Free Return to Petition - District Court of California - California

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KAREN P. HEWITT United States Attorney CHARLOTTE E. KAISER Assistant United States Attorney California State Bar No. 256356 United States Attorney's Office for the Southern District of California 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7031 Fax: (619) 235-4716 E-mail: [email protected] Attorneys for Respondents UNITED STATES DISTRICT COURT

9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMES NOW the respondent UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Charlotte E. Kaiser, Assistant United States Attorney, in its return pursuant to Title 28, United States Code, Section 2248, to Petitioner Denise Carrillo's petition for writ of habeas corpus pursuant to Title 28, United States Code, Section 2241. This return is based on the files and records of this case, together with the attached memorandum of points and authorities. // // // // // // DENISE CARRILLO, Petitioner, v. PAULA M. JARNECKE, WARDEN, Respondent. ) ) ) ) ) ) ) ) ) ) ) )

Civil Case No. 08CV1538-DMS Criminal Case No. 08CR0528-DMS RETURN TO PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241

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MEMORANDUM OF POINTS AND AUTHORITIES Based on the arguments outlined below, Petitioner is not entitled to any relief and thus the Court should dismiss or deny for the petition for writ of habeas corpus without an evidentiary hearing.1/ I FACTS AND PROCEDURAL HISTORY Petitioner Denise Carrillo is serving a three-month term of imprisonment following her conviction for importation of marijuana in violation of Title 21, United States Code, Sections 952, 960 and Title 18, United States Code, Section 2 in the Southern District of California.2/ [Declaration of Nellie Torres Klein ("Klein Decl.") ¶ 4, Ex. 1.] Petitioner originally was apprehended on January 27, 2008 but was released from jail on February 1, 2008 after posting bail. [08CR0528 case, Docket Number 1, 7.] On or about July 1, 2008, U.S. District Judge Dana M. Sabraw sentenced Petitioner to the custody of the Bureau of Prisons for three months followed by two years' supervised release (to include three months' home detention) with a self-surrender date. [Klein Decl., ¶ 4, Ex. 1; see 08CR0528 case, Docket Number 33.] At the time of her sentencing, there was no record before the Court that Petitioner had a "high-risk" pregnancy. [See 08CR0528 case, Docket Number 31 (Sentencing Memorandum in which Petitioner requested that she receive additional departures due to "family responsibilities" given she had been working during her pregnancy).]3/ Prior to her self-surrender, Petitioner also had a sonogram reflecting normal fetal development. [Klein Decl. ¶ 6, Ex. 4.] On or about July 7, 2008, Ms. Carrillo self-surrendered for service of her threemonth custodial sentence. [Id. ¶ 5, Exs. 2-3.] At that time, Ms. Carrillo was approximately 19 to 20 In the alternative, because Petitioner now is confined to a female satellite camp located in the Central District of California, the Court may transfer this case pursuant to 28 U.S.C. § 1404(a). See United States of America v. Denise Carrillo, 08CR0528-DMS (S.D. Cal. 2008) ("08CR0528 case"). Originally, the Clerk of the U.S. District Court for the Southern District of California assigned the instant petition to U.S. District Judge John A. Houston. The case was reassigned to U.S. District Judge Dana M. Sabraw. Accordingly, the United States requests the Court to incorporate the record in the 08CR0528 case including but not limited to the Presentence Report and the parties' sentencing documents in adjudicating the instant petition. Where necessary, the United States cites to the record in the 08CR0528 case according to the docket number. There, however, is some confusion regarding the due date. In the Sentencing Memorandum, Petitioner provides a due date of November 27, 2008. [See 08CR0528 case, Docket Number 31.] According to the Declaration of Eric Beaudikofer filed with the instant petition, the due date is October 29, 2008. 2
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weeks pregnant with twins. [Id. at ¶ 6, Ex. 4.]4/ Upon her admission to the Metropolitan Correctional Center in San Diego, California ("MCC San Diego"), Petitioner was seen by Health Services staff. [Id. at ¶ 7, Ex. 5.] On July 9, 2008, she was referred to the institution's contract obstetrician. [Id.] On or about August 13, 2008, Petitioner was seen by the contract obstetrician who completed routine prenatal lab work and recommended that an ultrasound be scheduled within two to three weeks. [Id.] On August 22, 2008, Petitioner was transferred from MCC San Diego5/ to the female satellite prison camp at the Federal Correctional Institution in Victorville, California ("FCI Victorville"). [Id. at ¶ 8, Ex. 3.] Prior to her transfer, health services staff at MCC San Diego called the contract obstetrician, who advised Petitioner could travel to FCI Victorville. [Id. ¶ 8, Ex. 5.] On her arrival at FCI Victorville, health services staff completed a physical examination. [Id. ¶ 9, Ex. 6.] Prenatal vitamins were ordered and a consult was requested with the contract obstetrician. [Id.] In referring Petitioner to the specialist, the doctor noted that Petitioner had a high risk pregnancy due to her morbid obesity and incarceration. [Id. at ¶ 9, Ex. 6.] Moreover, Petitioner has been scheduled for an ultrasound. [Id. at ¶ 10.] Throughout her incarceration, Petitioner at no point has filed an administrative complaint as to her medical treatment. [Id. at ¶¶ 12-14, Ex. 7.] Petitioner filed the instant petition for habeas corpus pursuant to 28 U.S.C. § 2241 on August 20, 2008. Despite evidence that Petitioner received medical treatment, including a visit with a contract obstetrician prior to the filing of her petition, Petitioner alleges that the Bureau of Prison has failed to provide appropriate prenatal care, including a prenatal examination and an ultrasound.6/ As relief, Petitioner requests a modification of her sentence to complete her incarceration until after her twins are born. Petitioner is scheduled to be released from custody on October 2, 2008. [Id.] //

