United States District Court, D. Arizona
REPORT AND RECOMMENDATION
A. Bowman, United States Magistrate Judge
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.
to the Rules of Practice of this Court, this matter was
referred to Magistrate Judge Bowman for Report and
petition should be denied on the merits.
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.
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.
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 (9th 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.
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
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
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.
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 (9th Cir. 2005).
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 ...