Akers v. Walton

Filing 6

ORDER DISMISSING CASE with prejudice, granting in part 5 MOTION for Reconsideration re 4 Order on Motion for Leave to Proceed in forma pauperis. IT IS ORDERED that all papers filed in a collateral attack or habeas action by petitioner Montgo mery Carl Akers, Inmate No. 02866-081, will be received and reviewed by this Court, but shall be deemed DENIED after thirty days, unless the Court orders otherwise. See attached order for details. Signed by Judge David R. Herndon on 1/20/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MONTGOMERY CARL AKERS,
No. 02866-081,
Petitioner,
vs.

Case No. 14-cv-1330-DRH

JEFFREY S. WALTON,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in the USP Marion, brings this habeas
corpus action pursuant to 28 U.S.C. § 2241 to challenge the execution of his
sentence with respect to the payment of restitution.
In his most recent criminal conviction, Petitioner pled guilty to one count of
wire fraud in the United States District Court of Kansas. (United States v. Akers,
Case No. 04-cr-20089 (D. Kan.))

Notably, petitioner committed this financial

crime while he was incarcerated at the USP-Leavenworth, serving a sentence
imposed by the District of Colorado. As a result, the Kansas court directed the
Bureau of Prisons (“BOP”) to place certain limits on petitioner’s communications
in order to prevent him from engaging in further fraud while incarcerated (Doc.
216 in Case No. 04-cr-20089).
The Kansas court sentenced petitioner in November 2006 to 327 months
imprisonment, to be followed by five years of supervised release. His sentence

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included an assessment of $100.00, and restitution in the amount of $42,236.77
to be paid to two financial institutions. Id. The judgment specified that payment
was to begin immediately. Specifically, petitioner was ordered to make restitution
payments during his incarceration of “not less than 10% of the funds deposited
each month into the inmate’s trust fund account[.]” Id. Following his release from
prison, he was ordered to pay monthly installments of not less than 5% of his
monthly gross household income, commencing 30 days after his release, to
continue for five years. Id.
In the earlier Colorado case, United States v. Akers, Case No. 96-cr-13 (D.
Colo.), petitioner was convicted on Counts 1-12 and 14-15 for bank fraud; Count
16 for forged/counterfeit security, and Count 17 for failure to appear. He was
sentenced to serve 63 months on the bank fraud and security counts, followed by
a consecutive sentence of 42 months on Count 17. Restitution was ordered in the
amount of $25,650.41 to the bank, with $300/month payments to commence the
month following his release (Case No. 96-cr-13, electronic docket sheet).
In the instant petition, Akers challenges the respondent’s administration of
the Inmate Financial Responsibility Program (“IFRP”). 1 He claims that Marion
officials are preventing him from making restitution payments, “by denying me
access to my finances without any penological reason, BOP Policy, Rules, or
Regulations.” (Doc. 1, p. 2).

Further, he asserts that funds taken by prison

The IFRP was created in order to collect payments from federal inmates toward their
court-ordered fines and/or restitution. See 18 U.S.C. § 3612(c); 18 U.S.C. § 4-42(a)(1);
28 C.F.R. § 545.11.
1

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officials from his inmate account are not being applied to his debts to the courts. 2
As relief, he seeks an order directing respondent to allow him “to access funds of
his lawful ownership in order to make a one time lump sum payment of
restitution as ordered by the Court” in his Kansas and Colorado cases, and to
provide him with an accounting of where the funds taken from his prisoner
account have been applied (Doc. 1, p. 8).
This case is now before the Court for a preliminary review of the petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States
District Courts. Rule 4 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, such as this action under 28 U.S.C. § 2241.

After carefully

In addition to the restitution and criminal penalties owed by petitioner, he has
accumulated substantial unpaid civil filing fees payable to this Court. His failure to
pay his filing fees resulted in the imposition of a filing ban against him by the Seventh
Circuit on April 24, 2012. Akers v. Roal, et al., Appeal No. 11-3268, Doc. 14. This
court likewise imposed a filing ban on August 13, 2012, at which time he owed a total
of $805.00 to this Court. Akers v. Roal, et al., Case No. 11-cv-622-MJR (Doc. 38). The
filing ban did not apply to habeas cases. No payments have been received from
petitioner since the entry of the filing ban orders.
Moreover, petitioner has accumulated an additional $470.00 in unpaid fees
owed to this Court from the following habeas corpus cases: Akers v. Roal-Werner, Case
No. 12-cv-1037-DRH ($460.00, consisting of the $5.00 district court fee and the
$455.00 appellate filing fee); Akers v. Walton, Case No. 13-cv-375-DRH ($5.00 district
court fee); and Akers v. Walton, Case No. 13-cv-1090-DRH ($5.00 district court fee). A
review of the Court’s records also reveals that petitioner owes another $455.00
appellate filing fee for an older case, Akers v. Hollingsworth, Case No. 11-cv-103-DRH
(the district court filing fee was waived). Finally, he owes another $5.00 for filing the
instant case, because his motion to proceed in forma pauperis was denied (Doc. 4). He
therefore owes a grand total of $1,735.00 in unpaid filing fees to this Court.
2

