Starr v. Apker

Filing 55

ORDER ADOPTING 45 REPORT AND RECOMMENDATION as the findings of fact and conclusions of law by this Court. IT IS FURTHER ORDERED Petitioners 1 Petition for Writ of Habeas Corpus is GRANTED IN PART to the extent Petitioner be put on IFRP Exempt sta tus until a proper restitution schedule has been set by the sentencing court, and DENIED IN PART to the extent that Petitioner requests changes to the terms of his order of restitution. BOP shall stop collecting restitution payments from Petitioner, and shall place Petitioner on IFRP Exempt status. Respondents 29 Motion to Dismiss is DENIED. Petitioners 42 Motion for Summary Judgment is DENIED AS MOOT. IT IS FURTHER ORDERED striking Doc. 54 from the record as an unpermitted reply. The Clerk of Court shall enter judgment accordingly and shall close its file on this matter. Signed by Chief Judge Raner C Collins on 3/3/14.(BAC)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7
8

David Evan Starr,

No. CV-12-00225-TUC-RCC
Petitioner,

9
10

v.

11

ORDER

Craig Apker,

12

Respondent.

13
14

Before the Court is the August 12, 2013, Report and Recommendation (R&R)

15

from Magistrate Judge D. Thomas Ferraro (Doc. 45) recommending that this Court grant

16

in part and deny in part Petitioner’s Petition for Writ of Habeas Corpus pursuant to 28

17

U.S.C. § 2241 (Doc. 1). The R&R further recommends this Court deny Respondent’s

18

Motion to Dismiss (Doc. 29) and deny as moot Petitioner’s Motion for Summary

19

Judgment (Doc. 42).

20

Respondent filed his objections to the R&R (Doc. 49) on September 25, 2013, and

21

Petitioner filed his response to Respondent’s objections on October 7, 2013 (Doc. 52).

22

Respondent also filed a reply (Doc. 54) to Petitioner’s response; however, no replies are

23

permitted and the Court will therefore strike Document 54. (See Doc. 45 at 6).

24
25

For the following reasons, this Court will adopt the R&R.
I.

BACKGROUND

26

The factual and procedural background in this case is thoroughly detailed in

27

Magistrate Judge Ferraro’s R&R (Doc. 45). This Court fully incorporates by reference

28

the Summary section of the R&R into this Order.

1

II.

LEGAL STANDARD

2

The duties of the district court in connection with a R&R are set forth in Rule 72

3

of the Federal Rules of Civil Procedure and 28 U .S.C. § 636(b)(1). The district court

4

may “accept, reject, or modify the recommended disposition; receive further evidence; or

5

return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); 28

6

U.S.C. § 636(b)(1). The Court will not disturb a Magistrate Judge’s Order unless his

7

factual findings are clearly erroneous or his legal conclusions are contrary to law. 28

8

U.S.C. § 636(b)(1)(A). “[T]he magistrate judge’s decision ... is entitled to great deference

9

by the district court.” United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir.

10

2001). Where the parties object to a R&R, “[a] judge of the [district] court shall make a

11

de novo determination of those portions of the [R&R] to which objection is made.” 28

12

U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985).

13
14

III.

DISCUSSION
a. § 2241 Petition

15

Magistrate Judge Ferraro issued a R&R recommending that this Court enter an

16

order granting in part and denying in part the § 2241 petition. Judge Ferraro

17

recommended the petition be granted to the extent that the Petitioner should be placed on

18

“IFRP Exempt” status until a proper restitution schedule has been set. Judge Ferraro

19

further recommended that the petition be denied to the extent that Petitioner requests

20

changes to the terms of his order of restitution; specifically, that Petitioner not be

21

obligated to pay restitution until his release from custody, and that the restitution award

22

be recalculated upon his release.

23

Petitioner’s claims 1 and 2 argue that the Bureau of Prisons (“BOP”) cannot

24

impose a restitution schedule on him because the sentencing court did not do so. Citing

25

U.S. v. Gunning, 401 F.3d 1145, 1150 (9th Cir. 2005) (“Gunning II”), and Ward v.

