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Esquivel v. Estill

United States District Court, D. South Carolina, Florence Division

April 29, 2016

FRANK ESQUIVEL, Petitioner,
v.
WARDEN FCI ESTILL, Respondent.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS III, Magistrate Judge.

         Petitioner, Frank Esquivel (Petitioner), appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241[1] 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.

         DISCUSSION

         A. STANDARD FOR SUMMARY JUDGMENT

         The 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. Fed.R.Civ.P. 56(c).

         The 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).

         To show 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.

         B. ARGUMENT OF PARTIES/ANALYSIS

         Factual and Procedural Background[2]

         Petitioner 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).

         On or 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%.

(Doc. #1-1).

         The 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 ...


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