Willis v. United States of America

Filing 36

ORDER re 35 Motion to Waive Restitution directing the Clerk of this court to: (1.) Docket Willis's 35 "Motion to Waive Restitution" in her criminal case, Case No. Case No. 2:06cr71-MEF, as a "Motion under 18 U.S.C. § 3664(k) to Modify the Restitution Payment Schedule Based on Changed Economic Circumstances" and (2.) Strike the same motion from the instant case, Civil Action No. 2:09cv930-MEF. Signed by Honorable Judge Charles S. Coody on 8/18/11. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BERNETTA LASHAY WILLIS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 2:09cv930-MEF
(WO)

ORDER
Bernetta Lashay Willis has filed a pro se pleading styled as a “Motion to Waive
Restitution” (Doc. No. 35), wherein she seeks release from her obligation to pay restitution
under an order entered in her criminal case, Case No. 2:06cr71-MEF, based on her inability
to pay. Willis’s pleading was originally docketed in her action challenging her conviction
and sentence pursuant to 28 U.S.C. § 2255. However, 28 U.S.C. § 2255 is not a mechanism
by which an order of restitution may be attacked or modified. See Blaik v. United States, 161
F.3d 1341, 1342 (11th Cir. 1998) (“[Section] 2255 cannot be utilized by a federal prisoner
who challenges only the restitution portion of his sentence because § 2255 affords relief only
to those prisoners who ‘claim [ ] the right to be released’ from custody.”)
Accordingly, the Clerk of this court is hereby DIRECTED to:
1. Docket Willis’s “Motion to Waive Restitution” in her criminal case, Case No.
Case No. 2:06cr71-MEF, as a “Motion under 18 U.S.C. § 3664(k) to Modify the Restitution
Payment Schedule Based on Changed Economic Circumstances.”

2. Strike the same motion from the instant case, Civil Action No. 2:09cv930-MEF.
Done this 18th day of August, 2011.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE