Opinion
Case No. 2:01CR411K.
April 19, 2005
ORDER
Defendant sent a letter to this court asserting that he does not have the financial means to pay the $1,500.00 fine imposed by this court at sentencing. Defendant states that the presentence report contained untrue and inaccurate information and lacked information regarding his ability to pay the fine. He also claims that the government failed to present evidence to the court that he was able to pay the fine. Therefore, Defendant asks for his fine to be waived completely or, alternatively, until he is released from prison.
The fine imposed by this court is part of Defendant's sentence. "A district court does not have inherent authority to modify a previously imposed sentence; it may do so only pursuant to statutory authorization." United States v. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997) (citation omitted). The Tenth Circuit has consistently recognized that "a district court is authorized to modify a Defendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so." United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). To date, Congress has granted the district courts such jurisdiction in limited instances. See id. at 947-48.
Under 18 U.S.C. § 3582(c) a district court can modify "a term of imprisonment once it has been imposed" upon motion of the Director of the Bureau of Prisons, if the modification is "expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure," or the applicable sentencing range is subsequently lowered by the Sentencing Commission. 18 U.S.C. § 3582(c). Federal Rule of Criminal Procedure 35 sets forth three situations in which a district court may alter a sentence: (a) to correct a sentence on remand; (b) to reduce a sentence for substantial assistance to the government, upon motion of the government; or (c) to correct a sentence "imposed as a result of arithmetical, technical or other clear error" within 7 days after the sentence is imposed. See Fed.R.Crim.P. 35. None of these grounds are applicable in this case.
Under 28 U.S.C. § 2255, a prisoner in custody can move the court to vacate, set aside, or correct a sentence if the sentence was unconstitutional, illegal, in excess of the maximum authorized by law, or otherwise subject to collateral attack. Defendant's request to have the fine waived seeks to collaterally attack his sentence.
The Tenth Circuit has addressed how a court should proceed when characterizing a petitioner's motion or request filed under other rules as a motion under § 2255. In United States v. Kelly, 235 F.3d 1238 (10th Cir. 2000), the court vacated and remanded a district court decision which interpreted a motion filed under Fed.R.Crim.P. 32 as a motion under § 2255. In Kelly, the defendant brought his motion before filing a petition under § 2255. Thus, if the district court characterized his motion as a § 2255, it would effectively bar that defendant from bringing other claims under a motion for relief through § 2255. The Tenth Circuit found this unacceptable where the defendant did not intend to include all of his claims in the motion to vacate and intended to later proceed with a motion under § 2255. The court held that if the district court chose to characterize the motion as a § 2255, it first needed to notify the defendant to give him an opportunity to cure, either by converting it to a § 2255 to include all claims, or re-file it in a manner that it could not be characterized as a habeas. The Tenth Circuit did not disagree with the characterization of defendant's motion, as it agreed that defendant could not obtain the relief he sought by way of Rule 32. However, the court sought to prevent the defendant from losing his opportunity to bring all of his claims under § 2255. Kelly, 235 F.3d at 1241.
While Kelly is binding precedent, it is also distinguishable to Defendant's request in this case. Although Defendant's request must be brought under § 2255, he cannot seek relief on this matter under § 2255. If Defendant could seek relief under § 2255 for this claim, this Court would notify him of the characterization to prevent any injustice or denial of his right to bring a motion under § 2255. However, Defendant does not have this right. Defendant may not present an issue in a § 2255 motion that he did not raise on direct appeal "unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors, or can show that a fundamental miscarriage of justice will occur if this claim is not addressed." United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994).
Defendant's direct appeal of this matter addressed only the search and seizure issue raised in his motion to suppress. Because Defendant did not argue inability to pay on direct appeal and he cannot demonstrate that either exception to the procedural default rule applies, he cannot seek relief under § 2255. Therefore, there is no need for this court to re-characterize his request as a motion under § 2255.
The court notes, however, that Defendant could attempt to address this issue through the administrative procedures available in the prison system. An inmate may seek formal review of any complaint relating to his imprisonment under the Bureau of Prison's Administrative Remedy Procedure, if he is unable to resolve the matter informally. 28 C.F.R. § 542.10 et seq. There are administrative procedures that deal with financial payments which Defendant could request be implemented by the Bureau of Prisons. In this situation it would be appropriate for Defendant to seek relief first within the prison system.