Case 3:16-cv-02347-JO Document 8 Filed 01/04/17 Page 1 of 10 Stephen R. Sady, OSB #81099 Chief Deputy Federal Defender Email: steve_sady@fd.org Elizabeth G. Daily Research and Writing Attorney Email: liz_daily@fd.org 101 SW Main Street, Suite 1700 Portland, OR 97204 Tel: (503) 326-2123 Fax: (503) 326-5524 Attorneys for Petitioner IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION BRUCE DWAYNE DEAL, v. RICHARD B. IVES, Warden, FCI Sheridan, Introduction Petitioner, Respondent. Case No. 3:16-cv-02347-JO OPPOSITION TO MOTION FOR RECONSIDERATION The Court resolved this matter exactly as law and justice require within the meaning of the federal habeas corpus statute, 28 U.S.C. 2243. In arguing that the government did not receive an opportunity to be heard on the issues raised in the Petition, the government omits critical parts Page 1 OPPOSITION TO MOTION FOR RECONSIDERATION
Case 3:16-cv-02347-JO Document 8 Filed 01/04/17 Page 2 of 10 of the chronology that demonstrate that the tragic facts of this case have been before the Court since October 26, 2016, when the pro se defendant filed notice of his terminal illness. United States v. Deal, 3:15-CR-00241-JO, docket number 50 (D. Or. filed Oct. 26, 2016). From then through the filing of the emergency petition and thereafter, the government provided the Court no response to contradict the facts or law upon which the petition was based. Even now, the facts are undisputed, and the Bureau of Prisons provides no statutory basis for its claim of authority to override the Sentencing Commission s judgment on what constitutes extraordinary and compelling reasons, or to usurp this Court s determination whether the factors under 18 U.S.C. 3553(a) warrant granting a motion to reduce sentence. The Court should deny the motion for reconsideration and any other measure based on the Bureau of Prisons incorrect claim that this Court lacks authority to reduce the sentence of a terminally ill prisoner who has indisputably established extraordinary and compelling reasons under 18 U.S.C. 3582(c)(1)(A)(i). A. The Bureau Of Prisons Provides An Incomplete Chronology That Omits Its Failure To Respond Despite Notice And Multiple Opportunities To Be Heard. The Bureau repeatedly claims the Court s order granting the emergency petition under 28 U.S.C. 2241 was manifestly unjust because the government was not given an opportunity to be heard. CR 7 at 3. In reality, the Bureau remained silent despite being afforded opportunities to respond to the facts and arguments asserted in this emergency petition, which stems from a terminal illness that made every day of delay an irreparable injury to the petitioner. Mr. Deal filed pro se notice of his terminal illness on October 26, 2016, more than two months before the Court s order, along with medical releases to permit his condition to be verified. Afterward, this Court communicated to the parties on December 1, 2016: Please confer and submit an order for Mr. Deal so that he can be compassionately released. Exhibit A at 3. The Page 2 OPPOSITION TO MOTION FOR RECONSIDERATION
Case 3:16-cv-02347-JO Document 8 Filed 01/04/17 Page 3 of 10 following day, the prosecutor in the 2255 case advised the Court that the ODAG denied Mr. Deal's request for compassionate release. Exhibit A at 1. 1 Id. Given the need for representation, the Court appointed CJA counsel Tiffany Harris on the 2255 motion and, with independent advice regarding waiver of potential conflict, appointed this office to represent Mr. Deal regarding compassionate release. The Federal Public Defender s office received a copy of the Bureau s written denial on Friday, December 16, 2016, then emailed the Bureau s counsel on Monday, December 19, 2016, advising that an emergency habeas corpus petition would be immediately filed challenging the lawfulness of the denial: We have a sad compassionate release situation out at Sheridan. On Friday, I received a copy of the General Counsel s denial. I believe the denial is unlawful and will be filing a petition today. Pat has been handling the case on a 2255 with Tiffany Harris; we are helping on compassionate release based on the client s waiver of any potential conflict. Pat is on vacation until January so I figured as BOP counsel we should give you a heads up. The denial pretty well sums up the situation, but it would be good to get the full medical records, the package of information provided to General Counsel, and any recommendation provided by the prosecutor