SYLVIA RAMBO, Senior District Judge
The background of this order is as follows.
Petitioner's case originally arose in the United States District Court for the District of Rhode Island. Petitioner's judgment of conviction was appealed and affirmed. Petitioner filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 which was denied by the district court. The First Circuit Court of Appeals affirmed the district court.
Petitioner then filed a petition pursuant to 28 U.S.C. § 2241 in which he challenges that portion of his sentence relating to restitution. The magistrate judge filed a report in which he recommended that the petition be dismissed, reasoning that the proper method to bring his challenge was through a petition pursuant to 28 U.S.C. § 2255 and not § 2241. Dismissal was then recommended because the petition under § 2255 would have been a second or successive petition.
This court adopted the report and recommendation. Petitioner then filed a motion pursuant to Federal Rule of Civil Procedure 59(e). Petitioner's argument is that § 2241 is appropriate because he is not seeking release from prison but is seeking review of the restitution order. Petitioner cites cases which support his position that § 2255 petition is inappropriate to challenge the restitution portion of a sentence. In Blaik v. United States, 161 F.3d 1341 (11th Cir. 1998), the court held that a motion to vacate, set aside or correct a sentence cannot be utilized by a federal prisoner who challenges only the restitution portion of his sentence because 28 U.S.C. § 2255 affords relief only to those prisoners claiming the right to be released from custody. Id. at 1342.
Based on the Blaik case and the cases cited therein, IT IS HEREBY ORDERED THAT:
1) This court's order of December 27, 2004 is VACATED.
2) The clerk of court shall reopen the captioned case.
3) The court rejects the November 24, 2004, report and recommendation of Magistrate Judge Blewitt.
4) This matter is remanded to Magistrate Judge Blewitt to address the merits of the case and make the appropriate recommendation.
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