Spears v. Rivera

Filing 12

ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 7 Report and Recommendations, dismissing the Petition with prejudice and without issuance and service of process upon Respondent. Signed by Honorable R Bryan Harwell on 3/30/2012. (jpet, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Dwight Lamar Spears,

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Petitioner,
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v.
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Mildred Rivera, Warden,
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Respondent.
)
____________________________________)

Civil Action No.: 0:11-cv-02306-RBH

ORDER

Petitioner, a federal prisoner proceeding pro se, filed this action pursuant to 28 U.S.C. §
2241. This matter is now before the court with the [Docket Entry 7] Report and Recommendation
(“R&R”) of United States Magistrate Judge Paige J. Gossett1 filed on January 31, 2012. In her R&R,
the Magistrate Judge recommended that “the instant Petition for a writ of habeas corpus . . . [should]
be dismissed with prejudice and without issuance and service of process upon the respondent . . . .”
(R&R at 11.) Petitioner timely filed his [Docket Entry 9] Objections to the R&R.
Background
In the instant § 2241 Petition, [Docket Entry 1], Petitioner moves the court to “[c]orrect the
[] Restitution Order entered on January 30, 2008, . . . in [Criminal] Case No. 6:07-cr-710-14.” (Id.
at 5.) Petitioner alleges that “[he] pleaded guilty on August 21, 2007, to one count of conspiracy to
utter counterfeit business checks in violation of 18 U.S.C. § 371,” and that he “was sentenced to
fifty-one months imprisonment and ordered to pay restitution in the amount of $24,663.27.” (Memo.
in Supp. [Docket Entry 1-1] at 1.) He further alleges that “[he] did not take a direct appeal [and]
instead filed a series of unsuccessful post-conviction motions pursuant to 28 U.S.C. § 2255.” (Id.);
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This matter was referred to Magistrate Judge Gossett pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule
73.02(B), D.S.C.

see also United States v. Spears, Cr. No. 6:07-710-14-HMH (D.S.C. 2007) (hereinafter “Spears
Criminal Action”).2
On October 27, 2008, Petitioner filed a § 2255 motion to vacate alleging multiple grounds
for relief.3 Finding Petitioner’s claims were without merit, the district court summarily dismissed
Petitioner’s § 2255 motion to vacate, see United States v. Spears, Cr. No. 6:07-710-HMH, 2008 WL
4849682, at *1-*3 (D.S.C. Nov. 6, 2008), and the Fourth Circuit Court of Appeals thereafter
dismissed Petitioner’s subsequent appeal of that order on January 26, 2009, see United States v.
Spears, 308 F. App’x 703, 704 (4th Cir. 2009).
Petitioner filed a second § 2255 motion to vacate on November 12, 2009, challenging the
amount of restitution he was previously ordered to pay. See Spears Criminal Action, Docket Entry
507. Upon review, the district court concluded that the relief Petitioner sought was not cognizable
under § 2255, and therefore ordered dismissal of the § 2255 motion and further that it be construed
as a § 2241 habeas corpus petition. United States v. Spears, Cr. No. 6:07-710-HMH, 2009 WL
4585545, at *1 (D.S.C. Dec. 1, 2009). Accordingly, Petitioner’s § 2255 motion was construed as
a § 2241 habeas petition and a new civil case was opened. See Spears v. United States of America
& Warden of FCI-Estill, Civ. No. 0:09-cv-3125-HMH (D.S.C.). However, Petitioner failed to
pursue the § 2241 claim and, on June 1, 2010, the district court dismissed Petitioner’s § 2241

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The court may take judicial notice of its own records in Petitioner’s prior case. Colonial Penn. Ins. Co. v.
Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that “[t]he most frequent use of judicial notice of
ascertainable facts is in noticing the content of court records” (internal quotations and citations omitted));
Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (holding that “[t]he District
Court clearly had the right to take notice of its own files and records”).

