1/18/2021
Query Reports
Create an Alert for This Case on RECAP

CM/ECF - California Central District
Utilities Help Log Out

194,CLOSED

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division - Los Angeles)
CIVIL DOCKET FOR CASE #: 2:20-cv-04247-CJC-JEM

Daniel Sweeney v. Juan Herrera et al Assigned to: Judge Cormac J. Carney Referred to: Magistrate Judge John E. McDermott Cause: 28:2241 Petition for Writ of Habeas Corpus (federal)

Date Filed: 05/11/2020 Date Terminated: 06/08/2020 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: U.S. Government Defendant

Petitioner Daniel Sweeney

represented by Daniel Sweeney 69628-112 Orion RRC 8141 Orion Ave. Van Nuys, CA 91406 PRO SE

V.
Respondent
Juan Herrera in his capacity as the Residential Relocation Manager of the Federal Bureau of Prisons for the District of Los Angeles

represented by Susan S Har AUSA - Ofﬁce of US Attorney 312 North Spring Street Suite 1200 Los Angeles, CA 90012 213-894-3289 Fax: 213-894-0141 Email: susan.har@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Kim Beakey in her capacity as Regional Reentry

Assistant 2241-194 US Attorney LA-CV AUSA - Ofﬁce of US Attorney Criminal Division - US Courthouse 312 North Spring Street 12th Floor Los Angeles, CA 90012-4700 213-894-2434 Email: USACAC.Habeas@usdoj.gov ATTORNEY TO BE NOTICED
represented by Susan S Har (See above for address) LEAD ATTORNEY

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?180095050530226-L_1_0-1

1/3

1/18/2021
Administrator, for the Federal Bureau of Prisons

CM/ECF - California Central District
ATTORNEY TO BE NOTICED
Assistant 2241-194 US Attorney LA-CV (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/11/2020 05/11/2020 05/11/2020
05/12/2020
05/13/2020 05/13/2020 05/19/2020
05/19/2020

# Docket Text
1 PETITION for Writ of Habeas Corpus by a Person In Federal Custody (28:2241) Case assigned to Judge Ronald S.W. Lew and referred to Magistrate Judge John E. McDermott,(Filing fee $ due), ﬁled by petitioner Daniel Sweeney. (esa) (Entered: 05/11/2020)
2 EMERGENCY PETITION for Relief for Injunctive and Declaratory Relief for Release from Custody due to risk of exposure and imminent death from Covid-19/Corona virus due to conditions of conﬁnement at Orion House RRC ﬁled by petitioner Daniel Sweeney. (esa) (Entered: 05/11/2020)
3 NOTICE OF REFERENCE to a U.S. Magistrate Judge. This case has been assigned to the calendar of the Honorable District Judge Ronald S.W. Lew and referred to Magistrate Judge John E. McDermott, who is authorized to consider preliminary matters and conduct all further hearings as may be appropriate or necessary. Pursuant to Local Rule 83-2.4, the Court must be notiﬁed within ﬁve (5) days of any address change. See notice for additional details. (esa) (Entered: 05/11/2020)
4 ORDER RETURNING CASE FOR REASSIGNMENT by Judge Ronald S.W. Lew. ORDER case returned to the Clerk for random reassignment pursuant to General Order 19-03. Case randomly reassigned from Judge Ronald S.W. Lew to Judge Cormac J. Carney for all further proceedings. The case number will now reﬂect the initials of the transferee Judge 2:20-cv-04247 CJC(JEM). (rn) (Entered: 05/12/2020)
5 NOTICE OF APPEARANCE of Assistant United States Attorney Susan S. Har on behalf of Respondents Kim Beakey, Juan Herrera. (Attorney Susan S Har added to party Kim Beakey(pty:res), Attorney Susan S Har added to party Juan Herrera(pty:res))(Har, Susan) (Entered: 05/13/2020)
6 Supplemental Exhibits and Afﬁdavit in Support of Emergency Petition for Writ of Habeas Corpus (2241) 2 Filed ﬁled by Petitioner Daniel Sweeney. (es) (Entered: 05/14/2020)
7 MINUTES (IN CHAMBERS) ORDER RE REQUEST TO PROCEED IN FORMA PAUPERIS by Magistrate Judge John E. McDermott: The Court is in receipt of Petitioner's Declaration in Support of Request to Proceed In Forma Pauperis ﬁled with the Petition for Writ of Habeas Corpus on May 11, 2020. The request is GRANTED. (es) (Entered: 05/19/2020)
8 ORDER REQUIRING RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS AND INSTRUCTIONSGOVERNING FURTHER PROCEEDINGS (FEDERAL CUSTODY) by Magistrate Judge John E. McDermott. that Respondent Kim Beakey ﬁle Answer to the Petition not later than 6/16/2020; Juan Herrera ﬁle Answer to the Petition not later than 6/16/2020. Notice: The court has issued a ruling on preliminary review. Pursuant to the Agreement on Acceptance of Service between the Clerk of Court and the United States Attorneys Ofﬁce, this Notice constitutes service under Fed. R. Civ. P. 4. Motions to Dismiss shall be ﬁled by 6/16/2020. (Attachments: # 1 Petition, # 2 Consent) (es) (Entered: 05/19/2020)

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?180095050530226-L_1_0-1

2/3

1/18/2021
05/27/2020 05/28/2020 05/28/2020
05/29/2020
06/04/2020 06/08/2020
06/08/2020

CM/ECF - California Central District
9 NOTICE OF MOTION AND MOTION to Dismiss Case ﬁled by Respondents Kim Beakey, Juan Herrera. (Attachments: # 1 Declaration) (Har, Susan) (Entered: 05/27/2020)
10 CERTIFICATE OF SERVICE ﬁled by Respondents Kim Beakey, Juan Herrera, re NOTICE OF MOTION AND MOTION to Dismiss Case 9 served on May 28, 2020. (Har, Susan) (Entered: 05/28/2020)
11 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: NOTICE OF MOTION AND MOTION to Dismiss Case 9 . The following error(s) was/were found: Proposed Document was not submitted as separate attachment. In response to this notice, the Court may: (1) order an amended or correct document to be ﬁled; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (es) (Entered: 05/28/2020)
12 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Proof of Service (subsequent documents) 10 . The following error(s) was/were found: Title page is missing. Other error(s) with document(s): Pursuant to Local Rule 11-3.8, the ﬁler should prepare a separate title page. In response to this notice, the Court may: (1) order an amended or correct document to be ﬁled; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (es) (Entered: 05/29/2020)
13 CONSENT TO PROCEED before Magistrate Judge, in accordance with Title 28 Section 636(c) and F.R.CIV.P 73(b), (Attachments: # 1 Certiﬁcate of Service)(Har, Susan) (Entered: 06/04/2020)
14 ORDER GRANTING RESPONDENTS' MOTION TO DISMISS 9 AND DISMISSING PETITIONER'S EMERGENCY PETITION FOR WRIT OF HABEAS CORPUS 2 by Judge Cormac J. Carney. For the foregoing reasons, Respondents' motion to dismiss is GRANTED, and this action is DISMISSED for lack of jurisdiction. Nothing in this Order prohibits Petitioner from asserting these claims in a civil rights action or from seeking compassionate release under 18 U.S.C. § 3582(c)(1)(A) from the BOP and sentencing Court. (lom) (Entered: 06/09/2020)
15 JUDGMENT by Judge Cormac J. Carney. The Court hereby ORDERS that: 1. Respondents' motion to dismiss is GRANTED. 2. The Petition is DISMISSED WITHOUT PREJUDICE, as set out in the Court's concurrently issued Order 14 . (MD JS-6, Case Terminated). (lom) (Entered: 06/09/2020)

PACER Service Center

Transaction Receipt

01/18/2021 14:21:03

PACER Login:

CRClearinghouse

Client Code:

Boyer

Description: Docket Report

Search 2:20-cv-04247-CJC-JEM Criteria: End date: 1/19/2021

Billable Pages:

3

Cost: 0.30

Exempt ﬂag:

Not Exempt

Exempt reason:

