Alexander v. United States of America (INMATE 3)

Filing 33

OPINION AND ORDER: It is ORDERED that the clerk of court is to: (1) Strike petitioner Charnesha Alexander's "Motion Requesting Stay of Restitution" (doc. no. 31 ) from this civil action; and (2) Docket this same motion in the crimi nal case, United States v. Alexander, 3:14cr334-MHT (M.D. Ala.), as a motion under 18 U.S.C. 3664(k) to modify the restitution payment schedule. Signed by Honorable Judge Myron H. Thompson on 10/4/2019. Document 31 Motion stricken from the record, hand delivered to CRD to be docketed in criminal case 3:14cr334 as directed. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
CHARNESHA ALEXANDER,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

CIVIL ACTION NO.
3:16cv189-MHT
(WO)

OPINION AND ORDER
Petitioner Charnesha Alexander has filed a “Motion
Requesting Stay of Restitution,” wherein she seeks a
stay,

until

obligation
criminal

to

reinstatement

Prisons.

projected

pay

case,

3:14cr334-MHT

originally

her

restitution
United

(M.D.
of

the

agreed

release

States

Ala.),
payment

to

as

with

date,

of

her

ordered

in

her

v.

or,
schedule

the

Alexander,

alternatively,
she

Federal

says
Bureau

she
of

Alexander filed this motion in her closed 28

U.S.C. § 2255 case.

However, 28 U.S.C. § 2255 is not a

mechanism

an

by

which

order

of

restitution

may

be

attacked or revised. See Blaik v. United States, 161
F.3d 1341, 1343 (11th Cir. 1998) (holding that a § 2255

motion 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”);
Mamone v. United States, 559 F.3d 1209, 1211 (11th Cir.
2009) (despite the presence of claims challenging his
custody and requesting release from custody, prisoner
could not utilize § 2255 to challenge his restitution
order).
The authority to impose or modify a restitution
schedule post-sentence stems from 18 U.S.C. § 3664 and
its antecedents. See United States v. Kyles, 601 F.3d
78, 83–86 (2d Cir. 2010).

Section 3664(k) provides:

“A restitution order shall provide that the
defendant shall notify the court and the
Attorney General of any material change in the
defendant’s economic circumstances that might
affect
the
defendant’s
ability
to
pay
restitution.
The
court
may
also
accept
notification of a material change in the
defendant’s economic circumstances from the
United States or from the victim. The Attorney
General shall certify to the court that the
victim or victims owed restitution by the
defendant have been notified of the change in
circumstances.
Upon
receipt
of
the
notification, the court may, on its own motion,
or the motion of any party, including the
2

victim, adjust the payment schedule, or require
immediate payment in full, as the interests of
justice require.”
18 U.S.C. § 3664(k). Therefore, this court finds that
Alexander’s instant motion should be analyzed under 18
U.S.C. § 3664(k). See, e.g., Cani v. United States, 331
F.3d 1210, 1212–13 (11th Cir. 2003).
***
Accordingly, it is ORDERED that the clerk of court
is to:
(1) Strike petitioner Charnesha Alexander’s “Motion
Requesting Stay of Restitution” (doc. no. 31) from this
civil action; and
(2) Docket this same motion in the criminal case,
United States v. Alexander, 3:14cr334-MHT (M.D. Ala.),
as a motion under 18 U.S.C. § 3664(k) to modify the
restitution payment schedule.
DONE, this the 4th day of October, 2019.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE