The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
TREVON JACKSON, :
3:20-CV-0919
Petitioner :
v.
: (JUDGE MANNION)
D.K. WHITE, Warden, :
Respondent :
MEMORANDUM
I. BACKGROUND
On April 17, 2020, petitioner Trevon Jackson filed, pro se, a letter
motion for a 30-day furlough from prison at LSCI-Allenwood, Low Security
Camp, located in White Deer, Pennsylvania to his house in Wilkes-Barre,
Pennsylvania, with his wife and children, and a Motion for Compassionate
Release from prison or Reduction of Sentence. Jackson states that he is
concerned about his health and well-being in prison and that due to the
alleged crowded conditions he is less at risk of contracting the COVID-19
virus at home. He also states that he cannot spend time with his family to
comfort them after his great-great grandmother recently passed away due to
the alleged national lock down in federal prisons which he states began on
April 1, 2020 and is to continue through May 26, 2020. (Doc. 51).
1
On April 20, 2020, Jackson filed a motion for appointment of counsel
to assist him with his motion, which he now indicates was filed pursuant to
18 U.S.C. §3582(c)(1)(A). (Doc. 52).
On April 27, 2020, Jackson filed a second pro se Motion for
Compassionate Release from Prison or Reduction of Sentence pursuant to
18 U.S.C. §3582(c)(1)(A), as well as the CARES Act. (Doc. 53). He attached
exhibits to this motion, including copies of his BOP administrative requests
for home confinement and responses from Warden White, as well as copies
of his BOP medical records, and his November 12, 2019 BOP Reentry Plan-
Program Review. He also submitted a copy of his GED as well as a list and
certificates of courses he completed in prison.
With respect to his administrative remedy requests attached to his
second motion, Jackson included Warden White’s April 2, 2020 denial of his
March 24, 2020 Inmate Request for compassionate release, along with his
request which was based, in part, on the “corona virus” and the crowded
prison conditions as well as his alleged medical conditions, including asthma,
acute bronchitis, severe chronic migraines, high blood pressure, ADD and
“bipolar depression.” (Doc. 53 at 9-10). Jackson also submitted a copy of his
second Inmate Request (dated April 8, 2020) for compassionate release due
to the COVID-19 virus and his medical conditions stating that he “face[s]
substantial risk and vulnerability to contract the [virus]” according to the CDC
guidelines, as well as the Warden’s April 10, 2020 denial of his second
request stating that Jackson does not meet the all of the criteria contained in
2
Attorney General Barr’s Memo as well as in the CARES Act. (Doc. 53 at 11-
13).
On June 1, 2020, Jackson filed another emergency letter motion under
18 U.S.C. §3582(c)(1)(A) seeking the court to reduce his term of
imprisonment to time served and to immediately release him from prison due
to his fear that he may contract the COVID-19 virus. (Doc. 55). He contends,
without support, that “at leas[t] one staff member at the Allenwood Complex
tested positive for the virus.” Jackson states that based on his alleged
underlying conditions as well as the high likelihood that he will contract the
virus in prison, “extraordinary and compelling reasons” exist to modify his
term of imprisonment. He alleges that he tried to exhaust all of his BOP
administrative remedies by filing an appeal of the Warden’s decision at the
Northeast Regional level but he claims that this office has not yet responded
to his appeal. Jackson contends that “[i]t would be futile to take any further
administrative action due to the BOP[‘s] slow pace and negligence of the
BOP in timely and promptly reviewing [his] administrative remedy appeal.”
Jackson attached to his latest motion exhibits, including a diagram of the
alleged dorm like cubes in which he is housed at the low security complex, a
copy of his May 27, 2020 letter to the court and Attorney General Barr
seeking his immediate release from prison to home confinement, a copy of
the educational courses he completed while in prison.
On June 3, 2020, Jackson filed a motion for oral argument regarding
his pending motions. (Doc. 56).
3
It is clear from his filings and exhibits that Jackson has not exhausted
all of his BOP administrative remedies regarding his two Inmate Requests
for Compassionate Release despite the fact that the Warden instructed
Jackson that if he was not satisfied with his (the Warden’s) April 2, 2020
denial of his request, he could “appeal through the [BOP], Administrative
Remedy Process.” Additionally, the bottom of the form on which Jackson
submitted as his second Request dated April 2, 2020, under Part B-
Response section, clearly stated: “If dissatisfied with this response, you may
appeal to the Regional Director” and that an appeal must be received “in the
Regional Office within 20 calendar days of the date of th[e] response.” (Doc.
