Opinion
CV-20-00351-TUC-DCB (JR)
10-03-2022
Sergio Arreola, Petitioner, v. Barbara von Blanckensee, Respondent.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau United States Magistrate Judge
Before the Court is Petitioner Sergio Arreola's (“Petitioner”) Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody (“Petition”). (Doc. 1.) Pursuant to Local Rule 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Jacqueline Rateau for Report and Recommendation. (Doc. 6.) Respondent filed her combined Return and Answer to Petition For a Writ of Habeas Corpus Under 28 U.SC. § 2241 and Motion to Dismiss Petition. (Doc. 10.) Petitioner has not filed a reply and the time for filing a reply has passed.
As more fully set forth below, the Magistrate Judge recommends that the district court, after an independent review of the record, dismiss the Petition.
Unless otherwise indicated, all factual references are taken from the exhibits attached to Respondent's combined Return and Answer to Petition For a Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Motion to Dismiss Petition. (Doc. 10.)
On November 7, 2018, Petitioner was sentenced to 72 months incarceration and three years of supervised release for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Doc. 10-1 at p. 4, ¶ 8.) At the time he filed his Petition, Petitioner was incarcerated in the United States Penitentiary in Tucson, Arizona (“USP Tucson”). Id. According to the Bureau of Prison's (“BOP”) inmate locator website, Petitioner is currently housed at the Residential Reentry Management field office in Nashville, Tennessee. See https://www.bop.gov/inmateloc/, last visited September 28, 2022. His projected release date is January 7, 2023. Id. See also Doc. 10-1 at p. 4, ¶ 8.
Petitioner did not file a notice of change of address as required by Rule 83.3 of the Local Rules of Civil Procedure and the district court's Order dated October 5, 2020. (Doc. 6.) In its October 5, 2020 Order, the district court warned Petitioner that the failure to file and serve a notice of a change of address could result in the dismissal of this action. Id.
On June 8, 2020, an investigative staff member at USP Tucson issued Petitioner Incident Report (“IR”) No. 3405641 for introducing drugs/alcohol, phone and mail abuse (criminal), and exchanging money for contraband. (Doc. 10-2 at pp. 3-4, ¶ 8.) A lieutenant investigated the incident and noted that Petitioner declined to make a statement, was advised of his rights, and did not request any witnesses. Id. at p. 4, ¶ 9. The lieutenant forwarded the report to the Unit Disciplinary Committee (“UDC”) for further processing. Id. The UDC conducted a hearing on June 23, 2020, at which time Petitioner received notice of a Discipline Hearing Officer (“DHO”) hearing and of his rights during that hearing. Id. at ¶ 10. Petitioner did not make a statement at the UDC hearing. Id.
The UDC referred the charge to the DHO for further processing and hearing. (Doc. 10-2 at p. 4, ¶ 10.) The DHO convened the hearing on June 30, 2020. Id. at ¶ 11. Petitioner was present at the DHO hearing and declined a staff representative. Id. The DHO confirmed that Petitioner had received a copy of the IR and reviewed his due process rights. Id. During the hearing, Petitioner “admitted he yelled a message about sending money while another inmate was on the phone.” Id. at pp. 4-5, ¶ 11. Petitioner declined to submit any documentary evidence or call any witnesses at the DHO hearing. Id. at p. 5, ¶ 11.
The DHO considered the IR, Petitioner's statement, and related documentary evidence in finding that Petitioner committed the prohibited act of giving money or anything of value. Id. at ¶¶ 12-14. The DHO sanctioned Petitioner with a loss of 90 days of visitation privileges. Id. at ¶ 15. Petitioner was not sanctioned with any loss of good conduct time. Id. On July 6, 2020, Petitioner received a copy of the report, which advised him of his right to appeal through the BOP's Administrative Remedy Program. Id. at ¶ 16. Petitioner appealed the DHO's decision to the Regional Director on a BP-10 form. (Doc. 10-1 at p. 5, ¶ 12.) Petitioner's appeal on the BP-10 form was deemed denied as of September 29, 2020. Id. Petitioner admits that he did not subsequently file a BP-11 form. (Doc. 1 at 4.)
(investigative reports, photographs, mental health evaluation conducted on June 15, 2020, finding that Petitioner was competent and responsible to proceed with a DHO hearing, and staff memoranda)
THE PETITION
Petitioner asserts three grounds for relief in his Petition. (Doc. 1.) In Ground One, Petitioner alleges that his Fifth Amendment rights were violated when the lieutenant failed to investigate IR 3405641; the reporting officer failed to write a report within 24 hours; the disciplinary hearing officer failed to review exculpatory evidence, exhibited bias, and relied on a “secret SIS report”; he was not allowed to present evidence or call witnesses; and there was “no 28 CFR 541.6 evaluation” or evidence to support the charge. (Doc. 1 at 4.) In Ground Two, he alleges that his Fifth Amendment rights were violated because he did not receive a hearing during his “several months in SHU.” Id. at 5. In Ground Three, he alleges that his Fifth Amendment rights were violated because, despite Congress passing the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Respondent is “categorically excluding USP Tucson from home confinement,” and the “BOP does not recognize COVID-19 under its [compassionate release] policy.” Id. at 6.
