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Esquivel v. Warden FCI Estill

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

August 16, 2016

Frank Esquivel, Petitioner,
v.
Warden FCI Estill, Respondent.

          ORDER

          Timothy M. Cain United States District Judge

         Petitioner, 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 No. 22-1).

         The 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.[1] (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.

         The 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).

         In his 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).

         Respondent 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).

         The 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.

         In his 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.

         Petitioner 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).

         The 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).[2] Generally speaking, a petitioner must use a § 2255 motion to challenge the validity of the underlying conviction.[3] 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)).

         Courts 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.

         In his 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.

         However, 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.

         Petitioner 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 ...


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