HUMPHRIES v. ORTIZ

Filing 6

OPINION. Signed by Judge Renee Marie Bumb on 11/21/2018. (tf, n.m.)

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

CHAD STEVEN HUMPHRIES,
Petitioner
v.
DAVID ORTIZ,
Respondent

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Civil Action No. 16-9552(RMB)

OPINION

This matter is before the Court upon Petitioner’s petition
for writ of habeas corpus under 28 U.S.C. § 2241 (ECF No. 1);
Respondent’s Answer (ECF No. 4); and Petitioner’s Traverse (ECF
No. 5.) For the reasons set forth below, the Court will deny the
petition.
I.

BACKGROUND
A.

The Petition

Petitioner

is

an

inmate

at

the

Federal

Correctional

Institution (FCI) in Fort Dix, New Jersey, who alleges the Bureau
of Prisons (“BOP”) violated his statutory, due process and double
jeopardy rights by misinterpreting 18 U.S.C. § 3664 and taking
monthly restitution payments out of his inmate trust account.1

1

Petitioner also alleged the BOP incorrectly calculated the amount
of restitution still owed. (Petr’s Mem., ECF No. 1-2 at 11, ¶4.5.)

(Petr’s Mem. in Supp. of 28 U.S.C. § 2241 (“Petr’s Mem.”), ECF No.
1-2 at 10.) Petitioner admits he did not exhaust his administrative
remedies but he asserts exhaustion would be futile because he
challenges a BOP policy. (Petr’s Mem., ECF No. 1-2 at 11.)
On January 27, 2011, the Honorable Judge Martin Reidinger of
the U.S. District Court, Western District of North Carolina,
entered judgment and sentenced Petitioner to a 180-month term of
imprisonment upon his conviction of conspiracy to commit mail
fraud; aiding and abetting mail fraud, and aiding and abetting and
wire fraud. United States v. Humphries, No. 09CR87-MR (W.D.N.C.,
Judgment, ECF No. 24)2 Petitioner was ordered to pay an assessment
fee and restitution in one "Lump Sum Payment of $906,153.81, due
immediately." (Petr’s Mem., ECF No. 1-2 at 10.) The Judgment and
Commitment
participate

Order
in

also
the

directed

Inmate

that

Financial

“the

defendant

Responsibility

shall
Program

(“IFRP.”) (Id. at 11, ¶4.4.)3
1.

GROUND ONE: The sentencing court erred by making
his lump sum restitution payment due immediately
and delegating the payment schedule to the Bureau
of Prisons.

However, he did not provide any additional information about this
allegation. Therefore, the Court cannot address this claim.
2

Available at www.PACER.gov.

3

In fact, the sentencing court checked a box on the form indicating
that it made “the following recommendations to the Bureau of
Prisons
…
participate
in
the
Federal
Inmate
Financial
Responsibility Program. United States v. Humphries, 09-cr-87-MR
(W.D.N.C., Judgment at 2, ECF No. 24) (emphasis added).
2

Petitioner contends that because he could not pay the lump
sum

restitution

immediately,

the

sentencing

court

erred

by

ordering immediate payment because it implicitly delegated to the
Bureau

of

Prisons

or

probation

office

the

district

court's

obligation to schedule payments. (Petr’s Mem., ECF No. 1-2 at 1116, citing United States v. Prouty, 303 F.3d 1249, 1254-55 (11th
Cir. 2002); United States v. Corley, 500 F.3d 210, 225-27 (3d Cir.
2007) vacated and remanded on other grounds by 556 U.S. 303 (2009);
United States v. McGlothlin, 249 F.3d 783, 785 (8th Cir. 2001);
United States v. Lemoine, 546 F.3d 1042, 1048 (9th Cir. 2008);
United States v. Kinlock, 174 F.3d 297, 301 (2nd Cir. 1999); United
States v. Martin, 278 F.3d 988 (9th Cir. 2002); Unites States v.
Miller, 406 F.3d 323 (5th Cir. 2005); United States v. Ward, No.
CR 02-5231 AWI, 2008 WL 5220959 (E.D. Cal. Dec. 12, 2008); United
States v. Gunning, 401 F.3d. 1145 (9th Cir. 2005)). Petitioner
concludes that because the sentencing court failed to set forth a
proper

payment

schedule,

the

BOP

lacks

authority

to

collect

restitution payments through the IFRP. (Petr’s Mem., ECF No. 1-2
at 16.)
Petitioner

acknowledges

that

the

BOP

created

the

IFRP

procedure to "help [ the ] inmate develop a financial plan" and
then "monitor the inmate's progress” in meeting the terms of that
plan. (Petr’s Mem., ECF No. 1-2 at 17-18, citing 28 C.F.R. §§

3

545.10, 545.11.) Nonetheless, Petitioner contends the sentencing
court cannot delegate its power to set his payment schedule to the
BOP.
2.