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Specifically, Petitioner raised the following grounds: (1) lack of factual nexus between personal and
business checks; (2) double jeopardy; (3) ineffective assistance of counsel for failing to allow Petitioner to
review discovery documents; and (4) presentence report (“PSR”) overstated Petitioner’s involvement in the
conspiracy. See Spears Criminal Action, Docket Entries 454 & 455.

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petition with prejudice for lack of prosecution. See id., Docket Entry 23.
On March 16, 2011, Petitioner filed another § 2255 motion to vacate, challenging the court’s
computation of his restitution and loss amounts, and contending that he would have received a lesser
sentence had the court accurately calculated the loss amount. Spears Criminal Action, Docket Entry
551. For relief, Petitioner sought not only a reduction in the amount of restitution owed, but also a
reduction in his sentence. Id. Ultimately, the district court summarily dismissed the § 2255 motion
after finding that Petitioner failed to get Fourth Circuit authorization prior to filing the second or
successive motion. United States v. Spears, Cr. No. 6:07-710-HMH, 2011 WL 1254558, at *2
(D.S.C. April 1, 2011).
On May 19, 2011, Petitioner filed another § 2241 habeas petition, alleging again that the
court incorrectly calculated his restitution amount. See Spears v. Rivera, Civ. No. 0:11-cv-1206RBH-PJG (D.S.C. 2011), Docket Entry 1. However, after Petitioner failed to pay the five (5) dollar
habeas filing fee in the case, the court dismissed the § 2241 action, without prejudice, on June 30,
2011. Id., Docket Entry 9.
Finally, on August 29, 2011, the court received the instant § 2241 Petition filed by Petitioner.
In the § 2241 Petition, Petitioner again seeks to challenge the restitution order entered as part of the
judgment in his criminal case. Petitioner specifically alleges that his “Restitution Order [w]as
[i]ncorrectly calculated and must be corrected, because the incorrect Order is causing him undue
hardship.” (§ 2241 Petition at 1.) Petitioner further alleges that the “corrected order should reflect
a restitution total of $10,361.75,” not the $24,663.27 currently reflected. (Memo. in Supp. at 3.)
Petitioner contends that $14,301.52 of the total restitution was erroneously ordered by the court,
because it was for “Petitioner’s own personal checks which were determined to be checks of
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insufficient funds but in no way connected to part of the underlying offense of conviction.” (Id.)
“[C]onsequently,” Petitioner additionally argues “that the district court was without the necessary
jurisdiction to include the four (4) personal checks as part of the Restitution Order.” (Id.) For relief,
as noted above, Petitioner specifically asks the court to “[c]orrect the instant Restitution Order
entered . . . in Case No. 6:07-cr-710-14 . . . [to] reflect a corrected total of $10,361.75.” (§ 2241
Petition at 5.)
Standard of Review
The Magistrate Judge makes only a recommendation to the court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the court.
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and the court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The court is obligated to conduct a de novo review of every portion of the Magistrate Judge’s
report to which objections have been filed. Id. However, the court need not conduct a de novo
review when a party makes only “general and conclusory objections that do not direct the court to
a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate
Judge’s conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).

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Discussion
I.

Report and Recommendation
In the instant matter, Petitioner challenges the restitution order imposed at his sentencing and