26

Chavez, 678 F.3d 1042, 1051-52 (9th Cir. 2012), Judge Ferraro found that claims 1 and 2

27

should be granted because the statutory duty to set a restitution payment schedule belongs

28

to the sentencing court, and cannot be delegated to the BOP or any other authority. Judge

-2-

1

Ferraro further noted that because in this case the sentencing court “failed to set a

2

schedule for repayment ‘in consideration of’ Petitioner’s financial circumstances as

3

required by 18 U.S.C. § 3664(f)(2),” the BOP has no authority to create its own schedule

4

or to collect payments under Petitioner’s IFRP plan. (Doc. 45 at 5). Judge Ferraro

5

therefore concluded Petitioner should be placed on “IFRP Exempt” status and that the

6

BOP must stop collecting payments until the sentencing court amends its restitution order

7

to include a payment schedule.

8

Petitioner’s claim 3 argues that he should not be required to pay any restitution

9

while he is incarcerated and has no income, and claim 4 argues the restitution obligation

10

should be recalculated upon Petitioner’s release from custody. Judge Ferraro rejected

11

these claims, noting that petitions pursuant to 28 U.S.C. § 2241 are “only appropriate to

12

challenge the ‘manner, location, or conditions of a sentence’s execution.’” (Doc. 45 at 5)

13

(citation omitted). Judge Ferraro therefore concluded this Court lacks jurisdiction to

14

consider the Petitioner’s claims regarding modifications as to the amount and terms of the

15

restitution order entered by the sentencing court.

16

In his objections to the R&R, Respondent states that the petition should be

17

dismissed because Petitioner failed to directly appeal his restitution order and has

18

therefore waived the arguments. Here, Petitioner is challenging the BOP’s execution of

19

the sentencing order and judgment, i.e., its scheduling of payments through the IFRP, not

20

the sentencing order itself. It is well established that a § 2241 petition is the proper

21

vehicle through which a federal prisoner challenges the manner or the execution of a

22

sentence. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). This petition

23

does just that. It challenges the BOP’s authority to schedule and withdraw restitution

24

payments, not the legality of the sentence itself. This issue is properly raised by way of a

25

§ 2241 petition.

26

Respondent further argues that “[t]he Magistrate Judge’s finding that the

27

restitution order is not a proper or valid order, is internally inconsistent with his finding

28

that this court has no jurisdiction to modify the terms of the agreement, when the court

-3-

1

has done exactly that by invalidating another court’s restitution order.” (Doc. 49 at 4).

2

Respondent misstates the findings of the R&R. The R&R does not recommend that the

3

restitution order is invalid; rather, the R&R recommends that because the restitution order

4

does not set a payment schedule, the BOP has no authority to set its own schedule and

5

collect payments from Petitioner. It is up to the sentencing court whether it wishes to

6

amend the restitution order to establish a payment schedule. Respondent also seems

7

confused in his misstatement of the issues before the Court—Petitioner is not

8

challenging, and the Court does not presume to address, the validity of the sentencing

9

court’s judgment or restitution order. The issue at bar is the BOP’s enforcement of the

10

restitution order— an issue which falls squarely within § 2241’s as the proper vehicle

11

through which a federal prisoner challenges the manner or execution of his sentence.

12

Petitioner also suggests that the sentencing court did not impermissibly delegate

13

its authority to the BOP to establish a repayment schedule. Pursuant to the Mandatory

14

Victims Restitution Act (“MVRA”), “[u]pon determination of the amount of restitution

15

owed to each victim, the court shall, pursuant to section 3572, specify in the restitution

16

order the manner in which, and the schedule according to which, the restitution is to be

17

paid.” 18 U.S.C. § 3664(f)(2). The MVRA charges the District Court with setting the

18

terms of the restitution payments and that duty cannot be delegated. Gunning II, 401 F.3d

19

at 1149-50 (citing U.S. v. Gunning, 339 F.3d 948, 949 (9th Cir. 2003) (“Gunning I”)).

20

The Gunning II court explicitly stated that “the district court must determine the

21

restitution payment schedule.” 401 F.3d at 1150. In this case, the sentencing court

22

ordered Petitioner’s restitution due “in full immediately.” This Court has previously

23

found that an order making restitution due immediately, without providing a specific time

24

frame for payment, does not comply with Gunning II. (See 11-CV-130-TUC-RCC Doc.

