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Starr v. Apker

United States District Court, D. Arizona

March 3, 2014

David Evan Starr, Petitioner,
Craig Apker, Respondent.


RANER C. COLLINS, Chief District Judge.

Before the Court is the August 12, 2013, Report and Recommendation (R&R) from Magistrate Judge D. Thomas Ferraro (Doc. 45) recommending that this Court grant in part and deny in part Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1). The R&R further recommends this Court deny Respondent's Motion to Dismiss (Doc. 29) and deny as moot Petitioner's Motion for Summary Judgment (Doc. 42).

Respondent filed his objections to the R&R (Doc. 49) on September 25, 2013, and Petitioner filed his response to Respondent's objections on October 7, 2013 (Doc. 52). Respondent also filed a reply (Doc. 54) to Petitioner's response; however, no replies are permitted and the Court will therefore strike Document 54. (See Doc. 45 at 6).

For the following reasons, this Court will adopt the R&R.


The factual and procedural background in this case is thoroughly detailed in Magistrate Judge Ferraro's R&R (Doc. 45). This Court fully incorporates by reference the Summary section of the R&R into this Order.


The duties of the district court in connection with a R&R are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1). The Court will not disturb a Magistrate Judge's Order unless his factual findings are clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. § 636(b)(1)(A). "[T]he magistrate judge's decision... is entitled to great deference by the district court." United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). Where the parties object to a R&R, "[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made." 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985).


a. § 2241 Petition

Magistrate Judge Ferraro issued a R&R recommending that this Court enter an order granting in part and denying in part the § 2241 petition. Judge Ferraro recommended the petition be granted to the extent that the Petitioner should be placed on "IFRP Exempt" status until a proper restitution schedule has been set. Judge Ferraro further recommended that the petition be denied to the extent that Petitioner requests changes to the terms of his order of restitution; specifically, that Petitioner not be obligated to pay restitution until his release from custody, and that the restitution award be recalculated upon his release.

Petitioner's claims 1 and 2 argue that the Bureau of Prisons ("BOP") cannot impose a restitution schedule on him because the sentencing court did not do so. Citing U.S. v. Gunning, 401 F.3d 1145, 1150 (9th Cir. 2005) (" Gunning II "), and Ward v. Chavez, 678 F.3d 1042, 1051-52 (9th Cir. 2012), Judge Ferraro found that claims 1 and 2 should be granted because the statutory duty to set a restitution payment schedule belongs to the sentencing court, and cannot be delegated to the BOP or any other authority. Judge Ferraro further noted that because in this case the sentencing court "failed to set a schedule for repayment in consideration of' Petitioner's financial circumstances as required by 18 U.S.C. § 3664(f)(2), " the BOP has no authority to create its own schedule or to collect payments under Petitioner's IFRP plan. (Doc. 45 at 5). Judge Ferraro therefore concluded Petitioner should be placed on "IFRP Exempt" status and that the BOP must stop collecting payments until the sentencing court amends its restitution order to include a payment schedule.

Petitioner's claim 3 argues that he should not be required to pay any restitution while he is incarcerated and has no income, and claim 4 argues the restitution obligation should be recalculated upon Petitioner's release from custody. Judge Ferraro rejected these claims, noting that petitions pursuant to 28 U.S.C. § 2241 are "only appropriate to challenge the manner, location, or conditions of a sentence's execution.'" (Doc. 45 at 5) (citation omitted). Judge Ferraro therefore concluded this Court lacks jurisdiction to consider the Petitioner's claims regarding modifications as to the amount and terms of the restitution order entered by the sentencing court.

In his objections to the R&R, Respondent states that the petition should be dismissed because Petitioner failed to directly appeal his restitution order and has therefore waived the arguments. Here, Petitioner is challenging the BOP's execution of the sentencing order and judgment, i.e., its scheduling of payments through the IFRP, not the sentencing order itself. It is well established that a § 2241 petition is the proper vehicle through which a federal prisoner challenges the manner or the execution of a sentence. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). This petition does just that. It challenges the ...

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