CLD-151                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 12-1287
                                     ___________

                                 RICHARD BALTER,
                                               Appellant
                                       v.

                              RICARDO MARTINEZ
                      ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Civil No. 1:10-cv-03659)
                    District Judge: Honorable Jerome B. Simandle
                     ____________________________________

                             Submitted for Possible
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                March 29, 2012
      Before: RENDELL, HARDIMAN and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: April 30, 2012)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      The appellant, Richard Balter, is a federal prisoner currently housed at FCI

Beaumont in Beaumont, Texas. He is serving a life sentence in connection with the

murder for hire of Richard Cohen. The sentencing court also imposed a fine of $175,000

and ordered restitution in the amount of $112,511. In 1996, we affirmed his conviction
and sentence. See generally United States v. Balter, 

(3d Cir.), cert. denied,

(1996).1

         In late 2009, while housed at USP Allenwood, Balter filed a 28 U.S.C. § 2241

petition in the Middle District of Pennsylvania.2 He claimed that the Bureau of Prisons

(BOP) had imposed ―sanctions‖ against him for his failure to acquiesce to the Inmate

Financial Responsibility Program (IFRP). Balter argued that this was a violation of the

Mandatory Victims Restitution Act (MVRA), which had established that the sentencing

court was to be the source of ―set[ting] schedule[s] of restitution payments‖ and that

authority ―cannot be delegated . . . to BOP.‖ Balter sought ―removal of all BOP imposed

fee or [I]FRP collections against him‖ and cessation of sanctions. Nowhere in his

petition, or in his other supporting documents in the District Court, did Balter explain the

nature of the alleged ―sanctions‖ in question.

         We need not recount the balance of proceedings below. At some point, however,

Balter’s rationale shifted; he was not challenging the BOP’s actions, he explained, but

rather the District Court’s error in ―appoint[ing] the [BOP] as [its] collection agency.‖

See Traverse 1, ECF No. 20. He claimed that this framing of his challenge relieved him


1
  Balter has pursued additional challenges to aspects of his conviction and sentence. See
Balter v. United States, 410 F. App’x 428 (3d Cir. 2010) (per curiam, unpublished);
United States v. Balter, 164 F. App’x 211 (3d Cir. 2005) (per curiam, unpublished)
(affirming the denial of a motion for remission of restitution); see also C.A. No. 98-5440
(order entered Sept. 29, 2009) (denying certificate of appealability from motion to
vacate).
2
    M.D. Pa. Civ. No. 3:09-cv-00504.
                                             2
of the need to exhaust administrative remedies before filing his petition, as any attempt to

do so would be futile.

         Following a transfer to the District of New Jersey, the petition was denied by the

District Court. See generally Balter v. Martinez, No. 10–3659, 

(D.N.J.

Jan. 10, 2012). This appeal followed. We have appellate jurisdiction under 28 U.S.C.

§ 1291, exercising ―plenary review over the District Court’s legal conclusions and

apply[ing] a clearly erroneous standard to its findings of fact.‖ O’Donald v. Johns, 

, 173 n.1 (3d Cir. 2005) (per curiam). We may affirm on any ground supported

by the record. Guthrie v. Lady Jane Collieries, Inc., 

, 1145 n.1 (3d Cir.

1983).

         Under either theory of the case advanced by Balter, this habeas corpus petition

fails and, as a result, was properly denied by the District Court. Assuming that he is

attacking the IFRP, we note that he has never identified the ―sanctions‖ to which he was

allegedly subjected. However, his arguments on appeal suggest that he is complaining of

the ―withholding [of] benefits‖ that ―satisfactory participation‖ in the IFRP would

otherwise confer. Supp. to Appellant’s Br. 2. These arguments are forestalled by case

law that has repeatedly found the IFRP to be voluntary and lawful. See, e.g., United

States v. Boyd, 

, 334 (7th Cir. 2010); James v. Quinlan, 

, 630

(3d Cir. 1989). Balter ―ha[s] no entitlement, constitutional or otherwise, to any of the

benefits agreeing to participate in the IFRP would provide, such as a work detail outside

the prison perimeter, a higher commissary spending limit, a release gratuity, or pay
                                               3
beyond the maintenance pay level.‖ United States v. Lemoine, 

, 1049 (9th

Cir. 2008).

       Moving to Balter’s alternative rationale—that he is attacking the District Court’s

failure to set a restitution schedule—his petition fails primarily because the proper time

for challenging a restitution order is on direct appeal, and a § 2241 petition ―cannot be

used to challenge just the restitution part of a sentence when the custody supporting . . .

jurisdiction is actual imprisonment.‖ Arnaiz v. Warden, 

, 1330 (11th Cir.

2010); see also United States v. Sloan, 

, 697 (7th Cir. 2007) (―Restitution

orders that sweep too much conduct into their calculations are issues that must be raised

on direct appeal . . . .‖). The time for attacking the actual restitution order has long since

passed.3

       In sum, because this appeal fails to present a substantial question, we will affirm

the judgment of the District Court. Murray v. Bledsoe, 

, 247 (3d Cir. 2011)

(per curiam); see also 3d Cir. L.A.R. 27.4; IOP 10.6.




3
 Even if Balter were able to attack the restitution order, he would not be able to do so
under the MVRA or our intervening case law on the subject. The MVRA was enacted on
April 24, 1996, and it applies only to ―sentencing proceedings in cases in which the
defendant is convicted on or after the date of enactment.‖ United States v. Comer, 

, 1274 n.1 (6th Cir. 1996) (citations omitted); see also United States v.
Edwards, 

, 89 (3d Cir. 1998). But see United States v. Porter, 

, 71
(2d Cir. 1994) (discussing improper delegation under the predecessor statute to the
MVRA). Similarly, Balter cannot, in general, take advantage of new law arising after his
conviction became final in 1996. See Reinhold v. Rozum, 

, 153–54 (3d
Cir. 2010).
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