons the court finds that petitioner is not entitled to habeas corpus relief.

JURISDICTION

First, this court is not convinced that it has jurisdiction to grant the relief petitioner seeks. The instant petition seeks essentially the same relief on the same grounds raised by petitioner in the motion to the sentencing court. Given that the Tenth Circuit Court of Appeals could find no means by which the sentencing court could exercise jurisdiction over petitioner's earlier motion, it seems unlikely that this court has jurisdiction.

A major premise of petitioner's complaint is that the sentencing court violated 18 U.S.C. § 3664(a) by failing to consider "the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents...." Petitioner asks this court to vacate his sentence and order that he be resentenced. This clearly amounts to an attack upon the validity of the sentence which may be raised only on appeal or by § 2255 motion. Consideration of a direct appeal or § 2255 motion has already been precluded as untimely² by the Circuit.

Not surprisingly, this petition is not brought under § 2255 or any of the jurisdictional statutes already rejected by the Tenth Circuit. Instead, jurisdiction is asserted under 28 U.S.C. § 2241. The Tenth Circuit has stated that: "A petitioner under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity...." Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996). Section 2255 contains language which allows an application by an inmate for habeas relief if it appears that "the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of his detention." However, a petition under §...