Allen v. United States
Filing
20
MEMORANDUM OPINION AND ORDER: The Court OVERRULES petitioner's objections to Magistrate Judge VanDervort's PF&R. The Court ADOPTS the 14 Proposed Findings and Recommendation by Magistrate Judge VanDervort, DENIES petitioner's 1 PETITION for Writ of Habeas Corpus, and DISMISSES this matter from the court's active docket. Signed by Judge David A. Faber on 9/30/2014. (cc: Petitioner, pro se and counsel of record) (mjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
IRIS F. ALLEN,
Petitioner,
v.
Civil Action No: 1:13-25022
BARBARA RICKARD, 1
Warden
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the court is petitioner’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
1).
(Doc. No.
By Standing Order, this matter was referred to United
States Magistrate Judge R. Clarke VanDervort for submission of
proposed findings and recommendations for disposition pursuant
to 28 U.S.C. § 636(b)(1)(B).
(Doc. No. 2).
The magistrate
judge submitted his proposed findings and recommendation
(“PF&R”) on August 26, 2014.
(Doc. No. 14).
In the PF&R, Judge
VanDervort recommended that the court deny petitioner’s petition
for a writ of habeas corpus.
1
Barbara Rickard is the current Warden at FPC Alderson.
Accordingly, pursuant to Rule 25(d) of the Federal Rules of
Civil Procedure, the Clerk is directed to substitute Barbara
Rickard in place of United States of America as Respondent
herein. See also Rumsfeld v. Padilla, 542 U.S. 426, 434–35
(2004) (noting that the proper respondent to a habeas corpus
petition is the petitioner’s immediate custodian).
1
In accordance with the provisions of 28 U.S.C. § 636(b),
petitioner was allotted fourteen days, plus three mailing days,
in which to file any objections to the PF&R.
Petitioner timely
filed objections to the PF&R on September 5, 2014.
19).
(Doc. No.
Because petitioner’s objections are without merit, the
court dismisses her petition.
I.
Background
On February 8, 2010, petitioner was convicted in United
States District Court for the Eastern District of Virginia of
one count of health care fraud in violation of 18 U.S.C. § 1347
and one count of aggravated identity theft in violation of 18
U.S.C. § 1028A.
United States v. Allen, No. 3:09-cr-0355 (E.D.
Va. June 2, 2010) (Doc. No. 26).
Petitioner received a sentence
of 120 months imprisonment to be followed by a three-year term
of supervised release.
Id.
The court also imposed a $200
special assessment and imposed restitution in the amount of
$755,144.63.
Id.
Petitioner appealed and, on May 6, 2011, the
United States Court of Appeals for the Fourth Circuit dismissed
her appeal.
Allen, No. 3:09-cr-0355 (Doc. No. 68).
As part of petitioner’s plea agreement, she must
participate in the Inmate Financial Responsibility Program
(“IFRP”) to pay the imposed restitution.
(Doc. No. 1 at 3).
The IFRP provides an avenue for collection of payments toward a
monetary penalty imposed by court order.
2
See 28 C.F.R. §
545.10–5485.11.
In her petition for a writ of habeas corpus,
petitioner argues that the district court impermissibly allowed
the Bureau of Prisons (“BOP”) to set her IFRP payment schedule
and amount, as well as arguing that the BOP is improperly
refusing to reduce her IFRP payment.
(Doc. No. 1 at 2, 4).
At
the time of filing, the BOP had set petitioner’s IFRP payment at
$79 per month.
II.
(Doc. No. 1 at 3).
Petitioner’s Objections to the PF&R
Petitioner does not make specific objections to the PF&R in
her “Response to Recommendation,” but, instead, reiterates her
initial petition, sometimes verbatim.
These arguments “do not
direct the court to a specific error in the magistrate’s
proposed findings and recommendations” because they are “general
and conclusory.”
1982).
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
As a result, a court need not conduct a de novo review
of such objections.
Id.
However, after review of the PF&R, the record, and
petitioner’s response, the court determines that petitioner’s
arguments lack merit.
Initially, petitioner argues that the
district court impermissibly allowed the BOP to set her IFRP
payment amount and schedule.
Under Fourth Circuit precedent, a
“district court may not delegate its authority to set the amount
3
and timing of fine payments 2 to the Bureau of Prisons . . .
without retaining ultimate authority over such decisions.”
Miller, 77 F.3d at 78.
However, “a sentencing court’s order
that a fine is due to be paid in full immediately is not an
improper delegation of authority to the BOP, and the resultant
payment schedule established by the BOP does not conflict with
the sentencing court’s immediate payment order.”
Martin v.
United States, No. Civ. A. 1:03CV213, 2006 WL 231485 at *5
(N.D.W. Va. Jan. 31, 2006) (internal citations omitted); see
also Coleman v. Brooks, 133 F. App’x 51, 53 (4th Cir. 2005)
(finding the BOP properly applied the IFRP as an “avenue to
collect” the petitioner’s financial obligations which the
sentencing court imposed and ordered immediate payment).
