United States District Court, D. Arizona
REPORT AND RECOMMENDATION
J. MARKOVICH, Magistrate Judge.
pending before the Court is Petitioner Christopher
Consago's pro se Petition Under 28 U.S.C. Â§ 2241 for a
Writ of Habeas Corpus by a Person in Federal Custody
("Petition") (Doc. 1). Respondent filed a Return
and Answer ("Response") (Doc. 11), and Petitioner
filed a Rebuttal/Traverse ("Reply") (Doc. 21).
initial matter, the Court notes that the proper respondent in
an action for habeas corpus is the Petitioner's
custodian, who at the time this action was filed was Becky
Clay. See 28 U.S.C. Â§ 2242; Rumsfeld v.
Padilla, 542 U.S. 426, 435-36 (2004). The Court takes
judicial notice that Becky Clay is no longer warden of United
States Penitentiary-Tucson ("USP-Tucson"). The
Court will substitute the new Warden of USP-Tucson, J. T.
Shartle, as Respondent pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure.
to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,
this matter was referred to Magistrate Judge Markovich for a
Report and Recommendation. The Magistrate Judge recommends
that the District Court dismiss the Petition without
prejudice for failure to exhaust administrative remedies.
FACTUAL AND PROCEDURAL BACKGROUND
is currently serving a 151 month sentence for bank robbery
with a projected release date of March 8, 2022. (Doc. 11 Ex.
1 at Â¶ 3; Attach. 4). Pursuant to the judgment, Petitioner
was ordered to pay $8, 588.00 in restitution and a $100.00
assessment. (Attach. 4). The Schedule of Payments indicates
that a lump sum payment of $8, 688.00 is due immediately, and
notes under special instructions that "[t]he
defendant's monthly payment schedule shall be an amount
that is at least ten percent of his net monthly income."
filed his pro se Petition under 28 U.S.C. Â§ 2241 for a Writ
of Habeas Corpus on May 8, 2013. (Doc. 1). Petitioner alleges
four grounds for relief. In Ground One, Petitioner asserts
that, pursuant to the decision in Ward v. Chavez,
678 F.3d 1042 (9th Cir. 2012), "a restitution payment
schedule set by the B.O.P. is not legally binding under the
Mandatory Victims Restitution Act [MVRA]." (Doc. 1 at
4.) Petitioner also argues that the language in the criminal
judgment stating that "the defendant's monthly
payment schedule shall be an amount that is at least 10
percent of his net monthly income, " refers to his
taxable income upon his release from prison, not his income
while in prison. Id.
Ground Two, Petitioner alleges that the "BOP is also
unlawfully collecting restitution in the amount of $4, 700.00
pursuant to [the judgment entered in a prior criminal
case]" against Petitioner. Id. at 5.
Petitioner asserts that he was presented with a new IFRP
contact on March 14, 2013 that also included collection of
payment for the 1997 judgment. Id. This brings the
total amount of restitution Petitioner owes under the IFRP
contract to $13, 388.00.
Ground Three, Petitioner argues that the sentencing court
failed to set a proper payment schedule in accordance with
the MVRA, that the BOP informally determined a schedule of
$50.00 per month, and that the district court cannot delegate
its statutory duty to the BOP to set a payment schedule.
Id. at 6.
Ground Four, Petitioner argues that without a proper order
from the sentencing court, "the BOP does not have the
authority to require a schedule of restitution payments
collected while an inmate is participating in the IFRP."
Id. at 7.
courts are always under an independent obligation to examine
their own jurisdiction, '... and a federal court may not
entertain an action over which it has no jurisdiction."
Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir.
2000) ( quoting FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 231 (1990), overruled in part
on other grounds by City of Littleton, Colo. v. Z.J.
Gifts D-4, L.L.C., 541 U.S. 774 (2004)).
"Generally, motions to contest the legality of a
sentence must be filed under Â§ 2255 in the sentencing court,
while petitions that challenge the manner, location, or
conditions of a sentence's execution must be brought
pursuant to Â§ 2241 in the custodial court." Id.
at 864. Therefore, a proper characterization of the petition
is necessary to determine jurisdiction. Id.
the judicial power of this and all federal courts is limited
to actual cases or controversies. U.S. Const. art. III;
see also Flast v. Cohen, 392 U.S. 83, 94-95
(1968); Munoz v. Rowland, 104 F.3d 1096, 1097 (9th
Cir. 1997). "A petition for writ of habeas corpus is
moot where a petitioner's claim for relief cannot be
redressed by a favorable decision of the court issuing a writ
of habeas corpus." Salazar-Torres v. Benov,
2014 WL 4960586 (E.D. Cal.) ( citing Burnett v.
Lampert, 432 F.3d 996, 1000-01 (9th Cir. 2005)); see
also Spencer v. Kemna, 523 U.S. 1, 18 (1998).
contends that the Petition should be dismissed because
Petitioner failed to directly appeal his restitution order
and has therefore waived the arguments. However, 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 Â§ 2241 petition is the proper vehicle
through which a federal prisoner challenges the manner or
execution of a sentence. SeeHernandez v.
Campbell,204 F.3d 861, 864 (9th Cir. 2000); Tucker
v. Carlson,925 F.2d 330, 332 (9th Cir. 1991) (a
prisoner's challenge to the "manner in which his
sentence was executed... [is] maintainable only in a petition
for habeas corpus filed pursuant to 28 U.S.C. Â§ 2241");
see alsoWard v. Chavez,678 F.3d 1042 (9th
Cir. 2012) (considering whether the district court
impermissibly delegated its authority to the BOP under the
MVRA under Â§ 2241); United States v. Lemoine, 546
F.3d 1042 (9th Cir. 2008) (considering validity of IFRP
requiring restitution payments at a greater rate than
specified by the sentencing court under Â§ 2241); Moore v.
Rios, 555 F.Appx. 720 (9th Cir. 2014) ("Because