53 at 9 & 11). As stated, Warden White denied Jackson’s second Request
on April 10, 2020. (Id. at 13). Jackson alleges that he filed an appeal of the
Warden’s decisions and that he has not yet received a response from the
Northeast Regional Office. As such, he alleges that exhaustion is futile.
In fact, in his second motion, (Doc. 53 at 2), and last motion, (Doc. 55),
Jackson concedes that he has not exhausted his BOP administrative
remedies by appealing the Warden’s denial of his Requests since “[he]
believes exhaustion would be futile in [his] case” since “staff made it clear
that no inmate in [his] housing unit don’t (sic) qualify because nobody meets
the criteria or age requirement and denied all requests citing old or unrelated
policy on purpose to keep inmate population.” Jackson also alleges that “the
risk that COVID-19 poses [creates] exigent circumstances” apparently to
excuse the exhaustion requirement. However, Jackson states that while
4
there are confirmed cases of the virus in “Allenwood Medium and USP”, and
that one staff member tested positive at the “Allenwood Complex”, (Doc. 55),
he concedes that presently there are no reported cases in LSCI-Allenwood,
but he believes it will only be “a matter of time [before] it comes here.” (Doc.
53 at 2).1
In both his motions, Jackson requests his immediate transfer from
prison to home confinement, which the court construes as a petition for writ
of habeas corpus pursuant to 28 U.S.C. §2241 due to the COVID-19
pandemic. (Docs. 51 & 53).2
1The number of COVID-19 cases in a federal prison can be found at
COVID-19 Cases, Federal Bureau of Prisons,
https://www.bop.gov/coronavirus/. According to the BOP’s website as of
June 4, 2020, there were no positive cases of COVID-19 among inmates and
staff at either USP-Allenwood or FCI-Allenwood Medium and one staff
member at each facility recovered from the virus. This website belies
Jackson’s allegation that there are confirmed cases of the virus at USP-
Allenwood and FCI-Allenwood Medium, (Doc. 53 at 2), and his allegation
that at the “Allenwood Complex” one staff member tested positive for the
virus, (Doc. 55). There is no separate listing on the website for Allenwood
Low (LSCI), but Jackson indicates there are no cases of the virus there.
(Doc. 53 at 2). The court contacted the BOP at LSCI Allenwood and as of
June 4, 2020, there were no positive cases of COVID-19 for inmates and
staff at this facility.
2The court notes that although Jackson cites to §3582(c)(1)(A) as the
statutory basis for his motion, he indicates in the caption on his motions that
he is the petitioner. Jackson also refers to his Doc. 53 motion as one for
compassionate release. The court does not find Jackson’s filings are motions
against the government. Rather, upon review, the court finds that they
constitute a petition for writ of habeas corpus pursuant to 28 U.S.C. §2241.
See Cordaro v. Finley, 2020 WL 2084960 (April 30, 2020). Thus, as Jackson
indicates in the caption of his motions, he is the petitioner, but the proper
respondent is the Warden at LSCI-Allenwood, D.K. White. See 28 U.S.C.
5
In particular, Jackson seeks the court to immediately release him from
confinement in prison at LSCI-Allenwood, Low Security Camp, located in
White Deer, Pennsylvania, to home confinement at his house with his wife
and children, due to his fear that he may contract the COVID-19 virus in
prison and, his fear that if the virus was to spread in the prison, his health
and would be in jeopardy due to his underlying medical conditions.
Alternatively, the court could construe Jackson’s filings as a motion for
compassionate release under 18 U.S.C. §3582(c)(1)(A)(i).
After considering Jackson’s motions, (Docs. 51, 53 & 55), the court will
dismiss them insofar as they are considered a §2241 habeas petition, without
prejudice, due to his failure to exhaust his administrative remedies with the
federal Bureau of Prisons (“BOP”) under 28 C.F.R. §§542.10, et seq. Insofar
as Jackson’s filings are considered as a motion for compassionate release,
they will be dismissed, without prejudice, for lack of jurisdiction due to his
admitted failure to exhaust his BOP administrative remedies under
§3582(c)(1)(A)(i).3
§2243. “The 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, the court will
refer to the Warden herein as the respondent.
3Even though the government has not yet responded to Jackson’s
motions, in light of the emergency nature of the filings, the court can dismiss
it without prejudice sua sponte to the extent it is a §2241 habeas petition and
it is clear that he has not exhausted all of his BOP administrative remedies
6
To the extent Jackson is seeking the court to order the BOP to deem
him eligible for immediate home confinement designation under the
Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), Pub.
L. 116-136, §12003, the court does not have authority to grant his request
for relief and order the BOP to release him to home confinement.4
Finally, the court will direct the Clerk to more properly open Jackson’s
petitions for release from prison and transfer to home confinement based
upon the Covid-19, (Docs. 51 & 53), as a petition pursuant to 28 U.S.C.
§2241. The Clerk will then forward the appropriate paperwork to the
petitioner for completion and return to the court, including the payment of the
required filing fee or the presentation of an application to proceed in forma
pauperis.
II. DISCUSSION
In his first petition, and second petition, (Docs. 51 & 53), Jackson seeks
his immediate transfer from LSCI-Allenwood to home confinement with his
as required. Also, insofar as Jackson’s motions are ones for compassionate
release pursuant to 18 U.S.C. §3582(c)(1)(A), the court can act sua sponte
to dismiss them based on lack of jurisdiction since it is apparent on the face
of his motions and his exhibits that he did not exhaust his administrative
remedies regarding his requests for home confinement due to the COVID-
19 virus.
4It is clear from his Doc. 53 motion that Jackson is also seeking relief
pursuant to the CARES Act in addition to a motion for compassionate release
pursuant to 18 U.S.C. §3582(c)(1)(A).
7
wife and requests the court to allow him to serve the remainder of his prison
sentence in home confinement stating that he fears his health and his life
would be at risk if he contracts the COVID-19 virus. In his third motion, (Doc.
55), Jackson seeks the court to reduce his prison sentence to time served
and to immediately release him from prison.5
Jackson is currently 28 years old (DOB March 27, 1992) and not in the
high risk age category.6 However, Jackson alleges that he has the above
stated medical conditions which would make him more susceptible to serious
complications if he did contract the COVID-19 virus. The court has
considered Jackson’s BOP medical records attached to his motion at pages
15-20, which indicate that he has asthma and uses albuterol “only a couple
times a month”, acid reflux, hypertension as well as major depressive
disorder and “possible bipolar.” His diagnosed conditions are reported to be
controlled by his prescribed medications. On March 2, 2020, Jackson was
also diagnosed with acute bronchitis but it was not reported to be chronic.
5Jackson is currently serving a 60-month prison sentence that was
imposed by this court on December 19, 2016, after he pled guilty to
transporting a minor in interstate commerce with intent to engage in criminal
sexual activity, aid and abet, 18 U.S.C. §2423(a). (Doc. 36). The court also
ordered Jackson to be on five years of supervised release after he was
released from prison.
6The court also considered Jackson’s physical condition stated in his
PSR, (Doc. 17 at 2, 10), which reflects that he reported he was in “good
physical health” with the exception of seasonal allergies that are controlled
by an inhaler.
8
Further, Jackson states that has now served about 70% of his 60-
month prison sentence and that he is “expected to release to a halfway
house (RRC) on 1/26/2021.” He was also determined by the BOP to be
“eligible” under the First Step Act on November 20, 2019. (Doc. 53 at 4, 14).
Jackson’s projected release date from prison, with good conduct time, is May
27, 2021, and he was misconduct free for the past 6 months according to his
November 12, 2019 Individualized Reentry Plan. (Id. at 21). Jackson also
alleges that based on the three person open dormitory type rooms in the
prison’s camp, (see diagram attached to Doc. 55), the overcrowded camp,
as well as many common areas and close proximity of the inmates to each
other, social distancing and other recommended safety measures cannot be
practiced. Jackson also complains about the alleged lack of adherence to
safety measures at the camp by the BOP as well as the alleged lack of proper
medical care (described as “careless and horrible”) for the inmates, despite
the fact that his BOP medical records belie this contention. As such, Jackson
contends that in the camp setting if the COVID-19 virus is introduced, his
health and safety will be placed at risk, and he requests that based on
“extraordinary and compelling reasons” and based on “exigent
circumstances” the court should transfer him to home confinement to
complete his remaining prison sentence.