In petitioner’s case, the district court did not delegate
its authority to the BOP.
The district court imposed
restitution, which was “due and payable immediately.”
Allen,
Case No. 3:09-cr-0355 (E.D. Va. June 2, 2010) (Doc. No. 55).
In
accordance with this order and petitioner’s involvement in IFRP,
the BOP created a payment schedule, in compliance with Miller.
In her response, petitioner relies heavily on Ward v.
Chavez, 678 F.3d 1042 (9th Cir. 2012).
2
In Ward, the United
The court noted that this reasoning applies equally to
“restitutionary installment payments.” United States v. Miller,
77 F.3d 71, 77–8 (4th Cir. 1996) (citing United States v.
Johnson, 48 F.3d 806, 808–09 (4th Cir. 1995)).
4
States Court of Appeals for the Ninth Circuit concluded that a
district court impermissibly delegated its authority by ordering
immediate payment of restitution without specifying a payment
schedule.
Id. at 1052.
The Ninth Circuit concluded that the
restitution order impermissibly delegated the court’s authority
to set a payment schedule to the BOP.
Id.
Petitioner’s reliance on Ward is misplaced, as Ward is not
controlling precedent in this circuit.
The Ward opinion
acknowledges that the Fourth Circuit, as well as other circuits,
takes a different approach.
Id. at 1047 n.2 (“[T]he Fourth,
Fifth, and Seventh Circuits have held that a judgment of
conviction need not contain a schedule of restitution payments
to be made during the period of incarceration.”) (quoting United
States v. Lemoine, 546 F.3d 1042, 1048 n.4 (9th Cir. 2008)
(internal quotations omitted)).
Accordingly, petitioner’s
contention that Ward demands a different result lacks merit.
Petitioner’s response, like her initial complaint, seeks
modification of her restitution order pursuant to 18 U.S.C. §
3664(k).
Subsection (k) of section 3664 permits the sentencing
court to modify a defendant’s restitution order to adjust a
payment schedule or to require immediate payment in full,
following notification of any material change in the defendant’s
financial circumstances.
5
This court cannot award relief under § 3664(k) for two
reasons.
First, the sentencing court is the only court with
power to adjust petitioner’s restitution order.
As this court
did not sentence petitioner, it retains no power to modify her
restitution order pursuant to § 3664(k).
The court notes that
the sentencing court has already denied petitioner’s Motion for
Amended Restitution Order.
Allen, Case No. 3:09-cr-0355 (E.D.
Va. Oct. 24, 2013) (Doc. No. 94).
Second, a petitioner cannot
use section 3664(k) to modify or suspend payments made through
the IFRP.
Snyder v. Butler, No. 1:13-CV-27993, 2014 WL 3565984
(S.D.W. Va. June 11, 2014).
As a result, this court has no
authority to grant the relief petitioner seeks, as this court is
not the sentencing court and cannot modify IFRP payments. 3
Petitioner also argues that the district court ordered
“impermissible blanket restitution award in violation of 18
U.S.C. § 3664(f)(1)(A).”
(Doc. No. 19 at 5).
However, 28
U.S.C. § 2255 is petitioner’s proper vehicle for such an
argument.
See Taylor v. Batts, Civil Action No. 1:11-0172, 2012
WL 1067408 (S.D.W. Va. Feb. 24, 2012) (“The focus of Section
2241 is upon a prisoner’s custodial status, not upon the
validity of her conviction or sentence, as is the focus of
Section 2255.”).
Here, petitioner’s argument attacks the
3
Further, it is unclear from the record whether petitioner
properly has exhausted her administrative remedies.
6
legality of her sentence.
As a result, the court cannot
consider this challenge as part of her petition for a writ of
habeas corpus under § 2241.
Finally, petitioner contends that “Magistrate Judge R.
Clarke VanDervort is being vindictive” because petitioner
petitioned the Fourth Circuit for a writ of mandamus against
Magistrate Judge VanDervort, ordering him to issue the PF&R.
(Doc. No. 11).
This accusation is baseless.
Magistrate Judge
VanDervort did not author a PF&R adverse to petitioner out of
any ill-will toward her; Magistrate Judge VanDervort issued the
PF&R in accordance with binding Fourth Circuit precedent, which
happens to be unfavorable to petitioner.
Further, the court
notes that the Fourth Circuit denied petitioner’s petition for a
writ of mandamus against Magistrate Judge VanDervort.
(Doc. No.
17).
III. Conclusion
Accordingly, the court OVERRULES petitioner’s objections to
Magistrate Judge VanDervort’s PF&R.
The court adopts the
factual and legal analysis contained within the PF&R, DENIES
petitioner’s petition for a writ of habeas corpus, (Doc. No. 1),
and DISMISSES this matter from the court’s active docket.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record and to petitioner, pro
se.
7
IT IS SO ORDERED on this 30th day of September, 2014.
ENTER:
David A. Faber
Senior United States District Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?