Ontiveros-Valencia v. Benov
Filing
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FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus (Doc. 1 ) be DISMISSED WITH PREJUDICE and the Clerk of Court be Directed to Enter Judgment, signed by Magistrate Judge Gary S. Austin on 12/18/2012. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GILBERTO ONTIVEROS-VALENCIA,
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1:12-CV-01937 LJO GSA HC
Petitioner,
FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS
v.
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MICHAEL L. BENOV, Warden,
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Respondent.
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/
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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2241.
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Petitioner filed the instant petition for writ of habeas corpus on November 29, 2012. He
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is currently incarcerated at the Taft Correctional Institution located in Taft, California. He was
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convicted in this Court on July 12, 2010, by guilty plea to conspiracy to manufacture, distribute
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and possess with intent to distribute marijuana and illegal alien in possession of a firearm.
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See United States v. Ontiveros-Valencia, Case No. 1:09-cr-00216 LJO. He is serving a sentence
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of 120 months. Id.
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Petitioner claims the district court impermissibly delegated its obligation to set a
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restitution payment schedule when it ordered immediate payment with the expectation the
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Bureau of Prisons (“BOP”) would effectuate a payment schedule with Petitioner pursuant to the
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Inmate Financial Responsibility Program (“IFRP”). He further claims that the BOP lacks the
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authority to collect restitution payments pursuant to the IFRP and therefore he should be relieved
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of his obligation to make restitution payments under the IFRP. He also claims he should not
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suffer any sanctions for failing to comply with the IFRP payment plan.
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JURISDICTION
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A federal prisoner who wishes to challenge the validity or constitutionality of his
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conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence
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under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); Thompson v.
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Smith, 719 F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd 1997);
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Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the sentencing
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court has jurisdiction. Tripati, 843 F.2d at 1163. A prisoner may not collaterally attack a federal
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conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. §
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2241. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see
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also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980).
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In contrast, a federal prisoner challenging the manner, location, or conditions of that
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sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241.
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Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d
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175, 177 (5th Cir. 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991);
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United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane, 921 F.2d 476,
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478-79 (3rd Cir. 1991); United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987);
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Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).
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In his first claim, Petitioner alleges the district court’s restitution order was unlawful as it
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did not set forth a proper payment schedule. Petitioner is challenging the validity and
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constitutionality of his sentence rather than an error in the administration of his sentence.
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Therefore, the appropriate procedure would be to file a motion pursuant to § 2255 and not a
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habeas petition pursuant to § 2241.
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In rare situations, a federal prisoner authorized to seek relief under § 2255 may seek relief
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under § 2241 if he can show the remedy available under § 2255 to be "inadequate or ineffective
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to test the validity of his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997),
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quoting § 2255. Although there is little guidance from any court on when § 2255 is an
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inadequate or ineffective remedy, the Ninth Circuit has recognized that it is a very narrow
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exception. Id; Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court’s denial of a prior § 2255 motion is
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insufficient to render § 2255 inadequate.); Tripati, 843 F.2d at 1162-63 (9th Cir.1988) (a
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petitioner's fears of bias or unequal treatment do not render a § 2255 petition inadequate);
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Williams v. Heritage, 250 F.2d 390 (9th Cir.1957); Hildebrandt v. Swope, 229 F.2d 582 (9th
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Cir.1956). The burden is on the petitioner to show that the remedy is inadequate or ineffective.
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Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). In this case, Petitioner has not
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demonstrated that his remedy under § 2255 is inadequate or ineffective. Therefore, Section 2241
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is not the proper avenue for raising Petitioner’s sentencing claim. It should be dismissed for lack
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of jurisdiction.
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Petitioner also contends that the BOP is without authority to collect restitution payments
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under the IFRP, that he should be relieved of his obligation to make these payments, and that he
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should be allowed to withdraw from the IFRP without suffering sanctions. Since Petitioner’s
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claim concerns the manner, location or conditions of the execution of his sentence and not the
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fact of his conviction, the Court has subject matter jurisdiction under 28 U.S.C. § 2241.
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Montano–Figueroa v. Crabtree, 162 F.3d 548, 549 (9th Cir.1998) (per curiam) (addressing §
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2241 petition challenging BOP's restitution policies).
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After a district court sentences a federal offender, the Attorney General, through the BOP,
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has the responsibility for administering the sentence. United States v. Wilson, 503 U.S. 329, 335
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(1992), citing 18 U.S.C. § 3621(a); United States v. Gunning, 401 F.3d 1145, 1150 (9th
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Cir.2005) (Gunning II ). One of the functions of the BOP is to “help the inmate develop a
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financial plan” towards payment of restitution and to “monitor the inmate's progress in meeting
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the terms of that plan.” Gunning II, 401 F.3d at 1150, quoting 28 C.F.R. § 545.11.
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In United States v. Lemoine, 546 F.3d 1042, 1050 (9th Cir.2008), the Ninth Circuit held
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that prisoners have no entitlement, constitutional or otherwise, to any of the benefits participation
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in the IFRP would provide. Participation in the IFRP is voluntary and denial of certain privileges
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for refusing to participate in the IFRP does not make participation in the program involuntary or
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unlawful. Id. at 1046.
In this case, there is no reason to conclude that the BOP acted unlawfully in its capacity
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as administrator to help Petitioner develop a financial plan and to monitor his progress in
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meeting the terms of that plan. Petitioner may voluntarily remove himself from the IFRP at any
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time. However, Petitioner's receipt of IFRP privileges depends on his participation in that
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program. Petitioner offers no facts suggesting that he entered into his “signed contract” under
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“threats . . . [of] severe restrictions,” other than denial of IFRP incentives, which constitute
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privileges of participating in the IFRP program and not rights under the law. (Petition at 6.)
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Therefore the petition should be dismissed with prejudice.
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RECOMMENDATION
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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The petition for writ of habeas corpus be DISMISSED WITH PREJUDICE; and
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The Clerk of Court be directed to enter judgment, terminating this action.
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These Findings and Recommendations are submitted to the assigned United States
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District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304
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of the Local Rules of Practice for the United States District Court, Eastern District of California.
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Within thirty (30) days after being served with a copy, Petitioner may file written objections with
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the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations. The Court will then review the Magistrate Judge’s ruling pursuant to 28
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U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified
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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
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December 18, 2012
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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