Balter v. Martinez
Filing
34
OPINION. Signed by Chief Judge Jerome B. Simandle on 1/10/2012. (TH, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD BALTER,
Petitioner,
v.
RICARDO MARTINEZ,
Respondent.
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Civil No.
10-3659 (JBS)
OPINION
APPEARANCES:
RICHARD BALTER, Petitioner pro se
# 17432-050
F.C.I. Beaumont Medium
P.O. Box 26040
Inmate Mail/parcels
Beaumont, Texas 77720
SIMANDLE, District Judge
Petitioner, Richard Balter (“Petitioner”), a federal
prisoner presently confined at F.C.I. Beaumont in Beaumont,
Texas, filed this petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241, challenging the execution of his sentence by
the Federal Bureau of Prisons' (“BOP”).
The named respondent is
Ricardo Martinez, Petitioner’s custodian at the time he filed
this habeas petition (hereinafter, the “Government”).
This Court
has reviewed the written submissions of the parties, and for the
reasons stated below, the Court will deny the petition.
I.
BACKGROUND
Petitioner was convicted by jury trial before this Court, in
the United States District Court for the District of New Jersey,
of one count of murder-for-hire in violation of 18 U.S.C. §§
1958, 2, and three counts of mail fraud in violation of 18 U.S.C.
§§ 1341, 1342.
On September 14, 1994, this Court sentenced
Petitioner to life imprisonment, imposed a fine of $175,000 and
ordered restitution in the amount of $112,511.00. [Criminal
Docket No. 93-00536.]
Petitioner’s conviction was affirmed by
the United States Court of Appeals for the Third Circuit in
United States v. Balter, 91 F.3d 427 (3d Cir. 1996), cert.
denied, 519 U.S. 1011 (1996).
On June 26, 2002, the Government made an application before
this Court, the sentencing court, to remit Petitioner’s fine
under 18 U.S.C. § 3573, because it had been unable to collect any
of it over eight years as Petitioner was serving a life sentence
and was making quarterly restitution payments of $25.00 through
the IFRP, and because further efforts to collect the fine would
needlessly expend the Government’s resources.
This Court granted
the Government’s petition for remission of the fine.
See United
States v. Balter, 164 Fed. Appx. 211, 212 (3d Cir. 2005).
2
On September 3, 2004, Petitioner moved to remit his
restitution.1
This Court denied Petitioner’s request, and he
appealed to the Third Circuit.
The Third Circuit affirmed,
holding that Petitioner had waived any challenge to his sentence
or order of restitution by his failure to raise the issue on
direct appeal or in his motion to vacate his sentence under 28
U.S.C. § 2255.
The Third Circuit further held that 18 U.S.C. §
3664(k), which permits post-sentencing adjustment of orders of
restitution did not apply to Petitioner whose conviction,
sentence, and order of restitution all preceded the enactment of
the statute.
Finally, the Third Circuit found that Petitioner
had failed to demonstrate a material change in his economic
circumstances, as required under § 3664(k) to warrant
modification of the restitution order, where Petitioner had paid
only $500 toward the $112,511 in restitution in the past ten
years, and thus his present inability to perform prison work to
generate income due to his medical conditions was thus not a
material change.
Balter, 164 Fed. Appx. at 212-13.
1
In 2008, Petitioner filed a writ of mandamus, in Balter
v. United States, Civil No. 08-1475 (JBS), to enforce an Order of
this Court pertaining to the return of Petitioner’s property
seized before his criminal trial as entered in Petitioner’s
criminal matter Criminal No. 93-00536, Docket Item 16.
Petitioner filed an identical motion in his criminal matter,
captioned as a “motion for discovery.” [Criminal No. 93-536-01,
Docket Item 20]. This Court denied Petitioner’s requested relief
in an Opinion and Order entered on March 29, 2010. [Criminal No.
93-536-01, Docket Item 35; Civil No. 08-1475 (JBS), Docket Item
14].
3
On March 18, 2009, Richard Balter filed the instant petition
for a writ of habeas corpus in the district court where he was
then confined, namely, the Middle District of Pennsylvania,
pursuant to 28 U.S.C. § 2241.
(Petition, Docket entry no. 1).
In his petition, Petitioner contends that the court that
sentenced him failed to establish a specific schedule for
payments due under the Mandatory Victim Restitution Act (“MVRA”),
18 U.S.C. § 3663A, during his incarceration.
Petitioner further
contends that the Bureau of Prisons (“BOP”) set up this schedule,
and that the Bureau lacked authority to do so.
