United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
Victor Pena is an inmate confined by the Bureau of Prisons ("BOP") in the United States Penitentiary-McCreary, located in Pine Knot, Kentucky. Pena has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1], in which he challenges certain aspects of his Texas federal sentence, and his participation in the BOP's Inmate Financial Responsibility Program ("IFRP"). Pena also filed a motion to proceed in forma pauperis and his inmate account statement. [R. 2; R. 3] On July 24, 2015, the Court entered a Deficiency Order denying Pena in forma pauperis status, finding that because Pena earned wages through his prison job and had adequate funds in his inmate account, he could afford to pay the meager $5.00 filing fee. [R. 4] Pena has filed a motion seeking reconsideration of the Order denying him pauper status. [R. 5]
In conducting an initial review of habeas petitions under 28 U.S.C. § 2243, the Court must deny the relief sought "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). Because Pena is not represented by an attorney, the Court evaluates his petition under a more lenient standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). Thus, at this stage of the proceedings, the Court accepts Pena's factual allegations as true and liberally construes his legal claims in his favor.
The Court has reviewed Pena's habeas petition, but concludes that it cannot grant the relief which Pena seeks, which appears to be an order (1) relieving him from his restitution obligations contained in his Texas criminal sentence, and (2) prohibiting the BOP from subjecting him to any adverse consequence because of his refusal to participate in the IFRP. The Court will therefore deny Pena's § 2241 petition, assess the $5.00 filing fee, and dismiss this proceeding.
On March 3, 1999, a federal jury in Texas convicted Pena of racketeering and racketeering conspiracy in violation of 18 U.S.C. § 1962(c) and (d). On July 8, 1999, Pena was sentenced to life imprisonment and was ordered to make restitution of $16, 697.21. The United States Court of Appeals for the Fifth Circuit affirmed Pena's conviction and sentence on direct appeal. In March 2004, Pena filed a motion with the trial court to vacate his sentence pursuant to 28 U.S.C. § 2255. The district court denied that motion on April 25, 2005, and denied Pena's motion for a certificate of appealability on June 8, 2005. United States v. Pena, No. 5: 98-CR-265-FB-12 (W.D. Tex. 1998). On August 7, 2007, Pena filed a motion pursuant to Fed.R.Civ.P. 60(b) for relief from the denial of his § 2255 motion. The trial court denied also that motion, and again declined to issue a certificate of appealability. Id.
In December 2011, Pena filed his first §2241 petition in this Court. Victor Pena v. Richard Ives, No. 6:11-CV-349-KSF (E. D. Ky. 2011) ("the 2011 Habeas Petition"). Pena claimed that he was entitled to habeas relief on the following grounds: (1) the district court accepted a presentence report and sentencing recommendation that contained false information about his criminal history; (2) he was denied his Sixth Amendment right to confront witnesses; (3) the fine and/or restitution order was unconstitutional; (4) his conviction was defective for lack of subject matter jurisdiction; and (5) he was actually innocent of the offenses of which he was convicted.
On September 18, 2012, the Court denied the 2011 Habeas Petition, concluding that Pena's claims challenging his conviction and sentence were the type that had to be brought in the Texas sentencing court under 28 U.S.C. § 2255; that Pena had not established that his § 2255 remedy was inadequate or ineffective to challenge either his conviction or his sentence; and that Pena had not demonstrated a valid claim of actual innocence under established Sixth Circuit law. [ Id., R. 17, therein] Pena appealed, but the Sixth Circuit affirmed the denial of the 2011 Habeas Petition. [ Id., R. 27, therein; see Victor Pena v. Richard Ives, No. 12-6264 (6th Cir. Sept. 23, 2013)]
In December 2012, Pena filed a second § 2241 petition in this Court. Victor Pena v. Warden Richard B. Ives, No. 6:12-CV-243-DCR (E. D. Ky. 2012) ("the 2012 Habeas Petition") In it, Pena alleged that the federal Probation Office in Texas submitted a pre-sentence investigation report containing false information about his criminal history; that the trial court improperly accepted the recommendations in the report and incorrectly enhanced his sentence under the federal sentencing guidelines; that at trial, he was denied his Sixth Amendment right to confront witnesses; that the fine and/or restitution amounts he was ordered to pay as part of his criminal judgment were unconstitutional; that his conviction was defective for lack of subject matter jurisdiction; that he was actually innocent of the offenses of which he was convicted; and that the BOP had taken improper action in relation to the IFRP. On that issue, Pena argued that the BOP had insufficient documentation to conclude that he was eligible to participate in the IFRP; that the BOP had erred by placing him in "IFRP refusal" status; and that he was adversely affected because of that "IFRP refusal" status, and he sought an injunction vacating the BOP's decision.
On May 15, 2013, the Court entered a Memorandum Opinion and Order denying the 2012 Habeas Petition, concluding that Pena could not re-litigate the same sentencing challenges which he had previously and unsuccessfully asserted in the 2011 Habeas Petition. [ Id., R. 10, pp. 3-5 therein] The Court also further determined that because Pena did not exhaust his administrative remedies as to his IFRP challenges, relief under § 2241 was barred. [ Id. ]
On appeal, Pena reasserted his claim pertaining to his "IFRP refusal" status, arguing that he could assert such a challenge in a § 2241 petition. The Sixth Circuit disagreed and affirmed the denial of the 2012 Habeas Petition, explaining that Pena could assert his IFRP classification challenges only in a civil rights action brought under 28 U.S.C. § 1331, not in a § 2241 habeas petition. The Sixth Circuit stated:
Our review reflects that the district court properly dismissed Pena's petition. Habeas relief under § 2241 is reserved for claims challenging the execution of a sentence. Wright v. United States Bd. of Parole, 557 F.2d 74, 77 (6th Cir. 1977). Pena's claim is not a proper § 2241 claim. It does not challenge the manner in which his sentence is being executed. Execution means putting into effect or carrying out the judgment, and Pena's judgment says nothing about the IFRP or any kind of restitution payment plan. To the contrary, it says that "[r]estitution shall be paid immediately through the Clerk... for transfer to the payee(s)." Thus, the BOP's act of putting Pena on "IFRP refusal" status is not an act that puts into effect or carries out any part of the judgment.
To state a § 2241 claim, Pena would have to allege that the BOP's conduct is somehow inconsistent with the judgment, see Cardona v. Bledsoe, 681 F.3d 533, 536-37 (3d Cir. 2012), and he has not done that. Rather, Pena's claim is one challenging the conditions of his confinement that should be brought under the doctrine announced in Bivens v. ...