Daniel Joseph Touizer v. U.S. Attorney General, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 21-10761
Non-Argument Calendar
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D.C. Docket No. 1:20-cv-25169-BB
DANIEL JOSEPH TOUIZER,
Petitioner-Appellant,
versus
U.S. ATTORNEY GENERAL,
MICHAEL CARVAJAL,
in his official capacity as Director of the Bureau of Prisons,
PATRICIA MIKULAN,
in her official capacity as Executive Director of the Salvation Army Residential
Reentry Program,
E.K. CARLTON,
Respondents-Appellees.
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_________________________
Appeal from the United States District Court
for the Southern District of Florida
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(August 27, 2021)
Before WILSON, ROSENBAUM, and LAGOA, Circuit Judges.
PER CURIAM:
Daniel Touizer, a counseled federal prisoner, appeals the district court’s
dismissal of his 28 U.S.C. § 2241 habeas corpus petition and denial of his motion
for a temporary restraining order (“TRO”) seeking immediate release to home
confinement. The district court dismissed Touizer’s petition after determining that
it lacked the authority to grant the relief that he sought—namely, to order the Bureau
of Prisons to again release him to home confinement. For the following reasons, we
agree with the district court and affirm.
I. FACTUAL AND PROCEDURAL HISTORY
In May 2018, Touizer pled guilty to conspiracy to commit wire and mail fraud,
in violation of 18 U.S.C. § 1349. The district court sentenced Touizer to sixty-eight
months’ imprisonment and ordered him to pay more than $1.8 million in restitution.
In May 2020, the Bureau of Prisons (“BOP”) released him to home confinement to
serve the remainder of his sentence because he had a heightened risk of serious
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illness from COVID-19. But in November 2020, the BOP remanded him back to
prison for violating a condition of his home confinement.
As part of the conditions for his home confinement, Touizer was prohibited
from communicating with any victims of his conspiracy. In violation of this
condition, Touizer sent an email to various investors and victims regarding a pending
civil action—an action in which he is a defendant—related to his criminal
conspiracy. In the email, Touizer claimed that he “decided to plead guilty even
though [he] didn’t commit this crime of stealing investor funds” and promised to
“fight for you” to recover all damages.
After BOP was informed of this communication, Touizer was reminded about
the conditions he agreed to when he was placed on home confinement. Following
these conversations, Touizer waived his right to twenty-four-hour notice and agreed
to proceed to the disciplinary hearing without representation. At the hearing, he was
found guilty and remanded to prison.
Soon after he was returned to prison, Touizer filed a 28 U.S.C. § 2241 habeas
petition contesting the revocation of his home confinement and moved for a TRO
requiring his immediate release back to home confinement. In his amended petition,
Touizer argues that the condition that he may not communicate with victims violated
his First Amendment rights, that his home confinement was revoked without due
process in violation of his Fifth Amendment rights, and that continued confinement
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during the pandemic constituted a violation of his Eighth Amendment right to be
free from cruel and unusual punishment.
Although the district court determined that Touizer’s claims were cognizable
under § 2241, it dismissed the petition after finding that the BOP was vested with
the exclusive power to determine a prisoner’s place of confinement, including home
confinement, under 18 U.S.C. § 3624(c)(2) and § 12003(b)(2) of the CARES Act,
and thus it lacked the authority to order the BOP to select a certain location for
Touizer’s confinement. Looking to the due process claim, the district court
concluded that such a claim failed because a prisoner does not have a liberty interest
in his place of confinement. Because it dismissed the petition, the district court
denied as moot Touizer’s TRO motion. Touzier timely appealed the district court’s
dismissal of his habeas petition and denial of his TRO motion.
II. STANDARD OF REVIEW
We review de novo the district court’s denial of habeas relief under
§ 2241 and its fact findings for clear error. Bowers v. Keller, 651 F.3d 1277,
1291 (11th Cir. 2011). We review the district court’s denial of a motion for a TRO
for abuse of discretion. Long v. Sec’y, Dep’t of Corr., 924 F.3d 1171, 1175 (11th
Cir.), cert. denied, 139 S. Ct. 2635 (2019).
III. ANALYSIS
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The main question we must determine in this appeal is whether the district
court has the authority to order the BOP to return Touizer to home confinement. We
hold that it does not. The BOP has independent 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.” 18 U.S.C. § 3624(c)(2). And if an inmate violates a condition
of that home confinement, the BOP is permitted—and in some cases, required—to
revoke the prisoner’s prerelease custody and require them to serve the rest of their
sentence in prison. 18 U.S.C. § 3624(g)(5). As a result of the COVID-19 pandemic,
the CARES Act was passed and permits the BOP to “lengthen the maximum amount
of time for which the Director is authorized to place a prisoner in home confinement”
under 18 U.S.C. § 3624(c)(2), as it deems appropriate. CARES Act, Pub. L.
116-136, Div. B, Title II, § 12003(b)(2).
Neither § 3624(c)(2) nor the CARES Act expressly provide the judiciary with
authority to grant an inmate home confinement in these circumstances. See
18 U.S.C. § 3624(c)(2); CARES Act, § 12003(b)(2). Indeed, the BOP alone “shall
designate the place of the prisoner’s imprisonment,” and such “a designation of a
place of imprisonment . . . is not reviewable by any court.” 18 U.S.C. § 3621(b); 18
U.S.C. § 3624(c)(4) (stating that nothing in this statute “shall be construed to limit
or restrict the authority of the Director of the Bureau of Prisons under section 3621”);
accord Tapia v. United States, 564 U.S. 319, 331 (2011). A district court may only
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recommend a new placement, but it may not order it. See 18 U.S.C. § 3621(b)(4)(B);
Tapia, 564 U.S. at 331 (“A sentencing court can recommend that the BOP place an
offender in a particular facility or program . . . [b]ut decision making authority rests
with the BOP.”).
The Supreme Court has recognized that “[a]fter a district court sentences a
federal offender, the Attorney General, through BOP, has the responsibility for
administering the sentence.” United States v. Wilson, 503 U.S. 329, 335 (1992).
Further, the Supreme Court “has afforded considerable deference to the
determinations of prison administrators who, in the interest of security, regulate the
relations between prisoners and the outside world.” Thornburgh v. Abbott, 490 U.S.
401, 408 (1989).
With these principles in mind, we conclude that the district court did not err
in dismissing Touizer’s habeas petition because the district court lacked the authority
to grant the relief he requested—i.e., ordering the BOP to release him to home
confinement. At most, the district court could only have sent the BOP a
recommendation related to Touizer’s confinement. Touizer’s contention that his
case is unique because he was granted home confinement and then had it improperly
revoked is unavailing. Just as the BOP has the authority to release prisoners to home
confinement, so too does it have the power to revoke that release. See 18 U.S.C. §
3624(g)(5).
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Because the district court did not have the authority to grant the requested
relief, we decline to address the district court’s alternative analysis or Touizer’s
remaining arguments. Additionally, we conclude that because the district court
properly dismissed the petition, it likewise did not abuse its discretion by denying as
moot Touizer’s TRO motion. Accordingly, we affirm.1
AFFIRMED.
1 Touizer’s motion to supplement the record on appeal is DENIED.
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