Black v. Baltazar

          REPORT AND RECOMMENDATION

          Leslie A. Bowman, United States Magistrate Judge

         On October 12, 2018, 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 Bureau of Prisons (BOP) improperly enrolled him in its Inmate Financial Responsibility Program (IFRP). Id. He argues that he should be exempt from paying restitution until he is released. Id.

         Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Bowman for Report and Recommendation.

         The petition should be denied on the merits.

         Background

         On July 9, 2004, Black was sentenced by the D.C. Superior Court to serve concurrent two-year terms of imprisonment and three-year terms of supervised release for violating his probation in cases F-6128-00 and F-660-01. (Doc. 12-1, pp. 17-21) Costs of $100 dollars were assessed under the District of Columbia's Victims of Violent Crime Compensation Act of 1981 (VVCCA). Id.

         On December 22, 2004, Black was sentenced by the D. C. Superior court to a 35-year term of imprisonment and a five-year term of supervised release for First Degree Murder and weapons violations. (Doc. 12-1, p. 23) Costs of $400 were assessed under the VVCCA. Id.

         Black is currently serving his sentences at the Federal Correctional Institution in Tucson, AZ, which is operated by the Bureau of Prisons (BOP). Under its Inmate Financial Responsibility Program (IFRP), the BOP “encourages each sentenced inmate to meet his or her legitimate financial obligations.” 28 C.F.R. § 545.10. To this end, the BOP monitors each prisoner's resources and financial obligations and “assist[s] the inmate in developing a financial plan for meeting those obligations. . . .]” 28 C.F.R. § 545.10. Participation in the IFRP is voluntary, but if an inmate refuses to participate, the BOP will impose sanctions including restrictions on commissary use and eligibility for community-based programs. 28 C.F.R. § 545.11(d). These sanctions are permitted because an inmate has no right to those benefits that would be forfeited if the inmate refuses to participate. United States v. Lemoine, 546 F.3d 1042, 1047 (9^th Cir. 2008). On August 5, 2018, Black agreed to participate in the IFRP. (Doc. 12-1, p. 41) He agreed to pay $25 quarterly toward his VVCCA assessments. Id.

         On October 12, 2018, Black filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. 2241. (Doc. 1) He argues that the BOP does not have the authority to establish a restitution payment schedule, and therefore he should be exempt from participation in the IFRP. Id. He argues that this court's prior decision in Freeman v. Apker, CV 11-130 TUC RCC (GEE), controls the pending action.

         On April 1, 2019, the respondent filed an answer arguing that Black failed to exhaust his administrative remedies and, in the alternative, that Black's petition fails on the merits. (Doc. 12) Black did not file a timely reply. The court finds the petition should be denied on the merits. The court does not reach the respondent's alternate arguments.

         Discussion

         Black argues he should be “exempt” from participation in the IFRP citing Freeman v. Apker, CV11-130 TUC RCC, which he maintains is still “good law.” (Doc. 1, p. 4) In fact, the petition in the Freeman case was eventually dismissed as moot. (4:11-CV-00130-RCC, Doc. 40-1) Nevertheless, it is instructive to examine that case in some detail.

         In Freeman, the petitioner was subject to a restitution order imposed pursuant to the Mandatory Victim Restitution Act (MVRA). The MVRA requires the trial court to impose restitution when the defendant is convicted of certain specified offenses or when “an identifiable victim or victims has suffered a physical injury or pecuniary loss.” 18 U.S.C. § 3663A. The enabling statute explicitly states that the trial court must “specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid. . . .” 18 U.S.C. § 3664(f)(2). The trial court may not delegate its statutory duty to the BOP to set a restitution schedule. U.S. v. Gunning, 401 F.3d 1145, 1149 (9^th Cir. 2005).

         Freeman filed a habeas petition pursuant to 28 U.S.C. 2241 when the BOP insisted that he participate in its IFRP program or be subject to sanctions. This court held that the BOP could not penalize the petitioner for refusing to participate in the IFRP because the MVRA's enabling statute does not permit the BOP to set a restitution schedule. Only the trial court may do that. The court instructed the BOP to “place Petitioner on ‘IFRP Exempt' status” . . . “[u]nless and until the district court's restitution order is changed to include a payment plan. . . .” (4:11-CV-00130-RCC, Doc. 22, p. 4) Some time later, the restitution order was ...