The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES :
: CRIMINAL NO. 3:17-60
CIVIL NO. 3:20-CV-623
v. : (JUDGE MANNION)
KELLY BRADY, :
Defendant :
MEMORANDUM
I. Background
On April 13, 2020, defendant Kelly Brady, an inmate serving her 55-
month federal sentence imposed by this court at Danbury Federal Prison
Camp (“DFPC”) in Connecticut, filed a Motion for Immediate Release to
Home Confinement pursuant to the CARES Act, §12003(b)(2). (Doc. 58).
Brady concedes that there are presently no cases of the COVID-19 virus at
DFPC but she nonetheless requests the court to immediately release her to
home confinement since “[t]he eminent threat of contacting (sic) the virus is
real and based on the CARES Act [she] believes that she qualifies to be
immediately released to home confinement.” Brady attached a memorandum
dated April 3, 2020, from U.S. Attorney General William Barr to the federal
Bureau of Prisons (“BOP”) regarding the implementation of the CARES Act
and directing the BOP to identify suitable inmates for home confinement with
COVID-19 risk factors. Brady, however, does not indicate if she has a
recognized medical condition which would put her at a higher risk if she
contracted COVID-19. The government has filed a brief in opposition to the
motion. (Doc. 59).
The government incorrectly construes Brady’s motion as one for
compassionate release pursuant to 18 U.S.C. §3582(c)(1)(A), and contends
that the court should dismiss the motion without prejudice for lack of
jurisdiction since Brady has failed to exhaust her administrative remedies
with the BOP.
For the reasons set forth below, the court will construe Brady’s motion
as a petition for writ of habeas corpus pursuant to 28 U.S.C. §2241, and it
will transfer her case to the District of Connecticut, where jurisdiction properly
arises.
Additionally, insofar as Brady intended her motion to be one for
compassionate release pursuant to 18 U.S.C. §3582(c)(1)(A), the court will
dismiss the motion without prejudice for lack of jurisdiction.
II. Discussion
No doubt that a habeas petition under §2241 is the proper vehicle for
an inmate to challenge “the fact or length of confinement”, Presser v.
Rodriguez, 411 U.S. 475, 494 (1973), or the “execution” of her confinement.
Woodall v. Fed. BOP, 432 F.3d 235, 241-42 (3d Cir. 2005). Further, the court
must look to the remedy requested by the inmate to determine if she is
seeking relief available in a habeas petition. “When a petitioner seeks
immediate release from custody, the ‘sole federal remedy’ lies in habeas
corpus.” Camacho Lopez v. Lowe, Civil No. 3:20-563, 2020 WL 1689874
(M.D.Pa. April 7, 2020), at 8 (citing Presser, 411 U.S. at 500).
In Camacho Lopez, the petitioner was an ICE detainee subject to a
final removal order whose removal was set for March 30, 2020, but delayed
due to his COVID-19 diagnosis. The petitioner filed a §2241 habeas petition
seeking immediate release from confinement based on “the threat posed by
the COVID-19 viral pandemic.” The respondent argued that Camacho
Lopez’s petition should be construed as a civil rights action under 42 U.S.C.
§1983. The court found that “the extraordinary conditions of confinement”
“where the petitioner tested positive for and had been hospitalized by a
potentially deadly pandemic virus and claims that officials cannot properly
treat him---constitute the extreme case in which habeas relief might be
available.” Id. at 13. The court then concluded that based on the case’s
unique circumstances, “both the claim brought and the remedy sought are
cognizable in habeas corpus.” Id. The court found, however, that Camacho
Lopez’s continued detention in prison was proper and dismissed his habeas
petition. See also Verma v. Doll, Civil No. 4:20-14, (M.D.Pa. April 9, 2020)
(court found petitioner, an ICE detainee, “plainly seeks a habeas remedy”
where he requested immediate release from custody based on alleged
“constitutionally deficient conditions of confinement that threaten his life and
health” in light of the COVID-19 pandemic).
In the present case, as in Camacho Lopez, although Brady is not an
ICE detainee awaiting her removal, she similarly seeks immediate release
from custody at DFPC since she believes her health is in imminent risk at
the prison because it is a potential “hot zone” for COVID-19, which “is
unequivocally a habeas remedy.” Id. (citation omitted). As the court in
Camacho Lopez explained, id. at 11 the term “execution” of a petitioner’s
sentence is broadly defined by the Third Circuit “to include such matters as
administration of parole, sentence computation, prison disciplinary
proceedings, prison transfers, and even ‘conditions’ generally.” (citing
Woodall, 432 F.3d at 241-44).
In her motion, Brady clearly seeks relief that affects the execution of
her 55-month prison sentence since she requests the court alter its terms
and to immediately release her to home confinement. Brady does not
challenge the conditions of her confinement at DFPC and thus her motion is
not a §1983 civil rights action as alternatively intimated by the government.
Nor does the court find that Brady’s motion is one for compassionate release
under 18 U.S.C. §3582(c)(1)(A) as the government contends. The defendant
has not asked to be released from her sentence, rather she is asking that
her sentence be executed in a different manner, i.e. home confinement.
