Ross v. Thompson

• Decision Date: 01 May 1996
• Docket Number: Civil Action No. 1:96-CV-48.
• Citation: 927 F. Supp. 956
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Douglas W. ROSS, Petitioner, v. W.J. THOMPSON, Warden, F.C.I. Morgantown, West Virginia, Respondent.

927 F. Supp. 956

Douglas W. ROSS, Petitioner, v. W.J. THOMPSON, Warden, F.C.I. Morgantown, West Virginia, Respondent.

Civil Action No. 1:96-CV-48.

United States District Court, N.D. West Virginia.

May 1, 1996.

Douglas W. Ross, Morgantown, WV, pro se.

William D. Wilmoth, United States Attorney, Rita R. Valdrini, Asst. U.S. Atty., Wheeling, WV, Paul W. Layer, Federal Corrections Institution, Cumberland, MD, for respondent.

MEMORANDUM OPINION AND ORDER

KIDD, Senior District Judge.

On March 25, 1996, this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, was received and filed by the Clerk of the Court. By Order entered on March 28, 1996, the Court directed the respondent to be served and to file his response within 60 days. On April 3, 1996, petitioner filed a motion to reduce reply time and motion for release pending hearing. By Order entered on April 5, 1996, the Court directed the respondent to file a reply to the motions within 15 days. Instead, on April 22, 1996, the respondent filed his response seeking that the petition be denied, thus mooting the petitioner's motion to reduce reply time, which is hereby DENIED. On April 26, 1996, petitioner filed his reply.

Since there exist no material questions of fact but only questions of law, the Court finds that there is no need for an evidentiary hearing and will proceed with final disposition based upon the record before it. Therefore, petitioner's motion for release pending hearing is DENIED.

Petitioner is currently incarcerated at the Federal Correctional Institution in Morgantown, West Virginia ("FCI Morgantown"). On January 4, 1995, petitioner reported to FCI Morgantown to commence service on his federal sentence of 16 months. Included in his federal sentence was a mandatory special assessment of $150.00, a $25,000 fine, and a three year term of supervised release. During his incarceration, petitioner has paid only $75.00 toward the $150.00 special assessment and has made no payment on the fine. Petitioner's federal term of imprisonment expired on February 29, 1996. During petitioner's release processing from FCI Morgantown, petitioner refused to sign the "Installment Schedule Agreement for Unpaid Fines" form ("Form") "due to the vague uncertain nature of the form and because of respondents deliberate mis-characterization of the policy which was cited validating it." The purpose of the form was explained to petitioner. Furthermore, it was explained to petitioner that he would not be released from FCI Morgantown until he signed the Form. Due to petitioner's continued refusal to sign the Form after repeated requests, he remains incarcerated at FCI Morgantown even though his term of imprisonment has expired. Petitioner filed this petition for a Writ of Habeas Corpus seeking immediate release, claiming that he is being held illegally.¹

Title 18, United States Code, Section 3624(e) provides in pertinent part as follows:

.... No prisoner shall be released on supervision unless such prisoner agrees to adhere to an installment schedule, not to exceed two years except in special circumstances, to pay for any fine imposed for the offense committed by such prisoner.

Based upon this statutory mandate, the Federal Bureau of Prisons ("BOP"), the federal agency delegated the responsibility to carry out this Congressional mandate, promulgated the following policy:

In accord with 18 U.S.C. Section 3624(e), any inmate who has a term of supervised release and a fine relative to the offense under which he or she was committed, must agree to adhere to an installment schedule to pay any remaining balance on this fine while under release supervision.

Any inmate who refuses to comply with Section 3624(e) must remain in the custody of the Bureau of Prisons....

See PS 5380.05, Sec. 5.a.(5) (emphasis in original). Attached to this policy statement is the Form which is to be used to evidence such agreement. To implement this policy, the BOP directs that:

if a schedule of payment plan has not been approved by the court prior to the date of release, but the inmate agrees, in writing, to adhere to an installment schedule to be established after release, then the inmate may be released on the scheduled date of release.... The prisoner shall not be released on supervision and shall remain confined unless the prisoner pays the fine in full, has executed an installment schedule approved by the court, or agrees to adhere to an installment schedule.... Whenever a prisoner is not released on the scheduled date of release as the result of a fine problem, then ISM staff shall frequently contact Unit staff to learn the progress being made to resolve the fine difficulty. Every effort possible should be undertaken to assure that the prisoner is not confined past the release date any longer than necessary.

Program Statement No. 5880.28, Sentence Computation...