                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALSFebruary 8, 2013
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 JOHN ERNEST DADE,

              Petitioner - Appellant,
                                                         No. 11-1501
 v.
                                            (D.C. No. 1:11-CV-00430-WJM-MJW)
                                                          (D. Colo.)
 LINDA SANDERS, Warden, FCI
 Lompoc

              Respondent - Appellee. *



                          ORDER AND JUDGEMENT **


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.




      *
            After transferring Mr. Dade from the Federal Correctional Institution
(“FCI”) in Florence, Colorado to the FCI in Lompoc, California, Respondent
moved to substitute Linda Sanders, the Warden at FCI Lompoc, for Julie Wands,
the Warden at FCI Florence, pursuant to Federal Rule of Appellate Procedure
43(b). We grant Respondent’s motion and substitute Linda Sanders, Warden, FCI
Lompoc, as Respondent-Appellee.
      **
             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      This order and judgment is not binding precedent, except under the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. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
      John Earnest Dade, a federal prisoner proceeding pro se, 1 appeals from the

district court’s decision denying his 28 U.S.C. § 2241 petition for habeas relief.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm the district

court’s denial of habeas relief and its resulting judgment. 2

      In 2003, Mr. Dade was convicted in the United States District Court for the

Northern District of Idaho of various federal offenses, the substance of which are

not relevant to this appeal. After the Ninth Circuit affirmed his conviction on

appeal but vacated his sentence and remanded for resentencing, Mr. Dade was

sentenced to 336 months’ imprisonment and a $5,000 fine. The sentencing court

also ordered Mr. Dade to pay a $500 assessment and provided special instructions

that Mr. Dade “shall submit nominal payments of not less than $25 per quarter

while incarcerated through the Inmate Financial Responsibility Program

[(“IFRP”)].” R. at 137–38 (Am. J. in Criminal Case, filed Sept. 5, 2006)

(emphasis added).

      Mr. Dade has participated at various levels in the IFRP, which is


      1
             Because Mr. Dade is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
      2
             As a federal prisoner proceeding under § 2241, Mr. Dade “does not
need a certificate of appealability to appeal a district court’s denial of the
petition.” Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000); see McIntosh
v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997) (“[A] certificate
of appealability under [AEDPA] is not required in order to appeal a final order in
a proceeding under 28 U.S.C. § 2241.” (citation omitted)).

                                         -2-
administered by the Bureau of Prisons (“BOP”). Importantly for purposes of this

appeal, Mr. Dade signed a contract in October 2010, agreeing to participate in the

IFRP and acknowledging that he had been provided with information regarding

the potential consequences of refusing to participate. Additionally, in March

2011, he agreed to continue participating in the program voluntarily and to

contribute $25.00 per quarter. As of May 18, 2011, Mr. Dade had a zero balance

on the $500 assessment, but still owed $4,772.84 on the $5,000 fine.

      Mr. Dade’s habeas petition was filed in the United States District Court for

the District of Colorado on March 23, 2011, challenging the constitutionality of

the IFRP and the BOP’s administration of it. 3 It was referred to a magistrate

judge who, after reviewing “the petition and the answer as well as applicable

Federal Rules of Civil Procedure, statutes, and case law and . . . tak[ing] judicial

notice of the court’s file,” id. at 173 (Recommendation on Appl. for Writ of

Habeas Corpus, filed July 25, 2011), recommended denying Mr. Dade’s petition.

The magistrate judge also recommended denying Mr. Dade’s motion to reconsider

a previous order denying a preliminary injunction 4 and his motions for summary

      3
              We note that at the time Mr. Dade filed this habeas petition he was
confined in Colorado and thus the United States District Court for the District of
Colorado was the proper court for his § 2241 challenge. See Bradshaw v. Story,
86 F.3d 164, 166 (10th Cir. 1996) (“A petition under 28 U.S.C. § 2241 . . . must
be filed in the district where the prisoner is confined.”); see also discussion infra
at nn. 5 & 6 (addressing our jurisdiction over Mr. Dade’s instant petition).
      4
             Mr. Dade sought injunctive relief in the form of an order from the
                                                                     (continued...)

