United States District Court, D. South Carolina, Florence Division
Timothy M. Cain United States District Judge
a federal inmate proceeding pro se, filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241. In
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02, D.S.C., this matter was referred to a magistrate
judge for pretrial handling. Before the court is the
magistrate judge’s Report and Recommendation
(“Report”), recommending that Respondent’s
motion for summary judgment (ECF No. 12) be granted and that
the habeas petition be denied. (ECF No. 22). Petitioner was
advised of his right to file objections to the Report. (ECF
deadline for filing objections to the Report was May 16,
2016. The court, having received no objections, conducted a
thorough review of the Report and adopted it by order dated
May 20, 2016. (ECF No. 27). Thereafter, Petitioner’s
objections were docketed on May 23, 2016. (ECF No. 30).
Petitioner also filed a motion to reconsider the order,
asking this court to consider his objections. (ECF No. 32).
The court now considers Petitioner’s objections.
magistrate judge makes only a recommendation to the court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo
determination of those portions of the Report to which
specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the
magistrate judge, or recommit the matter with instructions.
28 U.S.C. § 636(b)(1). However, the court need not
conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate’s
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the Magistrate
Judge’s conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
petition, Petitioner argues that this court should order the
Bureau of Prisons (“BOP”) to stop collecting
monies under a forfeiture order entered in his criminal case.
(ECF No. 1). Petitioner asserts that the final judgment
expressed an intention by the sentencing judge not to have
Petitioner pay a fine. (ECF No. 1 at 2).
moved for summary judgment. (ECF No. 12). In his motion,
Respondent treats the petition as challenging the execution
of his sentence. Respondent argued that the sentencing court
included the forfeiture order in its judgment form and that
BOP is properly executing that order. (ECF No. 12).
Petitioner filed a response in opposition. (ECF No. 20).
Petitioner claims that the sentencing court’s intention
was not to impose a financial hardship on him and that the
forfeiture order was based on unsubstantiated allegations
made by an informant.
well-reasoned Report, the magistrate judge thoroughly
examined the orders entered by the sentencing court. (ECF No.
22 at 4-8, 10). The Report recommended a finding that the BOP
has the authority to collect the judgment.
objects to the Report. (ECF No. 30). Petitioner’s
objections focus on the underlying validity of the forfeiture
order. (ECF No. 30). He argues that Respondent is seeking
$1.5 million based upon “unsubstantiated statements and
allegations.” (ECF No. 30 at 2). He claims that this
money never existed. (ECF No. 30 at 2).
court finds that a § 2241 petition is not the proper
motion for Petitioner to attack the underlying validity of
the forfeiture order, as he does in his objections. The
forfeiture order was part of the underlying criminal
judgment. See United States v. Esquivel, No.
5:05-cr-26 at ECF No. 38 (E.D. N.C. indictment filed Feb. 3,
2005). Generally speaking, a petitioner must use
a § 2255 motion to challenge the validity of the
underlying conviction. See Bowens v. Warden, FCI
Edgefield, No. 8:10-cv-00038-RBH, 2010 WL 1493108, at *2
(D.S.C. Apr. 13, 2010); see also In re Vial, 115
F.3d 1192, 1194 (4th Cir. 1997) (“Those convicted in
federal court are required to bring collateral attacks
challenging the validity of their judgment and sentence by
filing a motion to vacate sentence pursuant to 28 U.S.C.A.
§ 2255.”). When a petitioner is not attacking the
underlying conviction or sentence, but instead attacks the
execution of his sentence, the petitioner uses a § 2241
petition. In re Vial, 115 F.3d at 1194 n.5; see
also Fontanez v. O'Brien, 807 F.3d 84, 86 (4th Cir.
2015) (“As a general matter, a federal prisoner must
challenge the execution of a sentence under 28 U.S.C. §
2241, and the sentence itself under 28 U.S.C. §
2255.” (citation omitted)).
have considered the proper vehicle for attacking monetary
orders in criminal judgments in the related instance of
“restitution orders.” In Coleman v.
Brooks, the Fourth Circuit found that a claim that
“the order of restitution was improper” should be
construed pursuant to § 2255, while a claim that the
“BOP is improperly executing [an] order of
restitution” arises under § 2241. 133 F.
App’x 51 (4th Cir. May 24, 2005); accord Spears v.
Rivera, No. 0:11-cv-02306-RBH, 2012 WL 1097647, at *4
(D.S.C. Mar. 30, 2012) (same); Sowell v. Deboo, No.
1:09CV34, 2009 WL 2029804, at *3 (N.D. W.Va. July 9, 2009)
(same); Moore v. Warden, FCI Edgefield, No. CA
2:11-02086-RBH, 2011 WL 5827607, at *2 (D.S.C. Oct. 28,
2011), report and recommendation adopted, No.
2:11-CV-02086-RBH, 2011 WL 5827633 (D.S.C. Nov. 18, 2011)
(same); but see United States v. Corcho, 60
F.App'x 479, 480 (4th Cir. 2003) (“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)”). Thus, a petitioner can challenge
the execution, implementation, or enforcement of the
forfeiture order through the IRFP program using a § 2241
petition, but a petitioner cannot challenge the underlying
validity of that order using a § 2241 petition.
Likewise, the petitioner cannot attack the underlying
validity of the forfeiture order using a § 2255 petition
filed with the sentencing court, and likely must raise the
issue on direct appeal. See Moore, No. CA
2:11-02086-RBH, 2011 WL 5827607, at *2.
objections, Petitioner attempts to challenge the underlying
judgment of forfeiture. He argues that the money referenced
in the forfeiture order never existed, the dollar figure was
based on unsubstantiated statements and allegations, and that
the sentencing court order did not intend to include the
forfeiture award. (ECF No. 30). This argument is different
from the one presented in his petition, where Petitioner
argues that the BOP is not executing the court’s order
on collection of money during incarceration. (ECF No. 1 at
6). He asked the court to compel the BOP to abide by the
sentencing court’s decision. (ECF No. 1 at 8). These
grounds raised in his petition, which concern implementation
and execution of the underlying judgment, are properly raised
in this § 2241 petition, but Petitioner’s
objections, which relate solely to the validity of the
underlying forfeiture order, are not. Therefore, the court
finds that the objections are without merit.
out of an abundance of caution, assuming Petitioner could
attack a forfeiture order using a § 2241 motion, the
court finds Petitioner’s objections are without merit.
pled guilty pursuant to a plea memorandum. United States
v. Esquivel, No. 5:05-cr-26 at ECF No. 29 (E.D. N.C.
indictment filed Feb. 3, 2005). The plea memorandum provided
that “the Defendant agrees to voluntarily forfeit and
relinquish to the government the property listed in the
forfeiture notice ...