GROUND TWO: The failure of the district court to
specify whether it ordered restitution under the
VWPA or the MVRA prevents a determination of
whether the court properly exercised its discretion
in fashioning the restitution order.

Petitioner asserts that his Judgment and Commitment Order
does not identify the statutory basis for the restitution award,
the Victim Witness Protection Act (“VWPA”), 18 U.S.C. § 3663 or
the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A.
(Petr’s Mem., ECF No. 1-2 at 19.) Due to this alleged error,
Petitioner seeks an order instructing the Federal Bureau of Prisons
to Cease and Desist the collection of funds from his inmate account
and list petitioner as EXEMPT from participation in the Inmate
Financial Responsibility Program. (Id. at 26.)
B.

The Answer

Respondent urges the Court to dismiss the petition because
Petitioner failed to exhaust his administrative remedies. (Answer,
ECF No. 4 at 2-3.) Alternatively, Respondent contends the petition
fails on the merits because Petitioner opted to participate in the
IFRP and authorized the BOP to calculate his FRP payments and
collect the funds. (Id.) Additionally, Respondent argues the Court
lacks jurisdiction over Petitioner’s challenge to the validity of
the restitution order. (Id. at 3.)
4

1.

Exhaustion of administrative remedies

The BOP’s administrative remedy procedure is set forth at 28
C.F.R. §§ 542.10 et seq. (Declaration of Tara Moran (“Moran Decl.”
ECF No. 4-1, ¶3.) According to BOP records, Petitioner has not
filed

any

administrative

remedy

requests

regarding

his

IFRP

payments. (Moran Decl., Ex. 2, ECF No. 4-2 at 6.) Respondent
contends that an inmate’s failure to exhaust all stages of the
administrative remedy system prior to the filing of a habeas
petition under 28 U.S.C. § 2241, is a proper basis for dismissal.
(Answer, ECF No. 4 at 11, citing Bradshaw v. Carlson, 682 F.2d
1050, 1052 (3d Cir. 1981)). Although exhaustion of administrative
remedies

is

Respondent

not

required

submits

that

where

exhaustion

Petitioner’s

would

futility

be

futile,

argument

is

unsupported by facts or law. (Id. at 14.)
2.

The BOP’s IFRP policy

As part of the initial prisoner classification process, staff
assist inmates in developing a financial plan for meeting financial
obligations and, at subsequent program reviews, staff consider the
inmate’s efforts to fulfill those obligations as indicative of his
acceptance and demonstrated level of responsibility. (Answer, ECF
No. 4 at 5, citing 28 C.F.R. § 545.10; BOP Program Statement
(“P.S.”)

5380.08.)4

The

financial

4

plan,

among

BOP Program Statements are available at
https://www.bop.gov/resources/policy_and_forms.jsp.
5

other

things,

includes payment for assessments, court-ordered restitution, fines
and costs. (Answer, ECF No. 4 at 5, citing P.S. 5380.08 at 5-6.)
To develop an inmate’s financial plan, the inmate’s Unit Team will:
(1) determine the total funds deposited into the inmate’s trust
fund account for the previous six months; (2) subtract the IFRP
payments made by the inmate during the previous six months; and
(3) subtract $450 (i.e., $75 x 6 months, phone exclusion, to allow
inmates to communicate under the Inmate Telephone System (“ITS”)).
(Id. at 6.)
3.

