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Herrera v. Zickenfoose

United States District Court, Third Circuit

October 31, 2013

SAID HERRERA, Petitioner,
D. ZICKENFOOSE, Warden, Respondent.


MALACHY E. MANNION, District Judge.

Said Herrera, an inmate confined in the Allenwood United States Penitentiary, White Deer, Pennsylvania ("USP-Allenwood"), filed this petition for writ of habeas corpus pursuant to 28 U.S.C. §2241. Herrera challenges the Bureau of Prisons' ("BOP") authority to set restitution payment schedules through its Inmate Financial Responsibility Program (IFRP).[1] (Doc. No. 1, petition). Specifically, Herrera alleges that the BOP does not have authority to "force" him to participate in the IFRP, because "the sentencing court did not set a payment schedule by which Petitioner was to pay down his criminal fine/sentence while in prison." Id . He claims that he signed the corresponding financial plan "under duress" and that his inmate account "now has an on going debit of $25.00." Id . Herrera claims the "duress" consisted of the threat that he would be placed on "IFRP Refusal" status if he did not execute the financial plan. Id . The petition is ripe for disposition, and for the reasons outlined below, the petition will be DENIED.

I. Background

On April 13, 2009, Herrera was sentenced in the United States District Court for the Western District of Texas to a term of imprisonment of "LIFE, " followed by an aggregated term of supervision for five (5) years, for the following offenses committed between January 1, 2003 and January 9, 2008: a.) Engaging in the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. §1962; b.) Conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. §1962; c.) Conspiring to interfere with commerce by threats or violence, in violation of 18 U.S.C. §1951; and, d.) Conspiring to possess with intent to distribute a quantity of heroin, cocaine and marijuana, in violation of 18. U.S.C. §§841, 846. (Doc. No. 6, Att. 1, Judgment in a Criminal Case). Herrera was also ordered to pay a special assessment in the amount of $400.00 and a fine in the amount of $2, 500.00. Id . The court ordered the fine to be paid as follows:

The defendant shall pay a fine of $2, 500.00. Payment of this sum shall begin immediately. The Court determines that the defendant does not have the ability to pay interest and therefore waives the interest requirement pursuant to 18 U.S.C. §3612(f)(3). The fine is below guideline range because of the defendant's inability to pay a fine within the guideline range.

Id. Herrera completed his payments on the $400.00 special assessment prior to his transfer to USP-Allenwood. (Doc. No. 6, Att. 4, Inmate Financial Responsibility).

On June 27, 2012, Herrera arrived at USP-Allenwood. (Doc. No. 6, Att. 2, Inmate History).

On July 2, 2012, Herrera executed an Inmate Financial Plan wherein he agreed to make quarterly payments in the amount of $25.00 toward his court-ordered fine. (Doc. No. 6, Att. 3, Inmate Financial Plan). Pursuant to the agreement, the first payment was to be made in September 2012. Id.

Herrera has made three (3) payments since his incarceration at USP-Allenwood, leaving an outstanding balance of $2, 325.00, on his court-ordered fine. (Doc. No. 6, Att. 4, Inmate Financial Responsibility). These payments were made on September 11, 2012, December 11, 2012 and March 12, 2013. Id.

On February 7, 2013, Petitioner filed the instant petition for writ of habeas corpus in which he "requests a temporary restraining order for the Respondent to cease collecting IFRP payments from his account" and "Order the Respondent to designate [him] IFRP-Exempt'." Id.

II. Discussion

A. Exhaustion of Administrative Remedies

Although there is no statutory exhaustion requirement attached to habeas petitions brought pursuant to 28 U.S.C. §2241, a federal prisoner must exhaust his administrative remedies prior to filing a §2241 petition. Callwood v. Enos , 230 F.3d 627, 634 (3d Cir. 2000); Moscato v. Fed. Bureau of Prisons , 98 F.3d 757, 760 (3d Cir. 1996). This mandate "has developed through decisional law in applying principles of comity and federalism" to claims brought under §2241. Schandelmeier v. Cunningham , 819 F.2d 52, 53 (3d Cir. 1986). Exhaustion of administrative remedies is required "for three reasons: (1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy." Moscato , 98 F.3d at 761-62. In order for a prisoner to exhaust his administrative remedies, he must comply with 28 C.F.R. §542.10 et seq., otherwise, the habeas petition should be dismissed. Arias v. U.S. Parole Comm'n , 648 F.2d 196, 199 (3d Cir. 1981) (requiring federal prisoner to exhaust administrative remedies before bringing claim under §2241). Exhaustion is not required, however, if there is no opportunity to obtain adequate redress; if the issue presented only pertains to statutory construction; or if the prisoner makes an affirmative showing of futility. Gambino v. Morris , 134 F.3d 156, 171 (3d Cir. 1998); Schandelmeier , 819 F.2d at 53; Bradshaw v. Carlson , 682 F.2d 1050, 1052 (3d Cir. 1981).

The BOP's Administrative Remedy Program is a three-tier process available to inmates confined in institutions operated by the BOP who "seek formal review of an issue relating to any aspect of his/her confinement." 28 C.F.R. §542.10(a). An inmate must generally attempt to informally resolve the issue by presenting it to staff in a BP-8 form. See 28 C.F.R. §542.13. If the issue is not informally resolved, then the inmate may submit a request for administrative remedy (BP-9) to the Warden. See 28 C.F.R. §542.14. An inmate who is dissatisfied with the Warden's response may appeal to the Regional Director (BP-10), and an inmate dissatisfied with the Regional Director's decision may appeal to the General Counsel in the Central Office (BP-11). See 28 C.F.R. §542.15(a). Appeal to the General Counsel is the final administrative appeal. Id . The regulations further provide that the Warden shall respond within 20 calendar days; the Regional Director shall respond within 30 calendar days; and the General Counsel shall ...

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