Not Exempt

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?180095050530226-L_1_0-1

3/3

 
 Case 2:20-cv-04247-CJC-JEM Document 1 Filed 05/11/20 Page 1 of 9 Page ID #:1

FEE DUE

MAY - 11 2020

RS

LODGED
CLERK, U.S. DISTRICT COURT
MAY - 8 2020
CENTRAL DISTRICT OF CALIFORNIA BY: ____________BB______ DEPUTY

2:20-CV-04247-RSWL-JEM

Case 2:20-cv-04247-CJC-JEM Document 1 Filed 05/11/20 Page 2 of 9 Page ID #:2

Case 2:20-cv-04247-CJC-JEM Document 1 Filed 05/11/20 Page 3 of 9 Page ID #:3

Case 2:20-cv-04247-CJC-JEM Document 1 Filed 05/11/20 Page 4 of 9 Page ID #:4

Case 2:20-cv-04247-CJC-JEM Document 1 Filed 05/11/20 Page 5 of 9 Page ID #:5

Case 2:20-cv-04247-CJC-JEM Document 1 Filed 05/11/20 Page 6 of 9 Page ID #:6

Case 2:20-cv-04247-CJC-JEM Document 1 Filed 05/11/20 Page 7 of 9 Page ID #:7

Case 2:20-cv-04247-CJC-JEM Document 1 Filed 05/11/20 Page 8 of 9 Page ID #:8

Case 2:20-cv-04247-CJC-JEM Document 1 Filed 05/11/20 Page 9 of 9 Page ID #:9

 
 Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 1 of 16 Page ID #:10 MAY 11 2020
RS
2:20-CV-04247-RSWL-JEM

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 2 of 16 Page ID #:11

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 3 of 16 Page ID #:12

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 4 of 16 Page ID #:13

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 5 of 16 Page ID #:14

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 6 of 16 Page ID #:15

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 7 of 16 Page ID #:16

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 8 of 16 Page ID #:17

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 9 of 16 Page ID #:18

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 10 of 16 Page ID #:19

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 11 of 16 Page ID #:20

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 12 of 16 Page ID #:21

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 13 of 16 Page ID #:22

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 14 of 16 Page ID #:23

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 15 of 16 Page ID #:24

Case 2:20-cv-04247-CJC-JEM Document 2 Filed 05/11/20 Page 16 of 16 Page ID #:25

 
 Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 1 of 20 Page ID #:65

1 NICOLA T. HANNA

United States Attorney

2 BRANDON D. FOX

Assistant United States Attorney

3 Chief, Criminal Division

SUSAN S. HAR (Cal. Bar No. 301924)

4 Assistant United States Attorney

General Crimes Section

5

1200 United States Courthouse

312 North Spring Street

6

Los Angeles, California 90012

Telephone: (213) 894-3289

7

Facsimile: (213) 894-0141

E-mail: susan.har@usdoj.gov

8

Attorneys for Respondents

9 JUAN HERRERA and KIM BEAKEY

10

UNITED STATES DISTRICT COURT

11

FOR THE CENTRAL DISTRICT OF CALIFORNIA

12

DANIEL SWEENEY,

No. CV 20-04247-CJC(JEM)

13

No. CR 15-00103-JAK

Petitioner,

14

RESPONDENTS’ MOTION TO DISMISS

v.

PETITION FOR WRIT OF HABEAS CORPUS

15

PURSUANT TO 28 U.S.C § 2241 AND

JUAN HERRERA,

EMERGENCY PETITION; DECLARATION OF

16

in his capacity as the

SUSAN HAR

Residential Relocation

17

Manager of the Federal

Bureau of Prisons for the

18

District of Los Angeles;

KIM BEAKEY,

19

in her capacity as Regional

Reentry Administrator, for

20

the Federal Bureau of

Prisons,

21

Respondents.

22

23

24

Respondents Juan Herrera, Residential Relocation Manager of the

25 Federal Bureau of Prisons for the District of Los Angeles, and Kim

26 Beakey, Regional Reentry Administrator for the Federal Bureau of

27 Prisons, by and through their counsel of record, the United States

28 Attorney for the Central District of California and Assistant United

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 2 of 20 Page ID #:66

1 States Attorney Susan S. Har, hereby file this motion to dismiss

2 petitioner Daniel Sweeney’s petition for writ of habeas corpus

3 pursuant to 28 U.S.C. § 2241 and emergency petition.

4

This response is based upon the attached memorandum of points

5 and authorities; the supporting declaration; the files and records in

6 this case; the files and records in the underlying criminal case,

7 United States v. Daniel Eamon Sweeney, Case No. CR 15-00103-JAK (C.D.

8 Cal.); and such further evidence and argument as the Court may

9 permit.

10 Dated: May 27, 2020

Respectfully submitted,

11

NICOLA T. HANNA

United States Attorney

12

BRANDON D. FOX

13

Assistant United States Attorney

Chief, Criminal Division

14

15

/s/

SUSAN S. HAR

16

Assistant United States Attorney

17

Attorneys for Plaintiff

UNITED STATES OF AMERICA

18

19

20

21

22

23

24

25

26

27

28

2

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 3 of 20 Page ID #:67

1

TABLE OF CONTENTS

2 DESCRIPTION

PAGE

3 I. INTRODUCTION...................................................1

4 II. STATEMENT OF FACTS.............................................2

5

A. Petitioner’s Crimes and Sentence..........................2

6

B. Incarceration and Projected Release Date..................4

7

C. Petitioner’s Current Filings and Failure to Exhaust

Administrative Remedies under 18 U.S.C.

8

§ 3582(c)(1)(A)...........................................4

9

D. COVID-19-Specific Safety Precautions at Orion RRC.........6

10 III. SECTION 2241 IS NOT THE PROPER VEHICLE FOR PETITIONER’S

REQUEST........................................................8

11

IV. PETITIONER’S REQUEST FOR COMPASSIONATE RELEASE SHOULD BE

12

DISMISSED......................................................9

13

A. Legal Framework for Compassionate Release.................9

14

B. Petitioner’s Compassionate Release Request Must Be

Filed in the Sentencing Court in the Underlying

15

Criminal Case............................................11

16

C. Petitioner Failed to Exhaust Administrative Remedies.....12

17
18 V.
19

D. Petitioner Has Failed to Demonstrate “Extraordinary and Compelling” Reasons to Allow Release in His Case.....13
CONCLUSION....................................................15

20

21

22

23

24

25

26

27

28

i

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 4 of 20 Page ID #:68

1

TABLE OF AUTHORITIES

2 DESCRIPTION

PAGE(S)

3 CASES

4 Alexis v. Ortiz,

No. CV 19-1085 (RBK)

5

2019 WL 2367034 (D.N.J. June 5, 2019).........................11

6 Bolden v. Ponce,

No. 2:20-CV-03870-JFW-MAA

7

2020 WL 2097751 (C.D. Cal. May 1, 2020).................8, 9, 12

8 Crawford v. Bell,

599 F.2d 890 (9th Cir. 1979)...................................8

9

Dillon v. United States,

10

560 U.S. 817 (2010)............................................9

11 Gambino v. Hudgins,

No. 5:20-CV-43

12

2020 WL 1698824 (N.D.W. Va. Apr. 8, 2020).....................11

13 Heard v. Quintana,

184 F. Supp. 3d 515 (E.D. Ky. 2016)...........................12

14

Mohrbacher v. Ponce,

15

No. CV 18-00513-DMG-GJS

2019 WL 161727 (C.D. Cal. Jan. 10, 2019)......................11

16

Preiser v. Rodriguez,

17

411 U.S. 475 (1973)............................................8

18 Robinson v. Wilson,

No. 1:17-CV-02630

19

2017 WL 5586981 (S.D.W. Va. Sept. 26, 2017)...................12

20 Shaw v. Bank of America Corp.,

946 F.3d 533 (9th Cir. 2019)..........................10, 12, 13

21

Tucker v. Carlson,

22

925 F.2d 330 (9th Cir. 1991)...................................8

23 United States v. Brown,

817 F.3d 486 (6th Cir. 2016)..................................11

24

United States v. Daniel Sweeney,

25

No. 8:15-CR-00103-JAK (C.D. Cal.)........................2, 3, 4

26 United States v. Eberhart,

No. 13-cr-00313-PJH-1

27

2020 WL 1450745 (N.D. Cal. Mar. 25, 2020).....................14

28

ii

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 5 of 20 Page ID #:69

1

TABLE OF AUTHORITIES (CONTINUED)

