Toney v. United States

• Court: District Court, S.D. California
• Decided: May 28, 2020
• Docket: 3:20-cv-00705
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEPHEN TONEY, Case No: 20-cv-0705 BAS (AGS)

12 Petitioner,

13 v. ORDER DENYING PETITION FOR HABEAS CORPUS 14 UNITED STATES OF AMERICA, 15 Respondent. 16 17 Criminal defendant Stephen Toney filed a petition for habeas corpus in Case No. 20- 18 cv-705-BAS (AGS) seeking pretrial release because of the COVID-19 virus. For the 19 reasons stated below, the petition is DENIED. 20 I. Procedural History 21 On March 15, 2018, Defendant was indicted for conspiracy to distribute 22 hydrocodone without a prescription. (ECF No. 71.)1 23 24 25 26 27 1 Unless otherwise indicated, all ECF references are to Mr. Toney’s criminal case: Case No. 18-cr-1405- BAS. 28 1 On March 26, 2019, Mr. Toney stipulated without prejudice to detention pending 2 trial. (ECF Nos. 69, 75.) On June 20, 2018, upon Mr. Toney’s request to revisit the issue, 3 the Magistrate Judge granted the Government’s motion to continue to detain Mr. Toney 4 pending trial. (ECF No. 140). The Judge found: (1) that Mr. Toney was facing a minimum 5 mandatory sentence of at least ten years in custody; and (2) that there was a serious risk 6 Mr. Toney would flee. (ECF No. 145.) The Magistrate Judge concluded that no condition 7 or combination of conditions would ensure Mr. Toney’s appearance at future court hearings 8 or the safety of the community. The Judge’s reasons for those findings included: Mr. 9 Toney’s mental health and substance abuse history, his past failures to appear at 10 probationary noncompliance events, and his extensive criminal record which included 11 crimes of violence, narcotics offenses, involvement with firearms, and witness tampering. 12 (Id.) Mr. Toney did not appeal this order to the District Court. 13 On June 13, 2019, Mr. Toney pled guilty to Count One of the indictment. (ECF No. 14 282.) Sentencing is set for June 15, 2020. (ECF No. 404.) The probation department 15 recommends the Court find a guideline range of 168 to 210 months and recommends a 16 downward variance to ten years in custody. (ECF No. 305.) 17 II. Criminal Conduct 18 Mr. Toney recruited straw patients, many homeless, incarcerated or even deceased, 19 to receive fake hydrocodone prescriptions from co-defendant Dr. Salerno. (Plea 20 Agreement, ECF No. 285, at §IIB; PSR, ECF No. 305 “The Offense Conduct”.) He 21 arranged to have these prescriptions delivered to pharmacies, purchased the hydrocodone, 22 and then arranged to have it delivered to others for sale on the streets. (Id.) 23 Mr. Toney has a lengthy criminal record including three prior drug felonies, assault 24 with a deadly weapon with likely great bodily injury, hit and run, and witness tampering. 25 (PSR ¶¶ 67–99.) According to family members, he suffers from schizophrenia that 26 manifests itself in audible and visual hallucinations. (PSR ¶¶ 107, 113.) Mr. Toney also 27 suffers from hepatitis. (PSR ¶ 111.) Because of his criminal record, Mr. Toney is not 28 eligible for safety valve or a sentence less than ten years. 1 III. Analysis 2 Under the Bail Reform Act, 42 U.S.C. §3143(1), a person who has been found guilty 3 of an offense recommending imprisonment shall be detained unless the Judge finds by clear 4 and convincing evidence the defendant is not likely to flee or pose a danger to the 5 community. In Stack v. Boyle, 342 U.S. 1, 6 (1951), a case decided before the Bail Reform 6 Act was enacted, the Supreme Court pointed out that “[t]he proper procedure for 7 challenging bail as unlawfully fixed is by motion for reduction of bail and appeal to the 8 Court of Appeals from an order denying such motion.” The Court explained, “[w]hile 9 habeas corpus is an appropriate remedy for one held in custody in violation of the 10 Constitution, the District Court should withhold relief in this collateral habeas corpus 11 action where an adequate remedy available in the criminal proceeding has not been 12 exhausted.” Id. (citation omitted). 13 In other words, Mr. Toney should be pursuing this request for bail in his criminal 14 case, and, if unsuccessful, by appealing any denial of bail in the criminal case. That said, 15 bail is not appropriate in this case. Mr. Toney has pled guilty and is facing at least a ten- 16 year minimum mandatory sentence. He has a criminal history that includes several prior 17 drug felonies. For all the reasons stated by the Magistrate Judge at the detention hearing, 18 Mr. Toney poses both a risk of flight and a risk of danger to the community. Thus, under 19 § 3143, he shall be detained. 20 The Court is not unsympathetic to the plight of prisoners who are at risk of 21 contracting the COVID-10 virus while in custody. The Court understands that Mr. Toney 22 is concerned because of his health conditions and that he is vulnerable and unable to 23 socially distance while he is in custody. However, his allegations do not risk to the level 24 of an Eighth Amendment violation. 25 Furthermore, as noted by the Government, the Bureau of Prisons is doing an 26 admirable job of keeping the pandemic under control. At least as of today’s date, the 27 facility where Mr. Toney is being housed does not have any positive cases of COVID-19. 28 Additionally, nothing presented by Mr. Toney warrants the Court releasing him before his 1 sentencing in two weeks, a sentencing where he is likely to receive at least 120 months in 2 || custody. 3 Conclusion 4 For the above reasons, Mr. Toney’s habeas petition is DENIED. The Clerk is 5 || directed to close case number 20-cv-705-BAS. 6 IT IS SO ORDERED. 7 /| ) 8 || DATED: May 28, 2020 asf dg aphan 6 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28