HUMPHRIES v. ORTIZ

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 2/14/2017. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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CHAD STEVEN HUMPHRIES,
Petitioner,
v.
WARDEN DAVID ORTIZ,
Respondent.
________________________

Civ. No. 16-9552 (RMB)

OPINION

BUMB, United States District Judge
Petitioner filed a Petition for Writ of Habeas Corpus under
28 U.S.C. § 2241 (ECF No. 1) seeking relief from the collection
of

funds

from

his

inmate

trust

account

under

the

Inmate

Financial Responsibility Program (“IFRP”). The Court must review
the petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts, applicable to
the present petition through Rule 1(b). Rule 4 requires the
Court

to

appears

promptly
from

the

review

the

petition

petition,

and

attached

and,

“if

exhibits

it

plainly

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.”
I.

BACKGROUND

Petitioner, housed at FCI Fort Dix, was convicted of mail
and wire fraud in the United States District Court, Western
District of North Carolina on January 21, 2011, and is serving a
180-month

term

of

imprisonment.

(Pet.,

ECF

No.

Petitioner raises two issues in the petition.
the

sentencing

court’s

restitution

order

to

1

at

2.)

First, based on
pay

a

lump

sum

payment of $906,153.81 due immediately, Petitioner asserts “the
Federal Bureau of Prisons [“BOP”] does not have the authority to
act

as

a

collection

Petitioner

did

not

immediate payment.”

agency
have

for
the

the

District

financial

Court

once

resources

to

the
make

(Mem. of Law in Supp. of 28 U.S.C. § 2241,

ECF No. 1-2 at 11.)
Second,

Petitioner

asserts

the

Judgment

and

Commitment

Order in his criminal proceeding did not specify the statute
under which restitution was imposed, therefore appellate review
for

abuse

of

discretion

is

not

possible.

(Id.

at

19.)

Petitioner asserts the Victim Witness Protection Act (“VWPA”),
18 U.S.C. § 3663, and the Mandatory Victims Restitution Act
(“MVRA”), 18 U.S.C. § 3663A impose different requirements. (Id.)
If the sentencing court applied the VWPA in his case, Petitioner
contends the court failed to make the necessary findings under §
3663(a)(1)(b)(i)(ii);
Petitioner

contends

but
the

if

the

court

court

failed

findings under § 3664(f)(2). (Id. at 23.)
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to

applied
make

the

the

MVRA,

necessary

II.

DISCUSSION
28 U.S.C. § 2241(c)(3) provides:
(c) The writ of habeas corpus
extend to a prisoner unless--

shall

not

(3) He is in custody in violation of
the Constitution or laws or treaties of
the United States . . .
The issue of whether the BOP has authority to set the terms of
restitution payments while a petitioner is incarcerated falls
squarely within the type of claim that is properly raised in a
petition under § 2241.
Cir. 2005).

U.S. v. Walker, 149 F. App’x 55, 57 (3d

Therefore, the Court shall permit this claim to

proceed.
On the other hand, a claim that challenges the sentencing
court’s restitution order, and not the BOP’s execution of the
order, must be brought in the sentencing court under 28 U.S.C. §
2255.
(per

Gardner v. Bledsoe, 415 F. App’x 384, 386 (3d Cir. 2011)
curiam).

Therefore,

this

Court

lacks

jurisdiction

over

Petitioner’s second claim.
If a court construes a claim as arising under § 2255, the
court

should

court

having

jurisdiction, if the interests of justice so require.

See 28

U.S.C. § 1631.

transfer

the

claim

to

the

Petitioner has already brought a motion under 28

U.S.C. § 2255 in the sentencing court.

See Humphries v. U.S.,

Civil No. 1:12–cv–00056–MR, 2013 WL 4718473 (W.D.N.C. Sept. 3,

3 

2013).

Therefore,

he

must

seek

permission

from

the

Fourth

Circuit Court of Appeals before he can bring another § 2255
petition in the district court.
The

circuit

court

will

See 28 U.S.C. § 2255(h).
not

grant

permission

to

file

a

second or successive § 2255 motion, unless the motion contains:
(1) newly discovered evidence that, if
proven and viewed in light of the evidence
as a whole, would be sufficient to establish
by clear and convincing evidence that no
reasonable factfinder would have found the
movant guilty of the offense; or
(2) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable.
28 U.S.C. § 2255(h).
Petitioner’s

claim

that

the

sentencing

court

failed

to

provide the statutory basis for restitution does not appear to
meet the requirements of § 2255(h).

Therefore, it is not in the

interests

this

of

justice

to

Circuit Court of Appeals.
transfer

should

not

be

transfer

claim

to

the

Fourth

However, this Court’s decision not to
construed

as

barring

Petitioner

from

seeking leave from the Fourth Circuit to bring this claim in a
second

or

successive

§

2255

motion

with

the

United

States

District Court for the Western District of North Carolina.
III. CONCLUSION
Pursuant to Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, applicable to the
4 

present petition through Rule 1(b), Petitioner’s first claim,
challenging the BOP’s execution of the restitution order, may
proceed;

but

the

Court

lacks

jurisdiction

over

Petitioner’s

second claim, which challenges the validity of the restitution
order.

An appropriate Order follows.

DATED: February 14, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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