2 DESCRIPTION

PAGE

3 United States v. Greenhut,

No. 18-CR-48-CAS,

4

2020 WL 509385 (C.D. Cal. Jan. 31, 2020)......................10

5 United States v. Neman,

No. 14-521-JAK,

6

ECF No. 863 (C.D. Cal. Mar. 30, 2020).........................13

7 United States v. Ono,

72 F.3d 101 (9th Cir. 1995)...................................11

8

United States v. Shah,

9

No. 10-70-CJC,

ECF No. 329 (C.D. Cal. Mar. 30, 2020).....................10, 13

10

United States v. Sloane,

11

No. 19-CR-10117-IT-11,

ECF No. 647 (D. Mass. Mar. 19, 2020)..........................13

12

STATUTES

13

18 U.S.C. § 3582(c)............................................passim

14

OTHER AUTHORITIES

15

Coronavirus Aid, Relief, and Economic Security Act (“CARES

16

Act”),

Pub. L. No. 116-136,

17

134 Stat. 281 (March 27, 2020).................................4

18 Federal Bureau of Prisons Program Statement No. 5050.50,

Compassionate Release/Reduction in Sentence: Procedures for

19

Implementation of 18 U.S.C. §§ 3582 and 4205(g) (January

17, 2019), available at

20

https://www.bop.gov/policy/progstat/5050_050_EN.pdf............5

21 U.S.S.G. § 1B1.13..............................................passim

22

23

24

25

26

27

28

iii

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 6 of 20 Page ID #:70

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Pro se petitioner Daniel Sweeney (“petitioner”) seeks “an

4 immediate reduction in sentence to time served” and release

5 “from ALL remaining BOP custody” due to the COVID-19 pandemic.

6 Petitioner is 47 years old, reports no health problems, and is

7 presently housed--not in prison--but at the Orion Residential Reentry

8 Center (“Orion RRC”) in Van Nuys, California, where he is scheduled

9 to complete the remaining four months of his 24-month federal

10 sentence.

11

Citing to 28 U.S.C. § 2241 (the habeas statute) and 18 U.S.C.

12 § 3582(c)(1)(A) (the compassionate release statute), petitioner

13 largely relies on generalized concerns about COVID-19 and its impact

14 on prisons in support of his request for immediate release. He also

15 argues that “[a] potential COVID-19 outbreak poses a substantial risk

16 of serious harm to every person housed in Orion House,” given the

17 facility’s alleged failure to adhere to social distancing protocols.

18

The so-called habeas petition and emergency petition, both of

19 which request the same relief and are functionally identical, should

20 be dismissed. (See Dkt. Nos. 1, 2.) First, this Court cannot grant

21 the requested relief in the form of a writ of habeas corpus under 28

22 U.S.C. § 2241 because petitioner does not challenge his criminal

23 conviction or sentence. Rather, the Petition is actually a disguised

24 motion for compassionate release based on the purported risk of

25 contracting COVID-19 while housed at Orion RRC. Second, this Court

26 cannot entertain petitioner’s compassionate release request under 18

27 U.S.C. § 3582(c)(1)(A) because it must be filed in the underlying

28 criminal case with the sentencing court (here, Judge John A.

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 7 of 20 Page ID #:71

1 Kronstadt). This Court also lacks statutory authority to grant

2 relief because petitioner has not exhausted his administrative

3 remedies as required under the statute. Finally, even if the Court

4 could reach the Petition’s merits, petitioner is not eligible for

5 compassionate release. His bare speculation about an uncontained

6 COVID-19 outbreak at Orion RRC (where there are currently no reported

7 cases), when petitioner lacks any specific health conditions or risk

8 factors, does not justify an immediate and permanent reduction in his

9 well-deserved criminal sentence.

10 II. STATEMENT OF FACTS

11

A. Petitioner’s Crimes and Sentence

12

Petitioner is currently serving a 24-month sentence imposed by

13 Judge Kronstadt for committing assault with force likely to produce

14 great bodily injury, in violation of the Court-imposed three-year

15 term of supervised release. Following petitioner’s conviction for

16 making a false statement in a passport application, Judge Kronstadt

17 sentenced petitioner to six months’ imprisonment, to be followed by a

18 three-year term of supervised release. United States v. Daniel

19 Sweeney, No. 8:15-CR-00103-JAK, Change of Plea, ECF No. 67 (C.D. Cal.

20 June 23, 2016); Judgment, ECF No. 78 (C.D. Cal. Sept. 30, 2016).

21 Under the terms of supervised release, petitioner was ordered not to

22 commit another federal, state, or local crime. Id., Judgment, ECF

23 No. 78.

24

Supervised release commenced in March 2017. Less than halfway

25 into his three-year term of supervised release, petitioner committed

26 another crime: assault with force likely to produce great bodily

27 injury, in violation of Section 245(a)(4) of the California Penal

28 Code, and was convicted of the same on September 18, 2018 in

2

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 8 of 20 Page ID #:72

1 California Superior Court, Orange County, case number 18CF1818.

2 United States v. Daniel Sweeney, No. 8:15-cr-00103-JAK, Petition on

3 Probation and Supervised Release (Amendment), ECF No. 94 (C.D. Cal.

4 Dec. 12, 2018).

5

Petitioner’s 2018 state conviction for this violent crime was

6 just his latest in a long history of criminal conduct, much of which

7 involved violent crime. Among others, petitioner was convicted of

8 the following: in 2009 for stalking (with a prior felony) and battery

9 against his then-girlfriend (sentenced to three years’ imprisonment);

10 in 2010 for grand theft and receiving stolen property (sentenced to

11 two years’ imprisonment); in 2011 for assault with a deadly weapon,

12 unlawful taking of a vehicle, and other related crimes (sentenced to

13 32 months’ imprisonment); and in 2014 for theft and second-degree

14 burglary (sentenced to five years’ imprisonment). United States v.

15 Daniel Sweeney, No. 8:15-CR-00103-JAK, Presentence Investigation

16 Report. When Judge Kronstadt sentenced petitioner on the underlying

17 false statement crime in September 2016, petitioner had a criminal

18 history score of 25--nearly double the threshold necessary to

19 establish the highest criminal history category of VI. Id.

20

For petitioner’s latest crime (assault with force likely to

21 produce great bodily injury) and breach of the Court’s trust, Judge

22 Kronstadt revoked petitioner’s term of supervised release and imposed

23 a 24-month term of imprisonment to run consecutive with any state

24 sentence and with no supervision to follow. United States v. Daniel

25 Sweeney, No. 8:15-CR-00103-JAK, Judgment and Commitment Order, ECF

26 No. 99 (C.D. Cal. Dec. 20, 2018).

27

28

3

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 9 of 20 Page ID #:73

1

B. Incarceration and Projected Release Date

2

Petitioner currently is serving the remaining four months of his

3 24-month sentence at the Orion RRC. His projected release date is

4 September 2, 2020. (Har Decl. ¶ 3, Ex. A.) Petitioner may apply now

5 to be considered for home confinement, to commence on June 22, 2020.

6 (Id.) To be considered, he (like all inmates) must submit a release

7 plan that details, among other things, where he intends to reside for

8 the duration of home confinement. Petitioner currently is ineligible

9 for home confinement because he is homeless and has failed to present

10 any release plan.1 (Id. ¶ 4.)

11 C. Petitioner’s Current Filings and Failure to Exhaust

12

Administrative Remedies under 18 U.S.C. § 3582(c)(1)(A)

13

On May 11, 2020, under Case No. CV 20-04247-CJC(JEM), petitioner

14 filed a petition for writ of habeas corpus, ECF No. 1, and an

15 emergency petition for relief for injunctive and declaratory relief

16 for release, ECF No. 2 (“Petition”). The petition for writ of habeas

17 corpus refers the Court to the “attached complaint and Motion”--that

18

19

20

1 For the same reason, petitioner is not eligible for home

confinement under the CARES Act. See Coronavirus Aid, Relief, and

21 Economic Security Act (“CARES Act”), Pub. L. No. 116-136,

§ 12003(b)(2), 134 Stat. 281, 516 (March 27, 2020). Not only does

22 petitioner lack any specific vulnerability to COVID-19, but BOP’s

release of inmates to home confinement must take into account, among

23 other factors, whether a home is available where the inmate could be

confined, whether the inmate could receive appropriate food and

24 medical care there, the comparative risk to the inmate in home

confinement in the identified location versus remaining in the place

25 of confinement (here, Orion RRC), the inmate’s risk to the public

through recidivism, and the availability of supervision during home

26 confinement or risk to the public if supervision is lacking. See

Attorney General, Memorandum for Director of Bureau of Prisons Re:

27 Prioritization of Home Confinement as Appropriate in Response to

COVID-19 Pandemic (March 26, 2020), available at

28 https://www.justice.gov/file/1262731/download.