The court visited the BOP’s website and as of June 4, 2020, there are
no positive cases of COVID-19 reported for staff or inmates at Allenwood
9
Complex, i.e., USP-Allenwood and FCI-Allenwood Medium. 7 See
https://www.bop.gov/coronavirus/.
As this court recently stated in Cordaro8, 2020 WL 2084960, *3,
“[n]otwithstanding the myriad of alleged unsafe and unsanitary conditions at
[the prison] camp, neither [Jackson] nor any other inmate at the camp have
contracted the COVID-19 virus and, to date [June 1, 2020], the prison ‘has
no reported cases of inmates or staff who have tested positive for the
COVID-19 corona virus.”
As relief, Jackson requests the court to immediately release him from
confinement at LSCI-Allenwood camp, where he admits there were no
positive cases of COVID-19, to home confinement with his wife for service
of the remainder of his prison sentence.9
As this court recently did in Cordaro, 2020 WL 2084960, *3, the court
also construes Jackson’s instant filings, (Docs. 51 & 53), as a petition for writ
of habeas corpus pursuant to 28 U.S.C. §2241.
7 Since this court is well-aware of all of the safety measures
implemented by the BOP, see Cordaro, 2020 WL 2084960, and since many
of the measures are found on the BOP’s website, they are not repeated. See
also BOP website: www.bop.gov/coronavirus/index.jsp.
8 Although Cordaro was housed at a different prison camp within this
district, the circumstances at both are virtually the same.
9The court notes that in Luzerne County, where Jackson wishes to be
placed on home confinement with his wife, as of June 4, 2020, there were
2,766 positive COVID-19 cases reported and 155 deaths. See PA Dept. of
Health website.
10
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 his 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 he 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, 2020 WL 1689874, *8 (M.D.Pa. April 7,
2020) (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
11
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); Saillant v. Hoover, 2020 WL
1891854, *3 (M.D.Pa. April 16, 2020) (the court agreed with the conclusions
of the courts in Verma and Camacho Lopez “finding that a claim based on
the COVID-19 pandemic [at CCCF by ICE detainee] is exactly the sort of
‘extreme case’ contemplated in [Ali v. Gibson, 572 F.2d 971 (3d Cir. 1978)]”
“in which a petitioner may challenge the conditions of his confinement
through a petition for writ of habeas corpus.”).
In the present case, as in the above cited cases and as well as in
Cordaro, 2020 WL 2084960, *4, although Jackson is not an ICE detainee
awaiting his removal, he similarly seeks immediate release from custody at
LSCI-Allenwood since he believes his health is in imminent risk at the prison
due to his underlying medical conditions as well as its alleged unsafe
conditions and the possibility that he may contract the COVID-19 virus, which
“is unequivocally a habeas remedy.” United States v. Serfass, 2020 WL
1874126, *2 (M.D.Pa. April 15, 2020) (citation omitted). Jackson also
additionally seeks the court to amend his sentence and to reduce his
remaining prison to time served. (Doc. 55). As the court in Camacho Lopez
explained, 2020 WL 1689874, 11, the term “execution” of a petitioner’s
sentence is broadly defined by the Third Circuit “to include such matters as
12
administration of parole, sentence computation, prison disciplinary
proceedings, prison transfers, and even ‘conditions’ generally.” (citing
Woodall, 432 F.3d at 241-44).
In his instant filing, as in Cordaro, 2020 WL 2084960, *4, Jackson
clearly seeks relief that affects the execution of his 60-month prison sentence
since he requests the court alter its terms and to immediately release him to
home confinement. See Cordaro, 2020 WL 2084960, *4. Although Jackson
complains about some of the conditions of his confinement at LSCI-
Allenwood, he does not raise any constitutional claims and he is not seeking
damages, and thus his filings are not a civil rights action. See Parmeley v.
Trump, 2020 WL 1987366, *2 (S.D.Ill. April 27, 2020) (court held that
proposed class action civil rights complaint filed by inmates incarcerated in
federal prison and in BOP custody who sought release from prison due to
the COVID-19 virus was not a remedy that was available under Section 1983
or Bivens, and that “[a] petition for a writ of habeas corpus is the proper route
if a prisoner is seeking ‘what can fairly be described as a quantum change
in the level of custody—whether outright freedom, or freedom subject to the
limited reporting and financial constraints of bond or parole or probation.’”)