Even had Brady’s motion been one construed as seeking
compassionate release, it would be dismissed for lack of jurisdiction since
Brady has not exhausted her administrative remedies under §3582(c)(1)(A),
“which requires that a defendant seeking compassionate release present
[her] application to the BOP and then either (1) administratively appeal an
adverse result if the BOP does not agree that [her] sentence should be
modified, or (2) wait for 30 days to pass.” United States v. Zukerman, 2020
WL 1659880, *2 (S.D.N.Y. April 3, 2020). See also United States v. Raia, --
- F.3d ---, 2020 WL 1647922 (3d Cir. April 2, 2020).
Secondly, Brady has not demonstrated that “extraordinary and
compelling reasons” warrant a reduction of her sentence since she does not
state that she has any recognized medical condition putting her at a higher
risk if she contracts COVID-19, i.e., she has not alleged that she is at risk of
experiencing serious complications from COVID-19 due to any medical
conditions, and since she admits that there are no cases of the virus currently
at DFPC. See Zukerman, 2020 WL 1659880, *2 (“in order to be entitled to
relief under 18 U.S.C. §3582(c)(1)(A)(i), [Brady] must both meet the
exhaustion requirement and demonstrate that ‘extraordinary and compelling
reasons’ warrant a reduction of [her] sentence.”). Raia, --- F.3d ---, 2020 WL
1647922, *1 (“The First Step Act empowers criminal defendants to request
compassionate release for ‘extraordinary and compelling reasons’” after the
defendant exhausts administrative remedies with the BOP. (citing18 U.S.C
§3582(c)(1)(A)(i)).
Further, Brady does not allege any “catastrophic health consequences”
to make exhaustion futile or show that she could be unduly prejudiced if she
had to wait to exhaust her administrative remedies with the BOP. See
Zukerman, 2020 WL 1659880, *3. Rather, she merely speculates that she
may be exposed to COVID-19 if someone at DFPC contracts the virus in the
future.
As the Third Circuit in Raia, 2020 WL 1647922, *2, explained, “the
mere existence of COVID-19 in society and the possibility that it may spread
to a particular prison alone cannot independently justify compassionate
release, especially considering BOP’s statutory role, and its extensive and
professional efforts to curtail the virus’s spread.” (citation omitted). The Third
Circuit then stated, ”[g]iven BOP’s shared desire for a safe and healthy prison
environment, we conclude that strict compliance with §3582(c)(1)(A)’s
exhaustion requirement takes on added—and critical—importance.” Id.
In short, the court agrees with my colleagues in this district who, to
date, have unanimously concluded that emergency petitions for release,
based on COVID19 are properly construed pursuant to 28 U.S.C. §2241. (In
addition to Camacho Lopez and Verma, see also Brown v. U.S. Dept of
Homeland Security, 3:20-cv-119; Umarbaev v. Warden, 1:20-cv-413 and
Thakker v. Doll, 1:20-cv-480.) Despite the government’s argument to the
contrary, that ship has sailed. I agree with my colleague’s well reasoned
analysis and join in their conclusion that 28 U.S.C §2241 is the proper vehicle
to proceed. Therefore, the court finds that Brady’s motion should be
construed as a §2241 habeas petition since she seeks relief affecting how
her sentence is executed, i.e., serving her sentence in home confinement as
opposed to confinement in prison to which she was sentenced, and not a
reduction or release from her sentence (i.e. a compassionate release).
A petitioner may seek §2241 relief only in the district in which she is in
custody. United States v. Figueroa, 349 F. App’x 727, 730 (3d Cir. 2009).
This Court has no jurisdiction over Brady’s habeas claims as she is not
detained within this district at the time of the filing of her motion. As such,
Brady must file her §2241 habeas petition in the District Court for the District
of Connecticut since she is confined in prison in that district. Pursuant to 28
U.S.C. §2243, “[t]he writ, or order to show cause shall be directed to the
person having custody of the person detained. These provisions
contemplate a proceeding against some person who has the immediate
custody of the party detained, with the power to produce the body of such
party before the court or judge.” Rumsfeld v. Padilla, 542 U.S. 426, 434
(2004). Thus, for purposes of a habeas action, the petitioner’s custodian is
the warden of the institution holding the petitioner. Id. at 442. In the instant
case, the only appropriate respondent is the Warden at DFPC, where Brady
is currently detained.
In light of the foregoing, the court will direct the clerk of court to docket
Brady’s Doc. 58 motion as an emergency §2241 habeas petition and to
assign it a separate civil number. The court will then direct the clerk of court
to transfer Brady’s habeas petition to the U.S. District Court for the District of
Connecticut.
III. Conclusion
Brady’s Motion for Immediate Release to Home Confinement, (Doc.
58), is construed as a petition for writ of habeas corpus pursuant to 28 U.S.C.
§2241, and the clerk of court will be directed to docket Brady’s Doc. 58
motion as an emergency §2241 habeas petition and to assign it a civil
number. The clerk of court will then be directed to transfer Brady’s §2241
habeas petition to the U.S. District Court for the District of Connecticut as the
proper jurisdictional court.
s/ Malachy E. Mannion _____
MALACHY E. MANNION
United States District Judge
Dated: April 14, 2020
17-60-01