United States v. Childs ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7592
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DOUGLAS WALTER CHILDS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-95-20)
Submitted: February 23, 2005 Decided: March 16, 2005
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Vacated and remanded with instructions by unpublished per curiam
opinion.
Douglas Walter Childs, Appellant Pro Se. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, Jerry Wayne
Miller, Thomas Richard Ascik, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Douglas Walter Childs appeals the district court’s order
construing his motion for a temporary restraining order,
injunction, and show cause order as a successive 28 U.S.C. § 2255(2000) motion and dismissing the motion as successive. We vacate
the district court’s order and remand for further proceedings as
set forth below.
Childs pleaded guilty to kidnapping. In addition to
imposing a 290-month sentence, the district court ordered Childs to
pay restitution of $44,347.20. Although the criminal judgment did
not specifically delegate 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 payments.
In his motion, Childs asserted that the district court
had improperly delegated its authority to set the amount and timing
of his restitution payments to the BOP in violation of United
States v. Miller, 77 F.3d 71, 78 (4th Cir. 1996), and United
States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995). On appeal, he
explains that he wants collection to be deferred until his release
from prison.
We find that Childs’ motion only challenges the
implementation of the restitution portion of his sentence. Because
he does not seek to be released from custody, we construe his
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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 § 2255
motion may not be used for 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 petitioner is incarcerated, see In re Jones, 226 F.3d 328,
332 (4th Cir. 2000), and Childs is presently incarcerated in
Atlanta, Georgia. Accordingly, we vacate the district court’s
order and remand for the district court to determine whether
transferring Childs’ § 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 Childs 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
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