(citation omitted).
As discussed, Jackson shows that he filed two administrative remedy
requests and submitted them to Warden White, pursuant to BOP 5050.50,
as requests for compassionate release to home confinement due to the
COVID-19 virus. Jackson also attaches copies of the written responses he
13
received from Warden White which denied his two requests, essentially
finding that Jackson is not an eligible inmate. Thus, White denied both of
Jackson’s requests based on the COVID-19 virus finding they were not
sufficient to reduce his sentence and release him to home confinement. As
mentioned, White also advised Jackson that if he was not satisfied with his
response, he may appeal through the BOP’s administrative remedy process.
Jackson states that he filed an appeal of the Warden’s decision with
the Northeast Regional Office but he alleges that to date he has not received
a response. Jackson alleges that based on his circumstances there are
extraordinary and compelling reasons to excuse him from exhausting his
BOP administrative remedies regarding his requests for release to home
confinement. As such, Jackson is construed as claiming that the COVID-19
virus along with his underlying medical conditions as well as the alleged
conditions at LSCI-Allenwood present an extraordinary situation in which
exhaustion should be excused. Jackson also contends that exhaustion
would be futile since he has not yet received a response to his appeal.
In any event, it is clear that Jackson has not exhausted all of his BOP
administrative remedies prior to his instant filings construed as a habeas
petition. In particular, as instructed in his exhibits, Jackson must file an
appeal with the BOP Regional Director, within 20 calendar days of the date
the Warden signed his responses. 28 C.F.R. §542.15(a). Then if the
Regional Director denies his appeals, Jackson must appeal that decision to
the BOP General Counsel, within 30 calendar days from the date the
14
Regional Director signed the response. Id. The appeal to the General
Counsel is the final administrative appeal in the process. Id.
As in Cordaro, 2020 WL 2084960, *4, Jackson has not exhausted all
of his administrative remedies available with the BOP regarding his filings
construed as a habeas petition and so the court will dismiss it without
prejudice. See Furando v. Ortiz, 2020 WL 1922357 (D.N.J. April 21, 2020)
(court dismissed without prejudice the habeas petition of inmate serving his
federal sentence at FCI-Fort Dix who sought immediate release to home
confinement under the CARES Act, based on the COVID-19 virus and his
age and chronic medical conditions which he alleged put him at high risk if
he contracted the virus, due to his failure to exhaust his BOP administrative
remedies available under 28 C.F.R. §§542.10 to 542.19.).
“There is a judicially created exhaustion requirement for habeas
petitions brought under 28 U.S.C. §2241.” Id. at *3 (citing Callwood v. Enos,
230 F.3d 627, 633-34 (3d Cir. 2000)). Generally, “an inmate’s failure to
exhaust all stages of the administrative remedy system prior to the filing of a
habeas petition under 28 U.S.C. §2241 is a proper basis for dismissal.” Id.
(citing Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 761-62 (3d Cir.
1996)). Exhaustion may be excused in “exceptional cases”, such as the
futility exception which only applies in “narrowly-defined circumstances.” Id.
at *3-4 (citations omitted).
In the present case, similar to the Furando case and Cordaro, 2020
WL 2084960, *5, this court finds that Jackson must exhaust all of his
15
available BOP administrative remedies challenging the alleged denial of his
release to home confinement. Similar to the Cordaro case in which the
inmate petitioner was denied release to home confinement due to the
COVID-19 virus by the warden, this court again finds that the inmate must
still pursue his remaining BOP administrative remedies to challenge the
decision denying him release to home confinement. As in Cordaro, 2020 WL
2084960, *5, “[t]he circumstances of [Jackson’s] case fit squarely within the
purposes of the exhaustion requirement.” (citing Furando, 2020 WL
1922357, *3 (stating recognized purposes of exhaustion requirement) (citing
Moscato, 98 F.3d at 761-62)). The court finds that none of the exceptions to
the exhaustion requirement exist in this case, especially since there are no
confirmed cases of the COVID-19 virus at LSCI-Allenwood.
