United States District Court, D. Oregon
OPINION AND ORDER
Aiken United States District Judge
an inmate at the Federal Correctional Institution in
Sheridan, Oregon, brings a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Petitioner alleges that
the Bureau of Prisons (BOP) acted arbitrarily and
capriciously when it refused to file a "compassionate
release" motion supporting a reduction in
petitioner's sentence due to his age and medical
condition. For the reasons explained below, the petition is
2009, petitioner was sentenced to an aggregate term of 175
months' imprisonment following a third conviction for
bank robbery and violations of his supervised release terms.
Petitioner's projected release date is November 29, 2020.
2016, Applewhite requested a sentence reduction pursuant to
18 U.S.C. § 3582(c) by submitting a written request to
the Warden of FCI Sheridan, According to petitioner, the
Warden initially found that petitioner's advanced age and
medical conditions warranted a reduction in sentence and
on November 9, 2017, the BOP's Office of General Counsel
denied petitioner's request, finding that petitioner did
not qualify on the basis of a terminal or debilitating
April 11, 2018, petitioner filed a Petition for a Writ of
Habeas Corpus pursuant to 28 U.S, C. § 2241. (ECF No. 1)
Petitioner asks the Court to order the BOP to reverse its
decision and to file a motion seeking a reduction in
petitioner's sentence to time served.
reduction in sentence or compassionate release of federal
prisoners is governed by 18 U.S.C. § 3582(c)(1)(A),
The court may not modify a term of imprisonment once it has
been imposed except that...in any case...the court, upon
motion of the Director of the Bureau of Prisons, may
reduce the term of imprisonment ...if it finds
that...extraordinary and compelling reasons warrant such a
18 U.S.C. § 3582(c)(1)(A)(i) (emphasis added).
has implemented procedures that govern requests for
compassionate release in Program Statement 5050.49.
Circumstances that warrant consideration for a reduction in
sentence include terminal or debilitating medical conditions
and a combination of age and chronic or serious medical
conditions. Program Statement 5050.49 §§ 3, 4(b).
To qualify for consideration based on a terminal or
debilitating condition, an inmate must: 1) have been
diagnosed with a terminal illness and have a life expectancy
of 18 months or less; or 2) have "an incurable,
progressive illness or have suffered a debilitating injury
from which they will not recover." Program Statement
5050.49 § 3(a), (b). To qualify for consideration based
on age and serious medical conditions, the inmate must: 1) be
age 65 or older; 2) suffer from "chronic or serious
medical conditions related to the aging process"; 3)
experience "deteriorating mental or physical health that
substantially diminishes their ability to function in a
correctional facility"; 4) show that conventional
medical treatment "promises no substantial improvement
to their mental or physical condition"; and 5) have
"served at least 50% of their sentence." Program
Statement 5050.49 § 4(b). If an inmate meets these
criteria, the BOP will then determine whether the specific
circumstances of an inmate warrant a reduction in sentence.
contends the BOP abused its discretion in denying
petitioner's request based on the lack of a terminal or
debilitating medical condition without considering whether
petitioner qualified for release based on his age and the
presence of serious medical conditions. Although petitioner
argues that he seeks only consideration for compassionate
release under the correct criteria, he nonetheless rejects
the remedy of remand to the BOP for further consideration and
instead asks this Court to grant relief under § 2241 and
release him immediately. Pet. at 17 ("This Court should
summarily grant relief in the form of a sentence reduction to
time served."). Petitioner asks this Court to make the
unilateral, factual determination that he qualifies for a
reduction in sentence based on his age and the seriousness of
his medical conditions and that his circumstances warrant
immediate release, even though the BOP has not filed a motion
under § 3852(c)(1)(A).  I decline to do so.
well-established that in enacting § 3852(c)(1)(A),
Congress granted BOP the discretion to decide whether to
bring a motion for compassionate release. In fact, the Ninth
Circuit has expressly held that the BOP's refusal to
bring a motion for compassionate release under §
4205(g), the predecessor to § 3582(c)(1)(A), was not
subject to judicial review. Simmons v. Christenson,894 F.2d 1041, 1043 (9th Cir. 1990). Numerous other courts,
including this Court, have found that the analysis in
Simmons applies to § 3582(c)(1)(A). See
Crowe v. United States,430 Fed.Appx. 484, 485 (6th Cir.
July 18, 2011) (per curiam); DeLuca v. Lariva, 586
Fed.Appx. 239, 241 (7th Cir. Dec. 3, 2014); Barber v.
Ives, 2018 WL ...