United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. ROGERS III, Magistrate Judge.
Frank Esquivel (Petitioner), appearing pro se, filed
his petition for a writ of habeas corpus pursuant to 28
U.S.C. Â§ 2241 on October 5, 2015. (Doc. #1).
Respondent filed a motion for summary judgment on December
21, 2015, along with a memorandum and exhibits. (Doc. #12).
The undersigned issued an order filed December 21, 2015,
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), advising Petitioner of the motion for summary
judgment procedure and the possible consequences if he failed
to respond adequately. (Doc. #13). Petitioner filed a
response on February 11, 2016.
STANDARD FOR SUMMARY JUDGMENT
federal court is charged with liberally construing the
complaints filed by pro se litigants, to allow them to fully
develop potentially meritorious cases. See Cruz v.
Beto, 405 U.S. 319 (1972); Haines v. Kerner,
404 U.S. 519 (1972). The court's function, however, is
not to decide issues of fact, but to decide whether there is
an issue of fact to be tried. The requirement of liberal
construction does not mean that the court can ignore a clear
failure in the pleadings to allege facts which set forth a
federal claim, Weller v. Dep't of Social Servs.,
901 F.2d 387 (4th Cir. 1990), nor can the court assume the
existence of a genuine issue of material fact where none
exists. If none can be shown, the motion should be granted.
moving party bears the burden of showing that summary
judgment is proper. Summary judgment is proper if there is no
genuine dispute of material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Summary judgment is proper if the non-moving party fails to
establish an essential element of any cause of action upon
which the non-moving party has the burden of proof.
Celotex, 477 U.S. 317. Once the moving party has
brought into question whether there is a genuine dispute for
trial on a material element of the non-moving party's
claims, the non-moving party bears the burden of coming
forward with specific facts which show a genuine dispute for
trial. Fed.R.Civ.P. 56(e); Matsushita Electrical
Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574
(1986). The non-moving party must come forward with enough
evidence, beyond a mere scintilla, upon which the fact finder
could reasonably find for it. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). The facts and
inferences to be drawn therefrom must be viewed in the light
most favorable to the non-moving party. Shealy v.
Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However,
the non-moving party may not rely on beliefs, conjecture,
speculation, or conclusory allegations to defeat a motion for
summary judgment. Barber v. Hosp. Corp. of Am., 977
F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet
"the substantive evidentiary standard of proof that
would apply at a trial on the merits." Mitchell v.
Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
that a genuine dispute of material fact exists, a party may
not rest upon the mere allegations or denials of his
pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves). Rather, the party must
present evidence supporting his or her position through
"depositions, answers to interrogatories, and admissions
on file, together with... affidavits, if any."
Id. at 322; see also Cray Communications, Inc.
v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir.
1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir.
1993); Local Rules 7.04, 7.05, D.S.C.
ARGUMENT OF PARTIES/ANALYSIS
and Procedural Background
was sentenced in the United States District Court for the
Eastern District of North Carolina on August 17, 2005, to a
term of imprisonment of two hundred sixty-four months.
(Respondent's Exhibit 12-3 at 1-6). The Judgment and
Commitment Order ("J&C") entered in
Petitioner's case reflects, under the "Criminal
Monetary Penalties" section, that he "shall pay the
total criminal monetary penalties in accordance with the
schedule set forth on Sheet 5, Part B." Id. at
5. Sheet 5, Part B provides the "Schedule of Payments,
" which reflects that the payment of the "other
criminal monetary penalties" including the one hundred
dollar special assessment shall be due
"immediately" Id. at 6. Further, the J&C
notes that "incorporated into this judgment is the Order
of Forfeiture filed on 7/29/05 and Judgment on Forfeiture
filed 8/2/05." The first referenced document is a
preliminary order of forfeiture which identifies $1, 500,
000.00 in U.S. currency (whereabouts unknown to the
Government), and a parcel of real property. (Doc. #12-12).
The second referenced document is a judgment entered pursuant
to the preliminary order of forfeiture. against Petitioner in
the amount of $1, 500, 000.00. (Doc. #12-6).
about September 29, 2014, Petitioner filed a Motion to
Clarify Judgment with the sentencing court in the Eastern
District of North Carolina arguing that at the time of the
sentence the court stated that "no fine is imposed to
give the Defendant an opportunity to support his minor
children form prison." (Doc. #12-4). Petitioner alleged
that at the time he was sentenced, all of his assets were
seized, and he had no other property or money. Id .
In the motion, Petitioner asserted that his mother sends him
One Hundred dollars a month, which is his only source of
money that he uses to pay for hygiene supplies and phone
calls to his children and family. Id . Petitioner
argued that he had been in the Bureau of Prison's
("BOP") custody since 2005, and it was not until he
arrived at FCI Estill that his Judgment of Forfeiture Order
was treated as a fine, and the BOP started collecting it
through the IFRP. Id . On October 6, 2014, the
Sentencing Court filed an order addressing Petitioner's
Motion to Clarify Judgment and request to order the BOP to
cease taking money out of his account through the IFRP. (Doc.
1-1) The Court ruled as follows:
To the extent Esquivel is seeking clarification of this
court's forfeiture orders, the court will go through
these orders. Incorporated into the court's Judgment was
the July 29, 2005 Preliminary Order of Forfeiture and the
August 2, 2005 Judgment on Forfeiture. See Judgement
[DE-38]at 6. The July 29, 2005 Preliminary Order of
Forefeiture [DE-34] provides for the forfeiture of $1, 500,
000.00 in U.S. currency and a substitute asset of real
property located at 710 Wakeland Drive, Carner, North
Carolina. The August 2, 2005 Judgment on Forfeiture [DE-36]
provides that judgment is entered against Esquivel in the
amount of $1, 500, 000.00 and interest shall accrue at the
rate of 3.68%.
Sentencing Court did not rule on the request to enter an
order directing the BOP to cease taking money out of his
account through the IFRP for ...