As such, before the court will review the decisions of White denying
Jackson’s requests for home confinement placement due to the COVID-19
virus, Jackson must exhaust his BOP administrative remedies. Thus, insofar
as the court construes Jackson’s instant motions, Docs. 51, 53 & 55, as a
petition as a habeas corpus petition under 28 U.S.C. §2241, they will be
dismissed without prejudice for failure to exhaust BOP administrative
remedies. See Cordaro, 2020 WL 2084960, *5; Furando, supra; see also
Simmons v. Warden, FCI-Ashland, 2020 WL 1905289 (E.D.Ky. April 17,
2020) (insofar as inmate was deemed as seeking habeas relief under §2241
with respect to his request for immediate release to home confinement
claiming he satisfied criteria in the Attorney General’s March 26, 2020
16
Memorandum to the BOP “regarding prioritizing home confinement of
current federal inmates where appropriate in response to the ongoing
COVID-19 pandemic” and claiming he was eligible for home confinement
under the First Step Act, as amended by 18 U.S.C. §3582(c)(A)(1)(i), the
court denied without prejudice habeas relief since inmate did not exhaust his
administrative remedies within the BOP).
To the extent Jackson’s filings are construed as a motion for
compassionate release from prison to home confinement under, 18 U.S.C.
§3582(c)(1)(A)(i), as amended by the First Step Act (“FSA”), Pub. L. No. 115-
391, 132 Stat. 5194 (Dec. 21, 2018), they will also be dismissed without
prejudice for failure to exhaust administrative remedies. See Cordaro, 2020
WL 2084960, *5.
Jackson alleges that he has underlying chronic medical conditions
putting him at a higher risk if he does contract COVID-19,and he alleges that
LSCI-Allenwood is not adhering to the safety measures to protect inmates
from contracting the virus if it is introduced there, and that there are
“extraordinary and compelling” reasons justifying his compassionate release
under §3582(c)(1)(A)(i). Nonetheless, as in Cordaro, 2020 WL 2084960, *5,
Jackson admits that has not been exposed to the COVID-19 virus at LSCI-
Allenwood. Further, Jackson has not demonstrated with any evidence the
lack of effectiveness of the substantial steps, identified by the court above,
that the BOP is taking to protect the health and safety of both inmates and
staff at the camp as well as all of the federal prisons.
17
Thus, even though Jackson demonstrates that he presented two
requests for compassionate release to White and that they were denied, and
he alleges that he has not received a response from the BOP Northeast
Regional Office regarding his appeal, his instant motions must be dismissed
for lack of jurisdiction since he has not exhausted his administrative
remedies under §3582(c)(1)(A), “which requires that a defendant seeking
compassionate release present his application to the BOP and then either
(1) administratively appeal an adverse result if the BOP does not agree that
his sentence should be modified, or (2) wait for 30 days to pass.” Cordaro,
2020 WL 2084960, *5 (quoting United States v. Zukerman, 2020 WL
1659880, *2 (S.D.N.Y. April 3, 2020); see also United States v. Raia, 954
F.3d 594 (3d Cir. April 2, 2020); United States v. Cruz, 2020 WL 1904476
(M.D. Pa. Apr. 17, 2020).
Thus, the court cannot address whether Jackson has demonstrated,
as he alleges, that “extraordinary and compelling reasons” justify his
compassionate release from prison since he has not exhausted his
administrative remedies with the BOP as required. Cordaro, 2020 WL
2084960, *6 (citing Zukerman, 2020 WL 1659880, *2 (“in order to be entitled
to relief under 18 U.S.C. §3582(c)(1)(A)(i), [Jackson] must both meet the
exhaustion requirement and demonstrate that ‘extraordinary and compelling
reasons’ warrant a reduction of his sentence.”)); Raia, 954 F.3d 594 (“The
First Step Act empowers criminal defendants to request compassionate
release for ‘extraordinary and compelling reasons’” after the defendant
18
exhausts administrative remedies with the BOP.) (citing 18 U.S.C
§3582(c)(1)(A)(i)); United States v. Soto, 2020 WL 1875147, *1 (D.Co. April
15, 2020) (“18 U.S.C. §3582(c)(1)(A) imposes a requirement on a defendant
requesting compassionate release to exhaust all administrative rights before
seeking such relief.”) (citation omitted); United States v. Boyles, 2020 WL
1819887, *2 (D.KS. April 10, 2020) (the court held that since defendant did
not exhaust his BOP administrative remedies as required, “it [did] not decide
whether he has established that there are ‘extraordinary and compelling
reasons’ why he should be released.”); United States v. Wright, 2020 WL
1976828 (W.D.La. April 24, 2020) (court did not need to address whether
inmate demonstrated extraordinary and compelling reasons to warrant his
release to home confinement under the provisions of the compassionate
release statute “due to the grave dangers presented by COVID-19” since
inmate did not exhaust his administrative remedies under 18 U.S.C.
