IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

EL PASO DIVISION 

DAVID LOPEZ, § 

Petitioner, § 

§ 

 § EP-20-CV-167-DCG 

§ 

THOMAS BERGAMI, Warden, § 

Respondent. § 

MEMORANDUM OPINION AND ORDER 

David Lopez, Federal Prisoner Number 17702-180, petitions the Court under 28 U.S.C. § 

2241 to intervene in his behalf and order Thomas Bergami, the Warden at his current place of 

confinement, to order his placement in home confinement or release from prison. Pet’r’s Pet., 

ECF No. 1, p. 2. His petition is dismissed for the following reasons. 

BACKGROUND 

Lopez is a 60-year-old inmate serving a 293-month sentence imposed after a jury found 

him guilty of conspiracy to possess with the intent to distribute more than 1,000 kilograms of 

marijuana and possession with the intent to distribute more than 100 kilograms of marijuana. 

United States v. Lopez, EP-16-CR-896-PRM, Am. J. Crim. Case, ECF No. 172. He is currently 

incarcerated at the La Tuna Federal Correctional Institution in Anthony, Texas, with a projected 

release date of March 19, 2037. See www.bop.gov/inmateloc (search for Reg. No. 17702-180) 

(last visited June 23, 2020). 

Lopez applied for “immediate release” under § 12003(b)(2) of the Coronavirus Aid, 

Relief, and Economic Security Act of 2020 (CARES Act) on April 7, 2020. Pet’r’s Pet., ECF 

No. 1-2, Ex. 1, p. 12 (Inmate Request to Staff). He claimed he was eligible “because of his 

vulnerability to COVID-19” and his compromised health. Id. 

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An associate warden denied Lopez’s application on May 14, 2020. Id. at p. 14 (Email 

Response). She explained: 

According to your Unit Manager, you currently have a Public Safety Factor for 

Greatest Severity and Sentence Length, with a projected release date of 2037. 

Additionally, you have a pending charge for assault. Consequently, the 

aforementioned makes your case ineligible as this time. 

Id. 

Lopez now asserts Bergami “abused his discretion” by failing to follow the Attorney 

General’s March 13, 2020, directive “to grant home confinement to inmates seeking transfer in 

connection with the COVID-19 pandemic.” Pet’r’s Pet., ECF No. 1, p. 4. He asks the Court to 

order his “release [to] home confinement” pursuant to § 12003(b)(2) of the CARES Act. Id. at 

p. 2. In the alternative, he asks the Court to order his “Compassionate Release” from prison 

pursuant to 18 U.S.C. § 3582(c)(1)(A). Id. 

APPLICABLE LAW 

 A writ of habeas corpus under 28 U.S.C. § 2241 provides the proper procedural vehicle in 

which to raise an attack on “the manner in which a sentence is executed.” Tolliver v. Dobre, 

211 F.3d 876, 877 (5th Cir. 2000). However, “[h]abeas corpus relief is extraordinary and ‘is 

reserved for transgressions of constitutional rights and for a narrow range of injuries that . . . if 

condoned, result in a complete miscarriage of justice.’ ” Kinder v. Purdy, 222 F.3d 209, 213 

(5th Cir. 2000) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)). To 

prevail, a habeas corpus petitioner must show that he is “in custody in violation of the 

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c). 

 During its initial screening of a habeas corpus petition, a reviewing court accepts a 

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petitioner’s allegations as true. 28 U.S.C. § 2243; Bell Atlantic Corp. v. Twombly, 550 U.S. 

544, 555–56 (2007). It also evaluates a petition presented by pro se petitioner under more a 

lenient standard than it would apply to a petition submitted by counsel. Erickson v. Pardus, 551 

U.S. 89, 94 (2007). But it must still find “more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action.” Twombly, 550 U.S. at 556. It must “award the 

writ or issue an order directing the respondent to show cause why the writ should not be granted, 

unless it plainly appears from the petition and any attached exhibits that the petitioner is not 

entitled to relief.” Rule 4 of the Rules Governing § 2254 Cases in the United States District 

Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). 

ANALYSIS 

A. Exhaustion 

 An initial issue which a court must address when screening a § 2241 petition is whether 

the petitioner has exhausted his administrative remedies. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 

1994) (per curiam). A petitioner seeking habeas relief must first exhaust all administrative 

remedies which might provide appropriate relief before seeking judicial review. Id.; Rourke v. 

