United States of America v.  Alicedes Morejon Corcho

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-7747 
ALICEDES MOREJON CORCHO,
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, District Judge.
(CR-96-199)
Submitted: March 19, 2003
Decided: April 1, 2003
Before LUTTIG, NIEMEYER, and WILLIAMS, Circuit Judges.
Vacated and remanded with instructions by unpublished per curiam
opinion.
COUNSEL
Alicedes Morejon Corcho, Appellant Pro Se. Michael Lee Keller,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION
PER CURIAM:
Alicedes Morejon Corcho appeals the district court’s order granting
his motion for reconsideration of its denial of his motion for adminis-
trative relief, construing his motion for administrative relief as a 28
U.S.C. § 2255 (2000) motion, and dismissing the § 2255 motion as
successive. We vacate the district court’s order and remand for further
proceedings as set forth below.
Corcho was convicted of conspiracy to distribute and possess with
intent to distribute cocaine, and aiding and abetting possession with
intent to distribute cocaine. In addition to imposing a 120 month sen-
tence, the district court imposed a special assessment of $200 and a
$5000 fine. A schedule of payments contained in the criminal judg-
ment provided that $200 was payable immediately, with the balance
to be paid in installments to commence thirty days after the date of
judgment. Although the criminal judgment did not specifically dele-
gate authority to the Bureau of Prisons ("BOP") to set the amount and
timing of payments, the district court did not set a payment schedule
and it appears that the BOP has been determining the installment pay-
ments.
In his motion for administrative relief in the district court, Corcho
asserted that the district court had improperly delegated its authority
to set the amount and timing of his fine payments to the BOP in viola-
tion of United States v. Miller, 77 F.3d 71, 78 (4th Cir. 1996). On
appeal, he contends that the district court erred in construing this
motion as a § 2255 motion, and explains that he was merely seeking
an order of clarification to prevent the BOP from establishing a pay-
ment schedule for the fine.
We find that Corcho’s motion only challenges the implementation
of the fine portion of his sentence. Because he does not seek to be
released from custody and it is well settled that § 2255 relief may not
be granted when the litigant challenges only a fine or restitution order,
we construe his motion as a petition for habeas corpus relief arising
under 28 U.S.C. § 2241 (2000). See Blaik v. United States, 161 F.3d
1341, 1342-43 (11th Cir. 1998) (collecting cases holding that a
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§ 2255 motion may not be used for the sole purpose of challenging
fines or restitution orders); cf. United States v. Miller, 871 F.2d 488,
489-90 (4th Cir. 1989) (holding that a claim for jail time credits
should be brought under § 2241).
A § 2241 petition must be brought in the district in which the peti-
tioner is incarcerated, see In re Jones, 226 F.3d 328, 332 (4th Cir.
2000), and Corcho is presently incarcerated in Miami, Florida.
Accordingly, we grant leave to proceed in forma pauperis, vacate the
district court’s order, and remand for the district court to determine
whether transferring Corcho’s § 2241 petition to the proper federal
district court would serve the interests of justice, see 28 U.S.C. § 1631
(2000), or whether the action is more appropriately dismissed without
prejudice to allow Corcho to file his action in the appropriate district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
VACATED AND REMANDED WITH INSTRUCTIONS
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