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reviewing the petition, the Court concludes that this action is subject to dismissal.
Discussion
This is not the first time petitioner has brought an action in this Court
pursuant to § 2241 in reference to his criminal restitution orders. On October
21, 2013, he filed a petition seeking an injunction to prevent the Federal Bureau
of Prisons (“BOP”) from “regulating his personal finances” in order to make him
pay restitution. Akers v. Walton, Case No. 13-cv-1090-DRH, Doc. 4). That action
was dismissed on the merits with prejudice on November 18, 2013. As noted in
that order, the terms of the Judgment and Commitment Order in the Kansas case
specifically required petitioner to make payments toward his restitution during
his imprisonment, as well as during his supervised release. Furthermore, the
Court has no authority to override the BOP’s discretionary implementation of the
IFRP. See In Re: Buddhi, 658 F.3d 740, 741-42 (7th Cir. 2011). For both these
reasons, this Court could not prohibit the prison from deducting restitution
payments from petitioner’s inmate account.
Now, petitioner has done an about-face. Instead of seeking to avoid his
restitution payments, he wishes to be permitted to access financial assets he
claims to hold outside the prison walls, in order to pay restitution. As a related
but separate matter, he wants the prison to explain how the payments that have
been deducted from his inmate account have been applied toward his financial
obligations.
Admirable as petitioner’s intentions may be to pay off his sizeable

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restitution in one lump sum, neither sentencing court required him to do so. As
long as he remains in prison, he must pay only 10% of his monthly income
toward restitution.

Further payments are deferred until after his release.

Therefore, it is not necessary for this Court to order the respondent to take any
action whatsoever in order for petitioner to comply with the sentencing courts’
restitution orders.

Furthermore, it is frivolous for petitioner to suggest that

prison officials are “preventing” him from paying his court-ordered restitution,
when in fact he is under no requirement at this time to pay anything more than
the 10% assessment from his prisoner account.
Addressing the second issue, petitioner’s request for an accounting
regarding any payments made pursuant to his participation in the IFRP is not a
matter subject to this Court’s oversight. The Seventh Circuit has made it clear
that district courts have no authority to interfere with the BOP’s discretion in its
administration of the IFRP.

See In Re: Buddhi, 658 F.3d 740, 741 (7th Cir.

2011). This should come as no surprise to petitioner, as this Court informed him
of its inability to override the BOP’s discretion as to the IFRP program, in the
order dismissing his last habeas petition. Akers v. Walton, Case No. 13-cv-1090DRH (Doc. 4).
The Attorney General, not the courts, is responsible for the collection of
court-ordered restitution, and this authority has been delegated to the BOP. This
delegation of authority is proper, and “the courts are not authorized to override
the Bureau’s discretion about such matters, any more than a judge could dictate

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particulars about a prisoner’s meal schedule or recreation (all constitutional
problems to the side).”

Buddhi, 658 F.3d at 741 (internal quotations and

citations omitted). It would thus be improper for this Court to insert itself into
the respondent’s management of the IFRP by ordering an accounting of the
disposition of petitioner’s payments made under that program. The petition shall
therefore be dismissed.
Presumably, petitioner may obtain a list of transactions from his inmate
account by requesting information from the prison’s trust fund officer. If funds
have been forwarded to the court in either Kansas or Colorado, petitioner may
also seek information from the appropriate clerk as to the status of his
obligations and any payments. This Court can only confirm that it has received
no payments toward any of the fees petitioner owes here.
Pending Motion for Reconsideration of the Denial of IFP Status (Doc. 5)
While the habeas petition was under review, petitioner filed a motion
challenging the Court’s order of December 19, 2014 (Doc. 4), which denied his
motion for leave to proceed in forma pauperis (“IFP”) (Doc. 2).

The Court

declined to grant him pauper status because the trust fund account records he
submitted showed that over the six months preceding the filing of this case,
petitioner had received $119.77 in deposits (Doc. 2, p. 4).

Based on that

information, the Court reasoned that petitioner was not indigent and was not
entitled to a waiver of the $5.00 filing fee. He was ordered to pay the fee within 30
days.

