Jeremy Fontanez v. Terry O'Brien , 807 F.3d 84 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7607
JEREMY FONTANEZ,
Petitioner - Appellant,
v.
TERRY O’BRIEN, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:14-cv-00077-FPS-JSK)
Argued: October 27, 2015 Decided: December 2, 2015
Before MOTZ, GREGORY, and HARRIS, Circuit Judges.
Reversed and remanded by published opinion. Judge Harris wrote
the opinion, in which Judge Motz and Judge Gregory joined.
ARGUED: Adam H. Farra, SIDLEY AUSTIN LLP, Washington, D.C., for
Appellant. Tara Noel Tighe, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellee. ON BRIEF:
Jonathan F. Cohn, SIDLEY AUSTIN LLP, Washington, D.C., for
Appellant. William J. Ihlenfeld, II, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia,
for Appellee.
PAMELA HARRIS, Circuit Judge:
Jeremy Fontanez, a federal inmate, filed a habeas corpus
petition under 28 U.S.C. § 2241 seeking release from the
obligation to make restitution payments through the Bureau of
Prisons’ Inmate Financial Responsibility Program. The district
court found that Fontanez’s claim was not cognizable under 28
U.S.C. § 2241 and dismissed the case. We disagree.
Accordingly, we reverse the district court’s order and remand
the case for proceedings on the merits.
I.
A.
In 2004, Jeremy Fontanez pleaded guilty to his involvement
in a series of armed robberies and was sentenced to 420 months
in prison in the Eastern District of Pennsylvania. The
sentencing court imposed restitution in the amount of
$27,972.61. It provided the following special instructions in
the “schedule of payments” section of the sentencing order:
Defendant shall make restitution payments from any
wages he may earn in prison in accordance with the
Inmate Financial Responsibility Program. Restitution
shall be due immediately.
J.A. 167.
The Inmate Financial Responsibility Program (“IFRP”) is a
Bureau of Prisons (“BOP”) program that enables prisoners to make
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scheduled payments from their inmate accounts toward court-
ordered financial obligations. See 28 C.F.R. § 545.10–11.
Prison staff assist inmates in developing financial plans, which
are subject to periodic review. Id. As the parties in this
case agree, the IFRP is voluntary; the BOP cannot compel an
inmate to make payments. See United States v. Boyd, 608 F.3d
331, 334 (7th Cir. 2010). But inmates with financial
obligations who refuse to participate in the IFRP may no longer
be eligible for many privileges, including more desirable
housing and work outside the prison. 28 C.F.R. § 545.11(d).
In April 2013, Fontanez was moved to the United States
Penitentiary – Hazelton (“USP Hazelton”) in Bruceton Mills, West
Virginia. He signed an Inmate Financial Plan, agreeing to pay
$25 each quarter toward his court-ordered financial obligations
through the IFRP. About one year later, however, Fontanez filed
a written request to be released from the IFRP.
In the request, Fontanez argued that the BOP’s requirement
that he make IFRP payments violated the Mandatory Victims
Restitution Act of 1996 (“MVRA”). The MVRA obligates a district
court to “specify in [a] 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). Fontanez contended that the
sentencing court had failed to set a schedule for his
restitution payments and had instead unlawfully delegated its
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power to set that schedule to the BOP. Therefore, the BOP
lacked any authority to require him to make restitution payments
through the IFRP or to punish him for refusing to pay.
Fontanez’s initial request was denied by a unit counselor
on April 10, 2014. The request was denied a second time by the
Warden of USP Hazelton, appellee Terry O’Brien (“the Warden”),
on May 5, 2014. The Warden noted that the sentencing court had
ordered Fontanez to “make restitution payments from any wages he
may earn in prison in accordance with the [IFRP],” and he stated
that “[t]he BOP does not have the authority to overrule the
decision set forth by the Court.” J.A. 26.
B.
In June 2014, proceeding pro se, Fontanez filed an
application for a writ of habeas corpus under 28 U.S.C. § 2241in the Northern District of West Virginia.
As a general matter, a federal prisoner must challenge the
execution of a sentence under 28 U.S.C. § 2241, and the sentence
itself under 28 U.S.C. § 2255. In re Vial, 115 F.3d 1192, 1194
& n.5 (4th Cir. 1997). Relevant to this appeal, the § 2255
“savings clause” provides that prisoners may petition under §
2241 when § 2255 is “inadequate or ineffective” to address their
claims. 28 U.S.C. § 2255(e).
Fontanez contended that § 2241 was the proper procedural
vehicle for his claim because he was challenging the
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“execution,” and not the validity, of his sentence. J.A. 5–6.
