UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6311
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DOUGLAS CAMPBELL, II,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (1:98-cr-00176-NCT; 1:05-cv-01035-NCT)
Submitted: June 30, 2006 Decided: July 20, 2006
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded with instructions by unpublished per curiam
opinion.
Douglas Campbell, II, Appellant Pro Se. Angela Hewlett Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Douglas Campbell, II, appeals the district court’s order
adopting the magistrate judge’s recommendation and construing his
Fed. R. Crim. P. 36 motion as a motion under 28 U.S.C. § 2255
(2000), and dismissing it without prejudice to file a new motion on
the proper § 2255 form. We vacate the district court’s order and
remand for further proceedings as set forth below.
Campbell was convicted of bank robbery. In addition to
imposing a 120-month sentence and a three-year term of supervised
release, the district court ordered Campbell to pay restitution of
$2874. The criminal judgment expressly ordered payment of $900 of
the restitution payable immediately, and set out a payment schedule
for any amount remaining after incarceration, with a schedule for
repayment during Campbell’s period of supervised release. Although
the criminal judgment did not specifically delegate authority to
the Bureau of Prisons (“BOP”) to set the amount and timing of
payments during incarceration, the district court did not set a
payment schedule for that time period in the judgment and Campbell
claims the BOP has been determining the installment payments.
In his motion, Campbell asserts that the district court
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). He seeks an amendment
to the judgment order to reflect a schedule of payments for which
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he is responsible during incarceration, not to exceed $50 per
quarter.
Campbell’s motion challenges only the implementation of
the restitution portion of his sentence. Because he does not seek
to be released from custody, we find that the district court erred
in construing his motion pursuant to § 2255, and rather should have
construed it 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).
A § 2241 petition must be brought in the district in
which petitioner is incarcerated, see In re Jones, 226 F.3d 328,
332 (4th Cir. 2000), and Campbell presently is incarcerated in
Butner, North Carolina. Accordingly, we vacate the district
court’s order and remand for the district court to determine
whether transferring Campbell’s § 2241 petition to the proper
federal district court would serve the interests of justice, see 28
U.S.C. § 1631 (2000), or whether the action is more appropriately
dismissed without prejudice to allow Campbell the opportunity to
file his action in the appropriate district court.* We dispense
with oral argument because the facts and legal contentions are
*
We do not mean to suggest that there is any infirmity in the
judgment order as presently entered, and leave that determination
to the appropriate district court.
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adequately presented in the materials before the court and argument
would not aid the decisional process.
VACATED AND REMANDED
WITH INSTRUCTIONS
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