HUMPHRIES v. ORTIZ
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NOT FOR PUBLICATION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
CHAD STEVEN HUMPHRIES,
WARDEN DAVID ORTIZ,
Civ. No. 16-9552 (RMB)
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
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
petitioner is not entitled to relief in the district court, the
judge must dismiss the petition and direct the clerk to notify
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
Petitioner raises two issues in the petition.
First, based on
payment of $906,153.81 due immediately, Petitioner asserts “the
Federal Bureau of Prisons [“BOP”] does not have the authority to
(Mem. of Law in Supp. of 28 U.S.C. § 2241,
ECF No. 1-2 at 11.)
Order in his criminal proceeding did not specify the statute
under which restitution was imposed, therefore appellate review
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 §
findings under § 3664(f)(2). (Id. at 23.)
28 U.S.C. § 2241(c)(3) provides:
(c) The writ of habeas corpus
extend to a prisoner unless--
(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.
U.S. v. Walker, 149 F. App’x 55, 57 (3d
Therefore, the Court shall permit this claim to
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. §
Gardner v. Bledsoe, 415 F. App’x 384, 386 (3d Cir. 2011)
Petitioner’s second claim.
If a court construes a claim as arising under § 2255, the
jurisdiction, if the interests of justice so require.
U.S.C. § 1631.
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,
Circuit Court of Appeals before he can bring another § 2255
petition in the district court.
See 28 U.S.C. § 2255(h).
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
28 U.S.C. § 2255(h).
provide the statutory basis for restitution does not appear to
meet the requirements of § 2255(h).
Therefore, it is not in the
Circuit Court of Appeals.
However, this Court’s decision not to
seeking leave from the Fourth Circuit to bring this claim in a
District Court for the Western District of North Carolina.
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), Petitioner’s first claim,
challenging the BOP’s execution of the restitution order, may
second claim, which challenges the validity of the restitution
An appropriate Order follows.
DATED: February 14, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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