Beard v. Walton

Filing 6

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Service shall be effected by the Clerk of Court. Respondent shall answer the petition or otherwise plead within thirty days of the date this order is entered. Signed by Judge David R. Herndon on 11/17/2014. (mmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LIONEL BEARD,
No. 11819-040,

vs.
J.S.WALTON,

)
)
)
Petitioner,
)
)
)
)
)
)
Respondent. )

CIVIL NO. 14-CV-01143-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Lionel Beard is an inmate in the United States Penitentiary at
Marion, Illinois. He has filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241, challenging the written recitation of his sentence.

See United

States v. Beard, Case No. 05-cr-20 (W.D. Mich. Oct. 20, 2006).
More specifically, Beard contends that the oral pronouncement of sentence
prescribed monthly payments of $50 per quarter under the Inmate Financial
Responsibility Program (“IFRP”), and $50 per month from his UNICOR earnings,
if he has any (see Doc. 1-1, p. 7 (transcript of sentencing hearing), but the
judgment mistakenly states that he “shall pay minimum quarterly installments of
$50.00, based on IFRP participation or minimum monthly installments of
$50.00,based on UNICOR earnings, whichever is greater” (see Doc. 553, p. 7 in
the criminal case). Beard relies upon the principle that an oral pronouncement

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controls over an inconsistent written judgment. See United States v. Burton, 543
F.3d 950, 953 (7th Cir. 2008).
This Section 2241 petition is before the Court for preliminary review. Rule
4 of the Rules Governing Section 2254 Cases in United States District Courts
provides that upon preliminary consideration by the district court judge, “[i]f it
plainly appears from the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus cases.
As a general matter, Section 2241 is the appropriate means by which to
challenge the execution of a sentence, while Section 2255 is to be used to
challenge the validity of conviction and sentence. See Brown v. Rios, 696 F.3d
638, 640 (7th Cir.2012); Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003);

Walker v. O’Brien, 216 F.3d 626, 629 (7th Cir. 2000). The IFRP is a means of
executing an inmate’s sentence; therefore Section 2241 is the proper avenue for
relief. See Matheny v. Morrison, 307 F.3d 709, 711-12 (8th Cir. 2002) (stating
that challenges to IFRP collection mechanisms concern execution of sentence and
are therefore correctly framed as section 2241 claims); McGhee v. Clark, 166
F.3d 884, 885-87 (7th Cir.1999) (recognizing district-court jurisdiction over
claims arising from implementation of IFRP); Valona v. United States, 138 F.3d
693, 694 (7th Cir.1998) (stating that motion seeking relief on grounds concerning
execution of sentence but not validity of conviction falls under section 2241).

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There is insufficient information before the Court upon which to conclude
that dismissal at this preliminary stage pursuant to Rule 4 is appropriate.
Therefore, Respondent J. S. Walton will be required to respond or otherwise
plead.
Finally, the Court notes, as should Petitioner and Respondent, that
Petitioner, who has been denied pauper status, has yet to pay the required $5.00
filing fee. The deadline for payment is December 24, 2014 (Doc. 5), and failure to
pay will likely result in the dismissal of the petition,
IT IS HEREBY ORDERED that Respondent shall answer the petition or
otherwise plead within thirty days of the date this order is entered. This
preliminary order to respond does not, of course, preclude the government from
making whatever waiver, exhaustion or timeliness it may wish to present. Service
upon the United States Attorney for the Southern District of Illinois, 9 Executive
Drive, Fairview Heights, Illinois 62208, shall constitute sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford J. Proud for further
pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to a
United States Magistrate Judge for disposition, as contemplated by Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a

referral.

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Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the
pendency of this action. This notification shall be done in writing and not later
than seven days after a transfer or other change in address occurs.
IT IS SO ORDERED.
Signed this 17th day of November, 2014.

Digitally signed by
David R. Herndon
Date: 2014.11.17
13:51:13 -06'00'
District Judge
United States District Court

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