s office to the agency. My understanding is that those requests have been made at the institution with the responses deferred for consultation with BOP counsel. Let s talk. Exhibit B. The following day, counsel for Mr. Deal filed the emergency petition. CR 1. The Petition included sections on the need for immediate action and included in the caption not only Emergency but Expedited Consideration Requested. On December 28, 2016, counsel for Mr. Deal sent a letter to the Court indicating that the oncologist had advised Mr. Deal that his life expectancy was only six months, rather than the eight 1 The reference to ODAG is apparently to the Office of the Deputy Attorney General, not the Director of the Bureau. Page 3 OPPOSITION TO MOTION FOR RECONSIDERATION
Case 3:16-cv-02347-JO Document 8 Filed 01/04/17 Page 4 of 10 to fourteen months listed in the Bureau s denial letter of December 9, 2016. Exhibit C. 2 In the letter, which was provided by email to opposing counsel, Mr. Deal s counsel requested that the Court immediately grant relief. On December 28, 2016, defense counsel emailed the Court, again providing copies to opposing counsel, a form of order in the event that the Court decided to grant the petition on the merits. Exhibit E. Throughout these activities, starting in mid-october with Mr. Deal s pro se notice and continuing through the petitioner s notice to the government of the emergency petition on December 19, the filing of the petition, the provision of further information from the oncologist, and the proposed form of order, the Bureau provided no justification for its refusal to file a compassionate release motion. The Bureau provided no facts disputing Mr. Deal s illness, no argument contradicting the petitioner s claim that his sentence was being unlawfully executed, nor did it ever request a briefing schedule to respond to the petition. Given the need for expedition when every day of delay effectuated irremediable loss of freedom for a man with a terminal illness, the government was given adequate opportunities to respond to Mr. Deal s petition. The Court faced an immediate need for a ruling. The petitioner provided governing legal authority that the writ of habeas corpus provides equitable grounds for granting relief without delay: This Court should simply grant the writ immediately given the imminence of the continued harm and the strength of the legal claims. See Yong v. INS, 208 F.3d 1116, 1120 (9th Cir. 2000) (the writ of habeas corpus is intended to be a swift and imperative remedy in all cases of illegal 2 Counsel stated that the oncologist s letter would be provided when received. On December 30, 2016, Mr. Deal s counsel received the attached letter from Dr. O Brien dated December 5, 2016, stating in part: I would estimate that his life-expectancy is 6 months or less, regardless of whether he receives chemotherapy. Exhibit D. Page 4 OPPOSITION TO MOTION FOR RECONSIDERATION
Case 3:16-cv-02347-JO Document 8 Filed 01/04/17 Page 5 of 10 restraint or confinement. ) (quoting Fay v. Noia, 372 U.S. 391, 400 (1963)). CR 1 at 15. The Bureau s claim of manifest injustice should be unavailing. In any event, as outlined in the following sections, the facts and law support the Court s ruling. B. The Court s Order Is Fully Supported By The Facts And Law. The Bureau s position on the merits should be rejected as a matter of statutory construction and to protect the judicial role in the constitutional separation of powers. The Bureau claims authority under the statute to withhold filing a compassionate release motion whenever it decides that the sentencing factors under 18 U.S.C. 3553(a) do not merit a reduction. CR 7 ( Petitioner has asked this Court to bypass the express authority delegated to the BOP by Congress. ). Congress never delegated such broad authority as the Bureau claims. In 3582(c), Congress delegated to the sentencing judge, not the Bureau, the authority to apply the 3553(a) factors in deciding whether a sentence reduction motion should be granted based on extraordinary and compelling reasons. This Court addressed and correctly found that the Bureau violated its statutory role by failing to present a motion to the Court once extraordinary and compelling reasons were established. This is especially so where the agency implements rules that are inconsistent with the express congressional delegation to the Commission, not the Bureau, the task of describing what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. 28 U.S.C. 994(t). 1. The Bureau Of Prisons Does Not Controvert The Facts That Establish Extraordinary And Compelling Reasons. A necessary predicate to the Court s grant of relief is the existence of extraordinary and compelling reasons. Although the petitioner argues that only the Sentencing Commission s standards apply under the congressional delegation in 28 U.S.C. 994(t), the Court s order simply Page 5 OPPOSITION TO MOTION FOR RECONSIDERATION
