D'Angelo v. USA
Filing
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ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Larry Alan Burns on 5/26/2017.(All non-registered users served via U.S. Mail Service)(lrf)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
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CASE NO. 17cv0020-LAB (RBB)
Plaintiff,
vs.
ORDER DENYING MOTION UNDER 28
u.s.c. § 2255
STEPHEN D'ANGELO,
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Defendant.
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Stephen D'Angelo pied guilty to possessing child pornography and the Court
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sentenced him to 60 months in prison. 18 U.S.C. § 2252(a)(4)(B). By his plea agreement,
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he waived the right to appeal except for a collateral attack based on ineffective assistance
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of counsel.
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D'Angelo has filed a motion to vacate his conviction under 28 U.S.C. § 2255. He's not
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challenging the voluntariness of his plea, or his counsel's effectiveness in advising him to
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plead guilty. Instead , he argues that his counsel was ineffective in failing to emphasize his
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serious medical condition to the Court.
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A claim of ineffective assistance of counsel requires showing: "(1) that counse l's
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representations fell below an objective standard of reasonableness, and (2) that there is a
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reasonable probability that, but for counsel's unprofessional errors, the result of the
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proceeding would have been different." Strick/andv. Washington , 466 U.S. 668, 687 (1984).
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17cv0020
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D'Angelo argues that his counsel failed to inform the Court of his serious medical
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condition at sentencing. But counsel's Memorandum in Aid of Sentencing clearly highlighted
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D'Angelo's medical condition and the risks associated with placing him in prison . D'Angelo
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admits as much in his motion, writing "during sentencing the Judge addressed the
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Defendant's health issues." In addition to addressing D'Angelo's health issue, the Court also
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recommended that he be placed at FCI Terminal Island , a federal medical facility. D'Angelo
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has failed to demonstrate that his sentence would have been different had his counsel done
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anything different.
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D'Angelo also argues that because his medical condition is serious, sentencing him
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to prison could amount to a death sentence because he can't get proper medical treatment
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at the FCI. At the sentencing hearing , the Court determined the Bureau of Prisons is capable
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of monitoring D'Angelo's condition and treating him. In any event, a § 2255 claim isn't the
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way to resolve a grievance for inadequate medical care.
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Finally, D'Angelo asks the Court to release him on compassionate release grounds
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and because the Bureau of Prisons has been deliberately indifferent to his serious medical
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condition. Under 18 U.S.C. § 3582(c)(1 )(A) release on compassionate grounds is authorized
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if requested by the Director of the Bureau of Prisons and if the Court finds extraord inary and
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compelling reasons warranting the release. In October 2016, the warden at FCI Terminal
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Island, Warden Ponce, denied D'Angelo's compassionate release request because he
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determined that D'Angelo's medical problems were being actively managed . Nor has
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D'Angelo demonstrated any compelling medical reasons to release him. A§ 2255 claim isn't
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a vehicle for the Court to overrule the warden's decision.
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D'Angelo's § 2255 motion is DENIED.
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IT IS SO ORDERED.
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DATED:
5 2-t/
Ir
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HONORABLE LARRY ALAN BURNS
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United States District Judge
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17cv0020
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