4

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 10 of 20 Page ID #:74

1 is, the emergency petition--for the grounds for relief.2 Petitioner

2 seeks an order “to immediately release Sweeney from ALL remaining BOP

3 custody pursuant to 28 U.S.C. § 2241 or 18 U.S.C. § 3582(c)(1)(A) and

4 reduce his sentence accordingly to time-served with no modification

5 in the term of supervised release[.]” (Petition at 8-9 (emphasis in

6 original).)

7

Petitioner did not submit a compassionate-release request to the

8 Bureau of Prisons (“BOP”) before he filed this Petition. (Har Decl.

9 ¶ 4.) Under 18 U.S.C. § 3582(c)(1)(A), the BOP has initial and

10 exclusive authority to assess inmates’ applications for compassionate

11 release. The BOP, which has decades of experience diligently

12 assessing such applications, has detailed regulations setting forth

13 relevant procedures and considerations.3 As a result of petitioner’s

14 failure to submit an administrative request, there is no record of

15 the BOP’s assessment of the relevant factors when it reviews a

16 request for a reduction in sentence. Instead, petitioner now claims

17 that he is entitled to release based on little more than general

18 concerns regarding COVID-19 and its potentially outsized impact on

19 the prison population, which is inapposite to reentry centers like

20 Orion RRC. Petitioner also alleges that Orion RRC does not adhere to

21 social distancing guidelines and has failed to maintain sanitary

22 conditions. Petitioner does not identify any specific health

23 concerns or risk factors and does not otherwise claim to be

24

25

2 Because petitioner’s two filings—the petition for writ of

26

habeas corpus and the emergency petition--are identical in substance, references to the “Petition” are to both filings.

27

3 See BOP Program Statement No. 5050.50, Compassionate

Release/Reduction in Sentence: Procedures for Implementation of 18

28 U.S.C. §§ 3582 and 4205(g) (January 17, 2019), available at

https://www.bop.gov/policy/progstat/5050_050_EN.pdf.

5

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 11 of 20 Page ID #:75

1 particularly vulnerable to COVID-19. Indeed, petitioner acknowledges

2 that any uncontained COVID-19 outbreak at Orion RRC is speculative

3 and concedes he is situated no differently from anyone else in Orion

4 RRC: “[a] potential COVID-19 outbreak poses a substantial risk of

5 serious harm to every person housed in Orion House.” (Petition at

6 11.)

7

In sum, petitioner’s logic would endorse a blanket and permanent

8 release of convicted criminals into the community, without regard for

9 the factors justifying their sentences, any individualized assessment

10 of their risk factors, or consideration of a specific release plan to

11 protect both the health and safety of the community and the inmate.

12

D. COVID-19-Specific Safety Precautions at Orion RRC

13

The BOP contracts with Behavioral Systems Southwest (“BSS”) to

14 operate the 70 beds at Orion RRC in addition to other residential

15 reentry centers throughout California and Arizona.4 To date, there

16 have been no inmates or staff diagnosed with COVID-19 in petitioner’s

17 facility. (Har Decl. ¶ 5.) The sole positive case across the BSS

18 facilities in California is at the Vinewood RRC in Los Angeles.

19 (Id.)

20

Orion RRC maintains robust screening, social distancing,

21 sanitation, and education practices:

22

Screening. Newly arriving inmates are not allowed into the

23 facility until their temperature is taken and they are screened for

24 COVID-19 symptoms. Residents are required to wear masks in the

25 community and within the facility; upon returning to the facility,

26 residents are screened for symptoms and their temperatures are taken.

27

28 4 https://behavioralsystemssouthwest.com/?post_type=location 6

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 12 of 20 Page ID #:76

1 Staff temperatures are taken before every shift and any symptoms must

2 be reported. (Id. ¶ 7.)

3

Social Distancing. Bunks within the dorms are spaced six feet

4 apart, and residents are instructed to sleep head to feet. Each meal

5 has four shifts to limit the number of residents in the dining room

6 area at any given time. Additionally, seating within the dining room

7 area has been marked six feet apart. After each meal shift, the

8 chairs and tables are cleaned before the next shift begins. In other

9 common areas, like the lobby, television room, and recreational room,

10 seats are marked to indicate available seating six feet apart. Staff

11 monitor resident activity to ensure social distancing and to enforce

12 the mask requirement. (Id. ¶ 8.)

13

Cleaning Supplies and Sanitation. Cleaning supplies and

14 additional personal protective equipment are available to residents

15 in an unlocked closet in the lobby. Hand sanitizer is located

16 throughout the facility. Orion RRC adheres to an increased cleaning

17 schedule. All door handles are cleaned three times per shift, and

18 residents must maintain their area of the dorm and assigned common

19 areas with the provided cleaning supplies and personal protective

20 equipment. (Id. ¶ 9.)

21

Education Regarding COVID-19. During intake, incoming residents

22 are educated about COVID-19 and provided with proper masks and

23 gloves. Signage directing residents to wear masks are posted through

24 the facility and with CDC’s hand-washing requirements are posted in

25 the bathrooms. Case managers provide additional education during

26 individual resident meetings. Most recently, on April 30, Orion RRC

27 held a meeting with all residents to review the COVID-19-specific

28 modifications and requirements. (Id. ¶ 10.)

7

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 13 of 20 Page ID #:77

1

This Court should not reach the merits of the Petition. As

2 explained below, section 2241 is the improper vehicle for

3 petitioner’s request, which is actually a thinly veiled compassionate

4 release motion. And this Court lacks authority to review

5 petitioner’s compassionate release because such a motion must be

6 filed in the underlying criminal case with the sentencing judge and

7 only after petitioner has exhausted his available administrative

8 process.

9 III. SECTION 2241 IS NOT THE PROPER VEHICLE FOR PETITIONER’S REQUEST

10

The Petition must be dismissed because section 2241 is not the

11 proper vehicle for petitioner’s claims. In general, habeas

12 proceedings provide a forum in which to challenge the “legality or

13 duration” of a prisoner’s confinement. Crawford v. Bell, 599 F.2d

14 890, 891 (9th Cir. 1979); see also Preiser v. Rodriguez, 411 U.S.

15 475, 484 (1973) (“[T]he essence of habeas corpus is an attack by a

16 person in custody upon the legality of that custody.”); Tucker v.

17 Carlson, 925 F.2d 330, 331 (9th Cir. 1991) (concluding that

18 challenges to “the manner in which [a] sentence was executed,” or to

19 “the fact or duration of . . . confinement,” are properly brought in

20 habeas petitions pursuant to section 2241).

21

Where, as here, petitioner does not challenge his conviction or

22 sentence, but instead seeks release based on his living conditions,

23 his claims “sound in civil rights, not in habeas.” Bolden v. Ponce,

24 No. 2:20-CV-03870-JFW-MAA, 2020 WL 2097751, at *1 (C.D. Cal. May 1,

25 2020) (citing cases). “District courts have no authority to reduce a

26 federal inmate’s sentence under 18 U.S.C. § 3582(c)(1)(A) pursuant to

27 federal habeas proceeding under 28 U.S.C. § 2241.” Id. (citation

28 omitted). While labelled a section 2241 petition, the Petition seeks

8

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 14 of 20 Page ID #:78

1 only one remedy: compassionate release under 18 U.S.C.

2 § 3582(c)(1)(A)(i). Because petitioner “admittedly does not

3 challenge his conviction or sentence, section 2241 is not the proper

4 vehicle for petitioner’s claims.” Id., at *2.

5 IV. PETITIONER’S REQUEST FOR COMPASSIONATE RELEASE SHOULD BE

6

DISMISSED

7

Properly construed as a motion for compassionate release

8 pursuant to § 3582(c)(1), the Petition fails because this Court,

9 which did not sentence petitioner, lacks authority to entertain it.

