Carter v. Leroy Fields, Supt.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JAMES CARTER,

Petitioner,

MEMORANDUM & ORDER

- against - 19-CV-5364 (PKC)

LEROY FIELDS, Supt.,

Respondent.

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PAMELA K. CHEN, United States District Judge:

Pending before the Court is pro se Petitioner’s “Emergency Motion for Compassionate

Relief.” (Dkt. 17.) For the reasons set forth below, the Court construes Petitioner’s motion as

seeking relief under 28 U.S.C. § 2241, and denies it without prejudice for failure to exhaust state

remedies or to show why exhaustion of those state remedies would be futile.

BACKGROUND

Petitioner has a pending petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

in this Court, challenging his state-court conviction and sentence. (Dkt. 1.) On July 7, 2020,

Petitioner, again proceeding pro se, filed an “Emergency Motion for Compassionate Relief,”

seeking release from the Fishkill Correctional Facility (“Fishkill”) because of the risk of

contracting COVID-19.1 (Dkt. 17, at ECF2 1.) The following week, Petitioner tested positive for

COVID-19, although he remained asymptomatic. (See Dkts. 22, 26.) Petitioner was quarantined

1 Petitioner argued that his age (57) and numerous underlying health conditions (including

hypertension and diabetes), put him at great risk of life-threatening complications from COVID-

19. (Dkt. 17, at ECF 1.) Petitioner also noted that he is incarcerated on a non-violent offense, has

already served eight out of ten years of his sentence, and is married and has a home that he shares

with his wife available to him upon release. (Id. at ECF 1, 3.)

2 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing

system and not the document’s internal pagination.

for 10 days and then released back into the general prison population at Fishkill. (Dkt. 27, at 6.)

On August 6, 2020, the Court held oral argument on Petitioner’s motion for compassionate release,

after which Petitioner and Respondent both submitted supplemental briefing. (See Dkts. 27, 29.)

DISCUSSION

The Court first considers the appropriate statutory framework for Petitioner’s motion for

compassionate release.

As an initial matter, the Court rejects Respondent’s contention that Petitioner may not bring

a habeas claim based on conditions of confinement and that he is limited to seeking relief pursuant

to 42 U.S.C. § 1983. (See Dkt. 24, at 5–8; Dkt. 29 at 2–12.) “While Respondent is correct that

‘requests for relief turning on circumstances of confinement may be presented in a § 1983 action,’

courts in this Circuit have concluded that it is not clear that § 1983 is the sole remedy for all claims

addressing conditions of confinement.”3 Slater v. Keyser, No. 20-CV-3012 (KPF), 2020 WL

4016759, at *3 (S.D.N.Y. July 16, 2020) (quoting, inter alia, Muhammad v. Close, 540 U.S. 749,

750 (2004) (emphasis in original)). Here, the Court finds that because Petitioner seeks release

rather than damages, a habeas petition, rather than a § 1983 action, is the appropriate vehicle for

his petition. See id.

3 The Court rejects, as other courts in this Circuit have, Respondent’s argument that the

Second Circuit’s recent decision in Kielly v. Fitzpatrick, No. 20-1496 (2d Cir. Jun. 4, 2020),

indicates that conditions of confinement claims may not be addressed via habeas. See Slater, 2020

WL 4016759, at *4; Steward v. Wolcott, No. 20-CV-6282 (FPG), 2020 WL 3574617, at *2

(W.D.N.Y. July 1, 2020).

