The opinion of the court was delivered by: Chief Judge Kane
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On October 26, 2004, Defendant Laura Weikel pled guilty to: possession of a firearm in furtherance of drug trafficking, conspiracy to possess firearms in furtherance of drug trafficking, and possession with intent to distribute five grams or more of crack cocaine. (Doc. No. 504.) On May 9, 2005, Weikel was sentenced to 147 months' imprisonment and ordered to pay a $300 special assessment, $900 fine, and $900 restitution. (Doc. No. 701.) The $2,100 monetary penalty was made due in a lump sum payable at the time of judgment, but also made "payable during the period of incarceration, with any balance to be paid within three years of the defendant's release from custody." (Id. at 6.) No specific schedule of payments for the period during or after Weikel's incarceration was made by the Court. On October 5, 2009, Weikel was granted a § 3582 crack cocaine sentence reduction, which lowered her prison sentence to 129 months but did not change the amount of her monetary penalties. (Doc. No. 885.)
Currently pending before the Court is Weikel's "emergy [sic] motion for suspending order inmate financial responsibility program (IFRP) Payment and modifying order payments structure." (Doc. No. 891.) Weikel does not identify any particular statute or basis for relief in her motion, but she clarifies that she is not requesting a correction or reduction of the restitution or fine. She argues simply that she is "petitioning the court to change the structure to have payments started upon completion of [her] period of imprisonment." (Id.) She asserts that she is not able to make her IFRP monthly payments from prison wages and that her sole financial support comes from her disabled father. She states that she is on IFRP refusal and that the IFRP payments are causing a financial burden on her father.
The Court first considers whether Weikel is attempting to seek an adjustment of payment schedule pursuant to 18 U.S.C. § 3664(k) for the restitution portion of her monetary penalty or 18 U.S.C. § 3572(d)(3) for the fine portion of her penalty.*fn1 Upon review of the motion, it appears that Weikel does not allege a change in financial circumstances, therefore her claim cannot be made pursuant to either section. Her father's advanced age and disability, as well as her indigence, were noted in the probation report prior to the time of sentencing. If there has been no material change in Weikel's economic circumstances, there is no basis for relief pursuant to a motion for adjustment of payment schedule pursuant to § 3664(k) and § 3572(d)(3). Moreover, Weikel's motion is not cognizable under either statute because the terms of the statutes appear to apply only to installment orders, and the Court ordered payment due immediately in a lump sum, without providing for installment payments.*fn2
The Court is left to consider whether Weikel is entitled to relief under 28 U.S.C. § 2255 or 28 U.S.C. § 2241. Weikel's statement that she is not moving for a "correct[ion] or a reduction of said fine" implies that she does not seek relief pursuant to § 2255, which is often referred to as a motion to correct sentence. Additionally, there is a one-year statute of limitations period for filing § 2255 motions, but nearly five years have elapsed in this case between the date of conviction and the date of this motion.*fn3
It appears that Weikel's desired relief may be best garnered through a § 2241 petition for habeas corpus against the Bureau of Prisons ("BOP"). See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001) (stating that § 2241 is the proper method for federal prisoners challenging the execution of a sentence); Matheny v. Morrison, 307 F.3d 709, 712 (8th Cir. 2002) (inmates' challenges to payment schedules set by BOP are correctly framed as § 2241 claims). A petitioner must exhaust her administrative remedies prior to bringing a § 2241 petition, but it is unclear from the face of the petition whether Weikel has sought administrative relief from the BOP. See Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000) (exhaustion required prior to bringing § 2241 petition). Notwithstanding her failure to allege exhaustion, the Court cannot simply adjudicate Weikel's motion as a habeas corpus petition because the Court lacks jurisdiction over such a claim. A § 2241 petition must be filed in the district in which the prisoner is confined, and Weikel currently resides in West Virginia. Rumsfeld v. Padilla, 542 U.S. 426, 442-43 (2004); (Doc. No. 891 at 2, 3.) Accordingly, this Court cannot exercise jurisdiction over Weikel's motion and it must be dismissed.*fn4
AND NOW, this 16th day of April 2010, upon consideration of the foregoing,
IT IS HEREBY ORDERED that Weikel's motion (Doc. No. 891) is DENIED without prejudice.
Yvette Kane, Chief Judge United States District Court Middle ...