Petitioner seeks (1) expungement of IR 3405641; (2) release from the SHU; and (3) an order directing Respondent “to properly consider Petitioner for home confinement/compassionate release and to release him due to unconstitutional COVID-19 concerns.” Id. at 9. This Court address Petitioner's requests for relief seriatim.
Petitioner's Request for Expungement of IR 3405641 is Non-Cognizable
The “essence of habeas corpus is an attack by a person in custody upon the legality of that custody and that the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Habeas corpus is appropriate when it will result in immediate release or shorten the duration of confinement. Id. at 487. A habeas petition that fails to attack the legality of imprisonment is subject to dismissal. Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979). The Ninth Circuit has held that challenges concerning general conditions of confinement are not cognizable under 28 U.S.C. § 2241. See Jingles v. Carr, No. CV-18-04752-SJO-DFM, 2018 WL 11304199, at *1 (C.D. Cal. June 12, 2018) (citing Wright v. Shartle, 699 Fed.Appx. 733 (9th Cir. 2017) (finding claims that BOP officials unconstitutionally seized mail and imposed sanctions of loss of phone, visitation, and email correspondence privileges are not cognizable under § 2241)).
Petitioner complains that the loss of 90 days of visitation privileges is in violation of his Fifth Amendment rights under the Constitution. (Doc. 1 at 4.) The loss of visitation privileges does not change the duration of Petitioner's confinement and expunging IR 3405641 will not shorten Petitioner's duration confinement. Thus, this Court determines that the district court lacks habeas jurisdiction over Petitioner's claim for expungement of IR 3405641.
Petitioner alleges that he was also sanctioned with a loss of good conduct time but the evidence of record fails to support this allegation. (Doc. 10-2 at p. 5, ¶ 15 & p. 13.)
Petitioner's Request for Release from the SHU is Moot
Mootness is a threshold jurisdictional issue. St. Paul Fire & Marne Ins. Co. v. Barry, 438 U.S. 531, 537 (1978). “Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies.” Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985). “Because Article III restricts federal court jurisdiction to actual cases and controversies, federal courts may not ‘give opinions upon moot questions or abstract propositions.'” Pinson v. Othon, No. CV-20-00169-TUC-RM, 2020 WL 7404587, at *2 (D. Ariz. Dec. 17, 2020) (quoting Calderon v. Moore, 518 U.S. 149, 150 (1996)). “A case that become moot at any point during the proceedings in no longer a case or controversy for purposes of Article III and is outside the jurisdiction of the federal courts.” United States v. Sanchez-Gomez, 138 S.Ct. 1532, 1537 (2018) (citations and internal quotations omitted).
The United States Court of Appeals for the Ninth Circuit has recognized that a habeas petitioner's claim that he is improperly housed in the SHO is mooted when the petitioner is no longer housed in the SHU. See Wright, 699 Fed.Appx. 733 (citing Munoz v. Rowland, 104 F.3d 1096, 1097-98 (9th Cir. 1997) (“Because Munoz has been released from the SHU, we can no longer provide him the primary relief sought in his habeas corpus petition. Munoz's Fifth and Eighth Amendment challenges to the ‘debriefing' process and the conditions of confinement in the SHU are therefore moot, and must be dismissed.”).
Petitioner is currently housed at the Residential Reentry Management field office in Nashville, Tennessee. He is not housed in the SHU at USP Tucson. Accordingly, this Court finds that Petitioner's request to be released from the SHU is moot.
Petitioner's Request for Compassionate Release is Non-Cognizable and the District Court Lacks Jurisdiction Over His Claim Regarding Home Confinement
Lastly, Petitioner seeks an order directing Respondent “to properly consider Petitioner for home confinement/compassionate release and to release him due to unconstitutional COVID-19 concerns.” (Doc. 1 at 9.)
Petitioner's Claim for Compassionate Release is Non-Cognizable
As laid out by Respondent, “[a] necessary predicate for the granting of federal habeas relief [ ] is a determination by the federal court that [the] custody violates the Constitution, laws, or treaties of the United States.” Rose v. Hodges, 423 U.S. 19, 21 (1975) (per curiam) (citing 28 U.S.C. § 2241); Hewitt v. Helms, 459 U.S. 460, 469 (1983) (in order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought). “There is no Constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979). “A mere expectation of receiving a benefit is not enough to create a protected liberty interest.” Roberts v. Spaulding, 783 F.2d 867, 870-71 (9th Cir. 1986). In the context of compassionate release, the Ninth Circuit has made it clear there is no constitutional liberty interest at stake; the mere hope of conditional liberty is “a hope which is not protected by due process.” Simmons v. Christensen, 894 F.2d 1041, 1043 (9th Cir. 1990) (quoting Greenholtz, 442 U.S. at 11).
