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Consago v. Shartle

United States District Court, D. Arizona

May 27, 2016

Christopher Consago, Petitioner,
v.
J.T. Shartle, Warden, Respondent.

          REPORT AND RECOMMENDATION

          ERIC J. MARKOVICH, Magistrate Judge.

         Currently pending before the Court is Petitioner Christopher Consago's pro se Petition Under 28 U.S.C. § 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).

         As an 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. § 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.

         Pursuant 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Petitioner is currently serving a 151 month sentence for bank robbery with a projected release date of March 8, 2022.[1] (Doc. 11 Ex. 1 at ¶ 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." Id.

         Petitioner filed his pro se Petition under 28 U.S.C. § 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.

         In 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.[2] 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.

         In 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.

         In 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.

         II. ANALYSIS

         i. Jurisdiction

         "Federal 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 § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court." Id. at 864. Therefore, a proper characterization of the petition is necessary to determine jurisdiction. Id.

         Additionally, 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).

         Respondent 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 § 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. § 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 § 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 § 2241); Moore v. Rios, 555 F.Appx. 720 (9th Cir. 2014) ("Because Moore's ...


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