Opinion
3:23-cv-285-KAP
11-22-2023
DONALD STANLEY LAVIGNE, Petitioner v. MICHAEL UNDERWOOD, Warden, F.C.I. LORETTO Respondent
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
I recommend that petitioner Donald Lavigne's petition for writ of habeas corpus under 28 U.S.C.§ 2241(c)(3), ECF no. 4, be summarily denied under 28 U.S.C.§ 2243.
Report
This is filed as a Report and Recommendation because dismissal before service is appropriate. Petitioner Lavigne was found guilty of filing false tax returns and making false statements after a bench trial earlier this year before the Honorable David Lawson at United States v. Lavigne, Case No. 2:2i-cr-20355-DML-DRG (E.D. MI), appeal docketed at No. 23-1686 (6th Cir.). Judge Lawson sentenced Lavigne on July 21, 2023, to 36 months imprisonment, plus a restitution obligation on which payment was “to begin immediately.” See the attached J&C, ECF no. 236 in United States v. Lavigne. The matter is on appeal to the Sixth Circuit, and there are related proceedings at United States v. Lavigne, Case No. 2:23-mc-51467-DML (E.D. MI) on the government's application for a writ of continuing garnishment. In those proceedings Lavigne opposes the writ on the basis that he “has promptly executed, in good faith, a repayment arrangement by and through the FPC Loretto facility.” Motion at 1, ECF no. 4 in United States v. Lavigne, Case No. 2:23-mc-51467-DML (E.D. MI).
Lavigne contends in this court that he has been coerced into participating in the inmate financial responsibility program (IFRP) and that it was misrepresented to him as negating any other attempt at enforcement of his restitution obligation, Petition at 1-2. Further, in Lavigne's interpretation of the J&C he has no duty to pay restitution until he is released to supervised release. His theory is that he must be released on a writ because “the court and the prosecutor cannot have it both ways,” Petition at 2, i.e., cannot both incarcerate Lavigne and demand that he pay restitution.
Wanting to have both ways himself, Lavigne then goes on to deny that he can be ordered to pay restitution at all “as there was no plea agreement in this case” and that Judge Lawson had no power “in this case to order supervised release without agreement 1 by all parties in some form of contract or Plea agreement etc... .” Petition at 2. Lavigne finishes with a request that the case be transferred to the Western District of Kentucky, that this court stay this matter until the appeal in the Sixth Circuit has been decided, and that he be resentenced under the sentencing guidelines in effect as of November 1, 2023. Petition at 3.
The IFRP encourages but does not force a sentenced inmate to meet his or her legitimate financial obligations. See 28 C.F.R.§ 545.10. Prison staff assist an inmate in developing a financial plan to meet those obligations and monitor the inmate's progress under the plan. 28 C.F.R. § 545.11. The carrot (or stick) that the BOP offers an inmate to participate in the IFRP is that refusal to participate results in the loss of benefits related to prison employment wages, commissary spending limits, and housing status. 28 C.F.R. § 545.11(d). Whether Lavigne or the employees of the BOP themselves consider the consequences of being in refusal status to be sanctions or the withholding of incentives is irrelevant. The IFRP is entirely permissible as a condition of incarceration. See Driggers v. Cruz, 740 F.3d 333, 338 (5th Cir. 2014), cited with approval in Solomon v. United States, 680 Fed.Appx. 123, 126 (3d Cir. 2017). Participation in the IFRP does not expressly or by implication negate any other remedies available to collect restitution, and Lavigne's belief that it does is both wrong and immaterial.
Likewise, Lavigne's interpretation of the J&C which he offers in support of his claim that the J&C only requires restitution as a condition of supervised release is wrong and immaterial. His claim in the sentencing court in support of his opposition to the writ of garnishment that he executed a repayment agreement in good faith and his claim here that the BOP has no power “to require or invoke payment arrangements toward restitution,” Petition at 1, are inherently contradictory and justify the dismissal of the petition on the grounds of judicial estoppel alone. Further, if the IFRP were invalid the remedy of release that Lavigne seeks would not be an appropriate remedy.
Lavigne's attempts to have this court stay proceedings in the Sixth Circuit, to cancel his restitution obligation either overtly or by implication by ordering his release, and to resentence him under new guidelines are not cognizable in a habeas petition due to 28 U.S.C. § 2255(e), which states:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
Lavigne goes on and on with conclusory claims that the BOP is misappropriating money paid in the IFRP and that “the United States Attorneys offices” are somehow enriching themselves, plus elliptical references to the parse-syntax lingo of the sovereign citizen movement, e.g. that “recourse” cannot be had against him because he is not really Donald Stanley Lavigne but “Donald Stanley:Lavigne,” his “Authorized Representative Agent” (upper case), and a citizen of the “republic” (lower case) of the United States and not a “United States Citizen” (upper case). Petition at 2-3. See generally Samuel Barrows, “Sovereigns, Freemen, and Desperate Souls: Towards a Rigorous Understanding of Pseudolitigation Tactics in United States Courts,” Boston College Law Review (Issue 3, March 2021) 905-40.
In short, Lavigne is stringing words together without any attention to the law or the minimal consistency required to litigate. The presumption that plausible statements of fact in a complaint should be presumed true for pleading purposes has no applicability in habeas practice. Rule 2(c) of the Rules governing Habeas Corpus Cases under Section 2254 in the United States District Courts, 42 U.S.C.§, made applicable to habeas corpus petitions under 28 U.S.C.§ 2241 by Habeas Rule 1(b), requires the petitioner to set forth all the claims he intends to present and the facts that support those claims. Conclusory assertions as to what the law is are not facts. See also Mayle v. Felix, 545 U.S. 644, 655 (2005)(quoting with approval the Advisory Committee's Note on Habeas Corpus Rule 4, that “[N]otice pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error.” (internal quotation marks omitted)). This petition should be dismissed.
Pursuant to 28 U.S.C.§ 636(b)(1), the petitioner is advised that he has fourteen days to file written objections to this Report and Recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error.)