(HC) Diaz-Lozano v. Trate ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FAUSTO DIAZ-LOZANO, No. 1:22-cv-01403-JLT-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (Doc. No. 4) 14 v. ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK 15 OF COURT TO ENTER JUDGMENT AND CLOSE CASE 16 B. M. TRATE, Warden, et al., [NO CERTIFICATE OF APPEALABILITY IS 17 Respondents. REQUIRED] 18 19 20 Petitioner Fausto Diaz-Lozano is a federal prisoner proceeding pro se and in forma 21 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter was 22 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 23 302. 24 On November 2, 2022, the assigned magistrate judge issued Findings and 25 Recommendations to dismiss the petition for lack of jurisdiction. (Doc. No. 4.) Those Findings 26 and Recommendations were served upon all parties and contained notice that any objections 27 thereto were to be filed within thirty (30) days after service. On November 28, 2022, Petitioner 28 filed objections to the Findings and Recommendations. (Doc. No. 6.) 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, including Petitioner's 3 objections, the Court concludes that the Magistrate Judge’s Findings and Recommendations are 4 supported by the record and proper analysis. 5 In his objections, Petitioner contends that the Court has jurisdiction to review for factual 6 errors the decision made by the BOP finding him ineligible for home confinement. Petitioner is 7 incorrect. He cites several Third Circuit and District of New Jersey cases but none of them 8 provide authority for his assertion. As noted by the magistrate judge, Petitioner cannot base a 9 federal habeas petition on the CARES Act. The CARES Act allows the Director of the BOP to 10 “lengthen the maximum amount of time for which the Director is authorized to place a prisoner in 11 home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, 12 as the Director determines appropriate.” CARES Act, Pub. L. No. 116-136, § 12003(b)(2) (2020) 13 (emphasis added). Thus, the BOP’s determination remains discretionary and outside the scope of 14 a Section 2241 petition. See § 3624(c)(2) (This authority “may be used to place a prisoner in 15 home confinement,” “to the extent practicable.”) (emphasis added). As the Seventh Circuit Court 16 of Appeals recently explained, “The [CARES] act expanded the [BOP]’s power to ‘place a 17 prisoner in home confinement’ . . . but reserved the determination of ‘suitable candidates’ for 18 home confinement to the Bureau . . . The act carved out no role for the courts in making such 19 determinations.” United States v. Williams, Appeal No. 20-1947, 829 Fed. Appx. 138, 2020 WL 20 6604791, at *1 (7th Cir. Nov. 12, 2020) (citation omitted); accord United States v. Brummett, 21 Appeal No. 20-5626, 2020 WL 5525871, at *2 (6th Cir. Aug. 19, 2020) (“[T]o the extent that 22 Brummett sought relief under the CARES Act, the district court correctly held that the authority 23 to grant home confinement remains solely with the Attorney General and the BOP.”). The Ninth 24 Circuit has held that this type of discretion may not be challenged via a Section 2241 petition. See 25 Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (“To find that prisoners can bring habeas 26 petitions under 28 U.S.C. § 2241 to challenge the BOP’s discretionary determinations made 27 pursuant to 18 U.S.C. § 3621 would be inconsistent with the language of 18 U.S.C. § 3625.”); see 28 also Mohsen v. Graber, 583 F. App’x 841, 842 (9th Cir. 2014) (holding a district court lacked 1 jurisdiction to consider a First Step Act claim in a Section 2241 petition) (applying Reeb, 636 2 F.3d at 1227–29). Courts in this district have repeatedly held that this type of discretion cannot 3 be challenged in a § 2241 petition. See Khounmany v. Carvajal, 2021 WL 2186218 at *8 (N.D. 4 Cal. 2021) (BOP determination of eligibility under the CARES Act lies outside the scope of 5 § 2241); United States v. Oscar, 2021 WL 864948 at *3 (D.Or. 2021) (“The decision whether to 6 exercise this authority in a particular case and release a defendant to home confinement lies 7 entirely with BOP; the court lacks the power to order that a prisoner be released to home 8 confinement, even under the CARES Act.”); Smith v. Von Blanckensee, 2020 WL 4370954 at *2, 9 R. & R. adopted, 2020 WL 4368060 (C.D. Cal. 2020) (“[T[his Court does not have the authority 10 to order a transfer to home confinement, under the CARES Act or otherwise. Congress gave the 11 Attorney General, and by designation the BOP, exclusive authority to determine custody 12 placements including home confinement. . . . Section 12003(b)(2) of the CARES Act authorizes 13 only the BOP to determine whether ‘to place a prisoner in home confinement under . . . [18 14 U.S.C. §] 3642(c)(2).’”); United States v. Carlucci, 2020 WL 2527013 at *3 (D. Ariz. 2020) 15 (“While the CARES Act gives the BOP broad discretion to expand the use of home confinement 16 during the COVID-19 pandemic, the Court lacks jurisdiction to order home detention under this 17 provision.”), aff'd, 848 Fed. Appx. 339, 2021 WL 2029190 (9th Cir. 2021); Cruz v. Jenkins, 2020 18 WL 6822884 at *3 (N.D. Cal. 2020) (“petitioner cannot base a federal habeas petition on the 19 CARES Act . . . . the BOP’s determination remains discretionary and outside the scope of a 20 Section 2241 petition even if the petition purports to rely on the CARES Act”). Thus, the 21 magistrate judge correctly determined that the Court lacks jurisdiction to review the BOP decision 22 finding him ineligible for home confinement under the CARES Act. 23 In the event a notice of appeal is filed, a certificate of appealability will not be required 24 because this is not a final order in a habeas proceeding in which the detention complained of 25 arises out of process issued by a state court. Forde v. U.S. Parole Commission, 114 F.3d 878 (9th 26 Cir. 1997); see Ojo v. INS, 106 F.3d 680, 681-682 (5th Cir. 1997); Bradshaw v. Story, 86 F.3d 27 164, 166 (10th Cir. 1996). 28 1 Accordingly, 2 1. The Findings and Recommendations issued on November 2, 2022, (Doc. No. 4), 3 are ADOPTED IN FULL. 4 2. The petition for writ of habeas corpus is DISMISSED WITH PREJUDICE. 5 3. The Clerk of Court is directed to enter judgment and close the case. 6 4. In the event a notice of appeal is filed, no certificate of appealability is required. 7 This order terminates the action in its entirety. 8 9 IT IS SO ORDERED. 10 Dated: _ December 5, 2022 Cerin | Tower TED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28