The remaining question is whether Petitioner’s motion is properly brought4 under 28

U.S.C. § 22545 and/or 28 U.S.C. § 2241.6 In this case, the Court finds that Petitioner’s motion

4 Petitioner’s initial motion did not specify a legal or statutory basis for his motion except

that the affirmation of service attached to his petition describes his motion as one under Section

2254. (See Dkt 17, at ECF 5). His supplemental briefing refers to his motion as being brought

under 28 U.S.C. § 2254. (See Dkt. 27, at 1.) The Court, however, looks at the nature of the

petition, rather than the label, in determining the proper basis. See Cook v. N.Y. State Div. of

Parole, 321 F.3d 274, 277–78 (2d Cir. 2003) (construing petition filed under Section 2241 as

properly under 2254); Jones v. Smith, 720 F.3d 142, 147 (2d Cir. 2013) (noting that habeas

petitions labeled under Section 2254 could be properly brought under Section 2241). Moreover,

because Petitioner is proceeding pro se, his petition is held to less stringent standards than

pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

5 Section 2254 provides, inter alia, that:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall

entertain an application for a writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court only on the ground that he is in custody

in violation of the Constitution or laws or treaties of the United States.

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears that-

(A) the applicant has exhausted the remedies available in the courts of the

State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the

rights of the applicant.

28 U.S.C. § 2254.

6 Section 2241 provides, inter alia, that:

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice

thereof, the district courts and any circuit judge within their respective

jurisdictions . . .

(c) The writ of habeas corpus shall not extend to a prisoner unless . . .

(3) He is in custody in violation of the Constitution or laws or treaties of the

United States. . . .

(d) Where an application for a writ of habeas corpus is made by a person in custody

under the judgment and sentence of a State court of a State which contains two or

more Federal judicial districts, the application may be filed in the district court for

the district wherein such person is in custody or in the district court for the district

within which the State court was held which convicted and sentenced him and each

of such district courts shall have concurrent jurisdiction to entertain the application.

should be properly considered under Section 2241. Whether a petition falls under Section 2241

or 2254 “is not a mere formality” because of the differing standards for exhaustion under each.

Madison v. Wolcott, No. 20-CV-6267 (FPG), 2020 WL 3100857, at *1 (W.D.N.Y. June 11, 2020).

The text of Section 2254 requires a petitioner to pursue his claims to the highest court of the state

before seeking relief from a federal court.7 See 28 U.S.C. § 2254; Elleby v. Smith, No. 20-CV-

2935 (PAE), 2020 WL 2611921, at *3 (S.D.N.Y. May 22, 2020) (citing Bossett v. Walker, 41 F.3d

825, 828 (2d Cir. 1994)). In contrast, Section 2241’s exhaustion requirement “is a judicial

invention,” McPherson v. Lamont, ___ F. Supp. 3d ___, 2020 WL 2198279, at *6 (D. Conn. 2020)

(citing, inter alia, Ross v. Blake, 136 S. Ct. 1850, 1857 (2016)), and may be waived upon a showing

of “futility[]; incapability [or] undue prejudice,” Steward, 2020 WL 3574617, at *3 (alterations

and citation omitted).

While the Second Circuit has not yet addressed whether 28 U.S.C. § 2254 or § 2241 is the

appropriate mechanism for a petitioner in state custody to seek relief due to COVID-19-related

conditions of confinement, see Harrison v. Wolcott, No. 20-CV-6270 (FPG), 2020 WL 3000389,

at *1 (W.D.N.Y. June 4, 2020), it has noted in dicta that Section 2241 is the appropriate mechanism

by which to challenge conditions of confinement. See Jones, 720 F.3d at 147 (describing “habeas

petitions that challenge a prisoner’s conditions of confinement. . . [as] mislabeled as [Section]

2254 or 2255 petitions [and] properly filed under 28 U.S.C. § 2241” (emphasis in original)). At

least one other court in this Circuit has held that these conditions of confinement actions should

28 U.S.C § 2241.

7 Section 2254 provides two narrow exceptions to the exhaustion rule: (1) if “there is an

absence of State corrective process,” 28 U.S.C. § 2254(b)(1)(B)(i); or (2) if “circumstances exist

that render such process ineffective to protect the rights of the applicant,” id. § 2254(b)(1)(B)(ii).”

