Bellamy v. Butler

Filing 11

MEMORANDUM OPINION AND ORDER: the Court OVERRULES petitioner's objections to Magistrate Judge VanDervort's PF&R, ADOPTS the 8 PROPOSED FINDINGS AND RECOMMENDATION by Magistrate Judge VanDervort, DENIES 5 MOTION to Proceed without P repayment of Fees or Costs filed by Sheritha J. Bellamy, DISMISSES Petitioner's 1 PETITION for a Writ of Habeas Corpus, and DISMISSES this matter from the court's active docket. Signed by Judge David A. Faber on 3/3/2015. (cc: counsel of record and petitioner, pro se) (mjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD

SHERITHA J. BELLAMY,
Petitioner,
v.

Civil Action No: 1:13-32486

SANDRA BUTLER,
Warden
Respondent.

MEMORANDUM OPINION AND ORDER
Pending before the court are petitioner’s motion to proceed
without prepayment of fees or costs, (Doc. No. 5), and petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Nos. 1, 2).

(Doc.

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. 3).

The magistrate judge submitted his proposed findings and
recommendation (“PF&R”) on January 9, 2015.

(Doc. No. 8).

In

the PF&R, Magistrate Judge VanDervort recommended that the court
deny petitioner’s motion to proceed without prepayment of fees
and dismiss her petition for a writ of habeas corpus.
In accordance with the provisions of 28 U.S.C. § 636(b),
petitioner was allotted fourteen days, plus three mailing days,
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in which to file any objections to the PF&R.
filed her objections on January 26, 2015.

Petitioner timely

(Doc. No. 10).

Because petitioner’s objections are without merit, the court
adopts the PF&R, dismisses her petition, and denies her motion
to proceed without prepayment of fees.
I.

Background
On May 22, 2012, petitioner pled guilty in United States

District Court for the Eastern District of Virginia to one count
of theft of government property, in violation of 18 U.S.C. §
641.

United States v. Bellamy, No. 2:12-cr-00062 (E.D. Va.

Sept. 4, 2012) (Doc. Nos. 5–7).

On September 4, 2012, the

district court sentenced petitioner to a term of imprisonment of
sixty months followed by a two year term of supervised release.
Id.

The court also imposed restitution in the amount of

$7,831.03 and a $100 special assessment, both of which the court
ordered due in full immediately.

Id.

On July 15, 2013, petitioner filed a motion for an amended
restitution order, arguing that the district court erred in
imposing restitution and requesting that the court set
restitution at $25 per quarter.

Id. at Doc. No. 30.

On

September 3, 2013, petitioner filed a motion to vacate, set
aside, or correct a sentence pursuant to 28 U.S.C. § 2255,
alleging that the district court erred in calculating her
sentence.

Id. at Doc. No. 31.

After determining that 28 U.S.C.
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§ 2255 was the proper vehicle for petitioner’s motions, the
district court denied both motions.

Id.

On December 23, 2013,

petitioner filed a notice of appeal with the United States Court
of Appeals for the Fourth Circuit.

Id. at Doc. No. 36.

9, 2014, the Fourth Circuit dismissed her appeal.

On June

Id. at Doc.

No. 41.
In the instant petition for a writ of habeas corpus,
petitioner argues that the sentencing court improperly delegated
its authority to the Bureau of Prisons (“BOP”) when it failed to
set a payment schedule for petitioner’s restitution payments.
(Doc. Nos. 1, 2).

Petitioner is currently enrolled in the

Inmate Financial Responsibility Program (“IFRP”), whereby the
BOP has set petitioner’s restitution repayment schedule at
$81.00 per month. 1
II.

(Doc. No. 1).

Petitioner’s Objections to the PF&R

Petitioner makes three specific objections to the PF&R:
(1) that Magistrate Judge VanDervort should have construed her
petition pursuant to 28 U.S.C. § 2241, rather than § 2255; (2)
that the PF&R improperly concluded that the sentencing court’s
restitution order was lawful; and (3) that Magistrate Judge

1

In her petition, petitioner notes that the BOP originally
calculated her IFRP schedule for a $151.00 monthly payment, but,
at the time of filing, the BOP had recently lowered her
scheduled payments to $81.00 per month.
3

VanDervort failed to apply Ninth Circuit precedent to her case.
The court will address each of these arguments in turn.
Petitioner’s first objection relates to Magistrate Judge
VanDervort’s analysis of her petition, arguing that the PF&R
incorrectly construed her petition pursuant to 28 U.S.C. § 2255,
rather than 28 U.S.C. §2241.

In support of her argument,

petitioner cites United States v. Gripper, 224 F. App’x 219, 220
(4th Cir. 2007)(unpublished).

The petitioner in Gripper argued

that the BOP improperly established a payment schedule through
IFRP that directly conflicted with the sentencing court’s
judgment, which required immediate payment.

Id.

The Fourth

Circuit found that Gripper’s petition properly fell under §
2241, because he challenged the implementation of the court’s
restitution order.

Id.

