                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 5 2001
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 JOHN STANFA,

          Petitioner-Appellant,

 v.                                                       No. 00-3320
                                                            (D. Kan.)
 J.W. BOOKER, Warden, USP                         (D.Ct. No. CV-97-3404-RDR)
 Leavenworth,

          Respondent-Appellee.
                        ____________________________

                            ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Appellant John Stanfa, a prisoner appearing pro se, appeals the district

court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2241.

We exercise our jurisdiction under 28 U.S. § 2253(a) and affirm.



      Mr. Stanfa, an inmate serving a life sentence at the United States

Penitentiary in Leavenworth Kansas, filed a habeas corpus petition under § 2241

with the United States District Court for the District of Kansas. In his petition,

Mr. Stanfa alleged the Bureau of Prisons lacked authority to impose a restitution

and fine repayment schedule, pursuant to the sentencing judgment of the United

States District Court for the Eastern District of Pennsylvania. Specifically, Mr.

Stanfa alleged the sentencing court “lacked authority ... to delegate the scheduling

of payment of [his] fine and restitution to the Bureau of Prisons” and that “the

law does not permit courts to delegate the timing and amount of installment

payment[s] for fines and restitution to the Bureau of Prisons.” According to Mr.

Stanfa, this improper delegation to the Bureau of Prisons denied him due process

and equal protection.



      The Kansas district court entered a Memorandum and Order holding that, to

the extent Mr. Stanfa was challenging the sentencing court’s order as an improper

delegation, his action must be liberally viewed as a motion filed pursuant to 28


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U.S.C. § 2255 and filed in the sentencing court. In so holding, the district court

recognized a majority of circuit courts, including the Third Circuit, have

determined that setting a restitution or fine payment schedule is a core judicial

function which the district court may not delegate to a probation officer or the

Bureau of Prisons. See United States v. Coates, 178 F.3d 681, 685 (3d Cir. 1999).

Accordingly, the district court granted Mr. Stanfa a sixty-day period, or until

November 20, 2000, to notify the district court as to whether he wanted to request

a transfer of his claim to the sentencing court.



      The district court also reviewed Mr. Stanfa’s claim as alleging the Bureau

of Prisons’ collection of payments through a payment schedule under the Inmate

Financial Responsibility Program (“Program”) violated his constitutional rights.

Pursuant to a thorough and lengthy discussion of Mr. Stanfa’s claim and the

applicable law, the district court determined this type of claim was properly

brought under § 2241, but that the Bureau of Prisons’ collection of payments

under a payment schedule was not improper nor did it violate Mr. Stanfa’s

constitutional rights.



      Mr. Stanfa did not file a request to transfer his petition to the United States

District Court for the Eastern District of Pennsylvania. Before the sixty-day


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period elapsed for filing for such a transfer, Mr. Stanfa filed his notice of appeal.

In his appeal, Mr. Stanfa contends the district court misconstrued his claim

because he is not challenging his sentence, but claiming “an unlawful exercise of

authority by executive officials in executing the sentence as imposed by the

sentencing court.” In an attempt to succeed on appeal, Mr. Stanfa has

restructured his argument and now claims he was not alleging the sentencing

court improperly delegated its authority to the Bureau of Prisons, but that the

Bureau of Prisons cannot impose a payment schedule because it received no

express delegation from the sentencing court. 1



       We begin by addressing our jurisdiction in this matter. 2 As stated, Mr.

       1
         Mr. Stanfa bases his appeal on the judgment itself. A review of the record
shows the sentencing court used a form judgment, which provides four alternative choices
or sections for the “Schedule of Payments.” The sentencing court in this case “checked”
the box which states Mr. Stanfa’s fine and restitution payments “shall be paid ... in
installments which the probation officer shall establish ... provided that the entire
financial penalty is paid no later than 5 years after release from incarceration.” As Mr.
Stanfa points out on appeal, the sentencing court left “blank” the choice or section in
which the sentencing court explicitly designates the amount and timing of monthly
installments for such payments. The record further shows that the payment schedules for
Mr. Stanfa’s fine and restitution payments have been set by the Bureau of Prisons, and
that while Mr. Stafa previously agreed to participate in the Program, he now refuses to
make payments placing him in “refusal status.”



       Pursuant to our request, both parties briefed the jurisdictional issue raised in this
       2

case. We previously reserved judgement on this issue, which we dispose of here.


