Jeremy Fontanez v. Terry O'Brien
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:14-cv-00077-FPS-JSK. [999710215]. [14-7607]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7607
JEREMY FONTANEZ,
Petitioner - Appellant,
v.
TERRY O’BRIEN, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.
Frederick P. Stamp,
Jr., Senior District Judge. (5:14-cv-00077-FPS-JSK)
Argued:
October 27, 2015
Decided:
December 2, 2015
Before MOTZ, GREGORY, and HARRIS, Circuit Judges.
Reversed and remanded by published opinion. Judge Harris wrote
the opinion, in which Judge Motz and Judge Gregory joined.
ARGUED: Adam H. Farra, SIDLEY AUSTIN LLP, Washington, D.C., for
Appellant.
Tara Noel Tighe, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellee.
ON BRIEF:
Jonathan F. Cohn, SIDLEY AUSTIN LLP, Washington, D.C., for
Appellant.
William J. Ihlenfeld, II, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia,
for Appellee.
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PAMELA HARRIS, Circuit Judge:
Jeremy Fontanez, a federal inmate, filed a habeas corpus
petition
under
28
U.S.C.
§ 2241
seeking
release
from
the
obligation to make restitution payments through the Bureau of
Prisons’ Inmate Financial Responsibility Program.
The district
court found that Fontanez’s claim was not cognizable under 28
U.S.C.
§ 2241
and
dismissed
the
case.
We
disagree.
Accordingly, we reverse the district court’s order and remand
the case for proceedings on the merits.
I.
A.
In 2004, Jeremy Fontanez pleaded guilty to his involvement
in a series of armed robberies and was sentenced to 420 months
in
prison
sentencing
$27,972.61.
in
the
court
Eastern
imposed
District
of
restitution
Pennsylvania.
in
the
amount
The
of
It provided the following special instructions in
the “schedule of payments” section of the sentencing order:
Defendant shall make restitution payments from any
wages he may earn in prison in accordance with the
Inmate Financial Responsibility Program.
Restitution
shall be due immediately.
J.A. 167.
The Inmate Financial Responsibility Program (“IFRP”) is a
Bureau of Prisons (“BOP”) program that enables prisoners to make
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scheduled
ordered
Filed: 12/02/2015
payments
financial
from
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their
inmate
obligations.
accounts
See
28
toward
C.F.R.
court-
§ 545.10–11.
Prison staff assist inmates in developing financial plans, which
are subject to periodic review.
Id.
As the parties in this
case agree, the IFRP is voluntary; the BOP cannot compel an
inmate to make payments.
331,
334
(7th
Cir.
See United States v. Boyd, 608 F.3d
2010).
But
inmates
with
financial
obligations who refuse to participate in the IFRP may no longer
be
eligible
for
many
privileges,
housing and work outside the prison.
In
April
2013,
Fontanez
was
including
more
desirable
28 C.F.R. § 545.11(d).
moved
to
the
United
States
Penitentiary – Hazelton (“USP Hazelton”) in Bruceton Mills, West
Virginia.
He signed an Inmate Financial Plan, agreeing to pay
$25 each quarter toward his court-ordered financial obligations
through the IFRP.
About one year later, however, Fontanez filed
a written request to be released from the IFRP.
In the request, Fontanez argued that the BOP’s requirement
that
he
make
IFRP
payments
violated
Restitution Act of 1996 (“MVRA”).
the
Mandatory
Victims
The MVRA obligates a district
court to “specify in [a] restitution order the manner in which,
and the schedule according to which, the restitution is to be
paid.”
18 U.S.C. § 3664(f)(2).
sentencing
court
had
failed
Fontanez contended that the
to
set
a
schedule
for
his
restitution payments and had instead unlawfully delegated its
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power to set that schedule to the BOP.
Therefore, the BOP
lacked any authority to require him to make restitution payments
through the IFRP or to punish him for refusing to pay.
Fontanez’s initial request was denied by a unit counselor
on April 10, 2014.
The request was denied a second time by the
Warden of USP Hazelton, appellee Terry O’Brien (“the Warden”),
on May 5, 2014.
The Warden noted that the sentencing court had
ordered Fontanez to “make restitution payments from any wages he
may earn in prison in accordance with the [IFRP],” and he stated
that “[t]he BOP does not have the authority to overrule the
decision set forth by the Court.”
J.A. 26.
B.
In
June
2014,
proceeding
pro
se,
Fontanez
filed
an
application for a writ of habeas corpus under 28 U.S.C. § 2241
in the Northern District of West Virginia.
As a general matter, a federal prisoner must challenge the
execution of a sentence under 28 U.S.C. § 2241, and the sentence
itself under 28 U.S.C. § 2255.
& n.5 (4th Cir. 1997).
In re Vial, 115 F.3d 1192, 1194
Relevant to this appeal, the § 2255
“savings clause” provides that prisoners may petition under §
2241 when § 2255 is “inadequate or ineffective” to address their
claims.
28 U.S.C. § 2255(e).
Fontanez contended that § 2241 was the proper procedural
vehicle
for
his
claim
because
4
he
was
challenging
the
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“execution,” and not the validity, of his sentence.