Thompson, 11 F.3d 47, 49 (5th Cir. 1993). Exhaustion means “proper exhaustion,” including 

compliance with all administrative deadlines and procedures. Cf. Woodford v. Ngo, 548 U.S 81, 

90 (2006) (discussing exhaustion under the Prison Litigation Reform Act). 

 The Federal Bureau of Prisons (BOP) uses a multi-tiered administrative remedy program 

“to allow an inmate to seek formal review of an issue relating to any aspect of his/her own 

confinement.” 28 C.F.R. § 542.10(a). First, the inmate must attempt to resolve the issue 

informally with the prison staff. Id. § 542.13(a). Then, if the inmate cannot resolve the 

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complaint informally, he must file a formal written administrative remedy request on a BP-9 

form directed to the prison warden. Id. § 542.14. Any adverse decision by the warden must be 

appealed to the appropriate regional director by filing a BP-10 form. Id. § 542.15(a). The final 

step in the administrative review process is an appeal to the Office of General Counsel on a 

BP-11 form. Id. If an inmate does not receive a response within the time allotted, he may 

consider the absence of a response a denial at that level and proceed to the next level. Id. An 

inmate may seek relief in federal court only after he has exhausted all levels of the administrative 

review process. See Lundy v. Osborn, 555 F.2d 534, 535 (5th Cir. 1977) (“Only after such 

remedies are exhausted will the court entertain the application for relief in an appropriate case.”). 

 “Exceptions to the exhaustion requirement are appropriate where the available 

administrative remedies either are unavailable or wholly inappropriate to the relief sought, or 

where the attempt to exhaust such remedies would itself be a patently futile course of action.” 

Fuller, 11 F.3d at 62 (internal citations omitted). Exceptions may be made only in 

“extraordinary circumstances,” and the petitioner bears the burden of demonstrating the futility 

of administrative review. Id.

Lopez had the BOP administrative review process, as described above, available to 

address his claims. The documents submitted by Lopez show he applied for “immediate 

release” under the CARES Act with his unit manager. Pet’r’s Pet., ECF No. 1-2, Ex. 1, p. 12. 

They further show an assistant warden denied the application because he had a “Public Safety 

Factor for Greatest Severity and Sentence Length [and] a pending charge for assault.” Id. at p. 

14. They do not suggest he pursued an appeal of the decision. Lopez concedes as much. 

Pet’r’s Pet., ECF No. 1, pp 5–7. If Lopez had a meritorious claim, there is nothing to suggest 

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that the BOP would not afford him relief through its administrative remedy process. And if the 

BOP made an error concerning his application, the BOP should be given an opportunity to 

correct the error before Lopez is permitted to seek judicial intervention. Indeed, an attempt by 

Lopez to exhaust through the BOP administrative review process would clearly not be a patently 

futile course of action. While “[i]t is true that exhaustion . . . takes time, . . . there is no reason 

to assume that . . . prison administrators . . . will not act expeditiously.” Preiser v. Rodriguez, 

411 U.S. 475, 494–95 (1973). 

Hence, the Court finds Lopez has not exhausted and dismissal is warranted on this basis 

alone. See Rivkin v. Tamez, 351 F. App’x 876, 877–78 (5th Cir. 2009) (per curiam) (affirming 

dismissal of prisoner’s § 2241 petition for failure to exhaust administrative remedies). But even 

if Lopez had properly exhausted, the Court would still not grant him § 2241 relief. 

B. Merits 

(1) The CARES Act 

Lopez applied for “immediate release” under the CARES Act. Pet’r’s Pet., ECF No. 1-

2, Ex. 1, p. 12. Section 12003(b)(2) of the CARES Act provides authority for the Attorney 

General to place more prisoners in home confinement: 

During the covered emergency period, if the Attorney General finds that emergency 

conditions will materially affect the functioning of the Bureau, the Director of the 

Bureau may lengthen the maximum amount of time for which the Director is 

authorized to place a prisoner in home confinement under the first sentence of 

section 3624(c)(2) of title 18, United States Code, as the Director determines 

appropriate. 