10 In addition to filing his compassionate release motion in the wrong

11 court, petitioner also has failed to exhaust his administrative

12 remedies, which additionally deprives this Court (and the sentencing

13 court) of jurisdiction over any request for compassionate release.

14 Even if this Court could reach the petition’s merits, petitioner’s

15 claims must fail: he is not eligible for compassionate release, and

16 the COVID-19 crisis does not justify a permanent, irrevocable

17 reduction in his sentence.

18

A. Legal Framework for Compassionate Release

19

A compassionate-release motion is a request for a permanent

20 reduction in a defendant’s federal sentence. A district court

21 generally “may not modify a term of imprisonment once it has been

22 imposed.” 18 U.S.C. § 3582(c); see Dillon v. United States, 560 U.S.

23 817, 824–25 (2010). Compassionate release is one of the few

24 exceptions to this rule, allowing a court to “reduce the term of

25 imprisonment . . . [.]” 18 U.S.C. § 3582(c)(1).

26

Because this relief is both drastic and permanent, it is subject

27 to two strict statutory conditions: petitioner must (1) fully exhaust

28 all administrative remedies, and (2) establish “extraordinary and

9

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 15 of 20 Page ID #:79

1 compelling reasons”, within the meaning of the statute, to warrant a

2 reduction in his sentence. 18 U.S.C. § 3582(c)(1)(A). Petitioner

3 bears the burden to prove both these conditions. See United States

4 v. Greenhut, No. 18-CR-48-CAS, 2020 WL 509385, at *1 (C.D. Cal. Jan.

5 31, 2020) (defendant bears the burden of establishing entitlement to

6 sentencing reduction).

7

First, a district court can evaluate a defendant’s request for

8 compassionate release only “after the defendant has fully exhausted

9 all administrative rights” before the BOP. Specifically:

10

after the defendant has fully exhausted all administrative

rights to appeal a failure of the Bureau of Prisons to

11

bring a motion on the defendant’s behalf or the lapse of 30

days from the receipt of such a request by the warden of

12

the defendant’s facility, whichever is earlier[.]

13 18 U.S.C. § 3582(c)(1)(A). This requirement is mandatory and

14 jurisdictional. See generally Shaw v. Bank of America Corp., 946

15 F.3d 533, 541 (9th Cir. 2019) (“statutorily-provided exhaustion

16 requirements deprive the court of jurisdiction”); United States v.

17 Shah, No. 10-70-CJC, ECF No. 329, at 3 (C.D. Cal. Mar. 30, 2020)

18 (“Because Defendant failed to exhaust his administrative remedies,

19 his request for compassionate release based on COVID-19 concerns

20 fails.”; citing cases).

21

Second, to be eligible for compassionate release, a defendant

22 must demonstrate the existence of “extraordinary and compelling

23 reasons[.]” 18 U.S.C. § 3582(c)(1)(A). The statute explicitly

24 requires that any reduction be “consistent with applicable policy

25 statements issued by the Sentencing Commission”--in this case,

26 U.S.S.G. § 1B1.13. Id. U.S.S.G. § 1B1.13, in turn, defines the

27 “extraordinary and compelling reasons” that make a defendant eligible

28 for compassionate release. Those criteria look to factors such as

10

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 16 of 20 Page ID #:80

1 the medical condition of a defendant; age of a defendant (at least 65

2 years old); family circumstances; or some other extraordinary and

3 compelling reason. U.S.S.G. § 1B1.13, comment. (n.1).

4 B. Petitioner’s Compassionate Release Request Must Be Filed in

5

the Sentencing Court in the Underlying Criminal Case

6

A compassionate release motion under § 3582(c)(1)(A) must be

7 filed in the sentencing court because it “is undoubtedly a step in

8 the criminal case.” United States v. Ono, 72 F.3d 101, 102 (9th Cir.

9 1995); see also United States v. Brown, 817 F.3d 486, 488–89 (6th

10 Cir. 2016) (“Because its purpose is to ask the sentencing court to

11 reduce a sentence . . . , a § 3582(c) motion is part of the

12 defendant’s criminal proceeding.” (collecting cases)). So while the

13 First Step Act “provides that a sentencing court now may modify a

14 sentence” on petitioner’s motion, it does not provide any basis for

15 another court that did not sentence petitioner to grant compassionate

16 release. Mohrbacher v. Ponce, No. CV 18-00513-DMG-GJS, 2019 WL

17 161727, at *1 (C.D. Cal. Jan. 10, 2019) (emphasis added). Many

18 courts have held the same. See, e.g., Gambino v. Hudgins, No. 5:20-

19 CV-43, 2020 WL 1698824, at *1 (N.D.W. Va. Apr. 8, 2020) (“It is clear

20 that petitioner is unable to proceed in pursuit of his request for

21 compassionate release in this Court, as courts in this Circuit and

22 elsewhere have consistently found that such a request must instead be

23 brought in the sentencing court.” (collecting cases)); Alexis v.

24 Ortiz, No. CV 19-1085 (RBK), 2019 WL 2367034, at *2 (D.N.J. June 5,

25 2019) (explaining that the court “ha[d] no authority under the First

26 Step Act to consider a compassionate release claim in a § 2241

27 petition” because section 3582(c)(1)(A) “provides that a sentencing

28 court may modify a sentence upon receiving a motion from the BOP or

11

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 17 of 20 Page ID #:81

1 the defendant” (emphasis added)); Robinson v. Wilson, No. 1:17-CV-

2 02630, 2017 WL 5586981, at *5 (S.D.W. Va. Sept. 26, 2017) (“[A] §

3 3582 motion must be filed in the movant’s underlying criminal action

4 and be addressed by the sentencing court.”); Heard v. Quintana, 184

5 F. Supp. 3d 515, 521–22 (E.D. Ky. 2016) (same).

6

The 24-month sentence that petitioner seeks to modify was

7 imposed by Judge Kronstadt. Because “[o]nly the original sentencing

8 court can entertain” petitioner’s motion for compassionate release,

9 Bolden, 2020 WL 2097751, at *2, this Court should dismiss the

10 Petition. As explained below, should petitioner satisfy the

11 administrative exhaustion requirement, he may then file his request

12 to modify his sentence as a compassionate release motion in his

13 underlying criminal action, Case No. CR 15-00103-JAK, before Judge

14 Kronstadt.

15

C. Petitioner Failed to Exhaust Administrative Remedies

16

This Court additionally lacks authority to act on petitioner’s

17 compassionate release request because he has not exhausted his

18 administrative remedies.

19

Under 18 U.S.C. § 3582(c)(1)(A), the Court “may not modify a

20 term of imprisonment once it has been imposed except” upon a

21 defendant’s motion “after the defendant has fully exhausted all

22 administrative rights to appeal a failure of the Bureau of Prisons to

23 bring a motion on the defendant’s behalf or the lapse of 30 days from

24 the receipt of such a request by the warden of the defendant’s

25 facility, whichever is earlier[.]” If this statutory condition has

26 not been satisfied, the Court lacks authority to adjudicate

27 petitioner’s claims. See Shaw, 946 F.3d at 541. The failure to

28 exhaust cannot be excused. Statutorily provided exhaustion

12

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 18 of 20 Page ID #:82

1 requirements, like the one set forth in § 3582(c)(1)(A), “deprive the

2 court of jurisdiction and, thus, preclude any exercise of discretion

3 by the Court.” Id. at 533 (citation omitted). Numerous courts--

4 including this Court--have rejected similar claims based on COVID-19

5 based on the failure to exhaust administrative remedies. See, e.g.,

6 Shah, No. 10-70-CJC, ECF No. 329, at 3 (C.D. Cal. Mar. 30, 2020)

7 (“Because defendant failed to exhaust his administrative remedies,

8 his request for compassionate release based on COVID-19 concerns

9 fails.”); United States v. Sloane, No. 19-CR-10117-IT-11, ECF No.

10 647, at 2 (D. Mass. Mar. 19, 2020) (explaining that, absent such

11 exhaustion, the court “does not have authority to grant the requested

12 relief”; noting no request made to the USP Lompoc Warden); United

13 States v. Neman, No. 14-521-JAK, ECF No. 863, at 4—6 (C.D. Cal. Mar.

14 30, 2020) (denying COVID-19-based compassionate release motion for

15 lack of exhaustion).