Case 3:16-cv-02347-JO Document 8 Filed 01/04/17 Page 6 of 10 finds that the standard has been met under both the Sentencing Commission s and the Bureau s written rules. The Bureau s motion does not suggest that the Court s finding of extraordinary and compelling reasons is incorrect, nor could it especially in light of the evidence from the oncologist s letter that the denial underestimated the severity of the illness and the imminence of death. 2. The Statutes Delegate The Definition Of The Governing Standards To The Commission And The Decision Whether To Grant A Motion To Reduce To The Sentencing Judge, Not To The Executive Agency. The hazy language of the Bureau s motion disguises its content: the Bureau asserts that it can prejudge and foreclose this Court s statutory function of deciding whether, based on extraordinary and compelling reasons and 3553(a) factors, a compassionate release sentence reduction motion should be granted. The Bureau s denial states that the request for a sentence reduction is denied on the merits. CR 1, Exhibit A. The Supreme Court in Setser v. United States, 132 S. Ct. 1463, 1470-72 (2012), rejected the contention that an analogous statute, 18 U.S.C. 3584(a), conferred such a judicial role upon an executive branch agency. The Bureau s claim of authority is not supported by any statutory language that delegates to the agency either the authority to define extraordinary and compelling reasons or to decide the merits of whether 3553(a) factors warrant grant of a motion to reduce sentence. See Gonzales v. Oregon, 546 U.S. 243, 254-58 (2006). Just as the Supreme Court in Gonzales, and this Court in the underlying decision, found no statutory delegation of authority to the executive branch to nullify state prerogatives, the Bureau s attempt to nullify this Court s authority over the merits of sentence reduction motions violates the statute and the principles of delegation. Oregon v. Ashcroft, 192 F. Supp. 2d 1077, 1087-88 (D. Or. 2002), affirmed, 368 F.3d 1118, 1125 (9th Cir. 2004), affirmed Page 6 OPPOSITION TO MOTION FOR RECONSIDERATION
Case 3:16-cv-02347-JO Document 8 Filed 01/04/17 Page 7 of 10 sub nom. Gonzales v. Oregon, 546 U.S. 342 (2006). This Court s order correctly followed basic principles of statutory construction, administrative law, and separation of powers. 3. The Cases Relied On By The Bureau Do Not Address The Uncontroverted Facts and Arguments In This Case. While ignoring the petitioner s legal analysis, the Bureau asserts that Ninth Circuit law holds that BOP s determination concerning a request for compassionate release is solely within BOP s discretion. CR 7 at 4. This bold claim is propped up by citation to a case decided under the parole statute that existed before Congress promulgated 3582(a)(1)(A)(i). In other words, the statute at issue in this case did not even exist under the law of Simmons v. Christensen, 894 F.2d 1041 (9th Cir. 1990). The Bureau also relies on an unpublished opinion involving a pro se litigant that was dismissed on procedural grounds with no reasoning. United States v. Powell, 69 F. App x 368 (9th Cir. 2003) (unpublished). The Bureau s reliance on Powell should be stricken because it violates Ninth Circuit Rule 36-3(c): Except under circumstances inapplicable to the present case, Unpublished dispositions and orders of this Court issued before January 1, 2007 may not be cited to the courts of this circuit[.] In any event, Simmons and Powell preceded both Setser and the Sentencing Commission s first act in 2006 toward fulfilling its delegated duty under 994(t). Nothing in those cases supports the broad claim in the Bureau s motion; on the contrary, they are irrelevant. The Bureau also relies on unpublished, out-of-circuit authority that neither addresses nor effectively rebuts the petitioner s arguments in this case. CR 7 at 4-5. The first case cited as authority for the proposition that the Bureau has unreviewable discretion not to file a compassionate release motion erroneously relied on cases like Simmons v. Christenson involving the former parole statute, not the present compassionate release statute. Crowe v. United States, Page 7 OPPOSITION TO MOTION FOR RECONSIDERATION
