Gottstein v. Finley

GUNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ADAM GOTTSTEIN, :

3:20-CV-0935

Petitioner :

v.

: (JUDGE MANNION)

SCOTT FINLEY, :

Respondent :

MEMORANDUM

I. BACKGROUND

On April 23, 2020, petitioner Adam Gottstein filed, pro se, a 2-page

letter Motion for Compassionate Release under 18 U.S.C. §3582(c)(1)(A)

and request for immediate transfer to home confinement, which the court

construes as a petition for writ of habeas corpus pursuant to 28 U.S.C.

§2241, related to his 78-month sentence, due to the COVID-19 pandemic

and his fear that he may contract the virus. (Doc. 697).1 In particular,

1The court notes that although Gottstein cites to §3582(c)(1)(A) as the

statutory basis for his motion, the court does not find his filing as a motion

against the government. Rather, upon review, the court finds that it is 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, Gottstein is the petitioner

and the proper respondent is Scott Finley, Warden at FCI-Schuylkill. See 28

U.S.C. §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

1

Gottstein seeks the court to immediately release him from confinement in

prison at FCI-Schuylkill, located in Minersville, Pennsylvania, to home

confinement at his mother’s house in Mount Pocono, Monroe County,

Pennsylvania, due to his fear that he may contract the COVID-19 virus in

prison and, his fear that if he does, based on his alleged medical conditions,

namely, “heat issues”, “prediabetic” and “overweight”, and alleged family

history of various medical conditions, he will be at greater risk to suffer more

severe complications. Alternatively, the court construes Gottstein’s filing as

a motion for compassionate release under 18 U.S.C. §3582(c)(1)(A)(i).

On June 2, 2020, Gottstein filed a motion for appointment of counsel

seeking the court to appoint him “an attorney to file a motion for

compassionate release.” (Doc. 718). In this motion, Gottstein also reaffirms

that there are no COVID-19 cases yet at FCI-Schuylkill. He further complains

again about the conditions in the prison alleging inmates are locked down for

over 22 hours per day, that they have no air conditioning, and that they have

no access to filtered or fresh water. Gottstein alleges that the conditions

should be considered as “cruel and unusual treatment.”

After considering Gottstein’s motion, the court will dismiss it insofar as

it is §2241 habeas petition, without prejudice due to his clear failure to

exhaust his administrative remedies with the federal Bureau of Prisons

(“BOP”) under 28 C.F.R. §§542.10, et seq. Insofar as Gottstein’s filing is

party before the court or judge.” Rumsfeld v. Padilla, 542 U.S. 426, 434

(2004). Thus, the court will refer to the Finley herein as the respondent.

2

considered as a motion for compassionate release, it will be dismissed

without prejudice for lack of jurisdiction due to his failure to exhaust his BOP

administrative remedies under §3582(c)(1)(A)(i).2 To the extent Gottstein is

deemed as 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.3

Finally, the court will direct the Clerk to more properly open Gottstein’s

emergency petition for transfer to home confinement based upon the Covid-

19 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.

2Since Gottstein is proceeding pro se, the court liberally construes his

motion as also seeking relief pursuant to the CARES Act in addition to a

motion compassionate release pursuant to 18 U.S.C. §3582(c)(1)(A).

3Even though the government has not yet responded to Gottstein’s

motion, the court will dismiss it without prejudice to the extent it is a §2241

habeas petition due to his apparent failure to exhaust his BOP administrative

remedies. Also, insofar as Gottstein’s motion is one for compassionate

release pursuant to 18 U.S.C. §3582(c)(1)(A), the court can act sua sponte

to dismiss it based on lack of jurisdiction.

3

II. DISCUSSION4

In his present motion, (Doc. 697), Gottstein seeks his immediate

transfer from FCI-Schuylkill to home confinement and requests the court to

allow him to serve the remainder of his prison sentence in home confinement

alleging that he is at a higher risk if he contracts the COVID-19 virus based

his stated alleged medical conditions. Gottstein is currently 33 years old and

not in the high risk age category.5 Further, Gottstein points out that he has

served “about 50%” without including any good conduct time or eligibility for

home confinement. He also alleges that the BOP and FCI-Schuylkill “are

doing a poor job of ensuring inmate[s] do not catch COVID-19 [virus]” and

that “social distancing is impossible, the staff don’t wear masks as

recommended by the CDC and often don’t wear gloves when on the Units.”

