Pettigrew v. McClintock

Filing 14

IT IS ORDERED that the Petition for Writ of Habeas Corpus, filed on January 14, 2013, is DENIED. Doc. 1 IT IS FURTHER ORDERED that the motion for a temporary restraining order and preliminary injunction pursuant to Fed.R.Civ.P. 65, filed on January 25, 2013, is DENIED. Doc. 6 The Clerk is directed to prepare a judgment. Signed by Magistrate Judge Leslie A Bowman on 5/16/13.(KAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Pettigrew,
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Petitioner,
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vs.
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Susan G. McClintock, Warden,
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Respondent.
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No. CIV-13-029-TUC-LAB
ORDER

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On January 14, 2013, the petitioner, an inmate confined in the Federal Correctional

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Institution in Safford, AZ, filed a Petition for Writ of Habeas Corpus pursuant to Title 28,

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United States Code, Section 2241. (Doc. 1) The petitioner claims the Bureau of Prisons (BOP)

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is improperly collecting restitution payments pursuant to a schedule set under the Inmate

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Financial Responsibility Program (IFRP).
Also pending is the petitioner’s motion for a temporary restraining order and preliminary

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injunction against the respondent pursuant to Fed.R.Civ.P. 65. (Doc. 6)
Magistrate Judge Bowman presides over this action having received written consent from

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all parties. (Doc. 11)
The petition will be denied on the merits.

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Background

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Pettigrew was convicted in the U.S. District Court for the District of New Mexico of one

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count of involuntary manslaughter, two counts of assault resulting in serious bodily injury and

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one count of assault by striking, beating, or wounding. (Doc. 10-1, pp. 11-12); U.S. v.

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Pettigrew, 468 F.3d 626, 630 (10th Cir. 2006), cert. denied, 549 U.S. 1242 (2007). He was

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sentenced to a term of imprisonment of 126 months, a special assessment of $310, and

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restitution totaling $14,302.84, payable “[i]n full immediately.” (Doc. 10-1, pp. 13, 16) The

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sentence was later amended to add a consecutive term of 30 months imprisonment because

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Pettigrew committed his offenses while on supervised release. (Doc. 10-1, pp. 18-19)

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While incarcerated, Pettigrew entered the Inmate Financial Responsibility Program

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(IFRP) agreeing to pay 50 % of his inmate wages on a monthly basis to satisfy his outstanding

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restitution balance. (Doc. 10-1, pp. 22-29)

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On January 14, 2013, Pettigrew filed the instant petition for writ of habeas corpus

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pursuant to 28 U.S.C. 2241. (Doc. 1) He argues the BOP does not have the authority to

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establish a restitution payment schedule because the District Court failed to do so itself. Id.

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On January 25, 2013, Pettigrew filed the pending motion for a temporary restraining

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order and preliminary injunction pursuant to Fed.R.Civ.P. 65. (Doc. 6) He argues the BOP’s

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collection activity is contrary to law and causes him irreparable injury. Id.

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The respondent filed an answer on March 12, 2013. (Doc. 10) She argues the petition

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should be denied on the merits. Id. In the alternative, she argues Pettigrew waived the issue

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by agreeing to participate in the IFRP or by failing to raise the issue on direct appeal. Id.

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Pettigrew filed a reply to the respondent’s answer on March 26, 2013. (Doc. 13) The court

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finds the petition should be denied on the merits. The court does not reach the respondent’s

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alternative arguments.

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Discussion

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The Mandatory Victim Restitution Act (MVRA) requires the trial court to impose

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restitution when the defendant is convicted of certain specified offenses or when “an identifiable
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victim or victims has suffered a physical injury or pecuniary loss.” 18 U.S.C. § 3663A. The

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court must “specify in the restitution order the manner in which, and the schedule according to

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which, the restitution is to be paid. . . .” 18 U.S.C. § 3664(f)(2). The trial court may not

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delegate its statutory duty to set a restitution schedule. U.S. v. Gunning, 401 F.3d 1145, 1149

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(9th Cir. 2005).