Petitioner’s IFRP History

On January 27, 2011, the Honorable Martin Reidinger, United
States District Court for the Western District of North Carolina,
issued a Judgment and Commitment Order in Criminal Case 09-CR-871. (Id.) The sentencing court imposed a $1,300.00 felony assessment
and $906,153.81 restitution. (Moran Decl., Ex. 3, ECF No. 4-2 at
8.) The court indicated that payment was to begin immediately and
“criminal monetary penalties shall be due during the period of
imprisonment. . . .” (Id. at 9.)
On March 17, 2015, at FCI Edgefield, Petitioner entered into
an IFRP contract in which he agreed to pay $25.00 per quarter to
satisfy his financial obligations. (Answer, Moran Decl., Ex. 4,
ECF No. 4-2 at 13.) On August 2, 2016, after Petitioner was
transferred to FCI Fort Dix, Petitioner entered into another IFRP
contract in which he agreed to pay $25.00 per month to commence
6

during the month of November 2016. (Answer, Moran Decl., Ex. 5,
ECF No. 4-2 at 16.) As of February 2017, Petitioner had paid
$450.00 toward the $1,300.00 assessment (which has now expired
according

to

18

U.S.C.

§

3013(c))

and

$125.00

toward

the

$906,153.81 restitution order. (Answer, Moran Decl., Ex. 6, ECF
No. 4-2 at 20.)
4.

Respondent
contends
Petitioner’s
voluntary
participation in the IFRP program defeats any
challenge to his payment calculation.

The Comprehensive Crime Control Act of 1984, the Federal Debt
Collection Procedure Act of 1990, the Victim and Witness Protection
Act of 1992, and the Victims Crime Act of 1994, all require a
diligent effort on the part of all law enforcement agencies to
collect court-ordered financial obligations. (Answer, ECF No. 4 at
15, citing BOP P.S. 5380-08.) The IFRP was established to further
this goal and to encourage each sentenced inmate to meet his
legitimate financial obligations. (Id., citing 28 C.F.R. §§ 545.10
to 545.11; BOP P.S. 5380.08).
To the extent that Petitioner challenges the validity of the
IFRP, Respondent notes that such challenges have been uniformly
rejected. (Id., citing e.g. Balter v. Martinez, 477 F. App’x 873,
875 (3d Cir. 2012); United States v. Lemoine, 546 F.3d 1042, 1048
(9th

Cir.

2008)).

Throughout

his

incarceration

in

the

BOP,

Petitioner has signed an FRP contract, agreeing to pay monies
toward the imposed assessment and restitution. (Moran Decl., Exs.
7

4, 5, ECF No. 4-2 at 12-17.) Respondent asserts that an inmate’s
voluntary participation in the FRP defeats any challenge to the
payment

plan.

(Answer,

ECF

No.

4

at

17,

citing

Duronio

v.

Werlinger, 454 F. App’x 71, 74 (3d Cir. 2011)).
5.

Jurisdiction under 28 U.S.C. § 2241.

Respondent

contends

“Section

2241

‘cannot

be

used

to

challenge just the restitution part of a sentence when the custody
supporting jurisdiction is actual imprisonment.’” (Answer at 17,
quoting Duronio, 454 F. App’x at 73 n.3 (per curiam) (citing Arnaiz
v. Warden, 594 F.3d 1326, 1330 (11th Cir. 2010)). A challenge to
the restitution order should be brought on direct appeal. (Answer
at 17, citing United States v. Banks, 422 F. App’x 137, 140 (3d
Cir. 2011); United States v. Sloan, 505 F.3d 685, 697 (7th Cir.
2007)). If an inmate “fails to raise a challenge to restitution at
sentencing

or

on

direct

appeal”

the

inmate

“is

barred

from

challenging the validity of the restitution order in collateral
proceedings.” (Id., quoting Balter, 164 F. App’x at 212 (citing
Cani v. United States, 331 F.3d 1210, 1213-14 & n.2 (11th Cir.
2003) (internal citations omitted)).
C.

The Traverse

In his Traverse, Petitioner’s points out that in his Judgment
and Commitment Order, under the heading “Schedule of Payments,”
the

sentencing

court

checked

Box

(B)

