BILLY J. WILLIAMS, OSB #901366 United States …or.fd.org/system/files/case_docs/CR 7_BOP Reconsideration Motion.pdfPage 1- Motion for Reconsideration ... BILLY J. WILLIAMS, OSB #901366

Page 1- Motion for ReconsiderationDeal v. Ives, 3:16-CV-02347-JO

BILLY J. WILLIAMS, OSB #901366United States AttorneyDistrict of OregonNATALIE K. WIGHT, OSB #035576Assistant United States [email protected] States Attorney’s Office1000 SW Third Avenue, Suite 600Portland, Oregon 97204-2902Telephone: (503) 727-1114Facsimile: (503) 727-1117

Attorneys for Respondent

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

BRUCE DWAYNE DEAL,

Petitioner,

v.

RICHARD B. IVES,Warden FCI Sheridan

Respondent.

Case No.: 3:16-CV-02347-JO

MOTION FOR RECONSIDERATION

Respondent Warden Richard B. Ives, by Billy J. Williams, United States Attorney for the

District of Oregon, and through Natalie K. Wight, Assistant United States Attorney, hereby

submits this motion for reconsideration of the Order Granting the Emergency Petition for Habeas

Corpus Relief Under 28 U.S.C. § 2241 [ECF 6]. The government requests the Court vacate the

Order and give the government an opportunity to be heard or deny the petition as moot based on

an amended time-served judgment and commitment order in the related criminal case, United

States v. Deal, Case No. 3:15-CR-00241-JO (D. Or.).

Case 3:16-cv-02347-JO Document 7 Filed 12/30/16 Page 1 of 6


INTRODUCTION

On December 20, 2016, Petitioner Bruce Dwayne Deal filed an Emergency Petition for

Writ of Habeas Corpus challenging the Federal Bureau of Prisons' (BOP) decision not to seek

compassionate release on his behalf pursuant to 18 U.S.C. § 3582(c)(1)(A). [ECF 1]. The

United States did not receive a scheduling order, a notice to show cause, or was otherwise given

an opportunity to be heard on the issues raised in the Petition. See PACER docket.

Eight days after the initial filing of the petition, the Court signed an order prepared by

petitioner’s attorney, granting the emergency petition for habeas corpus relief under 28 U.S.C.

§ 2241. [ECF 6].1 Also on December 28, 2016, the Court issued an Amended Judgment in

Petitioner's criminal case for time-served based entirely on the Order in the § 2241 habeas

petition. See Exhibit 1, Amended Judgment in a Criminal Case (Docket No. 59), United States

v. Deal, Case No. 3:15-CR-00241-JO (D. Or.). On December 29, 2016, Petitioner was released

from custody.

By this motion, the government does not seek to vacate the time-served order in the

criminal case. Instead, we ask only that this Court modify the language included in the

December 28, 2016, Order issued in this case. Because the Court ruled on the merits without

the benefit of a response from Petitioner's custodian pursuant to 28 U.S.C. § 2243, the

government respectfully requests the Court vacate the Order on the § 2241 habeas petition and

1 The Supreme Court and the Ninth Circuit criticize courts that adopt findings prepared by a prevailing party particularly when those findings take the form of conclusory statements unsupported by citation to the record. These findings tend to be overreaching and exaggerate on the part of the attorneys preparing the findings. See Industrial Building Material, Inc. v. Interchemical Corp., 437 F.2d 1336, 1339–40 (9th Cir.1970); Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (1985); see also Kern Oil & Refining Co. v. Tenneco Oil Co., 840 F.2d 730, 734 (9th Cir.), cert. denied, 109 S. Ct. 378 (1988) (the verbatim adoption of findings suggested by a party is not automatically objectionable so long as those findings are supported by the record.)



give the government an opportunity to be heard; or, change the basis of the criminal time-served

amended judgment, which would make this § 2241 petition moot.

STANDARD OF REVIEW

In the Ninth Circuit, a district court may grant a motion for reconsideration on a habeas

petition if the court is: "(1) presented with newly discovered evidence, (2) committed clear error

or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling

law." Nunes v. Ashcroft, 375 F.3d 805 (9th Cir. 2003). The Order entered in this case was

manifestly unjust because the government was not given an opportunity to be heard prior to

granting the Petition.

APPLICABLE STATUTE

The statutory basis for BOP's discretion to move the court for compassionate release on

behalf of an inmate in its custody is found at 18 U.S.C. § 3582(c)(1)(A), which states:

The court may not modify a term of imprisonment once it has been imposed except that-- (1) [I]n any case-- (A) the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment… if it finds that-- (i) extraordinary and compelling reasons warrant such a reduction…[.]

18 U.S.C. 3582(c)(1)(A). The BOP implements this discretion through procedures that allow an

inmate to submit a request for BOP to file a motion on his or her behalf. See Program Statement

5050.49, Compassionate Release / Reduction in Sentence, available at www.bop.gov.

In this case, Petitioner submitted a request to the Warden at FCI Sheridan, asking for

BOP to file a motion with the Court to reduce his sentence pursuant to § 3582. [ECF 1 at 4].

