United States District Court, D. Arizona
John H. Estep, Petitioner,
J.T. Shartle, Respondent.
REPORT AND RECOMMENDATION
Leslie A. Bowman United States Magistrate Judge
On September 18, 2015, the petitioner, an inmate confined in the Federal Correctional Institution in Tucson, AZ, filed a Petition for Writ of Habeas Corpus pursuant to Title 28, United States Code, Section 2241. (Doc. 1) The petitioner claims the trial court’s order of restitution fails to comply with federal statutes.
Pursuant to the Rules of Practice of this Court, this matter was referred to the Magistrate Judge for Report and Recommendation.
The petition should be dismissed. This claim is not cognizable.
Estep pleaded guilty to two counts of producing child pornography, one count of conspiracy to receive/distribute child pornography, six counts of receiving/distributing child pornography, and one count of possession of child pornography. (Doc. 10-2, pp. 6-7) On July 14, 2005, the trial court sentenced him to an aggregate sentence of 780 months. (Doc. 10-2, p. 8)
The trial court also imposed restitution of $221, 480.10. (Doc. 10-2, p. 11) The trial court ordered that the total sum is due “immediately” and that “[a]ny outstanding balance owed by the defendant . . . shall be paid in minimum quarterly installments of $25.00 unless the defendant is employed by the Federal Prison authorities, in which case the defendant’s quarterly installments shall be no less than $60.00.” (Doc. 10-2, p. 12) On October 3, 2005, the trial court granted the government’s unopposed Motion for Offset of Defendant’s Retirement Benefit and directed the U.S. Office of Personnel Management (OPM) to remit 100% of Estep’s monthly annuity payment to the U.S. Clerk’s Office in Lexington, Kentucky. (Doc. 10-2, p. 40) It is this order to OPM that Estep challenges.
On direct appeal, Estep argued he should have been permitted to withdraw his guilty plea because “(1) he mistakenly thought there was a written plea agreement, (2) he was not competent to plead guilty because he was sleep deprived, and (3) he pleaded guilty under duress because his attorney told him that if he did not plead guilty, he would be physically harmed in state prison.” (Doc. 10-2, pp. 42-43) The Sixth Circuit denied his appeal on September 21, 2006. (Doc. 10-2, pp. 42-44)
Estep then filed a motion to correct, set aside, or vacate his sentence, which the trial court construed as a petition brought pursuant to 28 U.S.C. § 2255. The court denied the motion as untimely on September 13, 2011. (Doc. 10-2, pp. 55-56)
Estep filed a second motion pursuant to 28 U.S.C. § 2255 on June 27, 2013. (Doc. 10-2, pp. 57-73) In that motion, Estep argued, among other things, that “[t]he restitution order was and is outside the law.” (Doc. 10-2, p. 71) “It does not set a payment amount, there is no schedule of payments, nor is [sic] there start and end payment dates.” Id. The trial court transferred the motion to the Sixth Circuit for authorization because it was a “second or successive” motion. (Doc. 10-2, p. 75) On April 29, 2014, the Sixth Circuit denied Estep authorization to file a “second or successive § 2255 motion” because his petition did not rely on “newly discovered evidence” or “a new law of constitutional law” pursuant to 28 U.S.C. § 2255(h). (Doc. 10-2, pp. 75-76)
On September 9, 2015, Estep filed the pending petition for writ of habeas corpus pursuant to 28 U.S.C. 2241. (Doc. 1) He claims the trial court’s restitution order “does not include a payment amount, a payment schedule or starting and ending payment dates” (Doc. I, p. 4) Instead, it simply says “the restitution ordered herein shall be paid from Defendant’s monthly retirement benefits.” Id. Estep argues the trial court “has delegated its own scheduling duties to the office of personnel management.” Id. He asks that this court “send the restitution order back to be amended . . . and squash [sic] original writ of garnishment and amend to include specific payment amount.” (Doc. 1, p. 6)
The respondent filed an answer on December 10, 2015. (Doc. 10) He argues the petition should be dismissed for failure to exhaust or because the issue is waived. Id. He argues in the alternative, that the petition should be denied on the merits. Id. Estep filed a reply on January II, 2016. (Doc. 13) The court concludes Estep’s claim is not cognizable.
A federal prisoner may file a petition pursuant to 28 U.S.C. §2241 when challenging the “manner, location, or conditions of a sentence’s execution.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) When filing such a petition, “the prisoner must name the warden of the penitentiary where he is confined as a respondent.” Johnson v. Reilly, 349 F.3d 1149, 1153 (9thCir. 2003). This requirement follows ...