Dao v. Upton

Filing 22

Opinion and Order... For the reasons discussed, the Court DISMISSES Petitioners petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 for lack of jurisdiction. All pending motions not previously ruled upon are DENIED. (Ordered by Senior Judge Terry R Means on 8/1/2017) (wxc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
KALIN THANH DAO,
Petitioner,
V.
JODY R. UPTON, Warden,
FMC-Carswell,
Respondent.

§
§
§
§
§
§
§
§
§
§

Civil Action No. 4:17-CV-277-Y

OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 filed by petitioner, Kalin Thanh Dao,
a federal prisoner confined in FMC-Carswell, against Jody R. Upton,
warden of FMC-Carswell, Respondent. After having considered the
petition and relief sought by Petitioner, the Court has concluded
that the petition should be dismissed for lack of jurisdiction.
I. Factual and Procedural History
Petitioner is serving a total term of 144 months’ imprisonment
for

her

convictions

in

the

United

States

District

Court

of

Minnesota for conspiracy to commit mail and wire fraud and money
laundering. (Am. J., United States v. Dao, Case No. 0:09-cr-00048JNE-JJG-1, ECF No. 126.) This is Petitioner’s third § 2241 petition
filed

in

this

Court.

The

first

was

dismissed

for

lack

of

jurisdiction and the second, raising claims related to presidential
clemency, remains pending. (Final J., Dao v. Keffer, Case No. 4:11cv-00145-Y, ECF No. 13; Pet., Dao v. Upton, Case No. 4:17-CV-0017-

O, ECF No. 1.) Petitioner also has a pending civil-rights case
raising

one

or

more

of

the

claims

presented

in

this

habeas

petition. (Compl., Dao v. Upton, Civil Action No. 4:17-cv-516-O,
ECF No. 2.)
By way of the instant habeas petition, Petitioner asserts that
her rights under the Administrative Procedure Act (APA) and the
United States Constitution are being violated because (1) prison
staff denied her a “compassionate release/reduction in sentence”
based on false information regarding her medical condition; (2) the
prison allows inmate nurse assistants (INAs) to conduct medical
procedures on, abuse, and steal from her and other inmate patients,
which conduct she asserts violates the Eighth Amendment against
cruel and unusual punishment and “shocks the conscience”; and the
denial

of

compassionate

release/sentence

reduction

was

in

retaliation for filing grievances and reporting INA abuses, which
conduct she asserts violates the First Amendment. (Pet. 5-6, ECF
No. 1.) Petitioner seeks habeas and declaratory relief in the form
of

a

court

order

requiring

that

the

BOP

re-process

her

administrative request for compassionate release with the correct
information and declaring her medical care violative of the First
and Eighth Amendments. (Id. at 7.)
II.

Discussion

Habeas relief “is not available to review questions unrelated
to the cause of detention.” Pierre v. United States, 525 F.2d 933,
2

935

(5th

Cir.

1976).

Where

a

prisoner

challenges

an

unconstitutional condition of confinement or prison procedure, the
proper vehicle is a civil-rights action if a determination in the
prisoner’s favor will not automatically result in his or her
accelerated release. See Cook v. Texas Dep’t of Criminal Justice
Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir. 1994) (“The
core issue in determining whether a prisoner must pursue habeas
corpus relief rather than a civil rights action is to determine
whether the prisoner challenges the ‘fact or duration’ of his
confinement or merely the rules, customs, and procedures affecting
‘conditions’ of confinement.”) Petitioner is well aware and has
been informed by the convicting court on numerous occasions that
her condition-of-confinement claims should be brought in a civilrights action. (Ltr. & Orders, United States v. Dao, No. O:09-CR00048-JNE-JJG-1, ECF Nos. 155, 160, 170.) Petitioner’s retaliatoryintent claim is also properly raised in a civil-rights action. See
Morris v. Powell, 449 F.3d 682, 685 (5th Cir. 2017). Thus, to the
extent Petitioner’s claims relate to the “processing” of her
request for a compassionate release/sentence reduction, her medical
needs and/or treatment, prison conditions, or retaliatory intent,
the claims are not cognizable on habeas review and should be
dismissed. 42 U.S.C. § 1983; Carson v. Johnson, 112 F.3d 818, 82021 (5th Cir. 1997).
Further, “[t]here is no constitutional or inherent right to be

3

conditionally released before expiration of a valid sentence.”
Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1,
7 (1979). In the absence of such violation, the BOP’s denial of
Petitioner’s compassionate release/reduction in sentence request
does not implicate

a matter of illegal or unconstitutional

restraint. Figueroa v. Chapman, 347 F. App’x 48, 2009 WL 5408572,
at *1 (5th Cir. 2009). See also Wottlin v. Fleming, 136 F.3d 1032,
1037 (5th Cir.1998) (providing “[a] convicted prisoner does not
have a constitutional right to be released before the expiration of
a valid sentence”). Thus, Petitioner has not shown a legal basis
for obtaining accelerated release.
For the reasons discussed, the Court DISMISSES Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
for lack of jurisdiction. All pending motions not previously ruled
upon are DENIED.
Further, Federal Rule of Appellate Procedure 22 provides that
an appeal may not proceed unless a certificate of appealability is
issued under 28 U.S.C. § 2253. The certificate of appealability may
issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). “Under this standard, when a district court denies
habeas relief by rejecting constitutional claims on their merits,
‘the petitioner must demonstrate that reasonable jurists would find
the

district

court’s

assessment

4

of

the

constitutional

claims

debatable or wrong.’” McGowen v. Thaler, 675 F.3d 482, 498 (5th
Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
When the district court denies the petition on procedural grounds
without reaching the merits, the petitioner must show “that jurists
of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id. (quoting Slack,
529 U.S. at 484). This inquiry involves two components, but a court
may deny a certificate of appealability by resolving the procedural
question only. Petitioner has not made a showing that reasonable
jurists would question this Court’s procedural ruling. Therefore,
a certificate of appealability should not issue.
SIGNED August 1, 2017.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

5