CORONAVIRUS AID, RELIEF, AND ECONOMIC SECURITY ACT, PL 116-136, March 27, 

2020, 134 Stat 281. 

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Pursuant § 12003(b)(2), Attorney General William Barr issued a memorandum on April 

3, 2020, instructing the BOP to maximize transfer to home confinement of “all appropriate 

inmates held at . . . BOP facilities where COVID-19 is materially affecting operations.” See

“Memorandum from Attorney General William Barr to Director of Bureau of Prisons, Increasing 

Use of Home Confinement at Institutions Most Affected by COVID-19” (April 3, 2020), 

available at https://www.justice.gov/file/1266661/download (last visited April 22, 2020). 

The BOP is currently reviewing prisoners for release, removal, or furlough under the 

standards issued by the Centers for Disease Control and Prevention for persons at heightened risk 

from COVID-19. While the CARES Act gives the BOP broad discretion during the COVID-19 

pandemic, it does not grant the courts the authority to release, remove, furlough or place 

prisoners. See United States v. McCann, No. 5:13-52, 2020 WL 1901089, at *3 (E.D. K Apr. 

17, 2020) (“the Court has no authority under this provision to order that a prisoner be placed on 

home confinement”); United States v. Read-Forbes, CR 12-20099-01-KHV, 2020 WL 1888856, 

at *5 (D. Kan. Apr. 16, 2020) (“the Court lacks jurisdiction to order home detention under this 

provision”); United States v. Doshi, No. 13-CR-20349, 2020 WL 1527186, at *1 (E.D. Mich. 

Mar. 21, 2020) (“the authority to make this determination is squarely allocated to the Attorney 

General, under whose authority is the Bureau of Prisons”). Hence, the Court may not, on its 

own, order Lopez’s release or placement in home confinement under the CARES Act. 

But Lopez asserts Bergami “abused his discretion” by failing to follow the Attorney 

General’s directive “to grant home confinement to inmates seeking transfer in connection with 

the COVID-19 pandemic.” Pet’r’s Pet., ECF No. 1, p. 4. He suggests Bergami failed to 

comply with the Attorney General’s instruction “to consider the totality of the circumstances for 

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each individual inmate, the statutory requirements for home confinement and additional 

eligibility factors.” Id. 

A court applies a “two-step process” to determine whether an administrator abuses his 

discretion regarding a policy interpretation. Stone v. UNOCAL Termination Allowance Plan, 

570 F.3d 252, 257 (5th Cir. 2009). First, the court determines whether the administrator’s 

“determination was legally correct. If so, the inquiry ends and there is no abuse of discretion.” 

Id. (emphasis added). “In answering the first question . . . a court must consider: (1) whether the 

administrator has given the plan a uniform construction, (2) whether the interpretation is 

consistent with a fair reading of the plan, and (3) any unanticipated costs resulting from different 

interpretations of the plan.” Gosselink v. Am. Tel. & Tel., Inc., 272 F.3d 722, 726 (5th Cir. 

2001). If, however, “the court finds the administrator’s interpretation was legally incorrect, the 

court must then determine whether the administrator’s decision was an abuse of discretion.” 

Stone, 570 F.3d at 257 (emphasis added). “Three factors are important in this analysis: (1) the 

internal consistency of the plan under the administrator’s interpretation, (2) any relevant 

regulations formulated by the appropriate administrative agencies, and (3) the factual 

background of the determination and any inferences of lack of good faith.” Gosselink, 272 F.3d 

at 726. Additionally, a Court may find an administrator abuses his discretion when his decision 

is not “ ‘based on evidence, even if disputable, that clearly supports the basis for its denial.’ ” 

Lain v. UNUM Life Ins. Co., 279 F.3d 337, 342 (5th Cir. 2002) (quoting Vega v. Nat’l Life Ins. 

Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999) (en banc)). A court may make this determination 

only where “the plan administrator acted arbitrarily or capriciously.” Meditrust Fin. Servs. 

Corp. v. Sterling Chems., Inc., 168 F.3d 211, 214 (5th Cir.1999). “A decision is arbitrary only if 

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made without a rational connection between the known facts and the decision or between the 

found facts and the evidence.” Id. at 215 (quotation marks omitted). A court’s “ ‘review of the 

administrator’s decision need not be particularly complex or technical; it need only assure that 

the administrator’s decision fall[s] somewhere on a continuum of reasonableness—even if on the 

low end.’ ” Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 398 (5th Cir.2007) 

(quoting Vega v. Nat’l Life Ins. Serv., Inc., 188 F.3d 287, 297 (5th Cir.1999) (en banc)). 

