                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-3-2008

Trader v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1141




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"Trader v. USA" (2008). 2008 Decisions. Paper 1068.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1068


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ALD-207                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 08-1141
                                       ___________

                               OSSIE ROBERT TRADER,
                                                   Appellant

                                             v.

                           UNITED STATES OF AMERICA
                       ____________________________________

                    On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D.C. Civil No. 07-cv-03698)
                   District Judge: Honorable Michael M. Baylson, III
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    May 22, 2008

            Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges

                                   (Filed: June 3, 2008 )
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Ossie Robert Trader appeals from an order of the United States District Court for

the Eastern District of Pennsylvania dismissing his petition for writ of habeas corpus filed

pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will summarily affirm.
       In 2007, Trader filed a § 2241 petition, alleging that the sentencing “court did not

set a [restitution] payment schedule” under the Mandatory Victims Restitution Act

(“MVRA”). The District Court characterized Trader’s claim slightly differently, stating

that he was “attack[ing] the legality of the court’s calculation of the amount of restitution

he has been ordered to make.” In any event, the District Court dismissed the petition,

noting that “relief is not available under any part of AEDPA, including both 28 U.S.C.

§ 2255 and 28 U.S.C. § 2241, if the petition solely attacks the imposition of a monetary

fine or an order of restitution.” Trader appealed.

       To the extent that Trader challenged the terms of his restitution order, the District

Court correctly concluded that he could not raise such a claim in a § 2255 motion. See

Blaik v. United States, 161 F.3d 1341, 1343 (11th Cir. 1998) (holding that § 2255 may

not be utilized by a person in federal custody to attack only the restitution portion of his

sentence because § 2255 affords relief only to those claiming the right to be released from

custody). We also agree with the District Court insofar as it concluded that Trader’s

claim does not fall within the purview of § 2241. Trader did not challenge the execution

of his sentence. Instead, he essentially alleged that the sentencing court failed to follow

the strictures of the MVRA.1 See, e.g., Coady v.Vaughn, 251 F.3d 480, 485-86 (3d Cir.




       1
       Notably, it appears that Trader was convicted and sentenced under the MVRA’s
predecessor statute, the Victim and Witness Protection Act, which did not require the
sentencing court to set the schedule of payments. See United States v. Corley, 500 F.3d
210, 226 (3d Cir. 2007); United States v. Cottman, 142 F.3d 160, 168 n.10 (3d Cir. 1998).

                                              2
2001) (federal prisoners’ claims involving execution of sentence are cognizable under

§ 2241).

      Therefore, because the District Court lacked jurisdiction to entertain Trader’s

claim, we will summarily affirm.2




      2
          Trader’s motion to expedite consideration of this appeal is denied.

                                               3