16

Petitioner has not shown that he has filed any administrative

17 request with BOP or BSSI. (Har Decl. ¶ 4.) Only upon exhausting the

18 available administrative process, and in the original court of

19 conviction, can petitioner properly file a motion for compassionate

20 release seeking a reduction in his sentence. Because petitioner has

21 not made any request for compassionate release with BOP, this Court

22 lacks authority to grant relief.

23 D. Petitioner Has Failed to Demonstrate “Extraordinary and

24

Compelling” Reasons to Allow Release in His Case

25

Even if the Court had authority as the sentencing court to

26 consider the merits of petitioner’s unexhausted claims, petitioner

27 has failed to identify an “extraordinary and compelling reason[]

28

13

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 19 of 20 Page ID #:83

1 warrant[ing]” a reduction in his sentence. 18 U.S.C.

2 § 3582(c)(1)(A).

3

U.S.S.G. § 1B1.13 defines the “extraordinary and compelling

4 reasons” that make a defendant eligible for compassionate release.

5 They include (1) a “terminal illness”; (2) a serious medical

6 condition that “that substantially diminishes the ability of the

7 defendant to provide self-care within the environment of a

8 correctional facility and from which he or she is not expected to

9 recover”; (3) a defendant who is at least 65 years old, is

10 experiencing a serious deterioration in physical or mental health

11 because of the aging process, and “has served at least 10 years or 75

12 percent of his or her term of imprisonment, whichever is less”; or

13 (4) the death or incapacitation of “the caregiver of defendant’s

14 minor child” or of “defendant’s spouse or registered partner when the

15 defendant would be the only available caregiver for the spouse or

16 registered partner.” U.S.S.G. § 1B1.13 comment (n.1). Importantly,

17 “[g]eneral concerns about possible exposure to COVID-19 do not meet

18 the criteria for extraordinary and compelling reasons for a reduction

19 in sentence set forth in the Sentencing Commission’s policy

20 statement[.]” United States v. Eberhart, No. 13-cr-00313-PJH-1, 2020

21 WL 1450745, *2 (N.D. Cal. Mar. 25, 2020).

22

None of the qualifying reasons that might make petitioner

23 eligible for relief are present here. Petitioner offers no case-

24 specific facts establishing his eligibility for compassionate release

25 under U.S.S.G. § 1B1.13. He does not identify a single, specific

26 health condition, much less allege that he is terminally ill or

27 subject to a serious and unrecoverable condition that makes him

28 unable to “provide self-care” at Orion RRC. See U.S.S.G. § 1B1.13,

14

Case 2:20-cv-04247-CJC-JEM Document 9 Filed 05/27/20 Page 20 of 20 Page ID #:84

1 comment (n.1(A)(i)-(ii)). Petitioner, who is 47, does not meet the

2 age condition. Nor does petitioner’s single reference to his “ex-

3 wife, a five-year old son, [and] an ailing parent”--whom he wishes to

4 “see in person”--qualify as the type of family circumstance that

5 might merit a permanent reduction in his sentence. (Petition at 15.)

6

Rather, petitioner primarily relies on the general risk of

7 COVID-19: arguments that are wide-ranging and apply to every resident

8 and inmate presently in custody. There is nothing to suggest that

9 petitioner would be safer if released into the community than

10 remaining at the Orion RRC--a facility that currently has no positive

11 cases of COVID-19. This is especially true given petitioner’s

12 homeless status. Petitioner has failed to propose any release plan

13 indicating where he will reside; how he will support himself; how he

14 will receive medical treatment and how he will pay for such

15 treatment--all things that BOP considers when evaluating a release

16 plan before recommending compassionate release. Moreover, there is

17 no evidence that the Orion RRC would be unable to manage petitioner’s

18 health even if he were to contract COVID-19.

19

In sum, the speculative possibility that petitioner might

20 contract COVID-19 simply does not present an extraordinary and

21 compelling reason to release petitioner early from his sentence.

22 V. CONCLUSION

23

For the foregoing reasons, petitioner’s habeas petition and

24 emergency petition for relief seeking an immediate reduction in his

25 sentence to time-served should be dismissed.

26

27

28

15

Case 2:20-cv-04247-CJC-JEM Document 9-1 Filed 05/27/20 Page 1 of 5 Page ID #:85

1

DECLARATION OF SUSAN HAR

2

I, Susan Har, declare as follows:

3

1. I am an Assistant United States Attorney in the Central

4 District of California and am assigned to this case.

5

2. Based upon communications with Bureau of Prisons (“BOP”)

6 Senior Attorney May Shin, who spoke with respondent Juan Herrera, the

7 Residential Reentry Manager for the Long Beach Residential Reentry

8 Management Office, I learned the following:

9

3. Attached as Exhibit A is a true and correct copy of

10 petitioner Daniel Sweeney’s (“petitioner”) BOP Inmate Profile as of

11 May 18, 2020. Exhibit A indicates that petitioner’s projected

12 release date is September 2, 2020 and that he is eligible to be

13 considered for home confinement, to commence on June 22, 2020.

14

4. As of May 19, 2020, petitioner has not applied for home

15 confinement and has failed to present any release plan. Petitioner

16 is believed to be homeless and therefore would not qualify for home

17 confinement. Petitioner has not submitted any request for

18 compassionate release with the BOP or the Orion Residential Reentry

19 Center (“Orion RRC”).

20

5. As of May 26, 2020, there have been no inmates or staff

21 diagnosed with COVID-19 at Orion RRC. Across the facilities managed

22 by Behavioral Systems Southwest, Inc. in California, there is one

23 positive case of COVID-19 at the Vinewood RRC in Los Angeles.

24

6. Orion RRC maintains robust screening, social distancing,

25 sanitation, and education practices to mitigate residents’ risk of

26 contracting COVID-19.

27

7. Screening. Newly arriving residents are not allowed into

28 the facility until their temperature has been taken and they are

Case 2:20-cv-04247-CJC-JEM Document 9-1 Filed 05/27/20 Page 2 of 5 Page ID #:86

1 screened for COVID-19 symptoms. Residents are required to wear masks

2 in the community and within the facility. Upon returning to the

3 facility, they are screened for symptoms and their temperature is

4 taken. Staff must take their temperature before every shift and

5 report any symptoms.

6

8. Social Distancing. Bunks within the dorms are spaced six

7 feet apart and residents are instructed to sleep head to feet. There

8 are four meal shifts to limit the number of residents in the dining

9 room area. Residents must sit six feet apart within the dining room,

10 and seating is marked as such. After each meal shift, the chairs and

11 tables are cleaned before the next meal shift begins. Other common

12 areas, like the lobby, television room, and recreational room, have

13 been marked to indicate available seating six feet apart. Staff

14 members monitor resident activity to ensure social distancing and to

15 enforce the mask requirement.

16

9. Cleaning Supplies and Sanitation. Cleaning supplies and

17 additional personal protective equipment are available to residents

18 in an unlocked closet in the lobby. Hand sanitizer is located

19 throughout the facility. Orion RRC adheres to an increased cleaning

20 schedule. All door handles must be cleaned three times per shift,

21 and residents must maintain their own dorm area and assigned common

22 areas with the provided cleaning supplies and personal protective

23 equipment.

24

10. Education Regarding COVID-19. During intake, incoming

25 residents are educated about COVID-19 and provided with masks and

26 gloves. Directives to wear masks are posted throughout the facility,

27 //

28

2

Case 2:20-cv-04247-CJC-JEM Document 9-1 Filed 05/27/20 Page 3 of 5 Page ID #:87

1 and signage with CDC’s hand-washing requirements are posted in the

2 bathrooms. Case managers provide additional education during

3 individual resident meetings. Most recently, on April 30, 2020,

4 Orion RRC held a meeting with all residents to review the COVID-19-

5 specific modifications and requirements.

6

I declare under penalty of perjury under the laws of the United

7 States of America that the foregoing is true and correct and that

8 this declaration is executed at Los Angeles, California, on May 27,

9 2020.

