The opinion of the court was delivered by: (Judge Munley)
Before the court is the petitioner's objection (Doc. 9) to Magistrate Judge Thomas M. Blewit's report and recommendation (Doc. 8) which proposes that we dismiss the petition for a writ of habeas corpus. At this preliminary review stage, the petition has not been served upon the respondents. Accordingly, the matter is ripe for disposition.
Petitioner Barkley Gardner ("Petitioner") filed this second petition for a writ of habeas corpus (Doc. 1) on April 5, 2010. The petition states that Gardner was convicted in the United States District Court for the Eastern District of North Carolina on March 11, 1997 and sentenced to life imprisonment. (Id. at 3). He was ordered to pay restitution in the amount of $20,000.00, due and payable immediately. (Id. at 34). The United States Court of Appeals for the Fourth Circuit affirmed Gardner's conviction and sentence on August 9, 2002. (Id. at 3) Petitioner contends that "the Order of Restitution is a judicial function that the sentencing court impermissibly delegated to the Bureau of Prisons in violation of 18 U.S.C. [§] 3664(f)(2) and the laws of the United States." (Id. at 4).
Petitioner filed his first petition for a writ of habeas corpus pursuant to section 2241 on October 1, 2007. (No. 3:07cv1788, Pet. (Doc. 1)). In that petition, the Petitioner claimed that the Bureau of Prisons ("BOP") exceeded its authority by setting his restitution payment schedule under the Inmate Financial Responsibility Program ("IFRP"). (Id.) Petitioner requested that this court (1) direct the BOP to remove him from "IFRP Refuse" status, (2) enjoin the BOP from sanctioning him, and (3) direct the BOP not to establish a restitution payment schedule for him. (No. 3:07cv1788, Pet. at 4 (Doc. 1)). Ultimately, on April 14, 2008, we transferred the case to the United States District Court for the Eastern District of North Carolina since that court had sentenced Petitioner and would be in a better position to know what financial information was relied upon when ordering restitution, as required by the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3664(f)(2) and United States v. Corley, 500 F.3d 210, 225 (3d Cir. 2007). (No. 3:07cv1788, Memorandum and Order of April 14, 2008 (Doc. 26)).
On May 13, 2008, the Eastern District of North Carolina denied Petitioner's petition for a writ of habeas corpus and dismissed his case. (No. 5:08cv2050, Order of May 13, 2008).*fn1 The court cited Coleman v. Brooks, 133 Fed. App'x 51, at *2 (4th Cir. 2005) for the proposition that "immediate payment is generally interpreted to require payment to the extent that Petitioner can make it in good faith, to begin at once." The court noted that it did not delegate its authority in violation of United States v. Miller, 77 F.3d 71, 77-78 (4th Cir. 1996) because it "set the amount and timing of Petitioner's criminal fines and other monetary penalties by ordering that the $20,000 restitution be paid immediately." (Id. at 4).
Regarding the instant petition, the magistrate judge recommends that we dismiss the petition as successive. The magistrate judge found that Petitioner raises the same claim which the Eastern District of North Carolina previously denied on the merits. The magistrate judge notes that Petitioner was not granted leave from the United States Court of Appeals for the Third Circuit to file a second or successive petition. Accordingly, the magistrate judge recommends that we dismiss the petition as a successive petition under the "abuse of the writ" doctrine. See Zayas v. INS, 311 F.3d 247, 256-58 (3d Cir. 2002).
Petitioner objects to the report and recommendation. (Doc. 9). Petitioner argues that his first petition was based on the denial of administrative remedies by the BOP and "was an attack against the illegal sanctioning of Petitioner Barkley Gardner for refusing to participate in the [IFRP]." (Id. at 2). The instant petition, according to Petitioner, is leveled against the sentencing court and "attacks the judgment and sentence of restitution" for failing to adhere to the MVRA. (Id.)
Petitioner also objects to the report's finding that the Eastern District of North Carolina addressed the merits of his previous habeas corpus petition. (Id. at 3). He claims that the court did not address whether the IFRP violates the MVRA. (Id.) He claims that the court did not consider his financial resources, earnings, or dependants, which was the purpose of transferring his first petition to the Eastern District of North Carolina. (Id.)
As this case was brought pursuant to 28 U.S.C. § 2241, we have jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").*fn2
In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.
For those portions of the report and recommendation to which no objections have been filed, we must determine whether a review of the record evidences plain error or manifest injustice. See, e.g., Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983); FED. R. CIV. P. 72(b)1983 Advisory Committee Notes ("When no timely objection is filed, the court need only satisfy itself that there is ...