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Stanfa filed his notice of appeal before the period elapsed for filing his request

for transfer of his petition with the district court. However, we determine the

district court’s decision became final November 20, 2000, when the sixty-day

period for filing such a request expired. See Lewis v. B.F. Goodrich Co., 850

F.2d 641, 642-43 & n.2 (10th Cir. 1988) (en banc) (relying on Schuurman v.

Motor Vessel “Betty K V,” 798 F.2d 442, 445 (11th Cir. 1986)). Accordingly,

although Mr. Stanfa’s notice of appeal predated a final district court decision, we

determine his premature notice of appeal ripened on November 20, 2000, when

the district court’s decision became final. See Lewis, 850 F.2d at 645. Moreover,

his brief, filed November 20, 2000, was the functional equivalent of a notice of

appeal required by Rule 3 of the Federal Rules of Appellate Procedure and

followed a final decision. See Smith v. Barry, 502 U.S. 244, 248-49 (1992) (“If a

document filed within the time specified by Rule 4 gives the notice required by

Rule 3, it is effective as a notice of appeal.”); see also Fed. R. App. P. 3(a) &

4(a). Therefore, under either scenario, we have jurisdiction to review Mr.

Stanfa’s appeal.



      Having determined our jurisdiction, we review the district court’s denial of

Mr. Stanfa’s habeas corpus petition de novo. See Bradshaw v. Story, 86 F.3d 164,

166 (10th Cir. 1996). “A petition under 28 U.S.C. § 2241 attacks the execution of


                                          -5-
a sentence rather than its validity and must be filed in the district where the

prisoner is confined.... The exclusive remedy for testing the validity of a

judgment and sentence ... is that provided for in 28 U.S.C. § 2255,” and must be

brought in the district court that sentenced the defendant. Id. at 166 (quotation

marks and citations omitted).



      Applying these principles and our standard of review, we have reviewed the

record and conclude Mr. Stanfa’s habeas corpus petition clearly implicates the

validity, not the execution, of his sentence under 28 U.S.C. § 2255. This is

because Mr. Stanfa’s petition plainly challenges the sentencing court’s delegation

of authority to the Bureau of Prisons to determine that portion of his sentence

dealing with his fine and restitution payment schedule. In so concluding, we note

Mr. Stanfa’s attempt to totally restructure his argument as a non-delegation

argument for the purpose of succeeding on appeal is unavailing. We will not

consider a new, secondary, or back-up theory mounted for the first time on

appeal. See Tele-Communications, Inc. v. Commissioner of Internal Revenue, 104

F.3d 1229, 1233 (10th Cir. 1997).



      Proceeding with Mr. Stanfa’s delegation argument presented in his petition,

we agree with the district court’s conclusion that the Third Circuit, which has


                                          -6-
jurisdiction over § 2255 claims filed in the United States District Court for the

Eastern District of Pennsylvania, has expressly addressed this issue. The Third

Circuit has determined that the Victim and Witness Protection Act, 18 U.S.C.

§ 3663(f)(1) (1982), vests sole authority in the district courts to specify the

manner and schedule of restitution, and that the delegation of this responsibility

to a probation officer or the Bureau of Prisons is inappropriate. See United States

v. Graham, 72 F.3d 352, 357 (3d Cir. 1995), cert. denied, 516 U.S. 1183 (1996).

As a result, we conclude the district court did not err in liberally construing Mr.

Stanfa’s petition as raising a cogent issue reviewable under § 2255 by the

sentencing court, and then providing Mr. Stanfa an opportunity to transfer his

petition to the United States District Court for the Eastern District of

Pennsylvania for its review.



      Having determined the issue raised by Mr. Stanfa concerning the

scheduling of his payments is within the ambit of § 2255, we conclude his § 2241

claim that the Bureau of Prisons is improperly imposing a schedule to collect fine

and restitution payments lacks merit. In the absence of a successful challenge to

the validity of the underlying sentencing court’s order delegating such authority,

we cannot say the Bureau of Prison’s use of a collection schedule is improper or




                                          -7-
that Mr. Stanfa’s argument raises a colorable constitutional claim. 3



       For these reasons, and substantially the same reasons in the district court’s

Memorandum and Order dated September 20, 2000, we AFFIRM the district

court’s judgment.



                                           Entered by the Court:

                                           WADE BRORBY
                                           United States Circuit Judge




       3
          Indeed, in his reply brief, Mr. Stanfa states he does not challenge or dispute the
constitutionality of the Program.


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