The Court notes two statutes govern the discretion of the BOP to place an inmate in a 

particular facility: 18 U.S.C. § 3621(b), which addresses the imprisonment of a convicted person, 

and the Second Chance Act, which provides for post-imprisonment rehabilitation services. 

Section 3621(b) grants the BOP the authority and discretion to designate the place of 

confinement. Under § 3621(b), the BOP: 

may designate any available penal or correctional facility that meets minimum 

standards of health and habitability established by the Bureau, whether maintained 

by the Federal Government or otherwise and whether within or without the judicial 

district in which the person was convicted, that the Bureau determines to be 

appropriate and suitable. 

18 U.S.C. § 3621(b). In making this determination, the BOP must consider “(1) the resources of 

the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and 

characteristics of the prisoner; (4) any statement by the court that imposed the sentence . . . and 

(5) any pertinent policy statement issued by the Sentencing Commission[.]” Id.

The Second Chance Act directs “a shift from policing those on parole to rehabilitating 

them,” and places on the “parole system . . . an increasing special obligation to help federal 

offenders successfully reenter into society.” United States v. Wessels, 539 F.3d 913, 915 (8th 

Cir. 2008) (Bright, J., concurring). It authorizes funding for drug treatment, job training and 

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placement, educational services, and other services or support needed to rehabilitate prisoners 

and reduce recidivism. Id. The Act also addresses placement in a community corrections 

facility, such as a halfway house, or in home confinement. 18 U.S.C. § 3624(c). It grants the 

BOP Director the discretion, “to the extent practicable, ensure that a prisoner serving a term of 

imprisonment spends a portion of the final months of that term (not to exceed 12 months), under 

conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the 

reentry of that prisoner into the community.” Id. “The authority under this subsection may be 

used to place a prisoner in home confinement for the shorter of 10 percent of the term of 

imprisonment of that prisoner or 6 months.” Id. It also directs the BOP to issue new 

regulations to ensure that placements in community correctional facilities are “(A) conducted in 

a manner consistent with section 3621(b) of this title; (B) determined on an individual basis; and 

(C) of sufficient duration to provide the greatest likelihood of successful reintegration into the 

community.” Id. § 3624(c)(6). 

The BOP adopted regulations implementing the Second Chance Act, codified at 28 

C.F.R. §§ 570.20–.22, effective October 21, 2008. Both the statute and the regulations instruct 

the BOP to determine on the amount of time a prisoner should spend in residential reentry center 

“in a manner consistent with 18 U.S.C. section 3621(b), determined on an individual basis.” Id.; 

28 C.F.R. § 570.22. Section 3621(b) instructs the BOP to consider: 

(1) the resources of the facility contemplated; 

(2) the nature and circumstances of the offense; 

(3) the history and characteristics of the prisoner; 

(4) any statement by the court that imposed the sentence-- 

 (A) concerning the purposes for which the sentence to imprisonment 

was determined to be warranted; or 

 (B) recommending a type of penal or correctional facility as 

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appropriate; and 

(5) any pertinent policy statement issued by the Sentencing Commission 

pursuant to section 994(a)(2) of title 28. 

18 U.S.C. § 3621(b). The subsection adds, “[n]otwithstanding any other provision of law, a 

designation of a place of imprisonment under this subsection is not reviewable by any court.” 

Id. (emphasis added). 

 As a consequence, Bergami could, under the applicable statutes and regulations, properly 

consider the nature and circumstances of Lopez’s offense as well as the history and 

characteristics of Lopez’s incarceration before deciding whether to release Lopez or place him in 

home confinement. Bergami had some evidence that Lopez posed a continuing threat to public 

safety upon his release. Lopez had a “Public Safety Factor for Greatest Severity and Sentence 

Length [and] a pending charge for assault.” Pet’r’s Pet., ECF No. 1-2, Ex. 1, p. 14. Bergami’s 

determination that he should deny Lopez placement in home confinement was consistent with a 

uniform construction and a fair reading of the applicable laws and policies—and was legally 

correct. Hence, Lopez has not met his burden of showing Bergami abused his discretion, and he 

is not entitled to relief. 

