Walker v. Warden, FCC Coleman - Low

Filing 8

ORDER OF DISMISSAL granting 7 Motion to dismiss contained in Response to habeas petition. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 7/9/2012. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
REGINALD D. WALKER,
Petitioner,
vs.

Case No.

5:12-cv-85-Oc-29TBS

WARDEN, FCC COLEMAN-LOW,
Respondent.
_________________________________
ORDER OF DISMISSAL
Petitioner Reginald D. Walker (“Walker” or “Petitioner”), who
is incarcerated within the Federal Bureau of Prison (“BOP”) at FCC
Coleman, Low,
for

Writ

of

“Petition”).

initiated this action by filing a pro se Petition
Habeas

pursuant

to

28

U.S.C.

§

2241

(Doc.

#1,

The Petition challenges the assessment and fines

totaling $1678.00 entered in connection with Walker’s September 2,
2009,

plea-based

judgment

of

convictions

for

various

traffic

offenses in case numbers 29010143, 29010141 and 29010141, Meridian
City

Municipal

Petition.

Court,

Meridian,

Mississippi.

See

generally

Walker did not appeal his State court convictions in

these cases.

Id.

at 2.

Walker

makes

clear

that

he

is

not

challenging his § 922(g) federal conviction and sentence for which
he is currently incarcerated.

Id. at 3.

In passing, Walker claims

that the fines and assessments imposed by the Mississippi court
have interfered with his ability to participate in certain BOP

programs.1

However, the relief Walker seeks if not directed at BOP

officials.

Instead, Walker seeks a declaration from this Court

that his Mississippi State court fines “are multiplicious and
violate double
requests

jeopardy.”

that

Court

Id.

“issue

at

an

8.

order

Walker’s release from federal custody.
Respondent

filed

a

Response

Alternatively,
delaying

payment”

Walker
until

Id.

to

the

Petition

(Doc.

#7,

Response) seeking dismissal of the instant Petition on the basis
that the Court lacks jurisdiction under § 2241 to grant Walker the
relief he requests.

Response at 2.

Walker did not file a reply to

the Response, although directed to do so by the Court (Doc. #6).
For the reasons set forth below, the Court will grant Respondent’s
motion to dismiss the Petition.
Here

it

is

clear

that

Walker

is

neither

attacking

the

execution or duration of his current sentence, nor the fact of the
conviction for which he is currently incarcerated.
2241(c)(1).
fines

and

28 U.S.C. §

Instead, Petitioner is challenging only the monetary
assessments

convictions.

aspect

of

his

Mississippi

plea-based

Petitioner, however, is not “in custody” on his

Mississippi based convictions for purposes of § 2241(c)(3) relief.

It is not clear whether Walker is participating in the
voluntary BOP Inmate Financial Responsibility Program. 28 C.F.R. §
545.10-11. Nonetheless, it is clear that Petitioner is not
contesting any action by the BOP that could be inferred as a
challenge to the execution of his current federal sentence.
1

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Diaz v. Fla. Fourth Judicial Circuit ex rel., ___ F.3d ___, No. 1015202, 2012 WL 2077189, * 2 (11th Cir. June 11, 2012)(recognizing
that petitioner must be “‘in custody’ under the conviction or
sentence under attack a the time his petition is filed”)(quoting
Maleng v. Cook, 490 U.S. 488- 490-91 (1989)).

Moreover, even if

the Mississippi imposed fines and assessments remain enforceable,
Walker is still not entitled to habeas relief. Westberry v. Keith,
434 F.2d 623, 624-25 (5th Cir. 1970)2(finding petitioner not in
custody where petitioner suffered only finds and revocation of
driver’s license); Mays v. Dinwiddie, 580 F.3d 1136, 1139 (10th
Cir. 2009)(holding that “the payment of restitution or a fine,
absent more, is not the sort of significant restraint on liberty
contemplated in the custody requirement of the federal habeas
statutes.”). Consequently, Petitioner cannot show an entitlement to
relief under § 2241.

Arnaiz v. Warden, Fed. Staellite Low, 594

F.3d 1326, 1329-30 (11th Cir. 2010)(prisoner cannot use § 2241 to
attack only restitution part of sentence); Stewart v. Fed. Bureau
of Prisons, 378 F. App’x 872, 873 (11th Cir. 2010)(reaffirming that
court lacks jurisdiction to grant habeas relief unless relief
affects physical confinement which supplies the necessary custody
requirement).

Unless later superceded by Eleventh Circuit precedent, a Fifth
Circuit decision issued prior to the close of business on September
30, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d
1206, 1207 (11th Cir. 1981)(en banc).
2

-3-

ACCORDINGLY, it is hereby
ORDERED:
1.

Respondent’s motion to dismiss the Petition included

within Respondent’s Response (Doc. #7) is GRANTED.
2.

The Clerk shall enter judgment accordingly, terminate any

pending motions and deadlines, and close this case.
DONE AND ORDERED in Fort Myers, Florida, on this
of July, 2012.

SA: hmk
Copies: All Parties of Record

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9th

day