(HC) Nichols v. Copenhaver, No. 1:2013cv01184 - Document 12 (E.D. Cal. 2015)

Court Description: ORDER Denying Petition For Writ Of Habeas Corpus, signed by Magistrate Judge Sheila K. Oberto on 6/30/2015. The petition for writ of habeas corpus is DENIED. The Clerk of Court is DIRECTED to enter judgment for Respondent. The Court DECLINES to issue a certificate of appealability. CASE CLOSED.(Fahrney, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TRAVIS CENTEL NICHOLS, 10 Case No. 1:13-cv-01184-SKO HC Petitioner, 11 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. 12 WARDEN COPENHAVER, 13 Respondent. 14 15 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 16 17 pursuant to 28 U.S.C. § 2241.1 He contends that the Bureau of Prisons ("BOP") lacks jurisdiction 18 to establish a schedule for payment of assessments or fines when the sentencing District Court did 19 not do so. 20 I. Background 21 On May 25, 2009, the U.S. District Court for the Western District of Texas sentenced 22 Petitioner to (1) 130 months' imprisonment for possession with intent to distribute at least 50 grams 23 of "crack" cocaine, a Schedule II narcotic drug controlled substance (21 U.S.C. §§ 841(a)(1) and 24 (b)(1)(A)(viii)) and (2) 60 months' imprisonment for possession of a firearm during the commission 25 of a drug trafficking crime (18 U.S.C. § 924(c)(1)(A)(i)). The sentences were to be served 26 consecutively, for an aggregate term of 190 months' imprisonment. The sentencing court also 27 ordered Petitioner to pay a $200 assessment and a $1000 fine, without interest. Payment was 28 1 Pursuant to 28 U.S.C. § 636(c)(1), both parties consented, in writing, to the jurisdiction of a United States Magistrate Judge to conduct all further proceedings in this case, including the entry of final judgment. 1 1 ordered to begin immediately. As of September 25, 2013, Petitioner had paid $175.00 of the 2 assessment but none of the fine. 3 Petitioner is currently in the custody of the Bureau of Prisons ("BOP") at the United States 4 Penitentiary at Atwater, California ("Atwater"). His projected release date is December 17, 2022, 5 with good conduct time. 6 In accordance with institutional practice, Petitioner's unit team encouraged his participation 7 in the Inmate Financial Responsibility Program ("IFRP"), a voluntary program in which an inmate 8 may satisfy his existing financial obligations, including both court-ordered obligations, such as 9 fines and restitution, and other obligations, such as child support. See 28 C.F.R. § 545.10 et seq. 10 Through the program, BOP staff members assist the inmate in developing a plan to pay his 11 outstanding financial obligations based on his or her earnings from prison employment and other 12 resources, such as money received from sources outside prison. The amount to be paid and the 13 inmate's agreement to participate are reconsidered at each program review. (Inmates meet with 14 their unit team for program review every three to six months, depending on their release date.) 15 Although participation is voluntary, the BOP denies certain privileges to any inmate who elects not 16 to participate in the program or fails to comply with the terms of his plan. 28 C.F.R. § 545.11(d). 17 Petitioner participated in the program for various time periods and declined to participate during 18 other time periods. 19 On July 29, 2013, Petitioner filed the pending petition for writ of habeas corpus. 20 Respondent answered on October 30, 2013; Petitioner did not file a traverse. The parties do not 21 dispute service or venue. 22 II. Discussion 23 A. Propriety of the § 2241 Petition 24 Respondent first contends that the petition is inappropriately brought under § 2241 since it 25 is a challenge to Petitioner's judgment and sentence, i.e., that Petitioner's real challenge is to the 26 sentencing court's delegation of the fine. Petitions under § 2241 may challenge the manner, 27 location, or conditions of a sentence's execution, explains Respondent. Since Petitioner concedes 28 that BOP is carrying out the terms of his sentence as imposed, but that the terms of the sentence 2 1 were improper, Respondent maintains that he must bring a petition in the sentencing court pursuant 2 to § 2255. The Court disagrees. 