Gottstein concludes that he “feel[s] it’s a matter of only time till [he]

contract[s] the corona virus and [he] truly [is] afraid.” it is nearly or likely a

death sentence” due to his conditions.

4Gottstein is currently serving a 78-month prison sentence that was

imposed on March 25, 2019, after he pled guilty to conspiracy to distribute

and possess with intent to distribute heroin and cocaine base (crack) and

fentanyl, 21 U.S.C. §846. The court also ordered Gottstein to be on five years

of supervised release after he was released from prison.

5The court notes that it considered Gottstein’s age as well as his

physical condition stated in his PSR, (Doc. 534 at 2, 16), which that he

reported “good physical health.” Also, there was no report that he takes any

medication for any medical condition. Further, Gottstein did not submit any

BOP medical records to show that he has been diagnosed with any medical

conditions.

4

Thus, Gottstein requests the court to direct the BOP to immediately

place him in home confinement to complete the service of his prison

sentence.

According to the BOP’s website, as of May 18, 2020, there are no

reported positive cases of the COVID-19 virus at FCI-Schuylkill.6 Also, as

respondent noted in Cordaro, id. (citing Doc. 544 at 20 n. 4), “that as of April

27, 2020, ‘the BOP has reported zero positive cases of COVID-19 at any

federal correctional institution located in Pennsylvania.’”7

As this court recently did in Cordaro, 2020 WL 2084960, *3, the court

also construes Gottstein’s instant filing as a petition for writ of habeas corpus

pursuant to 28 U.S.C. §2241. 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

6 Since this court is well-aware of all of the safety measures

implemented by the BOP in response to the COVID-19 virus, see Cordaro,

supra (citing Doc. 544 at 15-18), and since many of the measures are found

on the BOP’s website, they are not repeated herein. Also, the 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/.

7The court notes that Monroe County where Gottstein wishes to be

placed on home confinement with his mother as of May 18, 2020 there are

1254 positive cases there according to the Pa. Dept. of Health.

5

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).8

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”

8Compare Travis v. Carvajal, 2020 WL 2496920 (N.D. Ohio May 14,

2020). In Travis, the court disagreed with Comacho Lopez and similar courts,

and found that an inmate’s petition for a writ of habeas corpus pursuant to

28 U.S.C. §2241 seeking his immediate release from prison in light of

circumstances surrounding the COVID-19 pandemic, although he seeks

relief “which falls within the ambit of habeas corpus relief”, that “the basis for

this relief is clearly grounded in his conditions of confinement at [the prison]

and the alleged resulting constitutional violations.” The court then found that

since the inmate “does not challenge the execution of his sentence, §2241

is not the proper vehicle for his claims.” In the instant case, the court finds

that Gottstein is not challenging the conditions in FCI-Schuylkill and is not

alleging that they violate his constitutional rights. Rather he is attacking the

manner in which his sentence is executed, i.e., he seeks to have the

remainder of his court ordered prison sentence altered to a sentence of

home confinement. See Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir.

2012) (“[Third Circuit] ha[s] held that §2241 ‘confers habeas jurisdiction to

hear the petition of a federal prisoner who is challenging not the validity but

the execution of his sentence.’”) (citations omitted). This court specifically

sentenced Gottstein as follows: “The defendant is hereby committed to the

custody of the [BOP] to be imprisoned for a total term of [78] Months.” (Doc.

637). As such, Ҥ2241 extends jurisdiction to claims concerning the

execution of a federal inmate’s sentence.” Id. at n. 4.

6

“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); 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 Gottstein is not an ICE detainee

awaiting his removal, he similarly seeks immediate release from custody at

FCI-Schuylkill since he believes his health is in imminent risk at the prison

due to its alleged unsafe conditions and the possibility that he may contract

7

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). 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 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, Gottstein

clearly seeks relief that affects the execution of his 78-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. Gottstein does not

challenge the conditions of his confinement at FCI-Schuylkill and seek

damages or equitable relief, and thus his filing is 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).

