U.S. v. Holland
| Decision Date | 11 July 2005 |
| Docket Number | No. CR-94-AR-263-NE.,CR-94-AR-263-NE. |
| Parties | UNITED STATES of America v. Steve Randy HOLLAND |
| Court | U.S. District Court — Northern District of Alabama |
Alice H. Martin, U.S. Attorney, U.S. Attorney's Office, U.S. Marshal, United States Marshal's Office, U.S. Probation, United States Probation Office, Joyce White Vance, U.S. Attorney's Office, Leonard James Weil, Jr, U.S. Attorney's Office, James R. Sturdivant, James R. Sturdivant, Attorney at Law, Birmingham, AL, for Plaintiff.
Steve Randy Holland, Memphis, TN, Pro Se.
Jamilin Crews, John M. Galese, Galese & Ingram PC, William J. Brower, William Brower, Attorney at Law, Birmingham, AL, for Defendant.
Challenging this court's jurisdiction, United States of America ("the Government") has moved to dismiss a petition filed on May 10, 2004, by pro se petitioner, Steve Randy Holland ("Holland"), and subsequently twice amended by Holland's court-appointed counsel. Holland attacks the restitution portion of the sentence this court imposed upon him on May 8, 1995, after a jury convicted him of robbing a bank. Holland's equally culpable co-defendant, William Bennett Hicks ("Hicks"), had previously pled guilty to the same bank robbery. The court first sentenced Holland, giving him 210 months in custody to be followed by three years supervised release. Holland's order of restitution was entered pursuant to the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. § 3663, et seq. It provided:
The defendant shall make restitution (jointly and
severally with co-defendant William Bennett Hicks)
to the following entity in the following amount
Name of Payee Amount of Restitution
------------- ---------------------
North Jackson Bank $6,945.00
Higdon, AL 35979
Payments of restitution may be collected in accordance
with the Bureau of Prisons Inmate Financial
Responsibility Program, except that no further payment
shall be required after the sum of the
amounts actually paid by both defendants has fully
covered the compensable injury. Upon release from
custody, no further restitution payments are
required and defendant is relieved of restitution
responsibility
(emphasis supplied)
This order was consistent with what the court said during the sentencing hearing, which is:
I don't know what the presentence report is going to show with respect to the ability of the coconspirator, Mr. Hicks, to pay restitution. I know that as far as I'm concerned, you don't have the capability or the ability to pay any restitution now. But to the extent the Bureau of Prisons Inmate Financial Responsibility Program can collect from you, while you are incarcerated, money toward the six thousand nine forty-five, it will do so because I'm going to put that obligation on you. But I'm going to say this. No sum will be required of you after the sum of the amounts actually paid by both defendants has either covered the injury here without any interest running on it, no interest, or as far as you are concerned, when you are released from custody. So that if the Bureau of Prisons Inmate Financial Responsibility Program does not, in combination with what it's collected from Mr. Hicks, accomplish payment to the North Jackson Bank without interest the sum of six thousand nine forty-five by the time you are released, you'll be free from that. So that, put another way, when you get out of custody and are on supervised release, you won't owe anything to the North Jackson Bank. You will start free of that obligation.
(emphasis supplied).
Over a month later, on June 25, 1995, the court sentenced Hicks. Adhering strictly to the terms of the plea agreement, Hicks was ordered to pay restitution on the following terms, more onerous than the terms imposed on Holland:
The defendant shall make restitution to the following entity in the following amount:
Name of Payee Amount of Restitution
------------- ---------------------
North Jackson Bank of Higdon, Alabama $6,945.00
Payments of restitution are to be made to the Clerk
of the Court, for transfer to the payee
Restitution shall be paid jointly and severally
with co-defendant Steve Randy Holland. While the
defendant is in custody restitution shall be collected in
accordance with the Bureau of Prisons Inmate Responsibility
Program. After defendant's release from
custody, any restitution amount remaining shall be
paid at a monthly rate of $100.00, unless modified
by the probation officer for good cause shown
Said restitution shall be paid in full by the end of
the supervision period.
(emphasis supplied).
Hicks was sentenced to a custodial term of 30 months, to be followed by three years supervised release. Because Holland's restitution order recognized that his obligation was going to be joint with Hicks, the court, while sentencing Holland, pre-committed itself to ordering Hicks to pay restitution. Hicks has never complained about this prejudgment. How the court could promise one defendant what it will do to a co-defendant who was not there to complain about it, is a good question, but one that has not been asked.
There was no jury involvement whatsoever in fixing Holland's restitution obligation. To the extent the amount of the bank's loss was explored at all, the court simply adopted the probation officer's hearsay. Neither Holland nor his appointed counsel asserted a Sixth Amendment requirement that a jury determine the issues surrounding restitution, with the burden of proof being on the Government to prove the essentials beyond a reasonable doubt. In other words, Holland did not question the constitutionality of that part of the VWPA that allowed the court to impose restitution without confrontation or jury participation. Shortly after Holland was sentenced, the VWPA was amended by the Mandatory Victim Restitution Act ("MVRA"), 18 U.S.C. § 1336, but the concept of non-jury determination of the amount of restitution was not changed.