10

11

SUSAN HAR

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

Case 2:20-cv-04247-CJC-JEM Document 9-1 Filed 05/27/20 Page 4 of 5 Page ID #:88
EXHIBIT A

Case 2:20-cv-04247-CJC-JEM Document 9-1 Filed 05/27/20 Page 5 of 5 Page ID #:89

LOSDN 535.03 *

INMATE PROFILE

*

05-18-2020

PAGE 001 OF 001

07:46:28

69628-112

REG

REGNO: 69628-112

FUNCTION: PRT DOB/AGE.:

1973 / 46

NAME.: SWEENEY, DANIEL

R/S/ETH.:

WALSH: NO

RSP..: CLB-LONG BEACH CCM

MILEAGE.: 152 MILES

PHONE:

PROJ REL METHOD: GOOD CONDUCT TIME RELEASE

FBI NO..:

PROJ REL DATE..: 09-02-2020

INS NO..:

PAR ELIG DATE..: N/A

SSN.....:

5081

PAR HEAR DATE..:

PSYCH: NO

DETAINER: NO

CMC..: NO

OFFN/CHG RMKS: SACR15-00103-JAK. SRV(NCC)ORIG. FALSE STMNT. 24MOS/NO SRT.

OFFN/CHG RMKS: ST SENT CMPL.

FACL CATEGORY - - - - - CURRENT ASSIGNMENT - - - - - - EFF DATE TIME

CLB ADM-REL A-DES

DESIGNATED, AT ASSIGNED FACIL 03-10-2020 1943

CLB CARE LEVEL CARE1

HEALTHY OR SIMPLE CHRONIC CARE 11-06-2015 1323

CLB CARE LEVEL CARE1-MH CARE1-MENTAL HEALTH

12-28-2018 1259

CLB CASE MGT BIR CERT N BIRTH CERTIFICATE - NO

06-05-2019 1040

CLB CASE MGT DEPEND Y DEPENDENTS UNDER 21 - YES

03-29-2019 1011

CLB CASE MGT PHOTO ID N PHOTO ID - NO

03-29-2019 1011

CLB CASE MGT RPP NEEDS RELEASE PREP PGM NEEDS

03-29-2019 1556

CLB CASE MGT RPP UNT C RELEASE PREP UNIT PGM COMPLETE 03-04-2020 0806

CLB CASE MGT SSN CARD Y SOCIAL SECURITY CARD - YES

06-05-2019 1040

CLB CASE MGT VET P/S N PARENT/SPOUSE VETERAN - NO

03-29-2019 1011

CLB CASE MGT VETERAN N VETERAN - NO

03-29-2019 1011

CLB CASE MGT V94 COA913 V94 CURR OTHER ON/AFTER 91394 03-26-2019 1146

CLB CASE MGT V94 PV

V94 PAST VIOLENCE

03-26-2019 1146

CLB CASE MGT WA NO CONV WALSH ACT HIST-NO CONVICTION 03-23-2019 1450

CLB CASE MGT WA NOT CER WALSH ACT-NOT CERTIFIED

03-27-2019 0532

CLB COMM CORR INST TRANS INSTITUTION TRANSFER

03-11-2020 0731

CLB CUSTODY COM

COMMUNITY CUSTODY

03-10-2020 0001

CLB DRUG PGMS DAP NO INT DRUG ABUSE PROGRAM NO INTEREST 04-17-2019 0954

CLB DRUG PGMS ED WAIT HX DRUG EDUCATION WAIT-RQ HIST 03-29-2019 1513

CLB DRUG PGMS MH CMTX NR MENTAL HEALTH TX NOT REFERRED 03-09-2020 1204

CLB DRUG PGMS NR COMP NRES DRUG TMT/COMPLETE

03-05-2020 1600

CLB DRUG PGMS WA CMTX UQ WALSH COMMUNITY TREATMENT UNQ 03-09-2020 1205

CLB DESIG/SENT NOVEMBER TEAM NOVEMBER

12-28-2018 1244

CLB EDUC INFO ESL HAS ENGLISH PROFICIENT

03-14-2019 0943

CLB EDUC INFO GED HAS COMPLETED GED OR HS DIPLOMA 04-01-2019 0636

CLB FIN RESP PART

FINANC RESP-PARTICIPATES

03-07-2019 0824

CLB FIRST STEP FTC ELIG FTC-ELIGIBLE - REVIEWED

12-12-2019 1731

CLB FIRST STEP R-HI

HIGH RISK RECIDIVISM LEVEL

12-12-2019 1731

CLB LEVEL

MEDIUM

SECURITY CLASSIFICATION MEDIUM 12-31-2018 0926

CLB LOCATION 9F0

ORION RRC

03-10-2020 1943

CLB MED DY ST REG DUTY NO MEDICAL RESTR--REGULAR DUTY 03-19-2019 1455

CLB MED DY ST YES F/S CLEARED FOR FOOD SERVICE

03-19-2019 1455

CLB RELIGION NO PREFER NO PREFERENCE

11-03-2015 1214

CLB WAITNG LST HC ELIG TARGET FOR HOME CONFINEMENT 06-22-2020 1943

CLB WAITNG LST REL NTFY REL NOTIFICATION REQ-PL103-322 08-19-2020 1943

G0000

TRANSACTION SUCCESSFULLY COMPLETED

 
 Case 2:20-cv-04247-CJC-JEM Document 14 Filed 06/08/20 Page 1 of 6 Page ID #:95

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

)

11

) Case No.: CV 20-04247-CJC(JEMx)

)

12 DANIEL SWEENEY,

) )

13

)

14

Petitioner,

) ) ORDER GRANTING RESPONDENTS’

15

v.

) MOTION TO DISMISS [Dkt. 9] AND ) DISMISSING PETITIONER’S

) EMERGENCY PETITION FOR WRIT

16

JUAN HERRERA and KIM BEAKEY,

) )

OF HABEAS CORPUS [Dkt. 2]

17

)

18

Respondents.

) )

)

19

)

)

20

)

)

21

22
23 I. INTRODUCTION

24

25

On May 11, 2020, Petitioner Daniel Sweeney filed this Emergency Petition for

26 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 and request for compassionate

27 release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 1 [Petition, hereinafter “Pet.”]; Dkt.

28 2 [Motion, hereinafter “Mot.”].) Petitioner is currently in custody at the at the Orion

-1-

Case 2:20-cv-04247-CJC-JEM Document 14 Filed 06/08/20 Page 2 of 6 Page ID #:96

1 Residential Reentry Center (“Orion RRC”) in Van Nuys, California. (Mot. at 1–3.) 2 Respondents Juan Herrera, Residential Relocation Manager of the Federal Bureau of

3 Prisons (“BOP”) for the District of Los Angeles, and Kim Beakey, BOP Regional

4 Reentry Administrator, move to dismiss the Petition for lack of jurisdiction. (Dkt. 9

5 [hereinafter “MTD”].) For the following reasons, Respondents’ motion to dismiss is

6 GRANTED, the Petition is DENIED, and this case is DISMISSED.

7

8 II. BACKGROUND

9

10

In June 2016, Petitioner was convicted in this District before Judge John A.

11 Kronstadt for making a false statement in a passport application. United States v. Daniel 12 Sweeney, No. 8:15-CR-00103-JAK, Judgment, Dkt. 78 (C.D. Cal. Sept. 30, 2016). Judge 13 Kronstadt sentenced Petitioner to six months’ imprisonment followed by three years of

14 supervised release. Id. Under the terms of his supervised release, Petitioner was ordered

15 not to commit another federal, state, or local crime. Id. However, after his release,

16 Petitioner was convicted of assault with force likely to produce great bodily injury in

17 violation of California Penal Code § 245(a)(4) in Orange County Superior Court. See id.,

18 Dkt. 94. In response, Judge Kronstadt revoked Petitioner’s supervised release and

19 imposed a 24-month term of imprisonment to run consecutively with any state sentence.