In particular,
Petitioner alleges that the BOP’s “imposition of sanctions
against [him] for his failure to acquiesce in BOP’s Inmate
Financial Responsibility [Program] (“IFRP”), restitution payment
schedule was not in accordance with law, warranting writ of
habeas corpus; sentencing court, although declaring Mandatory
Victim’s Restitution Act (MVRA), restitution ‘due during period
of imprisonment’ had not established specific schedule of
payments to be collected during incarceration, and BOP lacked
authority to substitute its own schedule.”
(Petition).
Petitioner contends that, pursuant to 18 U.S.C. § 3664, only the
sentencing court may order restitution payments from a defendant.
Thus, he argues that “the BOP’s taking of inmate funds, or
forcing them into [I]FRP refusal status, thus sanctioning them,
is wholly unlawful under both 18 U.S.C. § 3664 and [5] U.S.C. §
4
706(2)(a).
(Petition).
As such, Petitioner seeks an order
barring the BOP from enforcing this schedule of payments or
instituting any sanctions against the petitioner for failing to
comply with the payment schedule.
(Id.).
Indigent status was granted Petitioner by Order dated April
20, 2009.
(Docket entry no. 5).
In an Order entered on December
11, 2009, the Honorable Malachy E. Mannion, U.S.M.J., issued an
Order construing Petitioner’s application for relief as a habeas
petition pursuant to 28 U.S.C. § 2241, and directed that
Petitioner file a supplemental brief outlining his efforts to
exhaust his administrative remedies before filing his petition.
(Docket entry no. 12).
On May 12, 2010, Magistrate Judge Mannion
issued a Report and Recommendation recommending that the habeas
petition be dismissed without prejudice for failure to exhaust
administrative remedies.
(Docket entry no. 22).
Petitioner
thereafter filed objections to the Report and Recommendation.
(Docket entry no. 23).
On July 20, 2010, the Honorable James M.
Munley, U.S.D.J. issued a Memorandum and Order overruling
Petitioner’s objections to the Report and Recommendation, and
declined to adopt the Report and Recommendation, and instead
directed that this matter be transferred to this Court,
Petitioner’s court of sentencing.
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(Docket entry no. 26).
II.
ANALYSIS
The Court recognizes that a pro se pleading is held to less
stringent standards than more formal pleadings drafted by
attorneys.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v.
Kerner, 404 U.S. 519, 520 (1972).
Thus, a pro se habeas petition
should be construed liberally and with a measure of tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v.
Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989).
Because
Petitioner is proceeding pro se in his application for habeas
relief, the Court will accord his petition the liberal
construction intended for pro se litigants.
A.
Jurisdiction
Section 2241 of Title 28 of the United States Code provides
in relevant part:
(c) The writ of habeas corpus shall not
extend to a prisoner unless– . . . He is in
custody in violation of the Constitution or
laws or treaties of the United States.
28 U.S.C. § 2241(a), (c)(3).
“Section 2241 is the only statute that confers habeas
jurisdiction to hear the petition of a federal prisoner who is
challenging not the validity but the execution of his sentence.”
Coady v. Vaughn, 251 F.3d 480, 485-486 (3d Cir. 2001).
A
petition for a writ of habeas corpus under 28 U.S.C. § 2241 in
the district where the prisoner is confined provides a remedy
“where petitioner challenges the effects of events ‘subsequent’
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to his sentence.”
Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir.
1976)(challenging erroneous computation of release date).
See
also Soyka v. Alldredge, 481 F.2d 303 (3d Cir. 1973)(where
petitioner alleged a claim for credit for time served prior to
federal sentencing).
To the extent that Petitioner is
challenging the payments he is required to make through the IFRP,
the proper vehicle for such challenge is a petition under 28
U.S.C. § 2241 filed in the district where his sentence is being
carried out.
McGee v. Martinez, 627 F.3d 933, 937 (3d Cir.
2010); see also Duronio v. Werlinger, 2011 WL 6188707, *2 (3d
Cir. Dec. 14, 2011).
Accordingly, this Court has subject matter jurisdiction
under § 2241.
B.