This request was forwarded through BOP’s review process to the BOP Central Office, Office of

General Counsel for final determination. On December 9, 2016, the BOP declined Petitioner’s

request. Id. at 17.



ARGUMENT

This motion is submitted in coordination with the Assistant U.S. Attorney in the criminal

case, and the government does not seek to disrupt Petitioner’s release based on the Court's

amended time-served order. If the Court modifies the basis of the time-served order in the

companion criminal case so that it does not rely on this § 2241 request for compassionate

release—then the Court could vacate the Order in this case and issue an amended order

dismissing the Petition as moot.

Should the Court decide to rule of the merits of the § 2241 Petition, the government

requests an opportunity to respond, which would include the following arguments for dismissal:

1) Ninth Circuit law holds that BOP’s determination concerning a request for

compassionate release is solely within BOP’s discretion. Simmons v. Christensen, 894 F.2d 1041

(9th Cir. 1990) (federal courts are precluded from reviewing habeas petitions challenging BOP

decisions to deny compassionate release.); United States v. Powell, 69 Fed. Appx. 368 (9th Cir.

2003) ("The district court properly denied Powell's § 3582(c)(1)(A) motion, because Powell did

not provide a motion from the [BOP].") aff'g United States v. Powell, Case No. 6:89-CR-60105-

JO, Docket No. 127 (D. Or. 1989) (In dismissing a § 2255 habeas petition, this Court found that

"Insofar as defendant seeks compassionate release, that motion is denied because relief is

inappropriate without an accompanying motion from the Director of the Bureau of Prisons.").

2) Other federal courts to rule on the compassionate release issue have uniformly

found BOP's determinations to be judicially unreviewable in a habeas petition. See e.g. Crowe

v. United States, 430 Fed. Appx. 484, 2011 WL 2836364 (6th Cir. July 18, 2011); DeLuca v.

Lariva, 586 Fed. Appx. 239, 241 (7th Cir. Dec. 3, 2014); Stewart v. United States, 2013 WL

4044756 at *5 (S.D.N.Y. Aug. 9, 2013) (relying in part on the Ninth Circuit's decision in Powell



to deny a review of BOP's decision not file a motion for compassionate release the court held

that the "Director has no duty to move for a sentence reduction under any circumstances."

(internal citations omitted).

3) Contrary to Petitioner's assertions, neither 18 U.S.C. § 3582, nor 28 U.S.C. §

994(t), require BOP to follow standards issued by the United States Sentencing Commission

when deciding whether to file a motion. [ECF 1 at 7-9]. U.S.S.G. Supplement to Appendix C,

Amendment 799, at 134 (effective Nov. 1, 2016) (emphasis added) (“The amendment broadens

certain eligibility criteria and encourages the Director of the Bureau of Prisons to file a motion

for compassionate release when ‘extraordinary and compelling reasons’ exist.”).

4) While § 3582 clearly authorizes BOP to file a motion for compassionate release

on behalf of an inmate, it does not require BOP to do so, nor does it establish criteria for when

such a motion must be filed. The language in the Order prepared by Petitioner's counsel and

signed by the Court that states the BOP failed “to carry out its statutory duty under 18 U.S.C.

§ 3582(c)(1)(A)(i) to provide the sentencing judge with a motion to reduce sentence" is incorrect

and without support in the plain language of the statute or in the applicable case law.

5) Section 3582 does not provide that BOP must file a motion on behalf of any

particular inmate, nor does it create an expectation of release from custody. Because the

Petition does not show that BOP's decision implicated a liberty interest or that Petitioner was in

custody in violation of the Constitution or any federal laws, it does not properly invoke § 2241

habeas corpus jurisdiction.

Petitioner has asked this Court to bypass the express authority delegated to the BOP by

Congress. If the Court the decides to rule on the merits of the Petition, the government asks for

the opportunity to be heard on Petitioner's claims.



CONCLUSION

Respondent respectfully requests the Court vacate the Order granting the 2241 Petition,

and give the government an opportunity to be heard on the merits of the Petition; or, change the

basis of the criminal time-served amended judgment, which would make this § 2241 petition

moot. This motion is submitted in coordination with the Assistant U.S. Attorney in the criminal

case, and the government does not seek to disrupt Petitioner’s release based on the Court's

amended time-served order. However, the government requests the Court modify the basis of

the time-served order in United States v. Deal, Case No. 3:15-CR-00241-JO (D. Or.).

DATED this 30th day of December 2016. Respectfully submitted,

BILLY J. WILLIAMSUnited States AttorneyDistrict of Oregon

/s/ Natalie K. Wight NATALIE K. WIGHTAssistant United States Attorney


Case 3:15-cr-00241-JO Document 59 Filed 12/28/16 Page 1 of 6

Deal v. Ives 3:16-CV-02347-JO

Motion for Reconsideration Exhibit 1, Page 1 of 6

Case 3:16-cv-02347-JO Document 7-1 Filed 12/30/16 Page 1 of 6





















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BILLY J. WILLIAMS, OSB #901366 United States …or.fd.org/system/files/case_docs/CR 7_BOP Reconsideration Motion.pdfPage 1- Motion for Reconsideration ... BILLY J. WILLIAMS, OSB #901366