Moreno v. Garza
| Decision Date | 25 August 2022 |
| Docket Number | 4:21CV01221 |
| Parties | JOSEPH MARIO MARENO, Petitioner, v. F. GARZA, Warden Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
JAMES S. GWIN JUDGE
REPORT AND RECOMMENDATION RE MOTION OF RESPONDENT TO DISMISS OR FOR SUMMARY JUDGMENT
Federal and state judges alike have called the writ of habeas corpus the great writ.[1]The name alone suggests something exceptional as it should. The writ of habeas corpus gives judges tremendous power to right wrongs that occurred in criminal cases, even to the point of overriding the unanimous decision of 12 people who watched the trial from beginning to end. To better define-some would say to limit-the breadth and scope of this judicial power, both federal and state legislatures have over time enacted laws that try to explain how and when this writ gets exercised. These laws arise out of practical necessity. Many prisoners want to correct perceived errors in their trials or their sentences through the great writ, but not every prisoner's case warrants the exercise of that kind of extraordinary judicial power. The end result is that far more requests are denied than granted.
The petitioner in this case, Joseph Mario Moreno, asks that the great writ be exercised in his favor. His habeas request differs from the typical petition for two reasons. He isn't asking to be resentenced or released outright. And he isn't challenging a decision made by a jury or a judge. Instead, he challenges the Federal Bureau of Prison's finding that he violated rules while on home confinement. As punishment, the BOP reduced Moreno's good-time credits by 13 days and re-incarcerated him.[2]
No doubt Moreno, like just about every other inmate, would prefer to spend the rest of his sentence under house arrest rather than at a federal correctional facility. He'd also prefer to spend as few days incarcerated as possible. And no doubt most would agree that the rule infraction that caused the BOP to revoke Moreno's home confinement and to take away 13 days of good-time credit is not particularly egregious. Moreno stopped off along the way at a nearby restaurant for lunch with his 69-year-old brother-in-law (not permitted in advance) on his way back from visiting a flooring store (permitted in advance). He acknowledged this lunch break as a mistake.
The problem with Moreno's petition is a procedural one. He did not exhaust the internal BOP appeal process. As a result the law prohibits me from exercising the great writ in his favor. Accordingly, I recommend that Warden Garza's motion to dismiss be granted and that Moreno's petition be dismissed without prejudice for lack of subject matter jurisdiction, as I explain further below.
Moreno's Criminal Case. A grand jury indicted Moreno and five other co-defendants on charges of wire fraud, federal program bribery, conspiracy to commit extortion, and extortion.[3] On July 1, 2013, Moreno pled guilty to count 5, conspiracy to commit extortion in violation of 18 U.S.C. § 1951(a).[4] On February 19, 2014, the District Judge sentenced Moreno to 132 months in prison, two years of supervised release, and restitution in the amount of $134,192.[5] The government dismissed the other counts against Moreno. The BOP designated Moreno to serve his sentence at FPC Duluth where Moreno self-surrendered on April 21, 2014.[6]
Moreno's Home Confinement. A little more than six years later, the BOP released Moreno to home confinement pursuant to the expanded authority granted to the BOP under the CARES Act.[7] Prior to the COVID-19 pandemic, the BOP Director had the authority “to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months.”[8]
Because of the quick spread of COVID-19 amongst prisoners, the CARES Act expanded the BOP Director's authority to release prisoners to home confinement. “During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.”[9] The Attorney General made the relevant finding with respect to the BOP on April 3, 2020.[10]
Home confinement rules are strict. For example, prisoners on home confinement are on 24-hour electronic monitoring, and must remain in their residence except for specified reasons such as jobs, community service, medical treatment, religious activities, and to “participate in other family-related activities that facilitate the prisoner's successful reentry such as a family funeral, a family wedding, or to visit a family member who is seriously ill.”[11] Regardless of the reason, all departures from a prisoner's residence are “subject to the approval of the Director,”[12] and prisoners on home confinement are to “comply with such other conditions as the Director determines appropriate.”[13]
As part of his home confinement, Moreno signed a document entitled “Conditions of Home Detention” and a document entitled “Home Confinement and Community Control Agreement.”[14] One of his obligations was to “remain at [his] place of residence, except for employment, unless . . . given permission to do otherwise.”[15]
The BOP released Moreno to home confinement on July 21, 2020.[16] By all reports, Moreno made a lot of progress in both his personal and professional life. Garza does not contest that Moreno complied with all the terms and conditions of his home confinement; never missed his check-in calls to the residential reentry center that were required three times a day; never missed any of the random accountability calls or visits his reentry supervisors made to make sure Moreno was where he was supposed to be; received over 70 travel and movement passes while on home confinement at his residence (5224 S. Mayfield Avenue in Chicago) and never once was found to have violated any of the rules; was approved to move to another residence (3721 South Damen Avenue in Chicago); and took it upon himself to rehab the new residence before he moved in.[17] In short, Moreno's reentry successes were exactly what the BOP aims to achieve through its prisoner reentry programs.
Violation of BOP Home Confinement Policy. Moreno's reentry success apparently ended on December 29, 2020. Two days earlier he had requested and received two travel passes. The first allowed him to go from his residence to his new apartment that he was fixing up, and the second allowed him to go from his residence to a store called Floors and Décor (300 Countryside Plaza, Suite 300 in Countryside, Illinois). He would first travel from his home to his new apartment and then return home (the first pass). Then he would travel from his home to the flooring store and back (the second pass). Moreno estimated that the time of the second trip would be from 11:30 a.m. to 2:30 p.m.[18]
Everything went according to Hoyle until the return trip home from the flooring store. According to Moreno (and no one has contested this version of the events), his 69-year-old brother-in-law was the driver that day. On the drive back, the brother-in-law told Moreno that he was hungry and possibly due to low blood sugar. He asked Moreno if they could stop to eat at a restaurant that was located immediately before the required on-ramp to the expressway leading back to Moreno's home. By Moreno's calculation, they had plenty of time to stop and have lunch, return back home, and check in with the halfway house within the authorized time frame.[19] They did just that and returned home with ten minutes to spare.[20]
The problem, of course, was that the stop at the restaurant was not pre-approved.
The BOP's description of the incident follows:
The code referred to was Prohibited Act Code 200-Escape. The BOP considered Moreno to be in escape status for an hour and 20 minutes.[22]
The BOP's Procedure for Punishing Moreno. On January 4 2021, the day the BOP prepared its incident report, Moreno was told he needed to report to the residential reentry center because of the report. When he arrived, he was given a CDC packet.[23] This packet included the three-page incident report. The report itself is divided into three parts: Part I - Incident; Part II - CDC Action; and Part III - Investigation.[24] Also included in the packet were a document captioned “Inmate Rights At Center Discipline Committee Hearing (RRC's),”[25] a document captioned “Notice of Center Discipline Committee Hearing (CCC's),”[26] and a document captioned “Waiver of 24 Hour Notice.”[27] All three documents contain...
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