Lee v. Gill

Filing 22

FINDINGS and RECOMMENDATIONS recommending that the Petition (Doc. 1 ) be DENIED With Prejudice signed by Magistrate Judge Michael J. Seng on 6/19/2017. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY WAYNE LEE,
Petitioner,

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v.

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RAFAEL ZUNIGA, Warden ,

Case No. 1:15-cv-00297-LJO-MJS
FINDINGS AND RECOMMENDATION TO
DENY PETITION FOR WRIT OF HABEAS
CORPUS
THIRTY (30) DAY OBJECTION DEADLINE

Respondent.

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2241. Rafael Zuniga, Warden of Federal Correctional

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Institution, Mendota, is hereby substituted as the proper named respondent pursuant to

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Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by

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Benjamin B. Wagner and Patrick R. Delahunty, Assistant United States Attorneys.
For the reasons stated below, the undersigned recommends that the petition be

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denied.

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I.

Procedural History

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Petitioner is currently in federal custody at the Federal Correctional Institution

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(“FCI”), Mendota, pursuant to the December 2, 2011 judgment of the United States

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District Court for the District of Colorado, convicting Petitioner of aiding and abetting in

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the sex trafficking of children. (Exhibit to Response to Petition, ECF No. 15-1 at 8-9.) He

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is serving a 180-month sentence. (Id.)

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On September 24, 2013, Petitioner submitted an Inmate Request to Staff, seeking

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early release pursuant to 18 U.S.C. § 3582(c)(1)(A). (See id. at 22.) The request was

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based on the incapacitation of Petitioner’s 73-year-old mother, who had been diagnosed

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with cancer and who was the sole caretaker of Petitioner’s 8-year-old son. (See id. at 22,

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34.) The request was denied on the ground that Petitioner did not submit “sufficient proof

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that your mother is the only family member capable of caring for your child. Additionally,

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your release plan does not demonstrate you have documentation that you have the

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financial means to care for the child immediately upon release.” (Id. at 22.) Petitioner

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was advised of his right to appeal the decision through the Administrative Remedy

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Program.

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Petitioner submitted his administrative appeal on October 20, 2013. (Id. at 21.) It

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was received by the Administrative Remedy Coordinator on November 7, 2013, and

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rejected the same day on procedural grounds. (Id. at 20.)

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It appears that Petitioner resubmitted his appeal on November 13, 2013. It was

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received by the Warden on November 18, 2013. On November 22, 2013, the Warden

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provided Petitioner with a response for “informational purposes only,” given that

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Petitioner’s appeal did not make any “specific request for relief.” (Id. at 24.) Petitioner

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was advised of his right to appeal to the Western Regional Office within twenty days.

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Petitioner’s appeal was received by the Bureau of Prisons (“BOP”) Central Office

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on December 16, 2013. On December 30, 2013, the appeal was rejected because it was

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submitted to the wrong level. Petitioner was advised to continue his appeal to the

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Western Regional Office. (Id. at 28.)

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It appears that Petitioner submitted his appeal to the Western Regional Office on

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January 21, 2014. (Id. at 51.) Petitioner’s appeal was received by the Western Regional

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Office on January 24, 2014. (Id. at 17.) It was denied on February 18, 2014, on the

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ground that Petitioner had not provided sufficient proof to support his request.

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On April 1, 2014, the BOP Central Office received Petitioner’s appeal of the

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Western Regional Office’s decision. (Id. at 17, 62.) The appeal was initially accepted for

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investigation, but was rejected on April 28, 2014, because Petitioner had not included a

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copy of his Institution Administrative Remedy Request or the response from the Warden,

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and also because part of the form was not completed. (Id. at 18, 62.) Petitioner was

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instructed to resubmit his appeal within fifteen days. As discussed below, the parties

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dispute whether and when Petitioner resubmitted his appeal.