J.A. 5–6.
He argued that the BOP had no authority to require him to make
restitution
payments
through
the
IFRP
because
the
sentencing
court had failed to set forth a proper restitution order and
schedule,
in
violation
of
the
MVRA.
He
violation of his due process rights.
court
to
enjoin
the
BOP
from
also
alluded
to
a
He asked the district
requiring
him
to
make
further
or,
in
payments through the IFRP.
The
Warden
filed
a
motion
alternative, for summary judgment.
magistrate
judge,
government’s
denied.
The
who
motion
issued
be
district
a
granted
court
to
dismiss
the
The matter was referred to a
report
and
adopted
recommending
Fontanez’s
the
that
petition
magistrate
the
be
judge’s
report in full and dismissed the case.
The court held that Fontanez was challenging his sentence
“as
imposed,”
not
as
executed,
and
so
petition directly under 28 U.S.C. § 2241.
could
not
J.A. 83.
bring
his
The court
also found that Fontanez’s claim was not cognizable under 28
U.S.C. § 2255, either, because that provision could not be used
to
challenge
Finally,
the
solely
court
the
restitution
determined
that
portion
even
of
if
a
§
sentence.
2255
were
“inadequate or ineffective” in this case, Fontanez could not
resort to § 2241 under the “savings clause” because his claim
was statutory, not constitutional, and because he did not allege
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“complete
miscarriage
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of
justice”
or
a
proceeding
“inconsistent with the rudimentary demands of fair procedure.”
J.A. 84 (quoting United States v. Timmreck, 441 U.S. 780, 784
(1979)).
Accordingly,
the
court
dismissed
Fontanez’s
habeas
of
corpus
corpus petition.
This timely appeal followed.
II.
A.
We
review
the
relief de novo.
district
court’s
denial
habeas
Waddell v. Dep’t of Corr., 680 F.3d 384, 392
(4th Cir. 2012).
The district court denied Fontanez’s petition because it
understood his claim to be a challenge to the validity of his
sentencing order, and not to the execution of his sentence.
For
that reason, the court found that his claim was not directly
cognizable under § 2241.
But as Fontanez’s arguments have been
clarified
is
on
appeal,
it
now
apparent
that
he
is
indeed
challenging the execution of his sentence by the BOP.
Fontanez seeks relief from “the decision of the Bureau of
Prisons to force him into the IFRP and its accompanying refusal
to release him from it.”
BOP
exceeded
its
Reply Br. at 8.
authority
and
usurped
He contends that the
a
“‘core
judicial
function’” by setting “the basic terms of his restitution,” in
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contravention of both the MVRA and the constitutional separation
of
powers.
Opening
Br.
at
9–10
(quoting
Miller, 77 F.3d 71, 78 (4th Cir. 1996)).
United
States
v.
And while a premise of
Fontanez’s argument is that the sentencing order is invalid, he
does not seek to have that order set aside.
Instead, the claim
on which he seeks relief is that the BOP’s execution of the
restitution portion of his sentence is unlawful.
It is well established that “attacks on the execution of a
sentence are properly raised in a § 2241 petition.”
In re Vial,
115 F.3d at 1194 n.5; see also United States v. Snow, 748 F.2d
928, 933–34 (4th Cir. 1984); McGee v. Martinez, 627 F.3d 933,
937 (3d Cir. 2010); United States v. Diggs, 578 F.3d 318, 319–20
(5th Cir. 2009); Matheny v. Morrison, 307 F.3d 709, 712 (8th
Cir. 2002).
Moreover, other circuit courts have expressly held that an
inmate’s
challenge
to
the
BOP’s
administration
of
the
IFRP
relates to the “execution” of a sentence and is properly brought
under § 2241.
20;
Matheny,
McGee, 627 F.3d at 937; Diggs, 578 F.3d at 319–
307
F.3d
at
712.
We
have
reached
the
same
conclusion in unpublished opinions.
We
now
hold
that
an
inmate’s
challenge
to
the
BOP’s
administration of the IFRP is a challenge to the “execution” of
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that
is
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cognizable
under
28
U.S.C.
§
2241.
Accordingly, we reverse the district court’s order. *
Because the district court did not reach the merits of this
case, we remand it for further proceedings.
But we observe that
the distance between the parties appears to have narrowed as the
issues have been refined on appeal.
Fontanez challenges the
Warden’s refusal to let him stop making payments through the
IFRP.
The Warden now takes the position that “the IFRP is a
purely voluntary program” and that Fontanez “is entitled to stop
participating at any time.”
Response Br. at 13.
We defer to
the district court to determine in the first instance the extent
to which it is necessary to reach the merits of this case.
III.
We find that Fontanez’s claim is cognizable under 28 U.S.C.
§ 2241
because
he
challenges
the
execution
of
his
sentence.
Accordingly, we reverse the district court’s order and remand
for proceedings consistent with this opinion.
REVERSED AND REMANDED
*
For that reason, we do not address the remainder of the
district court’s analysis under § 2255’s savings clause.
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