be brought under Section 2241.8 See McPherson, 2020 WL 2198279, at *5 (“Here, Plaintiffs are

challenging the current health conditions of their confinement, which, they claim, have become

unconstitutional because of the COVID-19 pandemic risk. They are not attacking their underlying

sentences. As such, § 2241 is the proper vehicle for their petition.”); see also Pollard v. Terrell,

No. 10-CV-4811 (ARR), 2011 WL 5117590, at *2 (E.D.N.Y. Oct. 24, 2011) (“From the record

before the court, petitioner appears to challenge neither the fact nor the duration of his

confinement—‘core habeas’ claims often litigated under 28 U.S.C. § 2254 and § 2255—nor the

conditions of his confinement, often litigated under § 2241.”). Given 28 U.S.C. § 2244’s bar on

successive Section 2254 petitions, and the prohibition on deciding mixed petitions, see Rose v.

Lundy, 455 U.S. 509, 510 (1982), requiring petitioners to file conditions of confinement claims

under Section 2254 could force them to choose between seeking release from potentially deadly

prison conditions and pursuing valid constitutional or statutory challenges to their conviction or

sentence, an illogical result.9

8 The Court recognizes that a majority of courts in this Circuit have held otherwise. See,

e.g., Madison, 2020 WL 3100857, at *1 (“Section 2241 is not an independent and separate avenue

of relief but is to be read in conjunction with the requirements of Section 2254, which are a

limitation on the general grant of jurisdiction conferred in Section 2241 that applies to cases

involving prisoners subject to state court judgments.” (internal quotation marks and citation

omitted)); see also Stewart v. Dep’t of Corr., No. 20-CV-2136 (JMA), 2020 WL 3415768, at *4

(E.D.N.Y. June 22, 2020); Harrison, 2020 WL 3000389, at *1; Brady v. Wolcott, Nos. 20-CV-580

(JLS), 19-CV-1280 (JLS) (LGF), 2020 WL 3270378, at *3 (W.D.N.Y. June 17, 2020).

9 Courts that have held that these petitions should be considered under Section 2254 cite

two Second Circuit cases from the early 2000s. In James v. Walsh, 308 F.3d 162, 168 (2d Cir.

2002), the Second Circuit held that a petitioner’s claim that the state had incorrectly credited his

time served should be brought under Section 2254 rather than 2241. The Circuit found that a

Section 2254 claim that a state prisoner “is ‘in custody’ in violation of federal laws is broader than

a claim that the imposition of one’s sentence is illegal. A federal due process challenge claiming

state incarceration beyond that authorized by a judgment and sentence would fall within this

broader category of claims. . . . [A] state prisoner may challenge either the imposition or the

execution of a sentence under Section 2254.” Id. at 167. The Circuit also stated in dicta that “had

Congress intended to make Section 2241 available to state prisoners, it would likely have required,

in the interests of comity, that state prisoners challenging the execution of their state-imposed

Nevertheless, the Court finds that Petitioner’s petition must be denied because of his failure

to exhaust. See Martinez-Brooks v. Easter, ___F. Supp. 3d ___, 2020 WL 2405350, at *18 (D.

Conn. 2020) (“While 28 U.S.C. Section 2241 does not by its own terms require the exhaustion of

state remedies as a prerequisite to the grant of federal habeas relief, decisional law has

superimposed such a requirement in order to accommodate principles of federalism.” (quoting U.S.

ex rel. Scranton v. State of New York, 532 F.2d 292, 294 (2d Cir. 1976))). While Petitioner has

raised his claims via various administrative channels (see Dkt. 17, at ECF 2, 9), he has not filed a

petition seeking relief in state court (see Dkt. 27 at 1–4). Nor has he demonstrated that exhaustion

in state court would be futile, impossible, or subject him to undue prejudice.10 See Steward, 2020

sentences first exhaust their remedies in the state courts.” Id. In Cook v. New York State Division

of Parole, the petitioner filed a Section 2241 petition claiming that the parole revocation hearing

pursuant to which he was serving time had been procedurally flawed, and that the parole board’s

failure to fix a release date violated his Eighth Amendment rights. 321 F.3d at 277. The Second

Circuit, citing James, held that “[a] state prisoner . . . not only may, but according to the terms of

section 2254 must, bring a challenge to the execution of his or her sentence . . . under section 2254.

