                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 7, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 HAROLD L. WALLETTE,

               Petitioner-Appellant,                     No. 08-1309
          v.                                             (D. of Colo.)
 J.M. WILNER, Warden, FCI-Florence,              (D.C. No. 08-cv-1452-ZLW)

               Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **



      Harold L. Wallette, a federal prisoner proceeding pro se, appeals the

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

§ 2241. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we REMAND

to the district court for further proceedings.




      *
         This order and judgment is not binding precedent except under the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 Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                  I. Background

      Wallette is currently in the custody of the United States Bureau of Prisons

(BOP) in Florence, Colorado. As detailed below, this § 2241 habeas petition

relates to a restitution order imposed on Wallette for prior federal crimes separate

from those for which he is now imprisoned.

      In 1998, a federal jury in North Dakota convicted Wallette on charges of

assaulting a federal officer and damaging government property. In addition to

imposing a 24-month sentence, the district court ordered Wallette to pay $3996.79

in restitution. Apparently assuming Wallette would pay the restitution after

serving his 24-month sentence, the court directed that installments be paid

“according to a plan determined by the Probation Office.” R., Doc. 3 at 18. The

record does not reflect any challenge to this restitution order on direct appeal.

      Wallette, however, never satisfied his restitution obligation while on

probation. In 2003, he returned to federal prison to serve a 480-month sentence

for subsequent drug and firearm convictions. Sometime after this return, the BOP

imposed a restitution payment schedule under the Inmate Financial Responsibility

Program (IFRP) to collect the outstanding balance on the $3996.79. 1




      1
       The IFRP, set forth in 28 C.F.R. §§ 545.10 and 545.11, requires inmates
to commit a percentage of their prison employment earnings toward the
repayment of court-ordered restitution. Participation in the IFRP is not
mandatory but entitles inmates to certain benefits. See 28 C.F.R. § 545.11(d).

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      Wallette filed this § 2241 habeas petition in July 2008. He first argued that

the sentencing court’s 1998 restitution order improperly delegated the repayment

scheduling to the Probation Office. Federal law, he asserted, in fact requires the

sentencing court to set the “manner . . . [and] schedule according to which[] the

restitution is to be paid.” 18 U.S.C. § 3664(f)(2). Wallette also argued that

because the sentencing court referred only to the Probation Office in its order, the

BOP cannot schedule payments under the IFRP, and he is thus exempt from

making restitution payments during incarceration.

      The district court denied Wallette’s § 2241 petition. In doing so it ruled:

(1) he could not raise the improper delegation issue in the § 2241 context, and (2)

the BOP has the authority to establish restitution payments under the IFRP.

      On December 17, 2008, we issued an order directing the government to file

a response brief addressing whether the BOP acted ultra vires by requiring

Wallette to make restitution payments under the IFRP. The government filed its

response, and Wallette filed a reply brief.

                                   II. Discussion

      We review the district court’s denial of habeas relief de novo, Fricke v.

Sec’y of the Navy, 509 F.3d 1287, 1289 (10th Cir. 2007), and construe Wallette’s

pro se petition liberally, Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th

Cir. 2007). Because Wallette is a federal prisoner proceeding under § 2241, he




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need not obtain a certificate of appealability to appeal the district court’s denial

of habeas relief. See Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000).

      A. Improper Delegation

      In his first claim, Wallette argues that 18 U.S.C. § 3664 prevents the

sentencing court from delegating restitution scheduling authority to the BOP. He

relies on the Ninth Circuit’s decision in United States v. Gunning, 401 F.3d 1145,

1149–50 (9th Cir. 2005), which held § 3664 prohibits a sentencing court from

delegating to the BOP the task of establishing a schedule for the payment of

court-ordered restitution. Gunning is consistent with our holding in United States

v. Overholt, 307 F.3d 1231, 1255–56 (10th Cir. 2002), which previously reached

the same conclusion.

      To the extent Wallette’s improper delegation claim implicates the validity

of his sentence, we lack jurisdiction to entertain a challenge to the sentencing

court’s restitution order. Wallette 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 Bradshaw v. Story, 86 F.3d 164,

166–67 (10th Cir. 1996) (holding a petition under § 2241 attacks the execution of

a sentence, while a § 2255 petition attacks the validity of a judgment and

sentence); see also Matheny v. Morrison, 307 F.3d 709, 711 (8th Cir. 2002)

(dismissing a delegation claim brought under § 2241). If Wallette is to make an




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improper delegation claim, he must do so through a § 2255 petition filed with his

sentencing court.

      B. Lack of BOP Authority Under 18 U.S.C. § 3664

      Wallette’s second claim contests the BOP’s authority under § 3664 to

schedule these restitution payments. Section 3664 addresses restitution by stating

that “the [sentencing] court shall . . . specify in the restitution order the manner in

which, and the schedule according to which, the restitution is to be paid.”

§ 3664(f)(2) (emphasis added). Wallette argues that because the sentencing

court’s order specified only that restitution be paid according to a plan determined

by the Probation Office, the BOP lacks authority to schedule restitution payments

using the IFRP.

      Because a challenge to the BOP’s authority to set restitution payment terms

goes to the execution of Wallette’s sentence, this claim falls within those properly

raised in a petition for habeas corpus under § 2241. See Howard v. United States

Bureau of Prisons, 487 F.3d 808, 811 (10th Cir. 2007).

      While Wallette may have a colorable argument on this claim, we

nevertheless decline to reach this issue because Wallette has failed to exhaust his

administrative remedies. Prior to seeking relief under § 2241, federal prisoners

must exhaust administrative remedies. Williams v. O’Brien, 792 F.2d 986, 987

(10th Cir. 1986) (per curiam). As the Supreme Court has noted, this exhaustion

requirement is important because it both protects administrative agency authority

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and promotes efficiency in adjudicating claims. See Woodford v. Ngo, 548 U.S.

81, 89 (2006).

      Wallette concedes he failed to exhaust his administrative remedies but

asserts such efforts would be futile because the BOP has “refused to accept and

process” his complaints. R., Doc. 3 at 2. He provides no support for his futility

argument, though attached to his reply brief are a number of administrative

responses from a previous lawsuit he pursued while incarcerated in the Southern

District of Indiana. These administrative appeals, however, came in the context

of a separate Bivens challenge wherein Wallette argued prison officials’ use of the

IFRP to withdraw money from his account violated his constitutional rights. See

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971). Here Wallette makes an entirely different argument—namely, that the

BOP’s actions violate his statutory rights under 18 U.S.C. § 3664. We decline to

apply these older administrative appeals to this new challenge or to treat them as

sufficient evidence of futility.

      Finally, we note that instead of addressing Wallette’s failure to exhaust

administrative remedies, the district court proceeded directly to his § 2241 claim.

While this is certainly permissible, see United States v. Eccleston, 521 F.3d 1249,

1253 (10th Cir. 2008) (a court may deny a habeas application on the merits

without addressing exhaustion), we decline to adopt the same approach here.




                                         -6-
Instead, we do not reach Wallette’s § 2241 claim, but rather require him to raise

his statutory arguments first through the BOP’s administrative appeals process.

                                 III. Conclusion

      Accordingly, we REMAND to the district court for further proceedings. On

remand, the district court should dismiss this matter without prejudice for failure

to exhaust administrative remedies. Wallette’s motion to proceed in forma

pauperis is GRANTED. His request for appointment of counsel is DENIED.

                                               Entered for the Court,

                                               Timothy M. Tymkovich
                                               United States Circuit Judge




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