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Kornacki v. Thomas

United States District Court, D. South Carolina

May 25, 2016

DOUGLAS KORNACKI, Petitioner,
v.
WARDEN LINDA THOMAS, Respondent.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT, Magistrate Judge.

         This action was filed by the Petitioner, pro se, pursuant to 28 U.S.C. § 2241. Petitioner, a federal prisoner serving his sentence at the Federal Correctional Institution (FCI) located in Edgefield, South Carolina, seeks an order instructing the Bureau of Prisons to Cease and Desist collecting funds from his inmate account for payment of Restitution and to list Petitioner as "EXEMPT or "NO OBLIGATION" from further restitution payments until his release. See Memorandum of Law in Support of his Petition, p. 19.

         The Respondent filed a Response in Opposition to the Petition and a Motion to Dismiss on October 7, 2015[1]. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on October 8, 2015, advising Petitioner of the importance of a dispositive motion and of the need for him to file an adequate response. Petitioner was specifically advised that if he failed to provide an adequate response, his Petition could be dismissed. However, despite these warnings and Petitioner receiving two extensions of time to respond, Petitioner did not file a response in opposition, and a Report and Recommendation was therefore entered recommending the action be dismissed for failure to prosecute.

         On February 3, 2016, after receiving a request from the Petitioner for additional time to respond due to his transfer between institutions and a letter from the manager of the prison that Petitioner's personal property had not arrived, the Court granted Petitioner another extension of time to file a memorandum in opposition. Petitioner then filed his memorandum in opposition on March 11, 2016. This matter is now before the Court for disposition.[2]

         Background

         On February 8, 2007, Petitioner was sentenced to a 420-month term of incarceration with a five-year term of supervised release by the United States District Court for the Eastern District of Michigan, following his conviction for Use and Discharge of a Firearm During and in Relation to a Crime of Violence and Aiding and Abetting in violation of 18 U.S.C. §§ 924(c) and 2. See Respondent's Exhibit 2. Petitioner was also ordered to pay a $200 felony assessment and $7, 395.00 for restitution, jointly and severally with his co-defendant, who was his wife. See Respondent's Exhibit 4. Petitioner did not appeal the sentencing Court's order with respect to restitution. See Respondent' Exhibit 5.

         Petitioner raises the following issues in this Petition:

Ground One: "Federal Bureau of Prisons does not have the authority to act as a collection agency for the District Court once the petitioner did not have the financial resources to make immediate payment... Accordingly, because the sentencing court in [Petitioner's] case failed to set forth a proper payment schedule in the restitution order, that order is unlawful, and the BOP, therefore lacks the authority to collect restitution payments from [Petitioner], through the IFRP."
Ground Two: "The district court's written Judgement and Conviction identified only the amount of the restitution to be paid and provided no statutory basis for the award. The district court did not specify as to the statute in imposing the restitution."

         See Memorandum in Support of Petition, pp. 4, 9, 12.[3]

         It is important to note that Petitioner is not requesting that his sentencing order be vacated as part of the relief sought in this petition. While Petitioner does support one of his arguments with the statement that the restitution portion of his Judgment of Commitment is "unlawful, " he is not seeking to have his judgment set aside. As such, this Petition is similar to issue raised in Fontanez v. O'Brien, 807 F.3d 84 (4th Cir. 2015), where it was noted that:

while a premise of [Petitioner'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 [1192] 1194, n. 5 [(4th Cir. 1997)]; see also United States v. Snow, 748 F.2d 928, 933-934 (4th Cir. 1984); McGee v. Martinez, 627 F.3d 933, 937 (3d Cir. 2010); United States v. Diggs, 578 F.3d 318, 319-320 (5th Cir. 2009); Matheny v. Morrison, 307 F.3d 709, 712 (8th Cir. 2002).

Fontanez, 807 F.3d at 87.

         Therefore, since Petitioner's relief sought in this case relates to the manner in which the BOP is executing the restitution portion of the judgment, Petitioner can proceed with his claims as ...


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