Carl Tisthammer v. Jeffery Walton , 542 F. App'x 521 ( 2013 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 25, 2013*
Decided October 25, 2013
Before
RICHARD A. POSNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13-1165
CARL TISTHAMMER, Appeal from the United States District
Petitioner-Appellant, Court for the Southern District of Illinois.
v. No. 12-cv-1187-DRH
JEFFERY S. WALTON, David R. Herndon,
Respondent-Appellee. Chief Judge.
ORDER
Carl Tisthammer, an inmate housed at the federal penitentiary in Marion,
petitioned for a writ of habeas corpus under 28 U.S.C. § 2241, challenging the Bureau of
Prisons’ execution of his sentence through the Inmate Financial Responsibility Program
(“IFRP”), the Bureau’s voluntary program for guiding inmates in fulfilling their
*
The respondent was not served with process in the district court and is not
participating in this appeal. After examining the appellant’s brief and the record, we
have concluded that the case is appropriate for summary disposition. Thus, the appeal
is submitted on the appellant’s brief and the record. See FED . R. APP. P. 34(a)(2)(C).
No. 13-1165 Page 2
financial obligations. See 28 C.F.R. § 545.10–11. The district court dismissed the petition,
and we affirm.
Tisthammer was convicted in 2010 in the Central District of California of
producing, receiving, and possessing child pornography, 18 U.S.C. §§ 2251(a),
2252A(a)(2)(A), 2252A(a)(5)(B), 2252A(b)(1–2), and sentenced to 420 months’
imprisonment. The district court ordered him to pay $105,000 in restitution (for the
child victim’s benefit) and a special assessment of $800, but did not set a particular
payment schedule. Tisthammer refused to participate in the IFRP to make payments.
His conviction and sentence were affirmed on direct appeal. United States v. Tisthammer,
484 F. App’x 198 (9th Cir. 2012), cert. denied, 133 S. Ct. 1286 (2013).
Tisthammer then petitioned under 28 U.S.C. § 2241, challenging the Bureau’s
authority to require him to adhere to a payment schedule through the IFRP. He alleged
that while his direct appeal was pending, the Bureau improperly attempted to compel
him to pay the court-ordered restitution and assessment through the IFRP and, he says,
punished him for refusing to participate in the IFRP. The district court dismissed the
petition, finding no evidence to suggest that Tisthammer’s participation in the program
had been ordered or compelled. Further, to the extent Tisthammer may have viewed
the unavailability of certain privileges of participating (i.e., job-training programs,
higher-status housing) as a “restriction” or “sanction” for his refusal to participate, the
unavailability of those privileges was a consequence of his nonparticipation.
On appeal Tisthammer generally reiterates that the Bureau improperly
attempted to compel him to participate—and penalized him for not participating—in
the IFRP while his direct appeal was pending. He has not identified the “sanctions” he
allegedly suffered, but he appears to suggest that the Bureau has punished him and
other nonparticipating inmates by withholding (unspecified) privileges.
The district court did not err in dismissing Tisthammer’s petition. Inmates who
elect not to participate in the IFRP may, as a consequence, be denied certain privileges,
such as assignment to work details outside the prison facility and higher-status housing.
28 C.F.R. § 545.11(d). As long as Tisthammer refused to join the IFRP—even during the
pendency of his direct appeal—he was not entitled to those privileges. See United States
v. Boyd, 608 F.3d 331, 335 (7th Cir. 2010); United States v. Lemoine, 546 F.3d 1042, 1046
(9th Cir. 2008) (explaining that inmates “d[o] not have a preexisting right to receive any
of the benefits conditioned on [IFRP] participation”). Moreover, by denying privileges
to inmates who opt out of the IFRP, the Bureau does not improperly compel them to
No. 13-1165 Page 3
participate. United States v. McKnight, 665 F.3d 786, 795 (7th Cir. 2011), cert. denied,
132 S. Ct. 2756 (2012); Boyd, 608 F.3d at 334; Lemoine, 546 F.3d at 1046–47.
AFFIRMED.