D'Angelo v. USA

Filing 2

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 13 14 CASE NO. 17cv0020-LAB (RBB) Plaintiff, vs. ORDER DENYING MOTION UNDER 28 u.s.c. § 2255 STEPHEN D'ANGELO, 15 Defendant. 16 17 Stephen D'Angelo pied guilty to possessing child pornography and the Court 18 sentenced him to 60 months in prison. 18 U.S.C. § 2252(a)(4)(B). By his plea agreement, 19 he waived the right to appeal except for a collateral attack based on ineffective assistance 20 of counsel. 21 D'Angelo has filed a motion to vacate his conviction under 28 U.S.C. § 2255. He's not 22 challenging the voluntariness of his plea, or his counsel's effectiveness in advising him to 23 plead guilty. Instead , he argues that his counsel was ineffective in failing to emphasize his 24 serious medical condition to the Court. 25 A claim of ineffective assistance of counsel requires showing: "(1) that counse l's 26 representations fell below an objective standard of reasonableness, and (2) that there is a 27 reasonable probability that, but for counsel's unprofessional errors, the result of the 28 proceeding would have been different." Strick/andv. Washington , 466 U.S. 668, 687 (1984). - 1- 17cv0020 1 D'Angelo argues that his counsel failed to inform the Court of his serious medical 2 condition at sentencing. But counsel's Memorandum in Aid of Sentencing clearly highlighted 3 D'Angelo's medical condition and the risks associated with placing him in prison . D'Angelo 4 admits as much in his motion, writing "during sentencing the Judge addressed the 5 Defendant's health issues." In addition to addressing D'Angelo's health issue, the Court also 6 recommended that he be placed at FCI Terminal Island , a federal medical facility. D'Angelo 7 has failed to demonstrate that his sentence would have been different had his counsel done 8 anything different. 9 D'Angelo also argues that because his medical condition is serious, sentencing him 10 to prison could amount to a death sentence because he can't get proper medical treatment 11 at the FCI. At the sentencing hearing , the Court determined the Bureau of Prisons is capable 12 of monitoring D'Angelo's condition and treating him. In any event, a § 2255 claim isn't the 13 way to resolve a grievance for inadequate medical care. 14 Finally, D'Angelo asks the Court to release him on compassionate release grounds 15 and because the Bureau of Prisons has been deliberately indifferent to his serious medical 16 condition. Under 18 U.S.C. § 3582(c)(1 )(A) release on compassionate grounds is authorized 17 if requested by the Director of the Bureau of Prisons and if the Court finds extraord inary and 18 compelling reasons warranting the release. In October 2016, the warden at FCI Terminal 19 Island, Warden Ponce, denied D'Angelo's compassionate release request because he 20 determined that D'Angelo's medical problems were being actively managed . Nor has 21 D'Angelo demonstrated any compelling medical reasons to release him. A§ 2255 claim isn't 22 a vehicle for the Court to overrule the warden's decision. 23 D'Angelo's § 2255 motion is DENIED. 24 IT IS SO ORDERED. 25 DATED: 5 2-t/ Ir 26 HONORABLE LARRY ALAN BURNS 27 United States District Judge 28 -2- 17cv0020

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