Richard Balter v. Ricardo Martinez , 477 F. App'x 873 ( 2012 )

CLD-151 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1287
___________
RICHARD BALTER,
Appellant
v.
RICARDO MARTINEZ
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1:10-cv-03659)
District Judge: Honorable Jerome B. Simandle
____________________________________
Submitted for Possible
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 29, 2012
Before: RENDELL, HARDIMAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: April 30, 2012)
_________
OPINION
_________
PER CURIAM
The appellant, Richard Balter, is a federal prisoner currently housed at FCI
Beaumont in Beaumont, Texas. He is serving a life sentence in connection with the
murder for hire of Richard Cohen. The sentencing court also imposed a fine of $175,000
and ordered restitution in the amount of $112,511. In 1996, we affirmed his conviction
and sentence. See generally United States v. Balter, 91 F.3d 427 (3d Cir.), cert. denied,
519 U.S. 1011 (1996).1
In late 2009, while housed at USP Allenwood, Balter filed a 28 U.S.C. § 2241
petition in the Middle District of Pennsylvania.2 He claimed that the Bureau of Prisons
(BOP) had imposed ―sanctions‖ against him for his failure to acquiesce to the Inmate
Financial Responsibility Program (IFRP). Balter argued that this was a violation of the
Mandatory Victims Restitution Act (MVRA), which had established that the sentencing
court was to be the source of ―set[ting] schedule[s] of restitution payments‖ and that
authority ―cannot be delegated . . . to BOP.‖ Balter sought ―removal of all BOP imposed
fee or [I]FRP collections against him‖ and cessation of sanctions. Nowhere in his
petition, or in his other supporting documents in the District Court, did Balter explain the
nature of the alleged ―sanctions‖ in question.
We need not recount the balance of proceedings below. At some point, however,
Balter’s rationale shifted; he was not challenging the BOP’s actions, he explained, but
rather the District Court’s error in ―appoint[ing] the [BOP] as [its] collection agency.‖
See Traverse 1, ECF No. 20. He claimed that this framing of his challenge relieved him
1
Balter has pursued additional challenges to aspects of his conviction and sentence. See
Balter v. United States, 410 F. App’x 428 (3d Cir. 2010) (per curiam, unpublished);
United States v. Balter, 164 F. App’x 211 (3d Cir. 2005) (per curiam, unpublished)
(affirming the denial of a motion for remission of restitution); see also C.A. No. 98-5440
(order entered Sept. 29, 2009) (denying certificate of appealability from motion to
vacate).
2
M.D. Pa. Civ. No. 3:09-cv-00504.
2
of the need to exhaust administrative remedies before filing his petition, as any attempt to
do so would be futile.
Following a transfer to the District of New Jersey, the petition was denied by the
District Court. See generally Balter v. Martinez, No. 10–3659, 2012 WL 82216 (D.N.J.
Jan. 10, 2012). This appeal followed. We have appellate jurisdiction under 28 U.S.C.
§ 1291, exercising ―plenary review over the District Court’s legal conclusions and
apply[ing] a clearly erroneous standard to its findings of fact.‖ O’Donald v. Johns, 402
F.3d 172, 173 n.1 (3d Cir. 2005) (per curiam). We may affirm on any ground supported
by the record. Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1145 n.1 (3d Cir.
1983).
Under either theory of the case advanced by Balter, this habeas corpus petition
fails and, as a result, was properly denied by the District Court. Assuming that he is
attacking the IFRP, we note that he has never identified the ―sanctions‖ to which he was
allegedly subjected. However, his arguments on appeal suggest that he is complaining of
the ―withholding [of] benefits‖ that ―satisfactory participation‖ in the IFRP would
otherwise confer. Supp. to Appellant’s Br. 2. These arguments are forestalled by case
law that has repeatedly found the IFRP to be voluntary and lawful. See, e.g., United
States v. Boyd, 608 F.3d 331, 334 (7th Cir. 2010); James v. Quinlan, 866 F.2d 627, 630
(3d Cir. 1989). Balter ―ha[s] no entitlement, constitutional or otherwise, to any of the
benefits agreeing to participate in the IFRP would provide, such as a work detail outside
the prison perimeter, a higher commissary spending limit, a release gratuity, or pay
3
beyond the maintenance pay level.‖ United States v. Lemoine, 546 F.3d 1042, 1049 (9th
Cir. 2008).
Moving to Balter’s alternative rationale—that he is attacking the District Court’s
failure to set a restitution schedule—his petition fails primarily because the proper time
for challenging a restitution order is on direct appeal, and a § 2241 petition ―cannot be
used to challenge just the restitution part of a sentence when the custody supporting . . .
jurisdiction is actual imprisonment.‖ Arnaiz v. Warden, 594 F.3d 1326, 1330 (11th Cir.
2010); see also United States v. Sloan, 505 F.3d 685, 697 (7th Cir. 2007) (―Restitution
orders that sweep too much conduct into their calculations are issues that must be raised
on direct appeal . . . .‖). The time for attacking the actual restitution order has long since
passed.3
In sum, because this appeal fails to present a substantial question, we will affirm
the judgment of the District Court. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011)
(per curiam); see also 3d Cir. L.A.R. 27.4; IOP 10.6.
3
Even if Balter were able to attack the restitution order, he would not be able to do so
under the MVRA or our intervening case law on the subject. The MVRA was enacted on
April 24, 1996, and it applies only to ―sentencing proceedings in cases in which the
defendant is convicted on or after the date of enactment.‖ United States v. Comer, 93
F.3d 1271, 1274 n.1 (6th Cir. 1996) (citations omitted); see also United States v.
Edwards, 162 F.3d 87, 89 (3d Cir. 1998). But see United States v. Porter, 41 F.3d 68, 71
(2d Cir. 1994) (discussing improper delegation under the predecessor statute to the
MVRA). Similarly, Balter cannot, in general, take advantage of new law arising after his
conviction became final in 1996. See Reinhold v. Rozum, 604 F.3d 149, 153–54 (3d
Cir. 2010).
4