Case 3:16-cv-02347-JO Document 8 Filed 01/04/17 Page 8 of 10 430 F. App x 484, 485 (6th Cir. 2011). The second unpublished opinion relied upon by the Bureau involves the Administrative Procedure Act and includes no analysis of legislative history, Setser, congressional delegation, or the constitutional interests at stake. DeLuca v. Lariva, 586 F. App x 239, 240 (7th Cir. 2014) ( DeLuca did not assert any constitutional basis for release. ). The third unpublished opinion addresses more of the issues but is also of limited relevance because the court granted a compassionate release motion shortly after issuing the opinion. Compare Stewart v. United States, Nos. 13 Civ. 5279(JGK), 02 Cr. 0395(JGK), 2013 WL 4044756 (S.D.N.Y. 2013), with Benjamin Weiser, Judge Orders Release of Dying Lawyer Convicted of Aiding Terrorism, N.Y. Times (Dec. 31, 2013). Taken together, the three cited cases fail to include any analysis of the delegation to the Commission under 994(t), the legislative history regarding the judicial role in deciding 3582(c) motions, the binding authority of Setser, or the Sentencing Commission s 2016 amendment that explicitly rejected the Bureau standards. Moreover, none of the cases presented the unique record that exists here where the predicate facts establishing extraordinary and compelling circumstances are undisputed and the Bureau s agency action purports to deny the motion on the merits based on the 3553(a) factors. The Bureau claims that the district court opinion in Stewart supports the proposition that it has no duty to move for a sentence reduction under any circumstances. CR 7 at 5. Under the Bureau s reading, it can refuse to file a sentence reduction motion based on the inmate s race, gender, or exercise of constitutional rights, in addition to its usurped authority to make the judicial determination whether 3553(a) factors warrant the reduction. But the Stewart court made clear that no such considerations were at issue in that case: The decision of the BOP was explicitly based on medical factors, and there is absolutely no indication that any impermissible consideration tainted the BOP s decision in this case. Supra at *6 n 2. Here, the petitioner Page 8 OPPOSITION TO MOTION FOR RECONSIDERATION
Case 3:16-cv-02347-JO Document 8 Filed 01/04/17 Page 9 of 10 established the existence of extraordinary and compelling reasons, but the Bureau explicitly decided to deny the reduction in sentence based on 3553(a) factors. CR 1, Exhibit A. The decision to grant or deny a sentence reduction is exclusively in the judicial province under the plain language of the statute and the constitutional imperative of Setser. The Court s order granting the habeas corpus petition correctly applied the law to the facts of this case in light of the unlawful execution of the sentence by the Bureau and the Court s authority under 2241 to fashion a remedy as law and justice require, here amendment of the judgment to sentence Mr. Deal to time served. The Bureau unlawfully attempted to bar the Court from reaching the merits because it arrogated to itself the decision whether the motion unquestionably supported by extraordinary and compelling reasons should be granted or denied. Only this Court has that job. The Bureau s action denied Mr. Deal a protected statutory right: consideration for a discretionary sentence reduction. Cort v. Crabtree, 113 F.3d 1081, 1085 (9th Cir. 1997) ( A prisoner s right to consideration for early release is a valuable one that we have not hesitated to protect. ) (emphasis in original). The Court acted lawfully in granting 2241 relief and should stand by its ruling. 4. To The Extent The Court Permits Any Further Litigation On The Merits, The Court Should Set A Non-Emergency Schedule For Litigation. The Court should simply deny the Bureau s motion for reconsideration, both because the Bureau established no manifest injustice and because the Court s ruling is supported by the text, legislative history, context, purpose, and constitutional imperatives of the underlying statute. In the event that the Court chooses to reopen the case, the Court should set a non-emergency schedule for further litigation. Given the government s agreement that the result of the order should stand, the parties can provide the Court with any further briefing on this matter on a non-emergency basis. Page 9 OPPOSITION TO MOTION FOR RECONSIDERATION
