The opinion of the court was delivered by: Mannion, M.J.
REPORT AND RECOMMENDATION*fn1
On March 16, 2009, Edward M. Little, petitioner, an inmate at FCI- Allenwood, White Deer, Pennsylvania, filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2241. (Doc. 1). The petitioner also filed a brief in support of his petition. (Doc. 2). Named as respondent was Ricardo Martinez, the Warden at FCI-Allenwood. (Doc. 1).
The habeas petition was served and Respondent filed his Response, with attached exhibits, on April 17, 2009. (Doc. 6 and Exs. 1-7). The petitioner filed a Traverse on April 23, 2009 and a Motion for Summary Judgment on June 26, 2009.*fn2 (Doc. No. 8).
The petitioner's habeas petition is now ripe for disposition.
II. Claim of Habeas Petition
In his petition and supporting brief, the petitioner stated:
[T]he Bureau of Prisons' ("BOP") imposed sanctions against Federal prison inmate for his failure to acquiesce in the Inmate Financial Responsibility Program ("IFRP"), restitution repayment schedule was not in accordance with law, warranting writ of habeas corpus; sentencing court, although declaring Mandatory Victim's Restitution Act ("MRVA"), restitution 'due during period of imprisonment,' had no established specific schedule of payments to be collected during incarceration; and BOP lacked authority to substitute its own schedule.
(Docs. 1, 2). Specifically, it appears that the petitioner claims that the BOP had no authority to collect his $200.00 Special Assessment,*fn3 under §3664 and that only the Court may collect or determine the amount of his payments. The petitioner also claims that only the sentencing court had authority to set a schedule of payments for federal inmates during the period of incarceration and that this authority cannot be delegated to the BOP. (Docs. 1, 2).
The petitioner seeks relief in the form of a "removal of all BOP imposed fee or IFRP*fn4 collections" against him. He asks that no sanctions by the BOP be imposed and that we institute "a legal, permanent bar from the BOP reinstalling any collections of any type, or sanctions." (Doc. 1). He asks for "immediate imposition under §3664, that the BOP must remove all imposed fee collections on inmates that do not contain an express, direct Court Order signed by a Magistrate Judge, directly ordering the collection and the imposed schedule of collection thereof, as designated by law, be imposed and forever barred from reimposition on any inmate, by the BOP." (Doc. 2).
The respondent claims that federal habeas relief is not an appropriate remedy because the petitioner's claims do not concern the fact or the duration of his confinement in prison. (Doc. 6 at 3). The respondent also claims that even if the petitioner's case was allowed to proceed, "the petition should still be dismissed since the Third Circuit Court of Appeals has already found the provisions of the IFRP to be constitutional."*fn5 (Doc. 6, at 4).
For the reasons stated below, the court agrees with the Petitioner that his claim is properly brought in a petition for writ of habeas corpus because it challenges the execution of his sentence. However, after ...