(2) 18 U.S.C. § 3582(c)(1)(A) 

Lopez also suggest the Court should grant him a compassionate release in accordance 

with 18 U.S.C. 3582(c)(1)(A). Pet’r’s Pet., ECF No. 1, p. 2. Until recently, only the BOP 

could move to reduce a term of imprisonment for extraordinary and compelling reasons. Then 

in late 2018, the First Step Act amended 18 U.S.C. § 3582(c)(1)(A) to permit a defendant to file 

such a motion. 18 U.S.C. § 3582(c)(1)(A) (as amended). Extraordinary and compelling 

reasons could include medical conditions where “[t]he defendant is suffering from a terminal 

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illness.” U.S. SENTENCING GUIDELINES MANUAL § 1B1.13 cmt. n.1 (U.S. SENTENCING COMM’N 

2019). Extraordinary and compelling reasons could also include situations where the 

defendant is suffering from a medical or physical condition “that substantially diminishes the 

ability of the defendant to provide self-care within the environment of a correctional facility and 

from which he or she is not expected to recover.” Id. But a defendant may pursue a motion to 

modify a sentence for “extraordinary and compelling reasons” only when he “has fully exhausted 

all administrative rights” or after “the lapse of 30 days from the receipt of such a request [to 

modify a sentence] by the warden of [his] facility.” 18 U.S.C. § 3582(c)(1)(A); see 

Mohrbacher v. Ponce, No. CV 18-00513-DMG, 2019 WL 161727 (C.D. Cal. Jan. 10, 2019)

(discussing modifications made to § 3582(c)(1)(A) by the First Step Act); United States v. Curry, 

No. CR 6:06-082-DCR, 2019 WL 508067 (E.D. Ky. Feb. 8, 2019) (discussing same). And “[i]f 

petitioner . . . seeks to file his own motion for compassionate release, such a motion must be filed 

in the sentencing court.” Brown v. Underwood, No. 3:19-CV-1706-B-BN, 2019 WL 5580106, 

at *2 (N.D. Tex. Aug. 22, 2019), report and recommendation adopted, No. 3:19-CV-1706-B, 

2019 WL 5579198 (N.D. Tex. Oct. 28, 2019) (quotation marks and citations omitted); see also 

Dillon v. United States, 560 U.S. 817, 827 (2010). 

The Court did not sentence Lopez. It cannot grant him relief under § 3582(c)(1)(A). 

More importantly, Lopez does not allege he is in custody as a result of a constitutional 

violation. He seeks early release or home confinement based solely on his medical condition 

and the threat to his health posed by the COVID-19 pandemic. “A compassionate release 

request is not a matter of illegal or unconstitutional restraint.” Figueroa v. Chapman, 347 F. 

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App’x 48, 50 (5th Cir. 2009). Hence, a petition under § 2241 is not the proper means by which 

Lopez may obtain the relief he seeks. 

CONCLUSIONS AND ORDERS 

 Accordingly, the Court finds that Lopez has not only failed to exhaust his administrative 

remedies, but also has not shown he is in custody in violation of the Constitution or laws or 

treaties of the United States. The Court concludes, therefore, that it appears from the face of 

Lopez’ petition and other pleadings that he is not entitled to § 2241 relief. 

The Court consequently enters the following orders: 

IT IS ORDERED that Lopez’s “Petition for Writ of Habeas Corpus pursuant to 28 

U.S.C. § 2241 to Overturn the Insufficiency of Warden Bergami’s Interpretation of the 

‘Compassionate Release/Reduction of Sentence Procedure, et al., in light of A.G. Barr’s April 

20, 2020 Directive” (ECF No. 1) is DISMISSED WITHOUT PREJUDICE for failure to 

exhaust his administrative remedies. 

IT IS ALSO ORDERED that all pending motions, if any, are DENIED as moot. 

IT IS FINALLY ORDERED that the Clerk shall CLOSE this case. 

SIGNED this 25th day of June 2020. 

 

_________________________________ 

 DAVID C. GUADERRAMA 

 UNITED STATES DISTRICT JUDGE 

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