The United States has filed leave with the Court to file Exhibits 4 through 6 of the Declaration of Nellie Klein Torres under seal. MCC San Diego is a pretrial facility that does not confine designated female inmates for service of their sentences. [Klein Decl. ¶ 8.] A copy of the petition for writ of habeas corpus has been forwarded to the health services staff at FCI Victorville to make them aware of Petitioner's concerns. 3
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II ARGUMENT Petitioner Failed To Exhaust Her Administrative Remedies. Petitioner failed to exhaust her administrative remedies prior to the filing of the instant petition. [Id. at ¶¶ 12-14, Ex. 7.] The failure to exhaust administrative remedies is an appropriate basis for dismissal of a petition for writ of habeas corpus. See Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); see also Ruviwat v. Smith, 701 F.2d 844, 844-45 (9th Cir. 1983) (per curiam). The Prisoner Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added).7/ The Supreme Court explained the purpose behind the PLRA's exhaustion requirement: Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. In other instances, the internal review might filter out some frivolous claims. And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy. Porter, 534 U.S. at 524-25 (citations and quotations omitted). The exhaustion requirement is designed to allow the administrative agency to develop a factual record, apply its expertise, and correct its own errors, thereby avoiding unnecessary judicial intervention. Ruviwat, 701 F.2d at 845. The Bureau of Prison's Administrative Remedy Program for inmates is set out in Title 28, Code of Federal Regulations, Sections 542.10-19. These procedures include a process whereby inmates may seek formal review of any aspect of their confinement. 28 C.F.R. § 542.10-19. Records show that Petitioner has not exhausted her administrative remedies with respect to the allegations of inadequate prenatal care. [Klein Decl. ¶¶ 12-14, Ex. 7.] In fact, Petitioner has not filed any administrative remedy requests. [Id.] At this time, all levels of the administrative remedy process The PLRA exhaustion statute includes habeas petitions. See Porter v. Nussle, 534 U.S. 516, 531-32 (2002) ("[W]e hold that the PLRA's exhaustion requirement applies to all inmate suits about prison life. . . ."). 4
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remain open to Petitioner. There is no reason why Petitioner may ignore this requirement.8/ Nonetheless, if the Court permits Petitioner to avoid exhaustion in this case, then the Court will create an exception to the PLRA where none is allowed. See Porter, 534 U.S. at 529-32 (holding that there are no more distinctions between exhausting ongoing conditions versus specific acts). The Court should require Petitioner to exhaust her administrative remedies and thus dismiss the petition without prejudice. B. Petitioner's Claim Is Non-Cognizable Under 28 U.S.C. § 2241. Traditionally, the writ of habeas corpus is limited to attacks by prisoners upon the fact or duration of their custody, with the traditional remedy being release. Preiser v. Rodriguez, 411 U.S. 475, 484, 498 (1973); Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). By contrast, challenges to the conditions of confinement properly are asserted in a civil rights action. Preiser, 411 U.S. at 498-99; Hartman v. Summers, 878 F. Supp. 1335, 1347-49 (C.D. Cal. 1995), affirmed, 120 F.3d 157 (9th Cir. 1997). Petitioner does not challenge the fact or duration of her confinement. Instead, she alleges inadequate prenatal care and requests that she complete her incarceration after she gives birth to her twins. If proven, the appropriate remedy for petitioner's allegations is "a judicially mandated change in conditions and/or an award of damages, but not release from confinement." Crawford, 599 F.2d at 891-92; see Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990) (collecting cases). Regardless, however, Petitioner's allegations do not rise to the level of a constitutional violation.9/ For