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Petitioner seeks reconsideration of the payment order, arguing that all the
deposits to his prison account have been encumbered and used to satisfy his
debts to the courts and the prison (Doc. 5, p. 1). Because of that encumbrance,
he does not have access to his funds and cannot use them to pay the filing fee for
this action.
Petitioner’s claimed lack of control over the disposition of his funds may
indeed affect his ability to pay the filing fee within the deadline set by the Court.
However, his argument, particularly in light of the relief he seeks in the instant
habeas petition, does not persuade the Court that he is indigent. Clearly, there
are sufficient funds in petitioner’s prison account to pay his filing fee, if only they
were to be applied to that obligation. Petitioner’s assertion in the original IFP
motion that his assets include proceeds from the sale of intellectual property
(albeit an unknown amount) provides further support for the conclusion that he is
not impoverished (Doc. 2, p. 2). Because petitioner has funds and other assets
sufficient to pay the filing fee for this case, he does not qualify for a waiver of the
fee, and this portion of the Court’s order at Doc. 4 shall not be disturbed.
However, in light of petitioner’s claim that he cannot force prison
authorities to release the encumbrance on his prison account in order to pay the
filing fee, his motion (Doc. 5) is GRANTED IN PART. The 30-day deadline for
payment of the $5.00 filing fee for this case is lifted. However, he still owes the
fee, and the order at Doc. 4 remains in force in all other respects. The $5.00 fee
for this case shall be added to the total debt which petitioner owes to this Court

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(see footnote 2 above).
Sanctions
Petitioner’s desire to have unfettered access to his alleged financial
resources outside the prison walls has been a recurring theme in two of his
previous actions in this Court, 3 as well as in a number of motions in his other
cases. This is his second petition complaining about the prison’s handling of his
restitution obligations. 4 Additionally, he brought two meritless challenges to his
conviction under § 2241. 5 This is now his fourth habeas petition since he was
banned by this Court from filing any new non-habeas civil cases. Petitioner has
taken up an inordinate share of this Court’s limited resources with his repeated
filings, and the instant action, as noted above, is completely frivolous and without
merit.

Accordingly, the Court finds it appropriate to impose the following

restriction, in addition to the filing ban which was previously ordered in Case No.
11-cv-622.
IT IS ORDERED that all papers filed in a collateral attack or habeas
action by petitioner Montgomery Carl Akers, Inmate No. 02866-081, will be
received and reviewed by this Court, but shall be deemed DENIED after thirty
days, unless the Court orders otherwise. See Alexander v. United States, 121
F.3d 312, 315 (7th Cir. 1997) (citing Chambers v. NASCO, Inc., 501 U.S. 32
(1991) (holding that courts have inherent powers to protect themselves from
vexatious litigation)). Akers shall incur a filing fee for any such new case he may
Case Nos. 11-cv-103-DRH and 11-cv-622-MJR.
The first was Case No. 13-cv-1090-DRH.
5
Case Nos. 12-cv-1037-DRH and 13-cv-375-DRH.
3
4

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file. Should Akers continue to file frivolous actions, the Court shall consider
imposing a fine in addition to this filing restriction.
Exempt from this filing restriction are a notice of appeal in this case (which
shall result in the imposition of a $505.00 filing fee) and any papers sought to be
filed by petitioner in a civil or criminal case in which he is a party defendant. See

Newlin v. Helman, 123 F.3d 429, 437 (7th Cir. 1997) (citing Support Sys. Int’l,
Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995)). In accordance with this precedent,
petitioner may apply for modification or rescission of this order not sooner than
two years from the date of its entry, assuming that he fails to pay the balance of
the fees owed to this Court (which now stand at $1,735.00) within that two years.
Any papers submitted to the Court by petitioner while this filing restriction is in
place shall be accompanied by a copy of this order.
Disposition
For the reasons discussed above, the petition is summarily DISMISSED on
the merits with prejudice.
If petitioner wishes to appeal this order of dismissal, he may file a notice of
appeal with this court within thirty days of the entry of judgment. FED. R. APP. P.
4(a)(4). A motion for leave to appeal in forma pauperis should set forth the issues
petitioner plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If petitioner
does choose to appeal and is allowed to proceed IFP, he will be liable for a portion
of the $505.00 appellate filing fee (the amount to be determined based on his
prison trust fund account records for the past six months) irrespective of the

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outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons

v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857,
858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A
timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the
30-day appeal deadline. 6 It is not necessary for petitioner to obtain a certificate of
appealability from this disposition of his § 2241 petition. Walker v. O’Brien, 216
F.3d 626, 638 (7th Cir. 2000).
The Clerk is DIRECTED to close this case and enter judgment accordingly.

Digitally signed by
David R. Herndon
Date: 2015.01.20
13:13:59 -06'00'

IT IS SO ORDERED.
Dated: January 20, 2015

United States District Judge

A Rule 59(e) motion to alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment. FED. R. CIV. P. 59(e).
6

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