United States v. Stewart

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE

         On March 1, 2019, Defendant, pro se, filed a letter seeking early release invoking “President Trump's Prison Reform Act.” (Doc. 236). The Government responded and argued that this Court lacks jurisdiction over this request for two reasons. First, the request is effectively a motion under 28 U.S.C. § 2241, which must be filed where Defendant is housed (in this case, Texas). (Doc. 238 at 1-2). Second, an issue raised by Defendant is not ripe. (Id. at 2-3).

         An Assistant Federal Public Defender reviewed this case as requested that counsel be appointed for Defendant and that this case be re-assigned from the undersigned to the original trial judge to whom the letter was addressed. (Doc. 240 in CR 03-0061 and Doc. 347 in CR 00-0698). The Assistant Federal Public Defender did not address jurisdiction under 28 U.S.C. § 2241. (Doc. 239).

         The pro se letter appears to seek two kinds of relief: 1) compassionate release; and 2) additional good time credits. (Doc. 236; see also Doc. 239). As discussed below, both of these kinds of relief fall under 28 U.S.C. § 2241.

         As to the first type of relief requested, courts consider requests for compassionate release under 28 U.S.C. § 2241. Barber v. Ives, No. 3:17-CV-01975-BR, 2018 WL 1002612, at *2 (D. Or. Feb. 20, 2018). Thus, this case would have to be filed in Texas. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (“Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court.”).

         Alternatively,

The Ninth Circuit expressly held that the BOP's refusal to bring a motion for compassionate release under § 4205(g), the predecessor to § 3582 (c) (1) (A), was not subject to judicial review. Simmons v. Christensen, 894 F.2d 1041, 1043 (9th Cir. 1990). District courts in the circuit have extended Simmons to cases brought under § 3582 (c) (1) (A). See Lee v. Zuniga, No. 1:15-cv-00297-LJO-MJS, 2017 WL 2628101, at *4 (E.D. Cal. June 19, 2017) (collecting cases). Other circuits have done the same. See, e.g., Crowe v. United States, 430 Fed.Appx. 484, 2011 WL 2836364 (6th Cir. July 18, 2011); DeLuca v. Lariva, 586 Fed. App'x 239, 241 (7th Cir. Dec. 3, 2014). Petitioner has not cited and this Court has not found any authority to the contrary.

In enacting § 3852(c) (1) (A), Congress granted the BOP the discretion to decide whether to bring a motion for compassionate release. Therefore, without a motion from the BOP, this Court lacks jurisdiction to review the decision, and must dismiss the Petition.

Id. at *3 (footnote omitted).

         Because this Court, like the Court in Barber, does not have a motion from the Bureau of Prisons, the Court is without jurisdiction to consider this request.

         As to the second type of relief requested, Defendant's request for additional good time credits is properly brought pursuant to 28 U.S.C. § 2241 in Texas. See Feaster v. Fed. Bureau of Prisons, No. CV-11-00453-TUC-JGZ, 2014 WL 4322402, at *2 (D. Ariz. Sept. 2, 2014), aff'd sub nom. Feaster v. Apker, 623 Fed.Appx. 418 (9th Cir. 2015) (“Habeas corpus jurisdiction is available under 28 U.S.C. § 2241 for a prisoner's claims that he has been denied good time credits without due process of law. [citation omitted]. Further, because Petitioner is incarcerated at the Federal penitentiary in Tucson, Arizona, this Court has personal jurisdiction over this Respondent, [citation omitted].”).^[1] Alternatively, it appears Defendant's good time credits claim is not ripe. See Nichols v. Burch, CV 19-76-TUC-RM (BGM) (D. Ariz. March 13, 2019).

         Thus, for both claims in Defendant's letter, jurisdiction in this case would be in Texas where he is housed. Accordingly, IT IS ORDERED that the letter (Doc. 236) is denied without prejudice for lack of jurisdiction.

         IT IS FURTHER ORDERED that the Motion to Appoint Counsel in Arizona (Doc. 240 in CR 03-0061 and Doc. 347 in CR 00-0698) is denied for lack of jurisdiction (and, alternatively, as moot).

         IT IS FURTHER ORDERED the motion to disqualify the judges in Arizona and reassign both cases to the original trial judge (Doc. 240 in CR 03-0061 and Doc. 347 in CR 00-0698) is denied for lack of jurisdiction (and, ...