Petitioner's counsel alleges unanswered phone calls or that the inability to reach the Probation officer prompted the filing of the petition. Nevertheless, even if true, these allegations do not absolve Petitioner of her obligation to file an administrative remedy request. Accord Preiser, 411 U.S. 494-95 ("It is true that exhaustion of state remedies takes time, but there is no reason to assume that state prison administrators or state courts will not act expeditiously."); 28 C.F.R. § 542.18 (providing the response time for both emergency or regular requests via the Administrative Remedy Program). In order to establish an Eighth Amendment violation, the complaining party must show that she had a serious medical condition and that defendants acted with deliberate indifference to this need. Estelle v. Gamble, 429 U.S. 97, 104-07 (1976); Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) ("Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights."). Petitioner claims that she has not seen an obstetrician nor received an ultrasound. Her allegations are unsupported by the record. An obstetrician saw her seven days prior the filing the instant petition and she has another appointment scheduled with one. [Klein Decl. ¶¶ 7-11, Exs. 5-6.] She also is scheduled to receive an ultrasound. [Id.] There is some delay with (continued...) 5
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these reasons, the Court should dismiss Petitioner's claim as non-cognizable under 28 U.S.C. § 2241. C. Petitioner's Claim of Inadequate Prenatal Care Should Be Denied As Meritless. In the event that the Court is able to construe the petition in order to adjudicate Petitioner's claim of inadequate prenatal care,10/ the record demonstrates that the Court should deny claim. Petitioner has received adequate prenatal care within the custody of the Bureau of Prisons. Indeed, her claim of inadequate prenatal care not only is unsupported but also contradicted by the record before the Court. [Klein Decl. ¶¶ 7-11, Exs. 5-6.] Thus, should the Court reach the merits, the Court should deny the claim. III CONCLUSION For the foregoing reasons, the United States respectfully requests the Court dismiss or deny Petitioner's petition for writ of habeas corpus without an evidentiary hearing pursuant to Rule 1(b) and 8 of the Rules Governing Section 2254 Cases in the United States District Courts and 28 U.S.C. § 2243.

DATE:

September 5, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney /s/Charlotte E. Kaiser CHARLOTTE E. KAISER Assistant United States Attorney

(...continued) the scheduled ultrasound, given the obstetrician who ordered the ultrasound also approved Petitioner's transfer to FCI Victorville. [Id.] The delay with the scheduled ultrasound, however, does not amount to a constitutional violation, especially in light of Petitioner's ongoing medical care. See Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990) (mere delay in medical treatment, without more, is insufficient to show deliberate indifference). As indicated above, Petitioner's claim is non-cognizable under 28 U.S.C. § 2241 and she failed to exhaust her administrative remedies. Moreover, Petitioner is unable to modify her sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure and/or 18 U.S.C. § 3582. Nonetheless, should there be some avenue such that the Court reach the petition on the merits, then the United States briefly addresses why Petitioner's claim is unsubstantiated. 6
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KAREN P. HEWITT United States Attorney CHARLOTTE E. KAISER Assistant United States Attorney California State Bar No. 256356 United States Attorney's Office for the Southern District of California 880 Front Street, Room 6293 San Diego, CA 92101-8893 Telephone: (619) 557-7031 Attorneys for the United States of America UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 UNITED STATES OF AMERICA, 15 Respondent. 16 17 Respondent United States hereby files its notice of filing the return to the petition for writ of 18 habeas corpus and declaration of Nellie Klein Torres with exhibits 1 through 3 and 7. 19 20 DATE: 21 Respectfully submitted, 22 23 24 25 26 27 28 KAREN P. HEWITT United States Attorney /s/ Charlotte E. Kaiser CHARLOTTE E. KAISER Assistant United States Attorney September 5, 2008 v. DENISE CARRILLO, Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08CV1538-DMS NOTICE OF FILING RETURN TO PETITION FOR WRIT OF HABEAS CORPUS AND DECLARATION OF NELLIE KLEIN TORRES WITH EXHIBITS 1 THROUGH 3 AND 7

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) Case No. 08CV1538-DMS

CERTIFICATE OF SERVICE

UNITED STATES OF AMERICA, Respondent.

IT IS HEREBY CERTIFIED that: I, Charlotte E. Kaiser, am a citizen of the United States over the age of 18 years and a resident of San Diego County, California; my business address is 880 Front Street, Room 6293 San Diego, California 92101-8800. I am not a party to the above-entitled action. I have caused service of the NOTICE OF FILING, RETURN TO PETITION FOR WRIT OF HABEAS CORPUS, and the DECLARATION OF NELLIE KLEIN TORRES WITH EXHIBITS 1 THROUGH 3 AND 7 by electronically filing the foregoing with the Clerk of the U.S. District Court for the Southern District of California using its ECF System, which electronically notifies: Eric Beaudikofer, Attorney for Petitioner Denise Carrillo. I also deposited the foregoing in the United States mail at San Diego, California, in an envelope bearing the requisite postage, to: Eric Beaudikofer House and Beaudikofer 414 Vine Avenue El Centro, CA 92243-3947 the last known address, at which place there is delivery service of mail from the United States Postal Service. I declare under penalty of perjury that the foregoing is true and correct. DATE: September 5, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney /s/Charlotte E. Kaiser CHARLOTTE E. KAISER Assistant United States Attorney