Case 3:16-cv-02347-JO Document 8 Filed 01/04/17 Page 10 of 10 Conclusion For the foregoing reasons and those stated in the emergency petition for habeas corpus relief, this Court should deny the motion for reconsideration or, in the alternative, should set the matter for further litigation in the normal course of habeas corpus proceedings. Respectfully submitted this 4th day of January, 2017. /s/ Stephen R. Sady Stephen R. Sady /s/ Elizabeth G. Daily Elizabeth G. Daily Attorneys for Petitioner Page 10 OPPOSITION TO MOTION FOR RECONSIDERATION
Case 3:16-cv-02347-JO Document 8-1 Filed 01/04/17 Page 1 of 3 Exhibit A Page 1 of 3
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Case 3:16-cv-02347-JO Document 8-2 Filed 01/04/17 Page 1 of 1 Bruce Dwayne Deal, Reg. No. 76928-065 Steve Sady to: Natalie.Wight Cc: "Ehlers, Patrick (USAOR)" Bcc: Jill Dozark, Liz Daily 12/19/2016 10:30 AM Hi Natalie -- I hope all is well. We have a sad compassionate release situation out at Sheridan. On Friday, I received a copy of the General Counsel's denial. I believe the denial is unlawful and will be filing a petition today. Pat has been handling the case on a 2255 with Tiffany Harris; we are helping on compassionate release based on the client's waiver of any potential conflict. Pat is on vacation until January so I figured as BOP counsel we should give you a heads up. The denial pretty well sums up the situation, but it would be good to get the full medical records, the package of information provided to General Counsel, and any recommendation provided by the prosecutor's office to the agency. My understanding is that those requests have been made at the institution with the responses deferred for consultation with BOP counsel. Let's talk. Thanks. Stephen R. Sady Chief Deputy Federal Public Defender 101 SW Main Street Suite 1700 Portland, Oregon 97204 Telephone: 503-326-2123 Facsimile: 503-326-5524 Exhibit B Page 1 of 1
Case 3:16-cv-02347-JO Document 8-3 Filed 01/04/17 Page 1 of 3 Exhibit C Page 1 of 3
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Case 3:16-cv-02347-JO Document 8-5 Filed 01/04/17 Page 1 of 3 Case No. 3:16-cv-02347-Jo Libby Longstockings to: Becky Peer Cc: "Ehlers, Patrick (USAOR)", Natalie.wight Bcc: Jill Dozark 12/28/2016 01:00 PM Dear Ms. Peer, Thank you, In the event the Court decides to grant the petition on the merits, attached is a form of order. Libby L. Longstockings - Legal Assistant Federal Public Defender's Office - District of Oregon 101 SW Main Street Suite 1700 Portland, Oregon 97204 Telephone: 503-326-2123 Proposed Order Deal.docx Exhibit E Page 1 of 3
Case 3:16-cv-02347-JO Document 8-5 Filed 01/04/17 Page 2 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON BRUCE DWAYNE DEAL, v. RICHARD B. IVES, Warden, FCI Sheridan Petitioner, No. 3:16-cv-02347-JO ORDER GRANTING EMERGENCY PETITION FOR HABEAS CORPUS RELIEF UNDER 28 U.S.C. 2241 Respondent This matter having come before the Court upon an emergency petition for habeas corpus relief under 28 U.S.C. 2241, and the petitioner having established "extraordinary and compelling reasons" within the definitions provided by the United States Sentencing Commission in U.S.S.G. 1B1.10 and by the Bureau of Prisons in Program Statement 5050.49 (Aug 12, 2013), and the Bureau of Prisons having 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 for consideration based on the factors set forth in 18 U.S.C. 3553(a), and the Court having considered the terminal illness the petitioner now suffers and the sentencing factors under 3553(a), IT IS HEREBY ORDERED that the writ of habeas corpus is granted; Page 1 ORDER ON MOTION FOR EARLY TERMINATION OF SUPERVISED RELEASE Exhibit E Page 2 of 3
Case 3:16-cv-02347-JO Document 8-5 Filed 01/04/17 Page 3 of 3 IT IS FURTHER ORDERED that the judgment and commitment order shall be amended to reduce the term of imprisonment to time served, with all other aspects of the judgment including the term and conditions of supervised release remaining the same; IT IS FURTHER ORDERED that the petitioner shall be released from Bureau of Prisons custody forthwith and commence service of his term of supervised release. Signed this day of December, 2016. The Honorable Robert E. Jones Senior U.S. District Judge Presented by: /s/ Stephen R. Sady Attorney for Petitioner Page 2 ORDER ON MOTION FOR EARLY TERMINATION OF SUPERVISED RELEASE Exhibit E Page 3 of 3