moves the court to correct that order to “reflect a corrected total of $10,361.75.” (§ 2241 Petition at
5.) The Magistrate Judge, in her R&R, began by noting that although a § 2241 petition “is generally
the proper procedure to challenge the execution of a federal sentence[,] . . . several circuit courts
have held that a federal prisoner cannot challenge the legality of a restitution order by filing a writ
pursuant to § 2241.” (R&R at 6); see, e.g., Lara v. Smith, 132 F. App’x 420, 421 (3d Cir. 2005)
(“Lara challenges the validity of the restitution order in his case, and not its execution. That is not
a claim cognizable in a § 2241 petition.”). Similarly, the Magistrate Judge likewise noted that “many
appellate courts have [also] concluded that . . . a motion under § 2255 ‘may not be used for the sole
purpose of challenging fines or restitution orders.’” (Id. at 7) (quoting United States v. Hudgins, 201
F. App’x 142, 143 (4th Cir. 2006)). Finally, the Magistrate Judge found that even other circuit courts
have concluded that a challenge to a restitution order cannot be raised in either a § 2255 motion or
a § 2241 petition, but that “challenges to the validity of restitution orders should be raised on direct
appeal.” (Id. at 8); see, e.g., United States v. Hatten, 167 F.3d 884, 887 n.5 (5th Cir. 1999)
(“[R]estitution, in general, is a sentencing issue that should be raised on direct appeal.”).
After setting forth the above case law, the Magistrate Judge ultimately concluded that “the
instant § 2241 Petition should be dismissed with prejudice.” (R&R at 11.) First, she concluded that
“Petitioner’s attempt to invoke the savings clause embodied in § 2255 [was] insufficient,” because
his allegations did not undermine his criminal conviction and “the reach of the savings clause has
not been extended to prisoners who challenge only their sentences.” (Id. at 10) (citing United States
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v. Poole, 531 F.3d 263, 267 n.7 (4th Cir. 2008)). Second, the Magistrate Judge also concluded that
Petitioner had procedurally defaulted his claims “because [he] did not raise the issue of the validity
of the restitution order at his sentencing and on a direct appeal.” (Id.) Further, the Magistrate Judge
specifically noted that Petitioner has not alleged any cause and prejudice, or any exceptional
circumstances, to overcome his procedural default. (Id.) Third and finally, the Magistrate Judge
noted that Petitioner’s “first § 2241 petition, raising this same issue, was dismissed, with prejudice,
for lack of prosecution.” (Id. at 11 (emphasis added).)
II.

Objections
As an initial matter, much of Petitioner’s Objections is conclusory and non-specific. For