§3852(c)(1)(A), which is mandatory and “the Court has no power to waive
the exhaustion requirement.”); Cruz, 2020 WL 1904476, *3; United States v.
Edwards, 2020 WL 1987288 (MD.Tn. April 27, 2020) (after an extensive
review of recent cases filed in light to the COVID-19 pandemic, the court
concluded that “[it] cannot consider the Motion [for compassionate release]
until the exhaustion requirement of 18 U.S.C. §3582(c)(1)(A(i) is satisfied”,
and denied the Motion without prejudice to refiled it once exhaustion was
completed).
19
Further, as in Cordaro, 2020 WL 2084960, *6, the court finds that
Jackson does not demonstrate any “catastrophic health consequences” to
make exhaustion futile or show that he could be unduly prejudiced if he had
to wait to exhaust his administrative remedies with the BOP. See Zukerman,
2020 WL 1659880, *3; Cruz, 2020 WL 1904476, *3. In fact, Jackson’s BOP
medical records show that his diagnosed conditions are controlled by his
prescribed medications and that he is receiving proper medical care. In short,
Jackson merely speculates that he may be exposed to COVID-19 if he
comes into contact with someone at the prison who introduces the virus and
he speculates that his health would be in risk if he did contract the COVID-
19 virus. As the court stated in Cordaro, 2020 WL 2084960, *6, “[i]t must also
be noted that [Jackson] does not allege that he has contracted COVID-19
and he has not suffered any medical consequences from the virus since the
pandemic started in the United States. Nor does anyone at the prison have
the virus.”
This court is bound by the Third Circuit’s decision in Raia, 954 F.3d at
597, which 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
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strict compliance with §3582(c)(1)(A)’s exhaustion requirement takes on
added—and critical—importance.” Id.
Finally, to the extent Jackson relies on the CARES Act, which was
signed into law on March 27, 2020, as well as Barr’s March 26, 2020 and
April 3, 2020 Memoranda to the BOP, such reliance is misplaced.10
Under the CARES Act “Congress sought to address the spread of the
coronavirus in prisons by permitting BOP to expand the use of home
confinement under [Section 602 of the First Step Act] §3624(c)(2).” Furando,
2020 WL 1922357, *2 (citing Pub. L. No. 116-36, §12003(b)(2)). “Upon
direction of the Attorney General, Section 12003(b)(2) of the CARES Act
temporarily suspends the limitation of home confinement to the shorter of 10
percent of the inmate’s sentence or 6 months.” Id.
Thus, the CARES Act provides that if the Attorney General finds that
emergency conditions will materially affect the functioning of the BOP, as he
did on April 3, 2020, the BOP Director may increase the maximum amount
of time that a prisoner may spend in home confinement under the first
sentence of 18 U.S.C. §3624(c)(2). Id. at *3; Cruz, 2020 WL 1904476, *4.
As such, “the jurisdiction of [a home confinement] determination [under
the CARES Act] is with the Director of the Bureau of Prisons.” Id.; Cordaro,
2020 WL 2084960, *6.
10See also Furando, 2020 WL 1922357, *2-3 (court summarized Barr’s
two Memoranda).
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As the court in United States v. Sawicz, 2020 WL 1815851, *1
(E.D.N.Y. April 10, 2020), recently explained:
[The] CARES Act expanded the maximum amount of time that a
prisoner may spend in home confinement: “if the Attorney General
finds that emergency conditions will materially affect the functioning of
the [BOP], 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 ....” CARES Act §12003(b), Pub. L. No. 116-136,
134 Stat. 281 (2020). Attorney General William Barr made the requisite
“finding that emergency conditions are materially affecting the
functioning of the Bureau of Prisons” on April 3, 2020, thereby
triggering the BOP’s authority to expand the amount of time that a
prisoner may spend in home confinement.