This Court agrees with Respondent that, to the extent Petitioner is claiming his due process rights were violated because the BOP failed to follow its own rules regarding compassionate release/reduction in sentence, Petitioner is not entitled to the protections of the due process clause because he does not have a liberty interest in a compassionate release. See Lee v. Zuniga, Case No. 1:15-cv-00297-LJO-MJS, 2017 WL 2628101, at *4 (E.D. Cal. 2017) (recognizing that “[t]he Ninth Circuit has held that the BOP's refusal to bring a motion for compassionate release under [18 U.S.C.] § 4205(g) is not subject to judicial review.”). See also Masters v. Hyde, Case No. 2:18-CV-00003 JM/JTR, 2018 WL 921505, at *2 (E.D. Ark. Feb. 16, 2018) (“Because Masters does not have a protected liberty interest in obtaining a § 3582(c)(1)(A) compassionate release or reduction in sentence, he does not have a due process right to require [defendants to comply with internal BOP Program Statements or policies regarding the processing of his request.”); Hernandez-Castillo v. Bureau of Prison, No. 02-5733, 2003 WL 463477, at *1 (6th Cir. Feb. 20, 2003) (“Hernandez-Castillo's due process rights were not violated because he lacks any procedural due process liberty interest in compassionate release”); Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir. 1998) (“The Constitution does not itself afford appellant a liberty interest in a reduced sentence.”).
As laid out by Respondent, while 18 U.S.C. § 3582(c)(1)(A) authorizes the BOP (or an inmate) to file a motion for compassionate release, the BOP is not required to file a motion for compassionate release on an inmate's behalf. (Doc. 10 at 15.) Here, if the BOP were to file a motion for compassionate release on Petitioner's behalf, it is Petitioner's sentencing court that must order Petitioner's compassionate release. There is simply no guarantee that Petitioner's sentencing court would grant Petitioner compassionate release. Accordingly, this Court finds that Petitioner does not have a liberty interest in a compassionate or early release.
The District Court Lacks Jurisdiction Over Petitioner's Claim Regarding Home Confinement
Respondent asserts, and Petitioner does not contest, that the BOP has exclusive authority to determine the location where an inmate serves his or her custodial sentence, including whether transfer from a secure facility or home confinement is more appropriate for a particular defendant. See Tapia v. United States, 564 U.S. 319, 331 (2011) (“When a court sentences a federal offender, the BOP has plenary control, subject to statutory constraints, over [the place of imprisonment and treatment program].”). While an inmate's sentencing court may make a non-binding recommendation to the Bureau as to home confinement, the Bureau's designation decision “is not reviewable by any court.” 18 U.S.C. §§ 3621(b) and 3624(c).
The Ninth Circuit has held that “18 U.S.C. § 3625 precludes judicial review under the [APA] of the BOP's individualized . . . determinations made pursuant to 18 U.S.C. § 3621” including decisions regarding home confinement. Reeb v. Thomas, 636 F.3d 1224, 1225 (9th Cir. 2011) (“The plain language of [18 U.S.C. § 3625] specifies that the judicial review provisions of the APA . . . do not apply to ‘any determination, decision, or order' made pursuant to 18 U.S.C. §§ 3621-3624.”). See also McIntire v. Smith, No. CV-11-895-PHX-FJM (LOA), 2012 WL 1392522, at *3-4 (D. Ariz. Mar. 28, 2012) (same) (citing Reeb, 636 F.3d at 1225-1228); Poole v. Lothrop, No. CV-18-0187-PHX-GMS (DMF), 2019 WL 2028993, at *6 (D. Ariz. Feb. 26, 2019) (same), report and recommendation adopted, 2019 WL 2027939 (D. Ariz. May 8, 2019); James v. Bureau of Prisons, No. CV-19-04842-PHX-SRB (JZB), 2020 WL 1236738, at *2 (D. Ariz. Feb. 13, 2020) (same).
In 2018, the FIRST STEP Act was enacted which, inter alia, amended 18 U.S.C. § 3621(b), providing that “[notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.” 18 U.S.C. § 3621(b) (2020). District courts interpreting this provision have uniformly held that designation and placement decisions made by the BOP, including whether an inmate is granted home confinement, are not reviewable by the district court. See Wilcox v. Merlak, No. 1:19-cv-01410-NONE-SKO (HC), 2020 WL 996630, at *3 (E.D. Cal. Mar. 2, 2020) (“Thus, Petitioner's challenge to the BOP's discretionary decision with respect to whether and when he is eligible for home confinement placement . . . is not reviewable by this Court.”); United States v. Robledo, No. 18-CR-2190-AJB, 2020 WL 2542641, at *7 (S.D. Cal. May 19, 2020) (“the decision to grant or deny home confinement is within the discretion of BOP and not subject to judicial review.”); United States v. Carlucci, No. 10-00464-01-KHV, 2020 WL 2527013, at *3 (D. Ariz. May 18, 2020) (“While the CARES Act gives the BOP broad discretion to expand the use of home confinement during the COVID-19 pandemic, the Court lacks jurisdiction to order home detention under this provision.”).
In light of the foregoing, this Court finds that the district court is without jurisdiction to consider Petitioner's request for an order directing Respondent to consider him for home confinement.
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, DENY the Petition (Doc. 1).
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply shall be filed unless leave is granted by the district court.
If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-20-351-TUC-DCB. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).