8

Gottstein does not claim to have filed an administrative remedy by

submitting a request to the warden for release to home confinement due to

the COVID-19 virus, pursuant to BOP 5050.50. Nor does he allege that he

should be excused from the exhaustion requirement. Further, Gottstein does

not allege that attempting to file administrative remedies would be futile or

that the COVID-19 virus along with his alleged medical conditions present

an extraordinary situation in which exhaustion should be waived.

In any event, it is clear that Gottstein has not exhausted all of his BOP

administrative remedies prior to his instant filing. First, Gottstein must file a

request with Warden Finley for release to home confinement, and then he

must file an appeal with the BOP Regional Director, within 20 calendar days

of the date the Warden signed the response. 28 C.F.R. §542.15(a). Then if

the Regional Director denies his appeal, Gottstein must appeal that decision

to the BOP General Counsel, within 30 calendar days from the date the

Regional Director signed the response. Id. The appeal to the General

Counsel is the final administrative appeal in the process. Id.

Since Gottstein has not exhausted his administrative remedies

available with the BOP regarding his habeas petition, 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

9

risk if 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, the court finds that Gottstein must exhaust all of his

available BOP administrative remedies regarding any request for his release

to home confinement. Even though the inmate in the Furando case was still

waiting for his decision from the BOP as to whether he was eligible for

release to home confinement under the BOP’s guidelines pursuant to the

CARES Act, and even though Cordaro was denied such release by Finley

on April 18, 2020, this court found 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 [Gottstein’s] case fit squarely within the purposes of

the exhaustion requirement.” (citing Furando, 2020 WL 1922357, *3 (stating

10

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 as this court pointed out in

Cordaro, 2020 WL 2084960, *5, “there are no confirmed cases of the

COVID-19 virus at FCI-Schuylkill.”

As such, before the court will review any request by Gottstein for home

confinement placement due to the COVID-19 virus, he must exhaust all of

his administrative remedies. Thus, insofar as the court construes Gottstein’s

instant petition as a habeas corpus petition under 28 U.S.C. §2241, it 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

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 Gottstein’s petition is construed as a motion for

compassionate release from prison to home confinement under, 18 U.S.C.

11

§3582(c)(1)(A)(i), as amended by the First Step Act (“FSA”), Pub. L. No. 115-

391, 132 Stat. 5194 (Dec. 21, 2018), it will also be dismissed without

prejudice for failure to exhaust administrative remedies. See Cordaro, 2020

WL 2084960, *5; United States v. Alexander, 2020 WL 2468773, *5 (M.D.La.

May 13, 2020) (“This Court, and other courts in this circuit, have recognized

that the exhaustion requirement of §3582(c)(1)(A) is mandatory [even in light

of the COVID-19 pandemic] and that, if a petitioner fails to exhaust his

remedies, this Court must deny his motion for lack of jurisdiction.”) (string

citations omitted); United States v. Soliz, 2020 WL 2500127, *3 (S.D.Tx. May

14, 2020) (same) (citing United States v. Reeves, 2020 WL 1816496, at *2

(W.D.La. Apr. 9, 2020) (“While the Court is well aware of the effects the

Covid-19 pandemic ..., §3582(c)(1)(A) does not provide this Court with the

equitable authority to excuse Reeves’ failure to exhaust his administrative

remedies or to waive the 30-day waiting period.”); United States v. Clark,

2020 WL 1557397, at *3 (M.D.La. Apr. 1, 2020) (denying motion for

compassionate release based on fears of contracting COVID-19 in prison

where defendant conceded he had not exhausted administrative remedies)).

Gottstein claims, without support, that he has underlying medical

conditions putting him at a higher risk if he does contract COVID-19, and that

based on his alleged conditions, and his allegation that FCI-Schuylkill is not

adhering to the safety measures to protect inmates from contracting the

virus, appears to contend that there are “extraordinary and compelling”

reasons justifying his compassionate release under §3582(c)(1)(A)(i).