25

33). Allowing the BOP to determine the restitution schedule pursuant to such an order is

26

an impermissible delegation of the sentencing court’s authority.

27

To the extent Petitioner suggests Eighth Circuit case law should apply here

28

(because Petitioner’s underlying conviction is from the District of Iowa), the Court

-4-

1

rejects that argument. Petitioner is challenging the manner in which his sentence is being

2

executed in the District of Arizona. Thus, Ninth Circuit law properly applies to the §

3

2241 petition.
b. Motion to Dismiss

4
5

Magistrate Judge Ferraro also recommended this Court deny Respondent’s Motion

6

to Dismiss (Doc. 29). In the R&R, Judge Ferraro notes that the Court expressly ordered

7

Respondent to file an answer to the petition, and that Respondent was prohibited from

8

filing a dispositive motion without first showing cause as to why an answer would be

9

inadequate. (See Doc. 5 at 4). However, Respondent did not file an answer and did not

10

seek the Court’s leave before filing his first Motion to Dismiss on July 5, 2012 (Doc. 18).

11

The Court later granted Petitioner’s Motion to Strike (Doc. 23) the Respondent’s Motion

12

to Dismiss.

13

Respondent subsequently filed a second Motion to Dismiss on October 29, 2012

14

(Doc. 29), which was fully briefed by the parties. In the R&R, Judge Ferraro notes that

15

“The Court determines that additional briefing is unwarranted in the circumstances and

16

rules on the documents it has before it.” (Doc. 45 at 1 n.1).
In his objections to the R&R, Respondent does not directly challenge Judge

17
18

Ferraro’s recommendation to deny the Motion to Dismiss.

19

c. Motion for Summary Judgment

20

Because Magistrate Judge Ferraro concluded Petitioner is entitled to relief on the

21

merits of Claim 1 and Claim 2 of the 28 U.S.C. §2241 petition, Judge Ferraro did not

22

address the merits of Petitioner’s Motion for Summary Judgment. Judge Ferraro therefore

23

recommends the Court deny Petitioner’s Motion for Summary Judgment as moot.
In his objections to the R&R, Respondent does not directly challenge Judge

24
25
26

Ferraro’s recommendation to deny the Motion for Summary Judgment.
IV.

CONCLUSION

27

Petitioner’s § 2241 claim asserts and proves a deficiency in the execution of his

28

sentence. Accordingly, the Court must remedy the execution of the sentence, rather than

-5-

1

ordering the amendment of the judgment. As there is no schedule by which the BOP can

2

collect payments from Petitioner’s account, the BOP must stop collecting such payments.

3

Moreover, Petitioner should be placed on “IFRP Exempt” status in light of the BOP’s

4

lack of authority to implement a payment schedule through that program.

5

Accordingly,

6

IT IS ORDERED that Magistrate Judge Ferraro’s Report and Recommendation

7

(Doc. 45) is hereby ACCEPTED and ADOPTED as the findings of fact and

8

conclusions of law by this Court.

9

IT IS FURTHER ORDERED Petitioner’s Petition for Writ of Habeas Corpus

10

(Doc. 1) is granted in part to the extent Petitioner be put on “IFRP Exempt” status until

11

a proper restitution schedule has been set by the sentencing court, and denied in part to

12

the extent that Petitioner requests changes to the terms of his order of restitution.

13
14
15
16
17
18
19
20
21
22
23

IT IS FURTHER ORDERED the BOP shall stop collecting restitution payments
from Petitioner, and shall place Petitioner on “IFRP Exempt” status.
IT IS FURTHER ORDERED Respondent’s Motion to Dismiss (Doc. 29) is
denied.
IT IS FURTHER ORDERED Petitioner’s Motion for Summary Judgment (Doc.
42) is denied as moot.
IT IS FURTHER ORDERED striking Document 54 from the record as an
unpermitted reply.
The Clerk of Court shall enter judgment accordingly and shall close its file on this
matter.
Dated this 3rd day of March, 2014.

24
25
26
27
28

-6-