example, Petitioner states that he “[e]ssentially, [] objects to all recommendations as ruled upon by
the R&R.” (Obj. at 3.) These improper objections fail to “direct the court to a specific error in the
magistrate’s proposed findings and recommendations.” Orpiano, 687 F.2d at 47.
The court notes, however, that Petitioner does specifically argue in his Objections that he is
challenging the “execution” of his sentence, not its validity, and that his § 2241 Petition is the proper
vehicle for such a challenge. (Obj. at 2.) While Petitioner is correct that “attacks on the execution
of a sentence are properly raised in a § 2241 petition,” In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir.
1997) (emphasis added), the court concludes in this action that Petitioner is not challenging the
execution of his sentence, but the validity and accuracy of the restitution order previously entered
against him. See Coleman v. Brooks, 133 F. App’x 51, 52-53 (4th Cir. 2005) (holding that
petitioner’s claim that “the order of restitution was improper” attacked the legality of his conviction
and sentence, but his claim that “the BOP [was] improperly executing his order of restitution” did
not); see also Martin v. United States, No. 1:03CV213, 2006 WL 231485, at *3 (N.D.W. Va. 2006)
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(holding that “challenging the sentencing court’s considerations when imposing [petitioner’s] fine
does not relate to the execution of his sentence and is not cognizable in a § 2241 petition”); cf.
United States v. Campbell, 190 F. App’x 227, 228 (4th Cir. 2006) (holding that petitioner’s argument
“that the district court improperly delegated its authority to set the amount and timing of his []
payments to the BOP” was a challenge only to the execution of the restitution portion of his sentence
and should have been raised under § 2241). As cited by the Magistrate Judge, the case of Lara v.
Smith, 132 F. App’x 420, clearly sets forth the important distinction between challenging the validity
of a restitution order and the execution that order. The Third Circuit stated the following in Lara:
Lara filed a habeas petition pursuant to 28 U.S.C. § 2241 . . . alleg[ing] that the
sentencing court imposed an illegal restitution order . . . [and] that the sentencing
court did not make required factual findings before imposing restitution . . . .
. . . Lara cited a non-precedential opinion of this Court, Galluzzi v. Jusino, 49 F.
App’x 391 (3d Cir. 2002), for the proposition that a restitution challenge may be
brought in a § 2241 petition because the challenge is to the execution of one’s
sentence. As the District Court correctly noted, Galluzzi involved a challenge to a
restitution schedule established by the Bureau of Prisons, and did not challenge the
validity of the restitution order itself. Thus, Galluzzi did involve the execution of a
sentence, which is cognizable in a § 2241 petition. . . . In contrast, Lara challenges
the validity of the restitution order in his case, and not its execution. That is not a
claim cognizable in a § 2241 petition.
Id. at 421. Again, here, Petitioner argues that his restitution order is incorrect, which is a challenge
to the validity of the restitution order, not the way the order is being implemented. See Coleman, 133
F. App’x at 52 (holding that Coleman’s claim that “the order of restitution was improper . . .
attack[ed] the legality of [his] conviction and subsequent sentence”). This finding is further
supported by the fact that Petitioner claims in his § 2241 Petition that this court was without
jurisdiction to include certain personal checks in calculating his restitution. See Sowell v. DeBoo,
No.1:09CV34, 2009 WL 2029804, at *3 (N.D.W. Va. July 9, 2009) (holding that petitioner was
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“challenging the imposition of his sentence, rather than its execution” when he argued that “the
District Court was without authority to ‘amend his judgment’ and request[ed] that th[e] Court[]
‘vacate and remand the District Court’s opinion []clarifying[] his judgment with respect to the
payment of restitution’”). Thus, Petitioner’s objection and argument that he is challenging only the
execution of his sentence is without merit. Moreover, the court also importantly notes that
Petitioner’s Objections do not even attempt to address the fact that his previous § 2241 petition,
which likewise challenged his restitution order, was dismissed by this court, with prejudice, after he
failed to prosecute his claims in that action. See Spears v. United States of America & Warden of
FCI-Estill, Civ. No. 0:09-cv-3125-HMH (D.S.C.), Docket Entry 23; see also Fed. R. Civ. P. 41(b)
(“[A] dismissal [for failure to prosecute] under this subdivision (b) . . . operates as an adjudication
on the merits.”). For all of these reasons, Petitioner’s Objections are overruled.4 Ultimately, after
thoroughly reviewing Petitioner’s arguments and the R&R, the court is left with the firm conviction
that the Magistrate Judge’s recommended disposition of this action is correct and that the § 2241
Petition should be dismissed with prejudice.
Conclusion
The court has thoroughly reviewed the entire record, including the R&R and Objections, and
the applicable law. For the reasons stated above and by the Magistrate Judge, the court hereby

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The court notes that “Petitioner also [specifically] objects to the R&R’s characterization of the procedural
default rule.” (Obj. at 2.) Simply put, Petitioner argues that the procedural default rule applies only to
challenges to the validity of one’s conviction or sentence not raised at sentencing and on direct appeal, and
is therefore inapplicable to his claims as “he is challenging [only] the way [his] sentence is being executed.”
(Id.) However, as thoroughly discussed above, this court concludes that Petitioner’s claims in his § 2241
Petition challenge the validity of his restitution order, and not its execution. Thus, it appears that Petitioner
has procedurally defaulted his claims challenging the restitution order, as discussed by the Magistrate
Judge, and this court notes that nowhere has he even attempted to allege any cause and prejudice to
overcome this default. Accordingly, this objection is likewise overruled.

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overrules all of Petitioner’s Objections and adopts and incorporates by reference the Magistrate
Judge’s R&R. Accordingly, it is therefore ORDERED that the instant § 2241 Petition is
DISMISSED with prejudice and without issuance and service of process upon Respondent.
IT IS SO ORDERED.
s/R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
March 30, 2012

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