12

Nonetheless, Gottstein has not been exposed to the COVID-19 virus at FCI-

Schuylkill. Further, Gottstein has not controverted with any evidence the

substantial steps identified in the BOP’s website and by respondent in the

Cordaro case that the BOP is taking to protect the health and safety of both

inmates and staff at the prison. As the court mentioned in Cordaro, 2020 WL

2084960, *5, “there are presently no confirmed cases of the COVID-19 virus

at FCI-Schuylkill.”

Thus, to the extent that Gottstein’s instant filing is construed as a

motion for compassionate release, it 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). United States v. Early, 2020 WL 2572276 (W.D. Pa. May 21,

2020) (court held that before a prisoner can file a motion for compassionate

release with the court he must exhaust all of his BOP administrative

remedies and that exhaustion is mandatory).

Thus, even if Gottstein is deemed as alleging that “extraordinary and

compelling reasons” justify his compassionate release from prison, the court

13

cannot address this 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), [Gottstein] 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 exhausts administrative remedies

with the BOP.) (citing18 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

14

to waive the exhaustion requirement.”); Cruz, 2020 WL 1904476, *3; United

States v. Early, 2020 WL 2572276 (W.D. Pa. May 21, 2020).

Further, the court finds that Gottstein 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. Rather, he merely speculates that he may be exposed to

COVID-19 if he comes into contact with someone at the prison who has the

virus and he speculates that based on his alleged conditions he would suffer

more severe complications 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

[Gottstein] 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.”

In his recent motion for appointment of counsel, (Doc. 781), Gottstein

concedes that there are no COVID-19 cases at FCI-Schuylkill.

As the Third Circuit in Raia, 954 F.3d at 597, 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

15

environment, we conclude that strict compliance with §3582(c)(1)(A)’s

exhaustion requirement takes on added—and critical—importance.” Id.

Finally, to the extent Gottstein is deemed as relying on the CARES Act,

which was signed into law on March 27, 2020, as well as Attorney General

Barr’s March 26, 2020 and April 3, 2020 Memoranda to the BOP, such

reliance is misplaced.9

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.

9Since the respondent in Cordaro, 2020 WL 2084960, included Barr’s

two Memoranda to the BOP as Exhibits 2 & 3, (Doc. 544-1), the court does

not repeat the details of them. See also Furando, 2020 WL 1922357, *2-3

(court summarized Barr’s Memoranda).

16

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.

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

17

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

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).

Recently in Soliz, 2020 WL 2500127, *4, the court stated:

While the CARES Act allows the BOP Director to lengthen the amount

of time a prisoner may be placed in home confinement, nothing in the

Act grants individual prisoners the right to serve the remainder of their

sentence in home confinement. The BOP still has exclusive authority

to determine where a prisoner is housed. 18 U.S.C. §3621(b).

Defendant’s initial remedy to challenge this determination is by

administrative action within the BOP. The proper vehicle to thereafter

challenge the BOP’s administrative decisions is a petition pursuant to

28 U.S.C. §2241, which must be filed in the same district where the

prisoner is incarcerated [after first exhausting his administrative

remedies].”

(citation and footnote omitted).

Thus, since Gottstein has not exhausted his mandatory administrative

remedies with the BOP to the extent his instant filing is 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

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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 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.”).

Finally, since Gottstein’s motion is being dismissed, the court will deny

his motion for appointment of counsel. (Doc. 718).

III. CONCLUSION

Based on the foregoing, that aspect of Gottstein’s motion for transfer

to home confinement related to the COVID-19 pandemic will be construed

as a §2241 habeas petition, (Doc. 697). The Clerk will be directed to open it

as a separate civil case and forward to the petitioner the appropriate

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paperwork for such a petition to be completed, the petitioner will then return

it with the appropriate filing fee or a completed application for in forma

pauperis status. The petition will be DISMISSED WITHOUT PREJUDICE

due to Gottstein’s failure to exhaust his BOP administrative remedies under

28 C.F.R. §§542.10. To the extent that Gottstein’s filing is considered as a

motion for compassionate release, it is properly filed, will remain in his

criminal case and be DISMISSED 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 Gottstein is deemed as requesting

the court to order the BOP to find that he is 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. Gottstein’s motion for appointment of counsel, (Doc. 718), will be

DENIED. An appropriate order will follow.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Dated: June 10, 2020

17-188-02

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