                                         -3-
judgment.

      The district court overruled Mr. Dade’s objections to the magistrate judge’s

recommendation and adopted the recommendation in its entirety. On November

2, 2011, Mr. Dade filed both a petition for rehearing and a notice of appeal.

      On February 14, 2012, our clerk of court entered an order that “[t]his

appeal cannot proceed until the district court rules on the petitioner’s timely filed

motion for reconsideration . . . [and a]ccordingly this appeal remains ABATED.”

Order, No. 11-1501, at 1 (10th Cir., filed Feb. 14, 2012) (emphasis omitted)

(abating the appeal). On April 11, 2012, the district court denied Mr. Dade’s

motion to alter or amend the judgment. Our clerk of court subsequently entered

an order lifting the abatement of Mr. Dade’s appeal.

      Mr. Dade appeals from the district court’s denial of his 28 U.S.C. § 2241

petition. In his opening brief, he presents two issues for our review. First, he

asserts that “contractual state and federal law between the first parties does not



      4
        (...continued)
district court “compelling the Department of Justice and the Bureau of Prisons ‘to
cease and disist [sic] from any further withdrawals of funds from the movants
[sic] inmate trust fund account.” R. at 59 (Order Den. Prelim. Inj., filed Apr. 21,
2011) (alterations in original) (citation omitted). The district court denied Mr.
Dade’s requests for injunctive relief because “Mr. Dade fail[ed] to allege specific
facts that demonstrate he is facing immediate and irreparable injury.” Id. at 60.
Mr. Dade does not appear to appeal from the district court’s denial of his request
for injunctive relief, but to the extent that he does pursue such an argument before
us, we deny relief consistent with our determination herein that he is not entitled
to relief on the merits of his arguments.

                                         -4-
allow . . . the BOP to renegotiate the first parties [sic] contract through coercion,

trickery, [or] intimidation.” Aplt. Opening Br. at 3 (capitalization altered)

(emphasis omitted). Respondent construes this argument to be a challenge to “the

BOP’s authority to collect more than $25 per quarter in IFRP payments,”

asserting that Mr. Dade “suggests that the sentencing court set a maximum

payment of $25 per quarter and that a higher payment rate could only be required

if his sentence is amended.” Aplee. Br. at 13. Second, Mr. Dade challenges the

constitutionality of the IFRP, claiming that “the BOP, out of thin air made up the

IFRP program without authority of Congress and [it] has been declared unlawful

by the [United States District Court for the District of Oregon].” Aplt. Opening

Br. at 3 (capitalization altered).

      We review the district court’s denial of a federal prisoner’s 28 U.S.C.

§ 2241 petition de novo and its factual findings for clear error. Palma-Salazar v.

Davis, 677 F.3d 1031, 1035 (10th Cir. 2012). We have carefully reviewed the

entire record before us—including the magistrate judge’s recommendations and

the district court’s opinions—as well as the parties’ briefs and other motions.

With the appropriate standards of review in mind, we conclude that we agree with

the district court’s disposition of Mr. Dade’s case.

      As an initial matter, we agree with the district court that, despite




                                          -5-
Respondent’s arguments to the contrary, jurisdiction is proper under § 2241. 5 As

to Mr. Dade’s two arguments, we agree with the district court’s adoption of the

magistrate judge’s recommendation to dismiss Mr. Dade’s habeas petition.