Petitioner’s Claim Must Be Dismissed
This case involves the Mandatory Victims Restitution Act
(MVRA), which provides that “[a] person sentenced to pay a fine
or other monetary penalty, including restitution, shall make such
payment immediately unless... the court provides for payment on a
date certain or in installments.”
18 U.S.C. § 3572(d)(1).
This
statute also mandates that the sentencing order include a payment
schedule in consideration of the defendant’s economic
circumstances.
See 18 U.S.C. § 3664(f)(2)(which requires the
sentencing court to “specify in the restitution order the manner
in which, and the schedule according to which, the restitution is
7
to be paid”); see also United States v. Coates, 178 F.3d 681, 684
(1999).
Of pertinence here, and as argued by Petitioner, the Third
Circuit Court of Appeals has concluded that “ordering restitution
is a judicial function that cannot be delegated, in whole or in
part.”
United States v. Corley, 500 F.3d 210, 225 (3d Cir.
2007), vacated and remanded on other grounds, 556 U.S. 303
(2009).
In Corley, the court concluded that the MVRA mandated
that the sentencing judge consider a defendant’s finances in
ordering restitution.
Id. at 226.
If the sentencing court had
knowledge that a defendant “could not make immediate payment in
full, it was required under § 3664(2) to set a different schedule
of payments.”
Id.
To do otherwise, the court found, would
constitute an impermissible delegation of the court’s
responsibility.
Id.
In Corley, the question was whether the sentencing court
left to the BOP to determine the amount and schedule of payments
to be made by petitioner despite knowledge that petitioner could
not make immediate full restitution.
The Third Circuit found
that when a court orders “immediate” payment of restitution with
knowledge that the defendant cannot make full restitution, such
orders “are indistinguishable in principle from outright
delegations of authority to the Bureau of Prisons.”
F.3d at 227.
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Corley, 500
Recently, in reliance on Corley and the dictates of the
MVRA, the Third Circuit found that it was plain error for the
district court to order restitution without taking into account
the defendants’ financial resources and without stating on the
record at sentencing the manner, method and schedule of
restitution payments.
The court vacated the restitution orders
as to those defendants and remanded the matter to the district
court so that it could specify the amount of restitution and the
method, manner and schedule of payments after taking into account
the financial resources of the defendant/appellants.
See United
States v. Crim, ___ Fed. Appx. ___, 2011 WL 5533667, *11 (3d Cir.
Nov. 15, 2011).
Both Corley and Crim involved direct appeals from the
defendants’ convictions and/or sentences, where the individuals
challenged their restitution orders.
This case differs because
the Court is confronted with Petitioner’s unappealed final order
of restitution.
Indeed, as the history of this case reveals,
Petitioner never challenged the order of restitution in his
direct appeal or in his § 2255 motion.
Thus, as the Third
Circuit held on Petitioner’s appeal from this Court’s denial of
his motion for remission of restitution filed in the criminal
matter, “a defendant who fails to raise a challenge to
restitution at sentencing or on direct appeal is barred from
challenging the validity of the restitution order in collateral
9
proceedings.”
United States v. Balter, 164 Fed. Appx. at 212
(citing Cani v. United States, 331 F.3d 1210, 1213-14 & n. 2
(11th Cir. 2003)(citing cases)).
The only challenge to the restitution order, before this
§ 2241 habeas petition, was Petitioner’s motion for remission of
restitution filed in his criminal case in September 2004.
In
that motion, Petitioner argued that restitution should be
remitted because his economic circumstances had changed due to
his inability to perform any prison work as a result of several
medical conditions, including macular degeneration in both eyes
and recent heart surgery.
This Court found that because
Petitioner had paid only $500.00 in restitution in 10 years of
imprisonment, his professed inability to generate income by
prison work assignments hardly constituted a material change in
his economic circumstances.
Moreover, Petitioner had not alleged
that his medical conditions prevented him from earning money
through the IFRP.
Consequently, this Court denied Petitioner’s
motion, and in the September 8, 2004 Order, found “that
restitution was properly imposed at the time of sentencing in
this matter and that the Defendant, Richard Balter, should
continue to make efforts to the best of his ability, however
limited that might be in light of his physical impairments, to
make restitution to the victim of his crime as previously
ordered.”
[Criminal Docket No. 93-00536, docket item 2].
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Thus, the history of this case belies any claim now by
Petitioner that the sentencing court failed to abide by the
statutory requirements of the MVRA.
