United States v. Corcho ( 2003 )


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  •                           UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                              No. 02-7747
    ALICEDES MOREJON CORCHO,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Southern District of West Virginia, at Charleston.
    Charles H. Haden II, District Judge.
    (CR-96-199)
    Submitted: March 19, 2003
    Decided: April 1, 2003
    Before LUTTIG, NIEMEYER, and WILLIAMS, Circuit Judges.
    Vacated and remanded with instructions by unpublished per curiam
    opinion.
    COUNSEL
    Alicedes Morejon Corcho, Appellant Pro Se. Michael Lee Keller,
    OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
    Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    2                      UNITED STATES v. CORCHO
    OPINION
    PER CURIAM:
    Alicedes Morejon Corcho appeals the district court’s order granting
    his motion for reconsideration of its denial of his motion for adminis-
    trative relief, construing his motion for administrative relief as a 
    28 U.S.C. § 2255
     (2000) motion, and dismissing the § 2255 motion as
    successive. We vacate the district court’s order and remand for further
    proceedings as set forth below.
    Corcho was convicted of conspiracy to distribute and possess with
    intent to distribute cocaine, and aiding and abetting possession with
    intent to distribute cocaine. In addition to imposing a 120 month sen-
    tence, the district court imposed a special assessment of $200 and a
    $5000 fine. A schedule of payments contained in the criminal judg-
    ment provided that $200 was payable immediately, with the balance
    to be paid in installments to commence thirty days after the date of
    judgment. Although the criminal judgment did not specifically dele-
    gate authority to the Bureau of Prisons ("BOP") to set the amount and
    timing of payments, the district court did not set a payment schedule
    and it appears that the BOP has been determining the installment pay-
    ments.
    In his motion for administrative relief in the district court, Corcho
    asserted that the district court had improperly delegated its authority
    to set the amount and timing of his fine payments to the BOP in viola-
    tion of United States v. Miller, 
    77 F.3d 71
    , 78 (4th Cir. 1996). On
    appeal, he contends that the district court erred in construing this
    motion as a § 2255 motion, and explains that he was merely seeking
    an order of clarification to prevent the BOP from establishing a pay-
    ment schedule for the fine.
    We find that Corcho’s motion only challenges the implementation
    of the fine portion of his sentence. Because he does not seek to be
    released from custody and it is well settled that § 2255 relief may not
    be granted when the litigant challenges only a fine or restitution order,
    we construe his motion as a petition for habeas corpus relief arising
    under 
    28 U.S.C. § 2241
     (2000). See Blaik v. United States, 
    161 F.3d 1341
    , 1342-43 (11th Cir. 1998) (collecting cases holding that a
    UNITED STATES v. CORCHO                         3
    § 2255 motion may not be used for the sole purpose of challenging
    fines or restitution orders); cf. United States v. Miller, 
    871 F.2d 488
    ,
    489-90 (4th Cir. 1989) (holding that a claim for jail time credits
    should be brought under § 2241).
    A § 2241 petition must be brought in the district in which the peti-
    tioner is incarcerated, see In re Jones, 
    226 F.3d 328
    , 332 (4th Cir.
    2000), and Corcho is presently incarcerated in Miami, Florida.
    Accordingly, we grant leave to proceed in forma pauperis, vacate the
    district court’s order, and remand for the district court to determine
    whether transferring Corcho’s § 2241 petition to the proper federal
    district court would serve the interests of justice, see 
    28 U.S.C. § 1631
    (2000), or whether the action is more appropriately dismissed without
    prejudice to allow Corcho to file his action in the appropriate district
    court. We dispense with oral argument because the facts and legal
    contentions are adequately presented in the materials before the court
    and argument would not aid the decisional process.
    VACATED AND REMANDED WITH INSTRUCTIONS
    

Document Info

Docket Number: 02-7747

Judges: Luttig, Niemeyer, Per Curiam, Williams

Filed Date: 4/1/2003

Precedential Status: Non-Precedential

Modified Date: 10/19/2024