He argued that the BOP had no authority to require him to make
restitution payments through the IFRP because the sentencing
court had failed to set forth a proper restitution order and
schedule, in violation of the MVRA. He also alluded to a
violation of his due process rights. He asked the district
court to enjoin the BOP from requiring him to make further
payments through the IFRP.
The Warden filed a motion to dismiss or, in the
alternative, for summary judgment. The matter was referred to a
magistrate judge, who issued a report recommending that the
government’s motion be granted and Fontanez’s petition be
denied. The district court adopted the magistrate judge’s
report in full and dismissed the case.
The court held that Fontanez was challenging his sentence
“as imposed,” not as executed, and so could not bring his
petition directly under 28 U.S.C. § 2241. J.A. 83. The court
also found that Fontanez’s claim was not cognizable under 28
U.S.C. § 2255, either, because that provision could not be used
to challenge solely the restitution portion of a sentence.
Finally, the court determined that even if § 2255 were
“inadequate or ineffective” in this case, Fontanez could not
resort to § 2241 under the “savings clause” because his claim
was statutory, not constitutional, and because he did not allege
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a “complete miscarriage of justice” or a proceeding
“inconsistent with the rudimentary demands of fair procedure.”
J.A. 84 (quoting United States v. Timmreck, 441 U.S. 780, 784
(1979)). Accordingly, the court dismissed Fontanez’s habeas
corpus petition.
This timely appeal followed.
II.
A.
We review the district court’s denial of habeas corpus
relief de novo. Waddell v. Dep’t of Corr., 680 F.3d 384, 392
(4th Cir. 2012).
The district court denied Fontanez’s petition because it
understood his claim to be a challenge to the validity of his
sentencing order, and not to the execution of his sentence. For
that reason, the court found that his claim was not directly
cognizable under § 2241. But as Fontanez’s arguments have been
clarified on appeal, it is now apparent that he is indeed
challenging the execution of his sentence by the BOP.
Fontanez seeks relief from “the decision of the Bureau of
Prisons to force him into the IFRP and its accompanying refusal
to release him from it.” Reply Br. at 8. He contends that the
BOP exceeded its authority and usurped a “‘core judicial
function’” by setting “the basic terms of his restitution,” in
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contravention of both the MVRA and the constitutional separation
of powers. Opening Br. at 9–10 (quoting United States v.
Miller, 77 F.3d 71, 78 (4th Cir. 1996)). And while a premise of
Fontanez’s argument is that the sentencing order is invalid, he
does not seek to have that order set aside. Instead, the claim
on which he seeks relief is that the BOP’s execution of the
restitution portion of his sentence is unlawful.
It is well established that “attacks on the execution of a
sentence are properly raised in a § 2241 petition.” In re Vial,
115 F.3d at 1194 n.5; see also United States v. Snow, 748 F.2d
928, 933–34 (4th Cir. 1984); McGee v. Martinez, 627 F.3d 933,
937 (3d Cir. 2010); United States v. Diggs, 578 F.3d 318, 319–20
(5th Cir. 2009); Matheny v. Morrison, 307 F.3d 709, 712 (8th
Cir. 2002).
Moreover, other circuit courts have expressly held that an
inmate’s challenge to the BOP’s administration of the IFRP
relates to the “execution” of a sentence and is properly brought
under § 2241. McGee, 627 F.3d at 937; Diggs, 578 F.3d at 319–
20; Matheny, 307 F.3d at 712. We have reached the same
conclusion in unpublished opinions.
We now hold that an inmate’s challenge to the BOP’s
administration of the IFRP is a challenge to the “execution” of
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a sentence that is cognizable under 28 U.S.C. § 2241.
Accordingly, we reverse the district court’s order. *
Because the district court did not reach the merits of this
case, we remand it for further proceedings. But we observe that
the distance between the parties appears to have narrowed as the
issues have been refined on appeal. Fontanez challenges the
Warden’s refusal to let him stop making payments through the
IFRP. The Warden now takes the position that “the IFRP is a
purely voluntary program” and that Fontanez “is entitled to stop
participating at any time.” Response Br. at 13. We defer to
the district court to determine in the first instance the extent
to which it is necessary to reach the merits of this case.
III.
We find that Fontanez’s claim is cognizable under 28 U.S.C.
§ 2241 because he challenges the execution of his sentence.
Accordingly, we reverse the district court’s order and remand
for proceedings consistent with this opinion.
REVERSED AND REMANDED
*
For that reason, we do not address the remainder of the
district court’s analysis under § 2255’s savings clause.
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