Carson v. Thomas, No. 3:2007cv01753 - Document 22 (D. Or. 2009)
Court Description: Opinion & Order: Respondent's motion to dismiss 6 is GRANTED, petitioner's petition for writ of habeas corpus 2 is DENIED, and this proceeding is DISMISSED, with prejudice. Petitioner' s alternative motion to stay this proceeding pending the decision in Lemoine v. Daniels 19 is DENIED AS MOOT. Signed on 1/7/09 by Judge Malcolm F. Marsh. (gm)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON BRANDON CARSON, CV. 07-1753-MA Petitioner, OPINION AND ORDER v. J.E. THOMAS, Warden, FCI Sheridan, Respondent. Alison M. Clark Federal Public Defender's Office 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Karin J. Immergut United States Attorney Suzanne A. Bratis Assistant United States Attorney 1000 S.W. Third Avenue Portland, Oregon 97204-2902 Attorneys for Respondent MARSH, Judge Peti tioner, an inmate at FCI Sheridan, corpus proceeding pursuant to 28 U.S.C. 1 -- OPINION AND ORDER § brings this habeas 2241. Currently before the court is respondent's motion to dismiss (#6). For the reasons set forth below, the motion is granted, and petitioner's petition for writ of habeas corpus (#2) is denied. BACKGROUND On September 25, 2006, petitioner was sentenced in the U.S. District Court for the Eastern District of Washington to a 48-month term of incarceration. The judgment entered by the court provides that petitioner shall pay restitution in the amount of $154,344.48; that he shall participate in the Inmate Financial Responsibility Program (IFRP); and that he shall contribute 25% of his monthly earnings while he is incarcerated toward his restitution obligation. On April 24, 2007, petitioner signed an Inmate Financial Plan, pursuant to the IFRP, agreeing to pay $100.00 per month toward his restitution obligation. collection of Petitioner restitution payments alleges under that the IFRP respondent's is unlawful because (1) his participation in the IFRP is involuntary because it is mandated by his judgment and was prompted by the adverse consequences of IFRP non-compliance (see 28 C.F.R. § 545.11); and (2) is unlawful under United States v. Gunning, 401 F.3d 1145 (9th Cir. 2005), because it exceeds the restitution payment schedule set by the sentencing judge. Peti tioner seeks an order requiring respondent to cease all collection activity, to identify petitioner as "IFRP-Exempt", and to restore petitioner to the position he 2 -- OPINION AND ORDER would have been in but for the wrongful actions of the Bureau of Prisons (BOP). DISCUSSION The resolution of this case is controlled Circuit's recent decision in United States v. 1042 {9th Cir. 2008}. by the Lemoine, Ninth 546 F.3d In Lemoine, the court held that the BOP may impose a restitution payment schedule at a higher or faster rate than specified in a judgment if the inmate voluntarily agrees to a different restitution payment schedule under the IFRP. In so holding, the court rejected the petitioner's argument that the IFRP is not results a in voluntary program because adverse consequences. an inmate I s "The use noncompliance of incentives to encourage compliance in a rehabilitative program", explained the court, "does not render it unconstitutional or unlawful." Lemoine, 546 F.3d at 1049. Like Lemoine, petitioner entered into an IFRP agreement requiring a $100.00 monthly payment toward petitioner's restitution obligation. Although petitioner did so to avoid the adverse consequences of IFRP non-compliance, this fact does not render his IFRP agreement involuntary or unlawful. Id. Moreover, the record is devoid of any evidence to support petitioner's assertion that respondent required petitioner to participate in the IFRP due to a specific mandate to do so in petitioner's judgment. Rather, the evidence before the court is that petitioner entered into an IFRP 3 -- OPINION AND ORDER agreement to avoid the adverse consequences of IFRP non-compliance. Resp. Accordingly, Exh. 1 (Petitioner's Inmate Financial Plan) . petitioner has failed to demonstrate that his IFRP agreement, and the BOP's collection of restitution thereunder, is unlawful. CONCLUSION Based on the foregoing, respondent's motion to dismiss (#6) is GRANTED, petitioner's petition for writ of habeas corpus DENIED, and this proceeding is DISMISSED, with (#2) is prejudice. Peti tioner' s al ternati ve motion to stay this proceeding pending the decision in Lemoine v. Daniels (#19) is DENIED AS MOOT. IT IS SO ORDERED. DATED this ~ day of January, 2009. Malcolm F. Marsh United States District Judge 4 -- OPINION AND ORDER
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