As this court recently stated in Cruz, 2020 WL 1904476, *4 and in
Cordaro, 2020 WL 2084960, *7, “the determination of which inmates qualify
for home confinement under the CARES Act is with the BOP Director.” (citing
United States v. Doshi, 2020 WL 1527186, *1 (E.D.Mi. March 31, 2020) (The
CARES Act “temporarily permits the Attorney General to ‘lengthen the
maximum amount of time for which [it] is authorized to place a prisoner in
home confinement’ under §3624(c)(2)”, and “the authority to make this
determination is squarely allocated to the Attorney General, under whose
authority is the Bureau of Prisons.”); United States v. Coker, 2020 WL
1877800, *1 (E.D.Tenn. April 15, 2020) (court stated that while section 12003
of the [CARES Act] “presently and temporarily provides for expanded
prisoner home confinement”, “[t]he CARES Act places decision making
authority solely within the discretion of the Attorney General and the Director
of the Bureau of Prisons.”) (citations omitted); United States v. Berry, 2020
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WL 1984117, *3 (M.D.Pa. April 27, 2020) (same). Thus, “[c]ourts … do not
have power to grant relief under Section 12003 of the CARES Act.” Id.
(citations omitted); United States v. McCann, 2020 WL 1901089, *3 (E.D.Ky.
April 17, 2020) (“While the CARES Act gives the BOP broad discretion to
expand the use of home confinement during the COVID-19 pandemic, the
Court has no authority under this provision to order that a prisoner be placed
on home confinement.”) (citation omitted).
Thus, since Jackson has not exhausted his mandatory administrative
remedies with the BOP to the extent his instant filings are construed as a
motion for compassionate release pursuant to the First Step Act of 2018, 18
U.S.C. §3582(c)(1)(A), the court will dismiss this motion without prejudice for
lack of jurisdiction. See United States v. Soto, 2020 WL 1875147, *1 (D.Co.
April 15, 2020) (“When a defendant fails to satisfy Section 3582(c)(1)(A)’s
exhaustion requirement, a court is ‘without jurisdiction to entertain
[defendant’s] request for compassionate release.’”) (citations omitted);
Boyles, 2020 WL 1819887, *2 (same); Raia, 954 F.3d at 597 (Third Circuit
found that the defendants’ failure to comply with §3582(c)(1)(A)’s exhaustion
requirement “presents a glaring roadblock foreclosing compassionate
release ….”); Cruz, 2020 WL 1904476, *5; Cordaro, 2020 WL 2084960, *7;
United States v. Berry, 2020 WL 1984117, *3 (this court held that “to the
extent that Berry’s motion is construed as seeking compassionate release, it
would be dismissed for lack of jurisdiction since Berry has not exhausted her
administrative remedies under §3582(c)(1)(A), ….”) (citation omitted); see
23
also United States v. Feiling, 2020 WL 1821457, *7 (E.D.Va. April 10, 2020)
(“Because Defendant has failed to exhaust administrative remedies under
§3582(c)(1)(A), the Court lacks authority to grant a sentence modification
under that provision.”).
In light of the above discussion, the court will also deny Jackson’s
motion for appointment of counsel, (Doc. 52), and his motion for oral
argument, (Doc. 56).
III. CONCLUSION
Based on the foregoing, that aspect of Jackson’s motions for
immediate release from prison and transfer to home confinement related to
the COVID-19 pandemic, will be construed as a §2241 habeas petition,
(Docs. 51, 53 & 55). The Clerk will be directed to open these filings as a
separate civil case and forward to the petitioner the appropriate paperwork
for such a petition to be completed and returns with the appropriate filing fee
or a completed application for in forma pauperis status. The habeas petition
will be DISMISSED WITHOUT PREJUDICE due to his failure to exhaust his
BOP administrative remedies under 28 C.F.R. §§542.10. To the extent that
Jackson’s filings are considered as a motion for compassionate release, they
are properly filed, will remain in his criminal case and be DISMISSED
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WITHOUT PREJUDICE for lack of jurisdiction due to his failure to exhaust
his BOP administrative remedies under §3582(c)(1)(A)(i). Finally, insofar as
Jackson is challenging the decision by the BOP that he is not eligible for
home confinement designation under the CARES Act, the court will DISMISS
it since the authority to make this determination lies with the BOP Director
and not the court. The court will also deny Jackson’s motion for appointment
of counsel, (Doc. 52), and his motion for oral argument, (Doc. 56). An
appropriate order will follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: June 5, 2020
16-130-01
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