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Under its Inmate Financial Responsibility Program (IFRP), the BOP “encourages each

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sentenced inmate to meet his or her legitimate financial obligations.” 28 C.F.R. § 545.10. To

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this end, the BOP monitors each prisoner’s resources and financial obligations and “assist[s]

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the inmate in developing a financial plan for meeting those obligations. . . .]” 28 C.F.R. §

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545.10. If an inmate refuses to participate in the IFRP, the BOP will impose sanctions including

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restrictions on commissary use and eligibility for community-based programs. 28 C.F.R. §

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545.11(d).

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In Ward v. Chavez, the Ninth Circuit recently considered whether a sentencing court may

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order “payment of restitution ‘immediately’ without specifying any payment schedule.” Ward

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v. Chavez, 678 F.3d 1042, 1046 (9th Cir. 2012). The court held that if the sentencing court made

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such an order as a matter of course in expectation that the BOP would later impose whatever

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payment schedule seemed appropriate, then the sentence was an impermissible delegation of

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sentencing authority. Id., pp. 1047-51. If, on the other hand, the sentencing court considered

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the defendant’s financial resources and believed the defendant had the ability to satisfy the

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restitution order immediately, then the sentence was proper, and the BOP could use the IFRP

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to encourage the inmate to meet his outstanding financial obligations. Id., pp. 1050-51.

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On January 14, 2013, Pettigrew filed the pending petition pursuant to 28 U.S.C. § 2241.

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(Doc. 1) He claims the Bureau of Prisons (BOP) is improperly collecting restitution payments

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pursuant to a schedule set under the Inmate Financial Responsibility Program (IFRP). He

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argues the sentencing court’s order that restitution is “due . . .[i]n full immediately”

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impermissibly delegates the responsibility for setting up a payment schedule to the BOP. See

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(Doc. 10-1, p. 16)

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The respondent, on the other hand, argues that a “due immediately” restitution order is

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valid provided the sentencing court considers the defendant’s financial resources before issuing

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its order. She notes that under the Rules of Criminal Procedure, the probation officer must

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prepare a presentence report and submit that report to the court before sentence is imposed.

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Fed.R.Civ.P. 32(c)(1)(A). If the law permits restitution, as it does here, that report must contain

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“sufficient information for the court to order restitution” including “information relating to the

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economic circumstances of each defendant.” Fed.R.Civ.P. 32(c)(1)(B); 18 U.S.C. § 3664(a).

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There is no indication that the standard procedure was not followed in this case. This court,

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therefore, may presume that the sentencing court was appraised of Pettigrew’s financial

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situation before sentencing and took it into consideration when the restitution order was issued.

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The respondent further notes that Pettigrew has provided no argument or evidence that

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the sentencing court did not consider his financial resources before imposing restitution. She

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observes that the BOP specifically brought this issue to Pettigrew’s attention when he was

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attempting to exhaust the issue. See (Doc. 1, p. 22) Nevertheless, he presents no argument or

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evidence on this point in his petition. See (Doc. 13, p. 7)

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For his part, Pettigrew seems to avoid the argument. In fact, he argues in his reply brief

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that “the petitioner’s ability to pay his restitution is NOT the issue and the argument is

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irrelevant.” (Doc. 13, pp. 7-8) (emphasis in original) Pettigrew is incorrect.

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Pettigrew has the burden of proving that he is entitled to habeas relief. 28 U.S.C. §

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2241(c)(3); Snook v. Wood, 89 F.3d 605, 609 (9th Cir. 1996) (“It is the petitioner’s burden to

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prove his custody is in violation of the Constitution, laws or treaties of the United States.”);

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Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009). Accordingly, he has the burden of proving

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that the sentencing court imposed restitution without considering his financial resources thereby

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delegating the task of setting a payment schedule to the BOP. He has provided no argument or

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evidence on the issue. His petition must therefore be denied. The court does not reach the

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respondent’s alternate arguments.

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IT IS ORDERED that the Petition for Writ of Habeas Corpus, filed on January 14, 2013,
is DENIED. (Doc. 1)

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IT IS FURTHER ORDERED that the motion for a temporary restraining order and

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preliminary injunction pursuant to Fed.R.Civ.P. 65, filed on January 25, 2013, is DENIED.

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(Doc. 6)

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The Clerk is directed to prepare a judgment.

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DATED this 16th day of May, 2013.

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