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On February 25, 2015, Petitioner filed the instant petition for writ of habeas

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corpus. (ECF No. 1.) On June 1, 2015, Respondent filed an answer. (ECF No. 15.) On

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July 20, 2015, Petitioner filed a traverse. (ECF No. 18.) On July 30, 2015, Respondent

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filed a reply. (ECF No. 19.) On August 14, 2015, Petitioner filed a sur-reply. (ECF No.

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20.) The matter is deemed submitted.

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II.

Jurisdiction and Venue

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Writ of habeas corpus relief extends to a person in federal custody who can show

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that he is "in custody in violation of the Constitution or laws or treaties of the United

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States." 28 U.S.C. § 2241(c)(3). Here, Petitioner's claims are proper, if at all, under 28

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U.S.C. § 2241 and not 28 U.S.C. § 2255 because they concern the manner, location, or

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conditions of the execution of Petitioner's sentence and not the fact of Petitioner's

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conviction or sentence. Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1990) (stating that

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a challenge to the execution of a sentence is “maintainable only in a petition for habeas

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corpus filed pursuant to 28 U.S.C. § 2241”); Montano-Figueroa v. Crabtree, 162 F.3d

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548, 549 (9th Cir. 1998).

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Petitioner is challenging the execution of his sentence at Federal Correctional

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Institution in Mendota, California. Petitioner is confined within the Fresno Division of the

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Eastern District of California. Venue is therefore proper in this district. See Brown v.

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United States, 610 F.2d 672, 677 (9th Cir. 1990).

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III.

Exhaustion

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A.

Applicable Law

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“As a prudential matter, courts require that habeas petitioners exhaust all

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available judicial and administrative remedies before seeking relief under § 2241.” Ward

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v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). However, exhaustion

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under § 2241 is not a jurisdictional prerequisite. Id. Courts have discretion to waive a

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prudential exhaustion requirement; however, this discretion is not unfettered. Castro-

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Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2012) (“Prudential limits, like jurisdictional

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limits and limits on venue, are ordinarily not optional.”); Murillo v. Mathews, 588 F.2d

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759, 762, n.8 (9th Cir. 1978) (noting that a prudential exhaustion requirement “is not

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lightly to be disregarded”).

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The exhaustion requirement may be waived where pursuit of administrative

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remedies would be futile. Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir.

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1993). Exhaustion of administrative remedies has been held to be futile where the

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request for relief was denied based on an official BOP policy. See, e.g., id.; Ward, 678

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F.3d at 1045-46. Exhaustion also may be waived where administrative remedies are

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inadequate or ineffective, irreparable injury would result, or administrative proceedings

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would be void. Laing v. Ashcroft, 370 F.3d 994, 1000-01 (9th Cir. 1981) (citation

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omitted).

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B.

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Respondent contends that Petitioner did not exhaust his administrative remedies

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because he did not resubmit his appeal to the BOP Central Office within fifteen days as

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he was instructed to do in the April 28, 2014 rejection letter. Indeed, according to

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Respondent, Petitioner did not resubmit at all. (ECF No. 15.) Petitioner states that he

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gave his resubmitted appeal to mail room staff on May 7, 2014, well within the fifteen-

Analysis

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day resubmission period specified in the April 28, 2014 rejection letter. (ECF No. 18 at

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5.) In response, Respondent does not address Petitioner’s contention that the appeal

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was, in fact, resubmitted. However, Respondent now contends that Petitioner is not

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entitled to the benefit of the “mailbox rule”1 with regard to the resubmission of his appeal,

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and so his resubmission was untimely. (ECF No. 19.) Petitioner maintains that the

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mailbox rule applies. (ECF No. 20.)