      Briefly, with respect to Mr. Dade’s first argument—which apparently is

that the BOP unlawfully collected more than the $25 per quarter maximum set by

the sentencing court—the magistrate judge correctly found that the BOP did not

act unlawfully. The sentencing court’s order stated that Mr. Dade “shall submit


      5
              “A petition under 28 U.S.C. § 2241 attacks the execution of a
sentence . . . .” Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000)
(emphasis added) (quoting Bradshaw, 86 F.3d at 166) (internal quotation marks
omitted). Despite Respondent’s arguments to the contrary, simply because Mr.
Dade is not challenging his actual confinement does not mean that he is not
challenging the execution of his sentence. The $500 assessment and $5,000 fine
are undoubtedly part of Mr. Dade’s sentence. In other words, where a petitioner
challenges the execution of his sentence, even though he is not challenging the
actual physical custodial aspect of execution, § 2241 applies to his challenge. See
Matheny v. Marrison, 307 F.3d 709, 711–12 (8th Cir. 2002) (explaining that the
petitioners’ claims “challeng[ing] the IFRP’s payment schedule . . . concern the
execution of sentence, and are therefore correctly framed as § 2241 claims”); see
also Wallette v. Wilner, 321 F. App’x 735, 738 (10th Cir. 2009) (“Because a
challenge to the BOP’s authority to set restitution payment terms goes to the
execution of [petitioner’s] sentence, this claim falls within those properly raised
in a petition for habeas corpus under § 2241.”); Davis v. Wiley, 260 F. App’x 66,
68 & n.2 (10th Cir. 2008) (noting that the petitioner’s claim contesting “the
BOP’s authority under the IFRP to establish and enforce payment amounts [the
petitioner] must follow in connection with the court-ordered special assessment
and restitution” was “properly raised in a § 2241 petition” because it “attack[ed]
the execution of [the petitioner’s] sentence”). Because Mr. Dade is challenging
the execution of his sentence—as he is challenging the constitutionality of the
IFRP and the enforcement of the IFRP against him as a violation of the contract
between Mr. Dade and the federal courts—his claim was properly before the
district court under § 2241, and we therefore have jurisdiction over the appeal
under 28 U.S.C. §§ 1291 and 2253.

                                        -6-
nominal payments of not less than $25 per quarter while incarcerated through the

Inmate Financial Responsibility Program.” R. at 138 (emphases added). Any

payments the BOP determined that Mr. Dade owed or should pay over the $25

minimum were thus consistent with the sentencing court’s order and not

unlawful. 6 And as for Mr. Dade’s second argument, which contests the

constitutionality of the IFRP, as a panel of our court has previously stated,

“[e]very court to consider a challenge to the IFRP’s constitutionality has upheld

it.” Davis, 260 F. App’x at 68; see id. (collecting cases). We see no basis for

disagreeing with these courts.

      Therefore, we affirm the district court’s dismissal of Mr. Dade’s habeas

petition and its resulting judgment, for substantially the same reasons that the

magistrate judge set out in his recommendation, which the district court




      6
              To the extent Mr. Dade is challenging the sentencing order itself, we
lack jurisdiction to hear such an appeal. See Wilner, 321 F. App’x at 738 (“To
the extent [Petitioner’s] . . . claim implicates the validity of his sentence, we lack
jurisdiction to entertain a challenge to the sentencing court’s restitution order.
[Petitioner] has brought a § 2241 petition; however, he can attack the validity of
his sentence only through a 28 U.S.C. § 2255 petition filed in the district court
that sentenced him.”); see also Bradshaw, 86 F.3d at 166 (holding a petition
under § 2241 “attacks the execution of a sentence rather than its validity and must
be filed in the district where the prisoner is confined” while a § 2255 petition
“attacks the legality of detention and must be filed in the district that imposed the
sentence”) (citation omitted)).

                                         -7-
subsequently adopted. 7



                                              Entered for the Court



                                              JEROME A. HOLMES
                                              Circuit Judge




      7
              Six motions currently are pending before us. We summarily dispose
of them here. First, we deny Mr. Dade’s motion to compel as moot. Second, we
deny Mr. Dade’s motion to transfer for substantially the same reasons set out by
the district court in denying his similar motion before it. Third, as stated above,
we grant Respondent’s motion to substitute. Fourth, we grant Mr. Dade’s
motion to supplement the record and note that we considered the arguments
contained therein in our disposition of Mr. Dade’s claims. Fifth, we deny Mr.
Dade’s motion for a settlement and disposition of this case as moot given our
rulings on Mr. Dade’s habeas claims and other motions in this order and
judgement. Similarly, as to Mr. Dade’s final motion, styled as a petition for a
ruling in this case, we deny it as moot.

                                        -8-
