1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 STEFANO GUIDO VITALE, Case No. 2:18-cv-02075-MCS-MAA 12 Petitioner, ORDER ACCEPTING REPORT 13 v. AND RECOMMENDATION OF UNITED STATES MAGISTRATE 14 FELIPE MARTINEZ, Warden, JUDGE 15 Respondent. 16 17 Pursuant to

, the Court has reviewed the Petition, the other 18 records on file herein, and the Report and Recommendation of the United States 19 Magistrate Judge (“R&R,” ECF No. 22). 20 The Court also has reviewed Petitioner’s objections to the Report and 21 Recommendation, which were filed on April 8, 2020. (“Objections,” ECF No. 26.)1 22 Respondent did not file a timely response to the Objections. As required by Federal 23 Rule of Civil Procedure 72(b)(3), the Court has engaged in de novo review of the 24 portions of the R&R to which Petitioner specifically has objected. The Objections 25 reiterate arguments made in Petitioner’s substantive briefs (see generally ECF Nos. 26 1, 18), and they lack merit for the reasons set forth in the R&R. 27 28 1 Petitioner previously filed an incomplete copy of these objections on March 9, 1 Petitioner contrasts the payment schedule in his judgment, which sets a 2 restitution schedule based on “wages earned while in prison,” Judgment in a 3 Criminal Case 9, United States v. Vitale, No. 4:15-cv-00068 (S.D. Tex. Jan. 12, 4 2017), ECF No. 306, with a payment schedule applying to a different federal 5 inmate that was recited in a decision of the Eastern District of California, McKreith 6 v. Lake, No. 1:19-cv-00365-SKO (HC),

, at *3, 2019

, at *2 (E.D. Cal. Oct. 24, 2019), which provides one schedule if the 8 inmate works in a prison job and an alternative schedule in the event the inmate 9 does not work. (Objections at 2-3.) Petitioner argues that, because there is no 10 analogous alternative schedule provided in his judgment, he should not be required 11 to pay anything toward restitution while incarcerated should he not have a prison 12 job. (Id.) The Petition does not challenge the sentencing court’s judgment (Petition 13 at 6), so it is unclear for what purpose Petitioner seeks to contrast his judgment with 14 the judgment recounted in McKreith. 15 Construing the Objections generously, Petitioner appears to argue that the 16 Bureau of Prisons (“BOP”) cannot use the Inmate Financial Responsibility Program 17 (“IFRP”) to draw from Petitioner’s account if he does not work in prison, given that 18 his criminal judgment does not provide an alternative restitution schedule in the 19 event Petitioner does not work. (See Objections at 3 (“This case before you has not 20 one dollar going towards restitution until either employed by the B.O.P (50% of his 21 wages) or until 60 days after his release from the B.O.P.”); see generally

.) 22 Any argument to this end lacks merit for the reasons discussed in the R&R. (See 23 R&R at 7 (“The BOP has authority to implement a payment program ‘that 24 encourages inmates voluntarily to make more generous restitution payments than 25 mandated in their respective judgments.’” (quoting United States v. Lemoine, 546

(9th Cir. 2008))).) In other words, even assuming Petitioner 27 presently is not required to pay anything toward restitution under the judgment, he 28 may enter—and, based on the record before the Court, he voluntarily has entered 1 || (see, e.g., Answer at 14-15 (describing IFRP contracts Petitioner entered); 2 || Objections at 8 (noting “OBLG STATUS.: AGREED” on February 28, 2020 3 || printout of IFRP page describing restitution obligation)—an IFRP plan directing 4 || payments toward restitution. 5 Petitioner “is free to decline to participate in the IFRP.” Lemoine,

|| at 1047. The Court’s Order and Judgment in this matter do not preclude Petitioner 7 || from either refusing to participate in the IFRP or seeking habeas relief on the basis 8 || that his refusal to participate in the IFRP has not been honored. 9 The Court finds no defect of law, fact, or logic in the R&R. The Court 10 || concurs with and accepts the findings, conclusions, and recommendations of the 11 || United States Magistrate Judge, and overrules the Objections. 12 IT IS THEREFORE ORDERED that (1) the Report and Recommendation of 13 || the Magistrate Judge is accepted and adopted; and (2) Judgment shall be entered 14 || denying the Petition and dismissing this action with prejudice. 15 16 || DATED: October 5, 2020 4 □ £ 7 ° COnnr 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28