for

“Payment

to

begin

immediately[.]” (Petr’s Traverse, ECF No. 5 at 1.) The court did
8

not

check

Box

(C),

which

provides

for

installment

payments

beginning after the date judgment is entered. (Petr’s Traverse,
ECF No. 5 at 2 (Judgment p.5, Schedule of Payments.))
The court checked Box (D) on the Judgment and Commitment
Order, which reads
Payment in equal monthly (E.g. weekly,
monthly, quarterly installments of $ 50.00. To
commence 60 days (E.g. 30 or 60 days after
release from imprisonment to a term of
supervision. In the event the entire amount of
criminal monetary penalties imposed is not
paid prior to the commencement of supervision,
the U.S. Probation Officer shall pursue
collection of the amount due, and may requires
the court to establish or modify a payment
schedule if appropriate. 18 U.S.C. § 3572.
(Id.) If the sentencing court intended the BOP to collect monthly
payments, Petitioner contends it would have checked Box (C) and
commenced payment after the date judgment was entered. (Traverse
at 1.) Petitioner maintains that the sentencing court ordered that
Petitioner begin making $50.00 monthly payments after his release
from prison. (Id.)
II.

DISCUSSION
A.

Exhaustion of Administrative Remedies

Federal prisoners are ordinarily required to exhaust their
administrative remedies before petitioning for a writ of habeas
corpus pursuant to § 2241. Moscato v. Fed. Bureau of Prisons, 98
F.3d 757, 760 (3d Cir. 1996) (citations omitted). Exhaustion is
required for three reasons:

“(1) allowing the appropriate agency
9

to develop a factual record and apply its expertise facilitates
judicial review; (2) permitting agencies to grant the relief
requested conserves judicial resources; and (3) providing agencies
the opportunity to correct their own errors fosters administrative
autonomy.”

Moscato,

98

F.3d

at

761–62

(citations

omitted).

Exhaustion is not required in situations that would not promote
these goals. See e.g. Gambino v. Morris, 134 F.3d 156, 171 (3d
Cir. 1998); Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir.
1988) (exhaustion is futile if the actions of the agency clearly
and unambiguously violate statutory or constitutional rights or
administrative procedure is clearly shown to be inadequate to
prevent irreparable injury).
Petitioner

asserts

exhaustion

is

futile

because

the

BOP

violated his statutory and constitutional rights. Examination of
the petition, however, indicates that it is the sentencing court,
not the BOP, whom Petitioner contends violated his rights by
entering an improper restitution order and permitting the BOP to
schedule his restitution and assessment payments. To the extent
Petitioner contends the BOP violated his constitutional rights by
scheduling his payments pursuant to an unlawful Judgment and
Commitment Order, for the reasons discussed below, the actions of
the BOP do not clearly and unambiguously violate Petitioner’s
constitutional rights. Therefore, exhaustion of administrative
remedies is not futile, and the Court will dismiss the petition
10

without prejudice. The Court alternatively addresses the merits of
the

petition,

beginning

with

jurisdiction

over

the

issues

presented.
B.

Jurisdiction over
Restitution Order

Challenges

to

Sentencing

Court’s

A challenge to the overall validity of a district court's
restitution order should be made on direct appeal. United States
v. Banks, 422 F. App'x 137, 140 (3d Cir. 2011) (per curiam);
Duronio, 454 F. App'x at 73 n.3. For an inmate to challenge the
execution of his/her sentence under § 2241, the inmate would “need
to allege that the BOP's [] monthly payment demand was “somehow
inconsistent with a command or recommendation in the sentencing
judgment.”

United States v. Snyder, 601 F. App'x 67, 71 (3d Cir.

2015) (per curiam) (citing Cardona v. Bledsoe, 681 F.3d 533, 537
(3d Cir.), cert. denied, –––U.S. ––––, 133 S.Ct. 805 (2012)).
Petitioner’s arguments in his memorandum in support of the
petition are directed at challenging the Judgment and Commitment
Order entered by the sentencing court, an issue that must be raised
on direct appeal. In fact, Petitioner supports his arguments by
cases that were properly brought on direct appeal. Petitioner
asserts that:

(1) the sentencing court erred by making his lump

sum restitution payment due immediately and delegating the payment
schedule to the Bureau of Prisons; and (2) the district court
failed to specify whether it ordered restitution under the VWPA or