After reviewing the PF&R and Gripper, the court finds that
the PF&R properly analyzed petitioner’s motion pursuant to §
2255.

Section 2255 is the proper vehicle for challenging the

validity of a conviction, whereas § 2241 focuses on the terms of
a prisoner’s custody.

See Taylor v. Batts, Civil Action No.

1:11-0172, 2012 WL 1067408, at *1 (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.”).

In her petition, petitioner

argued that the sentencing court’s judgment order was unlawful
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because the district judge did not set a schedule of restitution
payments.

Petitioner does not challenge the method by which the

BOP carries out her sentence, but the sentence itself.

As a

result, Magistrate Judge VanDervort properly analyzed
petitioner’s petition under the framework of § 2255.
Furthermore, petitioner presents a different argument than
the petitioner in Gripper and a different result should follow.
While the petitioner in Gripper challenged the implementation of
the court’s restitution order, petitioner here challenges the
order itself.

Section 2241 provides the appropriate framework

for analysis of the argument in Gripper, whereas § 2255 provides
the appropriate framework for petitioner’s argument.
Accordingly, the court finds no error in the PF&R’s analysis and
petitioner’s objection is overruled.
Next, petitioner objects to the PF&R’s conclusion that the
district court’s order of restitution was lawful.

Petitioner

counters that the sentencing court’s order of restitution is
unlawful because the court did not specify a schedule by which
petitioner should pay restitution.

In her objections,

petitioner relies on Ward v. Chavez, 678 F.3d 1042 (9th Cir.
2012) and United States v. Gunning, 401 F.3d 1145 (9th Cir.
2005).

In Ward, the United States Court of Appeals for the

Ninth Circuit concluded that a district court impermissibly
delegated its authority to the BOP when the court ordered
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immediate payment of restitution without specifying a payment
schedule.

Id. at 1052.

Reaching a similar conclusion in

Gunning, the Ninth Circuit held that a district court must
determine a restitution payment schedule.

401 F.3d at 1150.

Petitioner’s reliance on Ward and Gunning is misplaced, as
these cases are not controlling precedent in this circuit.
Under Fourth Circuit precedent, a “district court may not
delegate its authority to set the amount and timing of fine
payments 2 to the Bureau of Prisons . . . without retaining
ultimate authority over such decisions.”

Id. 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).

2

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)).
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In petitioner’s case, the district court did not delegate
its authority to the BOP.

The district court imposed

restitution, which was “due in full immediately.”

Bellamy, Case

No. 2:12-cr-00062 (E.D. Va. Sept. 4, 2012) (Doc. No. 30).

In

accordance with this order and petitioner’s involvement in IFRP,
the BOP created a payment schedule, in compliance with Miller.
Furthermore, the Ward opinion on which petitioner relies
acknowledges that the Fourth Circuit, as well as other circuits,
takes a different approach from that of the Ninth Circuit.

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 and Gunning
demand a different result lacks merit.
Finally, petitioner objects to the PF&R’s characterization
of Ward and Gunning as non-binding authority within this
circuit.

As a district court within the Fourth Circuit, which

includes Maryland, North Carolina, South Carolina, Virginia, and
West Virginia, the court is bound to follow the precedent
established by the United States Court of Appeals for the Fourth
Circuit and the United States Supreme Court.

Similarly,

district courts within the Ninth Circuit are bound to follow
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precedent established by their own Court of Appeals and the
United States Supreme Court.

See Condon v. Haley, 21 F. Supp.

3d 572, 587 (D.S.C. 2014) (“Coherent and consistent adjudication
requires respect for the principle of stare decisis and the
basic rule that the decision of a federal circuit court of
appeals left undisturbed by United States Supreme Court review
is controlling on the lower courts within the circuit.”); see
also Gilbert v. Nat’l Emp. Benefit Companies, Inc., 466 F. Supp.
2d 928, 933 (N.D. Ohio 2006) (“Under stare decisis, a district
court in this circuit is bound only by opinions of the U.S.
Supreme Court and the U.S. Court of Appeals for the Sixth
Circuit, while other authority is advisory.”) (internal
citations omitted).

In petitioner’s case, the Fourth Circuit

has ruled conclusively on the issue she raises in her petition.
As a result, this court must apply Fourth Circuit law to her
case, law which is unfavorable to petitioner’s argument.
Therefore, the court overrules petitioner’s objection that Ninth
Circuit law must be applied to her case.
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 motion to proceed without prepayment of fees or
costs, (Doc. No. 5), DISMISSES petitioner’s petition for a writ
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of habeas corpus, (Doc. No. 1), and DISMISSES this matter from
the court’s active docket.
Additionally, the court has considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).

A

certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

Id. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336–38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683–84 (4th Cir. 2001).

The court concludes that the governing

standard is not satisfied in this instance.

Accordingly the

court DENIES a certificate of appealability.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record and to petitioner, pro
se.
IT IS SO ORDERED on this 3rd day of March, 2015.
ENTER:
David A. Faber
Senior United States District Judge

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