United States District Court, D. Arizona
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,
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