[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 26, 2010
No. 09-11387 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00616-CV-FTM-29-DNF
LUTHER LEON AUSTIN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 26, 2010)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Luther Leon Austin, a federal prisoner proceeding pro se, appeals the district
court’s dismissal in part and denial in part of his federal habeas corpus petition,
brought under 28 U.S.C. § 2241. Austin is serving a 198-month sentence for
armed bank robbery and was ordered to pay $20,058 in restitution as provided by
the court’s schedule of payments; however, the court failed to attach the schedule
to its judgment of conviction. Bureau of Prisons (“BOP”) regulations provide that
when an inmate has a financial obligation, such as restitution, imposed at
sentencing, BOP staff “shall help that inmate develop a financial plan and shall
monitor the inmate’s progress in meeting that obligation.” 28 C.F.R. § 545.11.
The Inmate Financial Responsibility Plan (“IFRP”) is a voluntary program with
consequences if an inmate chooses not to participate in it. 28 C.F.R. § 545.11(d).
The BOP, through the IFRP and with Austin’s consent, garnished Austin’s wages
in order to collect the restitution payment owed by Austin as part of his sentence.
Austin filed a § 2241 petition and asserted that: (1) the district court improperly
delegated to the BOP the authority to collect his restitution payments in violation
of United States v. Prouty, 303 F.3d 1249 (11th Cir. 2002); and (2) the BOP was
wrongfully collecting his restitution payment.
On appeal, in support of his argument that the district court improperly
delegated the authority to set a payment schedule for the restitution component of
his sentence, Austin cites both the Mandatory Victims Restitution Act (“MVRA”),
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18 U.S.C. § 3664, and Prouty, 303 F.3d at 1254-55. Austin argues that the district
court erred because it failed to set the amount and timing of payments in the
restitution order but also did not state that the restitution was due immediately.
Austin further urges us to enjoin the BOP from withholding his money for the
restitution payment and require the BOP to reimburse him for sums previously
taken.
The availability of habeas relief under 28 U.S.C. § 2241 is a question of law
that we review de novo. Sawyer v. Holder, 326 F.3d 1363, 1365 n.4 (11th Cir.
2003). It has “long been settled law that an error that may justify reversal on direct
appeal will not necessarily support a collateral attack on a final judgment.” United
States v. Addonizio, 442 U.S. 178, 184, 99 S. Ct. 2235, 2240 (1979). We have not
addressed whether a prisoner can challenge a restitution order in a § 2241 petition.
See Dohrmann v. United States, 442 F.3d 1279, 1280 (11th Cir. 2006). However,
we have held that “a petitioner who failed to contest a restitution order either at
sentencing or on direct appeal cannot for the first time challenge the district court's
initial restitution calculation in a collateral proceeding, absent exceptional
circumstances.” Id. at 1280-81. Exceptional circumstances “are analogous to a
showing of cause and prejudice to overcome a procedural default for raising a
claim for the first time in a habeas corpus petition.” Id. at 1281.
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Austin is correct that we concluded in Prouty that a district court could not
delegate its authority to set a restitution payment schedule under the MVRA to the
BOP. Prouty, 303 F.3d 1249, 1254-55. In Prouty, however, the defendant raised
the improper delegation claim on direct appeal from the criminal judgment. Id. at
1250-51. Here, in contrast, Austin failed to challenge the restitution component of
his sentence at sentencing or on direct appeal. Because he makes no attempt to
show exceptional circumstances excusing this failure, the district court did not err
in dismissing Austin’s improper delegation claim. We therefore affirm the denial
of his § 2241 petition and refuse his requests that we enjoin the BOP from further
garnishing his wages and order the BOP to reimburse him for sums previously
taken.
AFFIRMED.
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