A petition under section 2241 is therefore unavailable to him.” Id. at 278. Both James and Cook,

however, address the execution of a sentence, rather than the conditions of confinement. Both,

therefore, are distinguishable from the situation at issue here.

10 Though Petitioner states that he has faced challenges in assembling his papers given the

COVID-19 lockdown and claims that New York state courts “were not open or functioning” (see

Dkt. 27, at 7), the Court notes that New York courts have remained open to process essential

proceedings, including “emergency COVID-19 applications for release,” see Tripathy v.

Schneider, ___ F. Supp. 3d ___, 2020 WL 4043042, at *7 (W.D.N.Y. July 17, 2020) (collecting

cases), and further notes that Petitioner was able to file papers in this action. The Court also notes

that New York state courts are processing requests for relief from state prisoners, see Brady, 2020

WL 3270378, at *6, though the Court is not aware of a case in which they have granted release to

a sentenced inmate as opposed to pretrial detainees or individuals held on parole violations. While

the Court is not persuaded by Respondent’s statement at oral argument that New York courts are

addressing COVID-19-related claims expeditiously because the state’s intermediate appellate

courts started hearing those claims by late July, given the fast pace of the disease and the fact that

by early July multiple COVID-19 related fatalities had already occurred in the Fishkill facility, see

NYSDOCCS, NYS DOCCS INCARCERATED INDIVIDUALS COVID-19 REPORT BY

REPORTED FACILITY AS OF JULY 6, 2020 AT 3:00 PM,

https://doccs.ny.gov/system/files/documents/2020/07/doccs-covid-19-confirmed-by-facility-

WL 3574617, at *3. Because Petitioner has failed to exhaust his state court remedies or

demonstrate why such exhaustion would be futile, his petition must be denied.11

CONCLUSION

Accordingly, the Court construes Petitioner’s “motion for compassionate release” as a

petition under 28 U.S.C. § 2241 and denies it without prejudice12 for failure to exhaust his claims

in state court.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: September 14, 2020

Brooklyn, New York

7.7.2020_0.pdf, Petitioner has not shown that relief is not available to him in state courts or that

exhaustion would not be worthwhile, either because of law or policy or unnecessary delay.

11 Because the Court denies the petition on exhaustion grounds, it does not reach the merits

of Petitioner’s constitutional claim regarding his conditions of confinement. The Court

nonetheless recognizes that between his contraction of the COVID-19 virus and his serious

preexisting conditions, Petitioner faces multiple challenges in navigating pro se the already

daunting warren of administrative, state, and federal procedures governing release.

12 Because the Court construes the petition as one under Section 2241, it need not stay

Petitioner’s Section 2254 petition pending exhaustion of this claim, as the instant petition does not

implicate the bar on either mixed or successive petitions. If the Court were to construe Petitioner’s

instant motion as a motion to amend his existing petition under Section 2254, however, the Court

would deny the motion, applying the same reasoning, namely, that because Petitioner has not

satisfied even the judicially imposed exhaustion requirement of Section 2241, he would not satisfy

the more stringent exhaustion requirement of Section 2254. Because the factual predicate of

Petitioner’s COVID-19-related claim could not have been discovered before Petitioner submitted

his original Section 2254, Petitioner could then bring the instant claim as a second habeas petition

once he exhausted without implicating 28 U.S.C. § 2244’s bar on successive petitions. See 28

U.S.C. § 2244(b)(2)(B)(i).