When Holland was sentenced, the law of the Eleventh Circuit clearly was that an order of restitution is penal in nature. It constitutes punishment, on a par with custody or probation. See United States v. Johnson, 983 F.2d 216 (11th Cir.1993). At the time of Holland's sentencing, this court's view of the VWPA was well known among the lawyers in the Northern District of Alabama, if not beyond. This included Holland's court-appointed counsel, who, as stated, offered no objection whatsoever to the fixing of the restitution obligation using only hearsay information in the presentence report. Everybody in the courtroom knew that this court considered the federal restitution scheme constitutionally flawed. In fact, when this court imposed sentence, it was not following the sage advice it had dispensed to other judges when it wrote Making Sense of Victim Restitution: A Critical Perspective, published in Federal Sentencing Reporter, Jan/Feb 1994, Vol. 6, No. 4 at 234. If this court had followed its own advice, it could have, and it should have, articulated several reasons for not imposing an ambiguous and an impossible restitution obligation on Holland. Because in 1995 the court was operating under the VWPA and not the MVRA, it was not tempted, as it would later have been, to postpone entry of the restitution order for more than 90 days after entering the written judgment of conviction, and create a convenient but impenetrable obstacle to the enforcement of an impossible restitution order. See United States v. Kapelushnik, 306 F.3d 1090, 1095 (11th Cir.2002).
Holland appealed from the jury verdict and his sentence, but his court-appointed counsel did not mount an appellate attack on the restitution order, and the appeal on other grounds of appeal was unsuccessful.
On May 10, 2004, nine years and two days after Holland was sentenced, and half-way through his custodial term, he filed the present provocative, if inartful, pro se petition, complaining that the Bureau of Prisons ("BOP"), which had not bothered to collect any restitution from him, had suddenly informed him that he owes restitution. The chief magistrate judge of this court appointed a lawyer for Holland. That lawyer has filed exceptionally well researched and well thought out arguments and amendments on behalf of Holland. Holland's first amended petition attached several documents that Holland had furnished his counsel. The authenticity and truth of these documents have not been challenged. However, the Government has consistently insisted that this court lacks jurisdiction because of the fact that Holland's petition is what the Government insists is procedurally barred as a successive petition under 28 U.S.C. § 2255 and because Holland has not obtained the permission of the Eleventh Circuit to file it.
Holland attempts to travel through several jurisdictional doors in order to obtain a cancellation of his miraculously reappearing restitution obligation. The Government's equally well written, and oft reiterated, motion to dismiss denies that Holland has any way to open the door of this court to a judicial evaluation of his plight on the merits.
Holland's main substantive thrust is that he was denied a jury trial on the restitution question in violation of the Sixth Amendment. His present counsel apparently came upon this idea, and amended to assert it, after the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Holland's present counsel already well knew the open secret of what this court thinks about the federal restitution scheme. The decisions in Blakely and Booker only whetted counsel's appetite.
Holland also filed a motion for discovery, seeking access to documents maintained by the BOP related to the status of his restitution account, and seeking to ascertain, what, if any, restitution his co-defendant, Hicks, has paid....
To continue reading
Request your trial
-
Coleman v. United States, CIVIL ACTION NO.: 2:16-cv-79
...2010); United States v. Watson-El, No. 04-00181-01-CR-W-NKL, 2009 WL 1765007, at *2 (W.D. Mo. June 22, 2009); United States v. Holland, 380 F. Supp. 2d 1264, 1269 (N.D. Ala. 2005). As the Seventh Circuit Court of Appeals explained, "the district court must make clear in its [restitution] or......
-
Jackson v. Flournoy
...2010); United States v. Watson-El, No. 04-00181-01-CR-W-NKL, 2009 WL 1765007, at *2 (W.D. Mo. June 22, 2009); United States v. Holland, 380 F. Supp. 2d 1264, 1269 (N.D. Ala. 2005). As the Seventh Circuit explained, "the district court must make clear in its [restitution] order that it is re......
-
Gordon v. United States, CIVIL ACTION NO.: 2:16-cv-96
...2010); United States v. Watson-El, No. 04-00181-01-CR-W-NKL, 2009 WL 1765007, at *2 (W.D. Mo. June 22, 2009); United States v. Holland, 380 F. Supp. 2d 1264, 1269 (N.D. Ala. 2005). As the Seventh Circuit Court of Appeals explained, "the district court must make clear in its order that it is......
-
Hope v. United States, CIVIL ACTION NO.: 2:17-cv-69
...2010); United States v. Watson-El, No. 04-00181-01-CR-W-NKL, 2009 WL 1765007, at *2 (W.D. Mo. June 22, 2009); United States v. Holland, 380 F. Supp. 2d 1264, 1269 (N.D. Ala. 2005). As the Seventh Circuit Court of Appeals explained, "the district court must make clear in its [restitution] or......