Campbell v. United States

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED May 27, 2009 No. 08-40710 Summary Calendar Charles R. Fulbruge III Clerk JOHN R CAMPBELL Petitioner-Appellant v. UNITED STATES OF AMERICA Respondent-Appellee Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:07-CV-754 Before KING, DENNIS, and OWEN, Circuit Judges. PER CURIAM:* John R. Campbell, federal prisoner # 08471-424, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition. Campbell, who is serving a 235-month sentence for a 1999 bank robbery conviction, sought to challenge his fine and restitution order. The district court determined that the claim could not be brought under § 2241. Campbell contends that § 2241 is the proper vehicle for bringing his claim because § 2255 is an inadequate or ineffective means for challenging the * Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4. No. 08-40710 restitution order. Although Campbell is correct about the inapplicability of § 2255, he is incorrect about the availability of § 2241. A challenge to the restitution or fine portion of a sentence is a nonconstitutional issue relative to sentencing that should be raised on direct appeal and not for the first time in a § 2255 proceeding. United States v. Hatten, 167 F.3d 884, 887 n.5 (5th Cir. 1999); United States v. Segler, 37 F.3d 1131, 1135 (5th Cir. 1994). A district court lacks jurisdiction to a modify restitution order under § 2255, a writ of coram nobis, or “any other federal law.” Hatten, 167 F.3d at 886-87 & nn. 3 & 6. Further, a monetary penalty is not a sufficient restraint on liberty to meet the “in custody” requirements of § 2255 or § 2241. Hatten, 167 F.3d at 887; Segler, 37 F.3d at 1167; see Spring v. Caldwell, 692 F.2d 994, 998-99 (5th Cir. 1982); § 2241(c). The district court did not err by dismissing Campbell’s § 2241 petition challenging the restitution order. See Hatten, 167 F.3d at 887; Segler, 37 F.3d at 1136-37. The judgment of the district court is AFFIRMED. 2