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BOP regulations and policies define the time for filing an appeal of the Regional

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Director’s decision as the time when the appeal is received in the Central Office. 28

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C.F.R. § 542.18 (“If accepted, a Request or Appeal is considered filed on the date it is

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logged into the Administrative Remedy Index as received.”); Program Statement

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1330.18, § 9. The Ninth Circuit has construed such language (in the context of

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predecessor BOP regulations) to mean that federal prisoners are not entitled to the

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benefit of the mailbox rule in determining whether a prison administrative appeal was

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timely filed. Nigro v. Sullivan, 40 F.3d 990, 996 (9th Cir. 1994). Other courts have

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reached the same conclusion. Oliver v. Owens, No. 15 C 7189, 2016 WL 704836, at *3

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(N.D. Ill. Feb. 23, 2016); Schreane v. Thomas, No. 3:CV-14-0246, 2014 WL 5493190, at

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*4 (M.D. Pa. Oct. 30, 2014); Baker v. Drew, No. CIV A 2:07CV622-TFM, 2009 WL

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2588905, at *4 (M.D. Ala. Aug. 19, 2009); Ageloff v. Reese, No. 5:07–CV–124–DCB–

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MTP, 2009 WL 2591622, at *3, n.7 (S.D. Miss. Aug. 13, 2009); Williams v. Burgos, No.

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CV206-104, 2007 WL 2331794, at *3 (S.D. Ga. Aug. 13, 2007). The Court finds no

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authority to the contrary. Thus, even if Plaintiff did resubmit the appeal as alleged, it was

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nonetheless untimely because not received prior to the expiration of the deadline.

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Furthermore, the Court is unable to conclude that Petitioner’s request was “denied

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based on official BOP policy.” Ward, 678 F.3d at 1046. The denial of Petitioner’s request

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turned on the unique facts and circumstances of his particular request and the

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Under the mailbox rule, the Court deems a petition filed on the date Petitioner handed the petition to
prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988); Campbell v. Henry, 614 F.3d
1056 (9th Cir. 2010); see also Rule 3(d) of the Rules Governing Section 2254 Cases.

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documentation submitted in support thereof, not on BOP policy. But see Monsivais v.

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Fox, No. CV 15-09695-R (KS), 2016 WL 768852, at *2 (C.D. Cal. Jan. 28, 2016)

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(deeming exhaustion waived “regardless of whether Petitioner challenges general BOP

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policy, or the BOP’s specific decision in his case”). Accordingly, the Court concludes that

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exhaustion has not been waived.

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Because Petitioner has not exhausted his administrative remedies, the Court

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cannot grant relief on his claims. Nonetheless, because the Court concludes that the

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petition also may be denied on the merits, it will proceed to the merits of Petitioner’s

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claims.

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IV.

Review of the Petition

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A.

Compassionate Release Statute

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Prior to 1987, compassionate release of federal prisoners was governed by 18

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U.S.C. § 4205(g). The statute provided, “At any time upon motion of the [BOP], the court

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may reduce any minimum term to the time the defendant has served.” This statute

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continues to apply to inmates sentenced prior to November 1, 1987. See Espinoza v.

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Maye, No. 2:11–cv–0929 KJN P, 2014 WL 4194095, *10 n.8 (E.D. Cal. Aug. 22, 2014).

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However, in 1987, the statute was repealed and replaced with 18 U.S.C.

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§ 3582(c)(1)(A). Here, Petitioner was sentenced in 2011 and thus his petition for

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compassionate release is subject to the replacement statute, which provides in relevant

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part:

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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).

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The Bureau of Prisons has implemented procedures for inmates to seek

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compassionate release. Program Statement 5050.49; 28 C.F.R. § 571.60, et seq. An

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inmate’s initial request must be made to the Warden and, relevant to this case, must

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describe (1) the compelling or extraordinary circumstances the inmate believes warrant

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consideration, and (2) a proposed release plan, including how the inmate will support

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himself. 28 C.F.R. § 571.62.

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For requests that are based on the death or incapacitation of a family member

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caring for the inmate’s child, the inmate must provide, amongst other things, (1) a

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statement that the family member was the only family member capable of caring for the

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inmate’s child and (2) a clear statement and documentation that the inmate has a

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release plan, including housing, and the financial means to care for the child immediately

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upon the inmate’s release. Program Statement 5050.49, § 5(a). “The Warden may deny

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the inmate’s request at the institution level of review if the Warden finds that the inmate

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has not provided adequate information and documentation as set forth above.” Id.