3 In the Ninth Circuit, a prisoner may challenge the terms of an order for payment of fines or 4 restitution in a habeas corpus petition pursuant to § 2241. See Ward v. Chavez, 678 F.3d 1042, 5 1045 (9th Cir. 2012); United States v. Lemoine, 546 F.3d 1042, 1044 (9th Cir. 2008); Montano- 6 Figueroa v. Crabtree, 162 F.3d 548, 549 (9th Cir. 1998); Ha v. Adler, 2009 WL 464467 at *2 7 (E.D.Cal. Feb. 24, 2009) (No. 1:07-cv-01400-AWI-JMD HC). See also Mujahid v. Crabtree, 999 8 F.Supp. 1398, 1401 (D. Ore. 1998) (interpreting an inmate's challenge to the IFRP program to be 9 contesting the manner in which his sentence was carried out and thus, properly filed in the district 10 of incarceration pursuant to § 2241). The Court concludes that this petition may proceed under 11 § 2241. 12 B. Exhaustion 13 Respondent next contends that petition should not proceed since Petitioner has not 14 exhausted his administrative appeals. Petitioner concedes that he has not done so, but argues that 15 exhaustion is not required because pursuing administrative appeals would be futile. Petitioner is 16 correct. 17 "Before pursuing habeas relief under 28 U.S.C. § 2241, a petitioner must exhaust 18 administrative remedies through the Bureau of Prisons." Sours v. Chavez, 2009 U.S.Dist. LEXIS 19 76743 (D.Ariz. June 17, 2009), adopted 2009 U.S.Dist. LEXIS 76965 (D.Ariz. Aug. 26, 2009) (No. 20 CV 08-1903-PHX-SRB (ECV)). "Exhaustion is not required," however, "if pursuing these 21 remedies would be futile." Id. (quoting Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 22 1993)). Exhaustion would be futile when an inmate challenges an official policy of the BOP, such 23 as the IFRP. Ward, 678 F.3d at 1046. Accordingly, Petitioner was not required to exhaust his 24 claims in this case. 25 C. 26 Finally reaching the substance of Petitioner's claim, Respondent contends that the Court Improper Delegation of Payment Scheduling 27 must dismiss or deny the petition because scheduling payment of Petitioner's fine and assessment 28 through IFRP is not an impermissible delegation of the District Court's responsibility to establish a 3 1 schedule for payment of restitution. Respondent is correct. Because Petitioner was ordered to pay 2 an assessment and fine, his reliance of law applicable to payment of restitution is misplaced. 3 "[T]he IFRP has been upheld generally." Montano-Figueroa, 162 F.3d at 549. A district 4 court does not err in imposing a fine based on an otherwise indigent defendant's ability to pay 5 through IFRP during his incarceration. United States v. Haggard, 41 F.3d 1320, 1329 (9th Cir. 6 1994). An inmate's payment of a fine through IFRP does not improperly intrude on the court's 7 sentencing authority when the sentencing order sets only the fine amount, and not its method of 8 payment. Montano-Figueroa, 162 F.3d at 550 (addressing a judgment setting the amount of the 9 defendant's fine and directing only that it was payable immediately). In the absence of an explicit 10 improper delegation of the court's authority, prisons' maintenance of "work programs that require 11 inmates to pay court-imposed fines or restitution" neither usurp the courts' Article III powers nor 12 violate the separation of powers doctrine. Id. 13 If the sentencing order concerns the inmate's payment of restitution, however, the result may 14 be different. The Mandatory Victims Restitution Act of 1996 (18 U.S.C. § 3663A) ("MVRA") 15 requires the sentencing court to fix the terms of restitution. United States v. Gunning, 401 F.3d 16 1145, 1149 (2005) ("Gunning II"). Under the MVRA, the sentencing court may not delegate its 17 responsibility. Id. When the "MVRA is not the basis for [a] petitioner's restitution order, [United 18 States v. Gunning, 339 F.3d 948 (9th Cir. 2003) ("Gunning I")] is not controlling." Geiger v. 19 Federal Bureau of Prisons, 487 F.Supp.2d 1155, 1160 (C.D.Cal. 2007). See also Gunning II, 401 20 F.3d at 1150 (distinguishing the application of Montano-Figueroa to an inmate's payment of fines 21 from its inapplicability to post-MVRA restitution orders); Woodworth v. Apker, 2011 WL 3439164 22 at *3 (D.Ariz. June 17, 2011), adopted 2011 WL 3439177 (D.Ariz. Aug. 5, 2011) (No. CV 10-520- 23 TUC-CKJ (BPV)) (distinguishing restitution orders entered prior to the enactment of the MVRA). 