20 Id., Dkt. 99.

21

22

Petitioner is currently serving the final four months of the resulting federal

23 sentence at Orion RRC, a federally contracted residential reentry facility, or “halfway

24 house,” that serves federal and state prisoners. (Mot. at 2.) According to Petitioner,

25 Orion RRC houses approximately 100 inmates, all of whom are allowed to leave the

26 Center for jobs, job training, and family and medical visits. (Id.) Petitioner alleges that

27 Orion RRC has not implemented federal, state, and local public health guidelines for

28 mitigating the spread COVID-19 inside detention facilities. (Id.) Specifically, he alleges

-2-

Case 2:20-cv-04247-CJC-JEM Document 14 Filed 06/08/20 Page 3 of 6 Page ID #:97

1 that Orion RRC requires residents to sleep and live in close quarters, forces them to clean 2 bathrooms and common areas without proper equipment, does not observe social 3 distancing protocols, does not have on-site medical staff, does not screen residents for 4 COVID-19, and does not provide inmates with masks, hand sanitizer, or other hygienic 5 products. (Id. at 2–3, 5–6.)1

6
7 III. DISCUSSION

8

9

Petitioner argues that these conditions violate his Eighth Amendment right against

10 cruel and unusual punishment and seeks immediate release from federal custody pursuant

11 to 28 U.S.C. § 2241 and/or 18 U.S.C. § 3582(c)(1)(A). (Id. at 8–9.) The Court finds that

12 it lacks jurisdiction to consider the merits of Petitioner’s claim under either provision.

13

14

A. Immediate Release Under 28 U.S.C. § 2241

15

16

Section 2241 allows “the Supreme Court, any justice thereof, the district courts and

17 any circuit judge” to consider a writ of habeas corpus “within their respective

18 jurisdictions,” from a person claiming to be “in custody in violation of the Constitution or

19 laws or treaties of the United States.” 28 U.S.C. §§ 2241(a) and (c)(3). A district court

20 considering an application for a writ of habeas corpus shall “award the writ or issue an

21 order directing the respondent to show cause why the writ should not be granted, unless it

22 appears from the application that the applicant or person detained is not entitled thereto.”

23 28 U.S.C. § 2243. The Court may summarily dismiss a habeas petition if “it plainly

24 appears from the petition and any attached exhibits that the petitioner is not entitled to

25

26
27 1 Respondents dispute these allegations and assert that “Orion RRC maintains robust screening, social distancing, sanitation, and education practices.” (MTD at 6.) Specifically, Respondents assert that new
28 inmates are screened for COVID-19 symptoms, that sleeping and seating areas are spaced six feet apart, and that residents receive free masks and hand sanitizer. (Id. at 6–7.)
-3-

Case 2:20-cv-04247-CJC-JEM Document 14 Filed 06/08/20 Page 4 of 6 Page ID #:98

1 relief in the district court.” See Rules Governing Section 2254 Cases in the United States 2 District Courts (“Habeas Rules”) at R. 4.

3

4

Federal law “opens two main avenues to relief on complaints related to

5 imprisonment”—a petition for habeas corpus and a civil rights complaint. Muhammad v.

6 Close, 540 U.S. 749, 750 (2004). Habeas petitions are “the exclusive vehicle” for claims

7 fall within “the core of habeas corpus”—that is, claims challenging “the fact or duration

8 of the conviction or sentence.” See Nettles v. Grounds, 830 F.3d 922, 927, 934 (9th Cir.

9 2016) (en banc). By contrast, a civil rights action is the “proper remedy” for a claimant

10 asserting “a constitutional challenge to the conditions of his prison life, but not to the fact

11 or length of his custody.” See Preiser v. Rodriguez, 411 U.S. 475, 499 (1973); see also

12 Nettles, 830 F.3d at 927 (holding that a civil rights action is the “exclusive remedy” for

13 such a challenge); Green v. Fox, 2015 WL 4932822, at *3 (C.D. Cal. Aug. 17, 2015)

14 (explaining that “challenges to a prisoner’s conditions of confinement must be brought

15 through a civil rights action, rather than through a habeas corpus petition”), judgment

16 entered, 2015 WL 4932823 (C.D. Cal. Aug. 17, 2015), aff’d, 703 F. App’x 458 (9th Cir.

17 2017). The key inquiry is whether success on Petitioner’s claim would “necessarily lead

18 to immediate or speedier release.” See Nettles, 830 F.3d at 934. If success would not

19 necessarily lead to expedited release, the claim falls outside the core of habeas corpus and

20 is not cognizable under 28 U.S.C. § 2241. See Schulze v. Kobayashi, 2020 WL 2544407,

21 at *1 (D. Haw. May 19, 2020) (citing Nettles, 830 F.3d at 935).

22

23

Petitioner challenges the conditions of his confinement under the Eighth

24 Amendment. Although he requests immediate release, his claims would not necessarily

25 lead to this remedy if successful. For example, the Court might determine that an

26 injunction requiring Orion RRC to come into compliance with state and federal

27 guidelines was the only appropriate remedy. See id. (finding that petitioner’s claim fell

28 outside the core of habeas corpus because success would not necessarily lead to

-4-

Case 2:20-cv-04247-CJC-JEM Document 14 Filed 06/08/20 Page 5 of 6 Page ID #:99

1 petitioner’s release); Bolden v. Ponce, 2020 WL 2097751, at *2 (C.D. Cal. May 1, 2020) 2 (holding that petitioner’s challenge to the conditions of his confinement during the 3 COVID-19 pandemic should have been asserted in a civil rights complaint and not in a 4 habeas petition, despite his request for immediate release); Shook v. Apker, 472 Fed. 5 App’x 702, 702–03 (9th Cir. 2012) (holding that, “[d]espite the relief he seeks,” 6 petitioner’s challenges to the adequacy of medical care concerned “the conditions of his 7 confinement and are properly brought under Bivens,” not as a habeas petition). 8 Accordingly, Petitioner’s claims are not cognizable under 28 U.S.C. § 2241.2

9

10

B. Compassionate Release Under 18 U.S.C. § 3582(c)(1)(A)

11

12

Petitioner also seeks compassionate release under 18 U.S.C. § 3582(c)(1)(A). (See

13 Mot. at 8–9.) This Court lacks jurisdiction to consider such a request. Under the First

14 Step Act of 2018, federal inmates may seek compassionate release directly from the

15 sentencing court if the BOP denies, or fails to timely address, an administrative request

16 for release. See 18 U.S.C. § 3582(c)(1). As relevant here, eligible claimants may seek

17 sentence reduction for “extraordinary and compelling reasons.” Id. § 3582(c)(1)(A).

18 However, based on the plain language of the statute, a request for compassionate release

19 can only be submitted to the BOP and the original sentencing court. See id.; Bolden,

20 2020 WL 2097751, at *2 (holding that only the original sentencing court can entertain

21 requests for compassionate release under § 3582(c)(1)(A)); Thody v. Swain, 2019 WL

22 7842560, at *2 (C.D. Cal. Nov. 26, 2019) (same); Mohrbacher v. Ponce, 2019 WL

23 161727, at *1 & n.l (C.D. Cal. Jan. 10, 2019) (same); United States v. Rala, 954 F.3d

24 594, 595 (3d Cir. 2020) (same). Accordingly, this Court cannot consider Plaintiff’s

25
2 Although the Court has discretion to recharacterize a habeas petition as a civil rights complaint, see 26 Nettles, 830 F.3d at 936, the Court declines to do so here. If converted into such a complaint, the 27 Petition would be subject to the procedural and substantive requirements of the Prison Litigation Reform
Act (“PLRA”), which are not addressed by Petitioner. See 28 U.S.C. §§ 1915 1915A; 42 U.S.C. 28 § 1997e. Notably, Petitioner has not specified whether he exhausted administrative remedies as required
by the PLRA. See id.
-5-

Case 2:20-cv-04247-CJC-JEM Document 14 Filed 06/08/20 Page 6 of 6 Page ID #:100

1 request for relief under 18 U.S.C. § 3582(c)(1)(A).3 Petitioner may submit this request to 2 the BOP and Judge Kronstadt.

3
4 IV. CONCLUSION

5

6

For the foregoing reasons, Respondents’ motion to dismiss is GRANTED, and this

7 action is DISMISSED for lack of jurisdiction. Nothing in this Order prohibits Petitioner

8 from asserting these claims in a civil rights action or from seeking compassionate release

9 under 18 U.S.C. § 3582(c)(1)(A) from the BOP and sentencing Court. See Bolden, 2020

10 WL 2097751, at *3 n.3.

11

12

DATED: June 8, 2020

13

14

15

__________________________________ CORMAC J. CARNEY
CHIEF UNITED STATES DISTRICT JUDGE

16

17

18

19

20

21

22

23

24

25

26

27
28 3 The Court also notes that the Petition does not address the exhaustion requirements of 18 U.S.C. § 3582(c)(1)(A).
-6-