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If the inmate provides “adequate and sufficient information and documentation,” a

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committee is convened “to investigate the facts and circumstances provided by the

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inmate and to review supporting letters and documents.” Id. at § 5(b). Based on this

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investigation and a number of other factors, the Warden then makes a recommendation

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to approve or deny the request. Id. The request then proceeds through review by BOP’s

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General Counsel and, ultimately, the BOP Director. Id. at § 8.
The denial of Petitioner’s request is not subject to judicial review

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B.

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Petitioner contends that the Warden abused his discretion in denying Petitioner’s

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request for compassionate release. He also contends that the Warden did not follow

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BOP’s rules and procedures in reviewing the request.

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The Ninth Circuit has held that the BOP’s refusal to bring a motion for

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compassionate release under § 4205(g) is not subject to judicial review. Simmons v.

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Christensen, 894 F.2d 1041, 1043 (9th Cir. 1990). In Simmons, the plaintiff argued that

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the BOP abused its discretion in denying his request. The court concluded it was

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precluded from reviewing such decisions. Id. In so doing, the Ninth Circuit cited to Turner

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v. United States Parole Commission, 810 F.2d 612, 616 (7th Cir. 1987), which also

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addressed compassionate release under § 4205(g). The Turner court reviewed the

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structure of the Parole Act and noted that, while the Act expressly provided for judicial

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review of actions taken by the Parole Commission, no such review was provided for

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BOP action. Id. at 615. Furthermore, the power granted to the BOP under the statute

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was limited to the power to bring a motion; the BOP had no true authority to grant parole

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or change a sentence. Id. Additionally, the broad language of the statute “suggests the

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breadth of discretion characteristic of nonreviewable authority.” Id.

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Courts in this Circuit have extended the holding of Simmons to cases brought

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under § 3582(c)(1)(A). E.g., Espinoza v. Maye, No. No. 2:11–cv–0929 KJN P, 2014 WL

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4194095, at *10 (E.D. Cal. Aug. 22, 2014); Monsivais v. Fox, No. CV 15-09695-R (KS),

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2016 WL 768852, at *4 (C.D. Cal. Jan. 28, 2016); Maestro v. Ives, No. CV 14–1069

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R(JC), 2014 WL 6389370, at *2 (C.D. Cal. Nov. 13, 2014). Other circuits have done the

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same. E.g., Crowe v. United States, 430 Fed. Appx. 484, 2011 WL 2836364 (6th Cir.

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July 18, 2011); DeLuca v. Lariva, 586 Fed. Appx 239, 241 (7th Cir. Dec. 3, 2014). The

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Court finds no authority to the contrary.

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In light of this line of cases and the broad authority delegated to BOP in the

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compassionate release statute, the Court concludes that the Warden’s decision to deny

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Petitioner’s request is not reviewable. The Court cannot grant relief on this claim.

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C.

Petitioner has not stated a due process claim

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Petitioner appears to contend that his procedural due process rights were violated

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in the review of his compassionate release request. Specifically, Petitioner contends that

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BOP violated his due process rights by failing to convene a committee to review his

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request.

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In order to state a cause of action for deprivation of procedural due process, a

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plaintiff must first establish the existence of a liberty interest for which the protection is

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sought. Hewitt v. Helms, 459 U.S. 460, 466 (1983). Here, Petitioner does not have a

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liberty interest in being released prior to the expiration of his lawful sentence. Greenholtz

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v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979); Simmons, 894 F.2d

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at 1043 (citing Turner, 810 F.2d at 616) (holding no constitutional right attaches to “the

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mere possibility of conditional liberty”). Because he does not have a liberty interest in

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compassionate release, he is not entitled to the procedural protections of the due

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process clause.
Accordingly, Petitioner’s cannot state a due process claim on this ground. He is

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not entitled to relief on this claim.

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V.

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Conclusion and Recommendations
Based on the foregoing, it is HEREBY RECOMMENDED that the petition be

denied with prejudice.

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The findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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thirty (30) days after being served with the findings and recommendations, any party

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may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within fourteen

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(14) days after service of the objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

June 19, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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