24 Similarly, when the sentencing judgment does not include a restitution order, as is the case 25 for Petitioner in this matter, the MVRA does not dictate the result. Whitmore v. Ives, 2011 WL 26 6032395 at * 6 (E.D.Cal. Dec. 5, 2011) (No. 2:09-cv-01526-DAD HC). In such cases, Montano- 27 28 4 1 Figueroa controls. Id. Petitioner's reliance on Gunning II and Ward, both cases addressing 2 restitution orders under the MVRA, is misplaced.2 3 C. Petitioner's Participation Under Protest 4 Finally, Petitioner contends that he was forced to participate in the IFRP lest he lose 5 eligibility for certain BOP programs. Respondent does not address Petitioner's contentions. To the 6 extent that Petitioner intended to advance his participation under protest as an additional ground to 7 the petition, he cannot prevail. 8 "The use of incentives to encourage compliance in a rehabilitative program does not render 9 it unconstitutional or unlawful." Lemoine, 546 F.3d at 1049 (quoting McKune v. Lile, 536 U.S. 24, 10 39 (2002) (plurality)). "An inmate is free to decline to participate in the IFRP" even though "the 11 failure either to participate or to comply with a financial plan created pursuant to the program 12 carries certain consequences" as set forth in 238 C.F.R. § 545.11(d). Lemoine, 546 F.3d at 1047. 13 The consequences of an inmate's decision not to participate in the IFRP "are reasonably related to 14 the legitimate penological interest of rehabilitation." Id. at 1048. "The benefits and consequences 15 of participation in the [IFRP] are considered a persuasive rewards program to those inmates who 16 chose to participate in the repayment of their debt to the victims and society." Magueira v. Adler, 17 2009 WL 80355 at * 3 (E.D. Cal. Jan. 13, 2009) (No. 1:08-cv-01167-DLB HC). 18 The consequences of an inmate's determination not to participate in the IFRP do not violate 19 his or her right to due process. Whitmore, 2011 WL at *7. Denial of the benefit of participation is 20 not such an "atypical and significant hardship on the inmate in relation to the ordinary incidents of 21 prison life" that it implicates a liberty interest. Lemoine, 546 F.3d at 1050 (quoting Sandin v. 22 Conner, 515 U.S. 472, 484-85 (1995)). 23 III. Certificate of Appealability A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district 24 25 court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 26 /// 27 2 28 Petitioner also relies on United States v. Johnson, 48 F.3d 806 (4th Cir. 1995). In Johnson, the Fourth Circuit addressed a judgment that improperly delegated to a probation officer the discretion to determine the ultimate amount of restitution to be paid by the defendant. Thus, Johnson is inapposite. 5 1 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate 2 of appealability is 28 U.S.C. § 2253, which provides: 3 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 4 5 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 6 7 8 (c) 9 10 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 11 (B) the final order in a proceeding under section 2255. 12 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. 13 14 15 (3) The certificate of appealability under paragraph (1) shall indicate which specific issues or issues satisfy the showing required by paragraph (2). 16 I 17 18 19 20 (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— If a court denies a petitioner's petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the 21 22 petitioner is not required to prove the merits of his case, he must demonstrate "something more than 23 the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. at 24 338. 25 26 27 In the present case, the Court finds that reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Petitioner has not made the required substantial 28 6 1 showing of the denial of a constitutional right. Accordingly, the Court declines to issue a certificate 2 of appealability. 3 IV. Conclusion and Order 4 Accordingly, the Court hereby ORDERS that: 5 1. The petition for writ of habeas corpus is DENIED; 2. The Clerk of Court is DIRECTED to enter judgment for Respondent; and 3. The Court DECLINES to issue a certificate of appealability. 6 7 8 9 10 11 12 IT IS SO ORDERED. Dated: June 30, 2015 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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