11

the MVRA, preventing a determination of whether the court properly
exercised its discretion in fashioning the restitution order. This
Court lacks jurisdiction over these issues under § 2241.
In his traverse, however, Petitioner asserts that because the
sentencing court checked Box D on the judgment form, indicating
that Petitioner should make $50.00 monthly payments upon his
release, the sentencing court did not intend for Petitioner to
make payments while incarcerated. The Court construes this as a
claim that the BOP payment plan is inconsistent with “a command or
recommendation” in the judgment,” a claim over which this Court
has jurisdiction. See Snyder, 601 F. App'x at 71.
The Judgment and Commitment Order recommends payment of the
restitution and assessment before release. In addition to ordering
$50 monthly payments after release, the sentencing court also noted
that payment was due immediately and included the following special
instruction.
Unless the court has expressly ordered
otherwise in the special instructions above
[the boxes indicating special instructions are
unchecked], if this judgment imposes a period
of imprisonment payment of the criminal
monetary penalties shall be due during the
period of imprisonment. All criminal monetary
penalties are to be made payable to the United
States District Court Clerk … except those
payments made through the Bureau of Prisons’
Inmate Financial Responsibility Program. All
criminal monetary penalty payments are to be
made as directed by the court.

12

United States v. Humphries, 09-cr-87-MR (W.D.N.C., Judgment at 5,
ECF

No.

24)

As

discussed

above,

the

sentencing

court

also

recommended in the Judgment and Commitment Order that Petitioner
participate in the IFRP. See supra n.4. The Judgment and Commitment
Order is not inconsistent with Petitioner’s participation in the
IFRP,

making

monthly

payments

toward

restitution

and

the

assessment while incarcerated.
C.

Jurisdiction over Challenges to BOP’s IFRP Program

Jurisdiction exists under 28 U.S.C. § 2241 for a federal
prisoner to challenge the execution of his sentence. McGee v.
Martinez, 627 F.3d 933, 935 (3d Cir. 2010) (citing Coady v. Vaughn,
251 F.3d 480, 485 (3d Cir. 2001); Woodall v. Fed. Bureau of
Prisons, 432 F.3d 235, 241 (3d Cir. 2005)). “The IFRP is meant to
‘encourage[ ] each sentenced inmate to meet his or her legitimate
financial obligations.’” Id. at 936 (quoting 28 C.F.R. § 545.10).
Those financial obligations include an order for restitution and
a special assessment imposed as part of a criminal judgment. Id.
Through the IFRP, prison staff help an inmate develop a
financial plan and monitor the inmate’s progress in meeting his
obligations. Id., citing 28 C.F.R. § 545.11. Therefore, by creating
and monitoring an inmate’s financial plan to pay obligations
imposed as part of a criminal judgment, the IFRP is a means of
executing a sentence. Id. Petitioner can challenge the BOP’s
execution of his sentence through use of the IFRP.
13

D.

Petitioner Agreed to IFRP Payments

Petitioner concludes that because the sentencing court failed
to set forth a proper payment schedule, the BOP lacks authority to
collect restitution payments through the IFRP. (Petr’s Mem., ECF
No. 1-2 at 16.) Petitioner, however, may not challenge the validity
of the restitution order in this § 2241 petition. He may only
challenge the BOP’s execution of his sentence through use of the
IFRP.
“An inmate may voluntarily enter into the IFRP by signing a
contract, and give the BOP authority to collect additional monies
toward her restitution obligation[.]” Snyder, 601 F. App'x at 70
(citing 28 C.F.R. § 545.11(a)-(b)). “‘[T]he inmate's participation
cannot be compelled.’” Id., quoting United States v. Boyd, 608
F.3d 331, 334 (7th Cir. 2010)). By entering into an IFRP, a
petitioner provides the BOP the authority to collect restitution
funds. Duronio, 454 F. App’x at 73.
Petitioner entered into an IFRP contract on March 17, 2015,
in which he agreed to pay $25.00 per quarter to satisfy his
financial obligations. (Answer, Moran Decl., Ex. 4, ECF No. 4-2 at
13.) On August 2, 2016, Petitioner entered into another IFRP
contract in which he agreed to pay $25.00 per month, commencing in
November 2016. (Answer, Moran Decl., Ex. 5, ECF No 4-2 at 16.)
14

Petitioner entered into contracts to make monthly payments in the
IFRP and has not shown that the BOP improperly executed his
sentence by setting up and monitoring his IFRP payments.
III. CONCLUSION
For the reasons discussed above, the Court will dismiss the
petition without prejudice for failure to exhaust administrative
remedies. In the alternative, the Court lacks jurisdiction over
challenges to Petitioner’s restitution order, and Petitioner’s
challenge to the BOP’s execution of his sentence through the IFRP
is denied.

Dated: November 21, 2018
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

15