It is clear that this Court
considered Petitioner’s financial resources and Petitioner’s
ability to make restitution payments, albeit limited by his
physical impairments, through the IFRP.
Consequently, this
Court’s restitution orders did not violate the MVRA or Corley.
However, the thrust of Petitioner’s claim is aimed at the
execution of the sentence (or restitution order), wherein he
argues that the BOP does not have authority to deduct monies from
his inmate trust account via the IFRP to pay restitution.2
This
issue was addressed at length in Mbengo v. Millward, 2008 WL
2850184 (W.D.Pa. July 23, 2008).
In Mbengo, the court held that
in order for the petitioner to be entitled to relief under § 2241
for the claim that the BOP’s actions in deducting monies from his
inmate account violates federal statute, namely, the MVRA, he
2
The IFRP is meant to “encourage[ ] each sentenced inmate
to meet his or her legitimate financial obligations.” 28 C.F.R.
§ 545.10. Those financial obligations generally consist of a
fine, an order for restitution, and/or a special assessment
imposed as part of a criminal judgment. Under the IFRP, prison
staff “shall help th[e] inmate develop a financial plan and shall
monitor the inmate’s progress in meeting” his obligations. 28
C.F.R. § 545.11. Thus, the goal of the IFRP is to achieve
compliance with a provision of each convict’s criminal judgmentnamely, the timely payment of whatever sum the court has ordered
him to pay. Through the IFRP, then, the BOP is “putting into
effect” and “carrying out” the restitution portion of
Petitioner’s sentence. McGee v. Martinez, 627 F.3d 933, 936 (3d
Cir. 2010).
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must establish a miscarriage of justice.
*7.
Id., 2008 WL 2850184 at
The court found that there was no miscarriage of justice
because the BOP had independent statutory authority to collect
the legal debts of its inmates through the IFRP.
Specifically,
the court observed that because petitioner failed to attack the
restitution order on direct appeal, he defaulted on those claims
and thus, there was an uncontested and valid final order of
restitution, or in other words, a legal debt owed by the
prisoner.
Id. at *10-12 (citing United States v. Sawyer, 521
F.3d 792, 794-95 (7th Cir. 2008)(finding that omission of a
payment schedule during incarceration did not improperly delegate
authority to BOP since BOP had amply authority to determine
payments to be made from an inmate’s accounts; and ruling that
under MVRA, sentencing court did not have to include schedule of
restitution payments to be made during incarceration where
sentencing court comported with the MVRA by setting a payment
schedule to begin after release but not expressly addressing
payment while incarcerated; and finally finding that sentencing
court’s plain error in failing to set a restitution payment
schedules for defendants who were unable to repay immediately did
not affect defendants’ substantial rights), cert. denied, 129
S.Ct. 897 (U.S. Jan. 12, 2009); United States v. Young, 533 F.
Supp.2d 1086, 1088 (D.Nev. 2007)(“The BOP’s authority to
administer the IFRP is independent of the sentencing court’s duty
12
to schedule restitution payments.”).
Indeed, the court
recognized that, under the IFRP, Congress provided that
An order of restitution may be enforced by the United States
in the manner provided for in subchapter C of chapter 227
and subchapter B of chapter 229 of this title; or
(ii) by all other available and reasonable means.
18 U.S.C. § 3664(m)(1)(A)(i)-(ii);
Mbengo, at *12.
Thus,
because this Court’s order of restitution is not a void order,
not having been appealed and now unchallengeable, (even
considering the inability of a sentencing court to delegate the
setting of schedules for repayment of restitution as held under
Corley), it is a legal debt that the BOP may collect under its
independent statutory authority under the IFRP.
Id. at *13-14.
Accordingly, this Court finds no merit to Petitioner’s claim
in this instance that the BOP has no authority to collect
restitution payments from Petitioner under the IFRP.
Moreover,
this Court had expressly reconsidered Petitioner’s financial
circumstances and his ability to continue restitution payments
through quarterly IFRP payments in Petitioner’s 2004 motion for
remittance of restitution.
Thus, the Court set a repayment
schedule for Petitioner via the IFRP that took into account his
economic situation in accordance with MVRA.
Therefore, this
Court finds no miscarriage of justice, deprivation of due
process, or violation of federal statutory law in this matter.
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CONCLUSION
Based on the foregoing, the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 is hereby denied.
appropriate Order accompanies this Opinion.
s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated:
January 10, 2012
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