Opinion
Case No. 3:18-cv-00614-AA
10-19-2018
WILLIE DAVID APPLEWHITE, Petitioner, v. JOSIAS SALAZAR, Warden, Respondent.
OPINION AND ORDER :
Petitioner, an inmate at the Federal Correctional Institution in Sheridan, Oregon, brings a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner alleges that the Bureau of Prisons (BOP) acted arbitrarily and capriciously when it refused to file a "compassionate release" motion supporting a reduction in petitioner's sentence due to his age and medical condition. For the reasons explained below, the petition is denied.
BACKGROUND
In May 2009, petitioner was sentenced to an aggregate term of 175 months' imprisonment following a third conviction for bank robbery and violations of his supervised release terms. Petitioner's projected release date is November 29, 2020.
In 2016, Applewhite requested a sentence reduction pursuant to 18 U.S.C. § 3582(c) by submitting a written request to the Warden of FCI Sheridan, According to petitioner, the Warden initially found that petitioner's advanced age and medical conditions warranted a reduction in sentence and compassionate release.
However, on November 9, 2017, the BOP's Office of General Counsel denied petitioner's request, finding that petitioner did not qualify on the basis of a terminal or debilitating medical condition.
On April 11, 2018, petitioner filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1) Petitioner asks the Court to order the BOP to reverse its decision and to file a motion seeking a reduction in petitioner's sentence to time served.
DISCUSSION
A reduction in sentence or compassionate release of federal prisoners is governed by 18 U.S.C. § 3582(c)(1)(A), which provides:
The court may not modify a term of imprisonment once it has been imposed except that...in any case...the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment ...if it finds that...extraordinary and compelling reasons warrant such a reduction[.]18 U.S.C. § 3582(c)(1)(A)(i) (emphasis added).
The BOP has implemented procedures that govern requests for compassionate release in Program Statement 5050.49. Circumstances that warrant consideration for a reduction in sentence include terminal or debilitating medical conditions and a combination of age and chronic or serious medical conditions. Program Statement 5050.49 §§ 3, 4(b). To qualify for consideration based on a terminal or debilitating condition, an inmate must: 1) have been diagnosed with a terminal illness and have a life expectancy of 18 months or less; or 2) have "an incurable, progressive illness or have suffered a debilitating injury from which they will not recover." Program Statement 5050.49 § 3(a), (b). To qualify for consideration based on age and serious medical conditions, the inmate must: 1) be age 65 or older; 2) suffer from "chronic or serious medical conditions related to the aging process"; 3) experience "deteriorating mental or physical health that substantially diminishes their ability to function in a correctional facility"; 4) show that conventional medical treatment "promises no substantial improvement to their mental or physical condition"; and 5) have "served at least 50% of their sentence." Program Statement 5050.49 § 4(b). If an inmate meets these criteria, the BOP will then determine whether the specific circumstances of an inmate warrant a reduction in sentence.
Petitioner contends the BOP abused its discretion in denying petitioner's request based on the lack of a terminal or debilitating medical condition without considering whether petitioner qualified for release based on his age and the presence of serious medical conditions. Although petitioner argues that he seeks only consideration for compassionate release under the correct criteria, he nonetheless rejects the remedy of remand to the BOP for further consideration and instead asks this Court to grant relief under § 2241 and release him immediately. Pet. at 17 ("This Court should summarily grant relief in the form of a sentence reduction to time served."). Petitioner asks this Court to make the unilateral, factual determination that he qualifies for a reduction in sentence based on his age and the seriousness of his medical conditions and that his circumstances warrant immediate release, even though the BOP has not filed a motion under § 3852(c)(1)(A). I decline to do so.
Even if this Court could review the BOP's decision, petitioner argues that the BOP failed to consider him for release under the correct criteria, and - at most - the proper remedy would be further consideration of petitioner's request by the BOP. --------
It is well-established that in enacting § 3852(c)(1)(A), Congress granted BOP the discretion to decide whether to bring a motion for compassionate release. In fact, the Ninth Circuit has expressly held that the BOP's refusal to bring a motion for compassionate release under § 4205(g), the predecessor to § 3582(c)(1)(A), was not subject to judicial review. Simmons v. Christenson, 894 F.2d 1041, 1043 (9th Cir. 1990). Numerous other courts, including this Court, have found that the analysis in Simmons applies to § 3582(c)(1)(A). See Crowe v. United States, 430 Fed. App'x 484, 485 (6th Cir. July 18, 2011) (per curiam); DeLuca v. Lariva, 586 Fed. App'x 239, 241 (7th Cir. Dec. 3, 2014); Barber v. Ives, 2018 WL 1002612, at *3-4 (D. Or. Feb. 20, 2018); Mohsen v. Ingram, 2018 WL 703955, at *1 (W.D. Wash. Feb. 5, 2018); Lee v. Zuniga, 2017 WL 2628101, at *4 (E.D. Cal. June 19, 2017) (citing cases).
Petitioner cites no legal authority that would allow this Court to not only review the denial of a compassionate-release request but to grant the request and reduce a prisoner's sentence without an accompanying motion by the BOP. Indeed, the case heavily relied on by petitioner involved a motion for reduction brought by the BOP. United States v. Di Masi, 220 F. Supp. 3d 173, 174 (D. Mass. 2016) ("Absent a motion by the [BOP] pursuant to the statute the court does not have the authority to reduce DiMasi's sentence"). Granting the relief sought by petitioner would contravene the express language of § 3582(c)(1)(A) and transform the BOP's discretionary authority into a mandatory obligation.
Petitioner's alternative argument under the Administrative Procedures Act (APA) is likewise unavailing, as petitioner does not identify a non-discretionary duty to act or mandatory standards governing the BOP's decision. 5 U.S.C. § 701(a)(2) (APA does not apply to decisions "committed to agency discretion"); Heckler v. Chaney, 470 U.S. 821, 832-33 (1985). Further, unlike the cases petitioner cites, he does not allege that the BOP violated the APA by promulgating or enforcing rules that categorically exclude prisoners, such as petitioner, from early release eligibility. See Abbott v. Fed. Bureau of Prisons, 771 F.3d 512, 514 (9th Cir. 2014) ("But here Abbott makes a categorical challenge to the BOP's interpretation of its own regulation, which is not foreclosed from review,"); Crickon v. Thomas, 579 F.3d 978, 983 (9th Cir. 2009) (finding a BOP "invalid because the BOP failed to provide any rationale for the categorical exclusion generally").
CONCLUSION
Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) is DENIED and this case is DISMISSED.
DATED this 19 day of October, 2018.
/s/_________
Ann Aiken
United States District Judge