UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7489
JERRY CRAIG COLEMAN,
Petitioner - Appellant,
versus
JOE BROOKS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CA-03-1004)
Submitted: April 29, 2005 Decided: May 24, 2005
Before LUTTIG and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jerry Craig Coleman, Appellant Pro Se. Anita Claire Snyder, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jerry Craig Coleman appeals the district court’s order
construing his 28 U.S.C. § 2241 (2000) motion as a 28 U.S.C. § 2255
(2000) motion and dismissing the motion as successive. We affirm
with modifications.
Coleman was convicted of armed bank robbery and use of a
firearm during a crime of violence in federal district court in
Oklahoma. He was sentenced to 322 months in prison and was ordered
to pay restitution in full immediately in the amount of $5528. His
conviction and sentence were affirmed by the Tenth Circuit.
Coleman subsequently filed two § 2255 motions in the Tenth Circuit,
both of which were denied. Coleman then filed a motion in a
federal district court in Oklahoma for remission of the restitution
imposed at sentencing, which was construed as a § 2255 motion and
denied. Coleman next filed a motion labeled as filed under 28
U.S.C. § 2241 (2000) in the Eastern District of Virginia, which the
court construed as a successive § 2255 motion and dismissed.*
In his motion, Coleman raised five claims: (1) that he is
actually innocent; (2) the evidence at trial was insufficient to
satisfy the “use” standard in § 924(c); (3) his sentence was
improperly enhanced; (4) the order of restitution was improper; and
(5) the BOP is improperly executing his order of restitution. We
find that claims (1)-(4) attack the legality of Coleman’s
*
Coleman is incarcerated in Virginia.
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conviction and subsequent sentence. Because these claims do not
meet the standard set out in In re Jones, 226 F.3d 328, 333 (4th
Cir. 2000), we affirm the district court’s decision to construe
claims (1)-(4) as brought pursuant to § 2255. See United States v.
Glass, 317 F.2d 200, 203 (4th Cir. 1963) (finding court has
discretion to reclassify an improperly labeled pleading). Further,
under § 2255, this court lacks jurisdiction to grant authorization
to file a successive petition. Such a request must be made in the
jurisdiction that imposed the sentence at issue.
Coleman’s fifth claim, that the BOP is improperly
executing his order of restitution, requires a separate analysis.
In his motion, Coleman asserts that the district court had
improperly delegated its authority to set the amount and timing of
his restitution payments to the BOP in violation of United
States v. Miller, 77 F.3d 71, 78 (4th Cir. 1996). Because this
claim does not challenge the legality of Coleman’s conviction or
sentence, we find that it was properly brought as a petition for
habeas corpus relief arising under 28 U.S.C. § 2241 (2000). See
Blaik v. United States, 161 F.3d 1341, 1342-43 (11th Cir. 1998)
(collecting cases holding that a § 2255 motion may not be used for
challenging fines or restitution orders).
However, we further find that Coleman’s claim fails on
the merits. Participation in the Inmate Financial Responsibility
Program (“IFRP”) does not establish a violation of Miller. “The
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immediate payment directive is generally interpreted to require
payment to the extent that the defendant can make it in good faith,
beginning immediately.” Matheny v. Morrison, 307 F.3d 709, 712
(8th Cir. 2002) (internal quotation marks omitted) (holding that
“BOP has the discretion to place an inmate in the IFRP when the
sentencing court has ordered immediate payment of the court-imposed
fine”) (citing McGhee v. Clark, 166 F.3d 884, 886 (7th Cir. 1999),
and Montano-Figueroa v. Crabtree, 162 F.3d 548, 549-50 (9th Cir.
1998)).
The BOP therefore is properly using the IFRP as an avenue
to collect Coleman’s restitution, just as it would any other debt
owed by him. See McGhee, 166 F.3d at 886 (“Nothing barred the BOP
from ensuring pursuant to the IFRP that [defendant] make good-faith
progress toward satisfying his court-ordered obligations.”); see
also 28 C.F.R. § 545.11 (2004) (requiring inmates to make payments
towards court-ordered obligations, including fines). Therefore,
although this claim was properly asserted under § 2241, and the
district court erred in concluding otherwise, we affirm the
district court’s denial of relief because the claim is meritless.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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