Allah a/k/a Kerr, Kevin v. Garland

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KEVIN KERR, a/k/a Allah, :

Petitioner :

: No. 1:21-cv-199

v. :

: (Judge Rambo)

WARDEN OF USP :

ALLENWOOD, :

Respondent :

MEMORANDUM

On February 4, 2021, pro se Petitioner Kevin Kerr (“Petitioner”), who is

currently incarcerated at the United States Penitentiary Allenwood in White Deer,

Pennsylvania (“USP Allenwood”), initiated the above-captioned action by filing a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. No. 1) and a

memorandum in support thereof (Doc. No. 2). In an administrative Order dated

February 5, 2021, the Court directed Petitioner to either pay the requisite filing fee

or complete and submit a motion for leave to proceed in forma pauperis within thirty

(30) days. (Doc. No. 4.) On April 15, 2021, this matter was dismissed without

prejudice for Plaintiff’s failure to comply with the administrative Order. (Doc. No.

11.) Later that day, however, the Court received the requisite $5.00 filing fee from

Petitioner. (Doc. No. 12.) Accordingly, in an Order dated April 16, 2021, the Court

reopened the case, vacated the dismissal Order, and directed Respondent to show

cause why Petitioner should not receive the relief he requests. (Doc. No. 13.)

Respondent filed his response on May 4, 2021. (Doc. No. 15.) Petitioner filed his

traverse on May 12, 2021. (Doc. No. 16.) Accordingly, Petitioner’s § 2241 petition

is ripe for disposition.

I. BACKGROUND

Petitioner is serving a life sentence imposed by the United States District

Court for the Eastern District of Michigan after a jury found him guilty of conspiracy

to distribute and possession with intent to distribute cocaine, cocaine base, and

heroin; conspiracy to launder monetary instruments; three (3) counts of laundering

monetary instruments; possession of a firearm by a convicted felon, and possession

of a firearm with an obliterated serial number. United States v. Kerr, 50 F. App’x

230, 231-32 (6th Cir. 2002). Prior to his transfer to USP Allenwood, Petitioner was

designated to the United States Medical Center for federal prisoners in Springfield,

Missouri, from August 27, 2009 until May 20, 2020. (Doc. No. 15-2 at 1.) While

there, the United States District Court for the Western District of Missouri issued an

Order on March 2, 2010, pursuant to 18 U.S.C. § 4245, committing Petitioner to the

custody of the Attorney General for hospital care and treatment in a suitable facility

until he is no longer in need of such care or until the expiration of his sentence,

whichever occurs earlier. See United States v. Kerr, No. 6:09-cv-3438 (W.D. Mo.)

(Doc. No. 13). This Order remains in effect and the United States files annual reports

regarding Petitioner’s status. See generally id.

At USP Allenwood, Petitioner is housed in the Transitional Care Unit

(“TCU”), which is “designed to address the transitional needs of mentally ill inmates

who have spent extended periods of time in secure treatment programs or restrictive

housing settings.” (Doc. No. 15-2 at 1.) The TCU is a “multidisciplinary,

collaborative effort designed to prepare mentally ill inmates to transition to a general

population setting.” (Id.) The TCU at USP Allenwood “is separated from the

general population in a separate housing unit.” (Id.)

On October 20, 2020, Petitioner was issued Incident Report 3443114 for

committing a violation of Code 334, Conducting a Business Without Authorization.

Petitioner had submitted to the Michigan Department of Licensing and Regulatory

Affairs annual reports and a certificate of amendment to renew an ecclesiastical

corporation in good standing. (Id. at 152.) That same day, Petitioner was

interviewed by a psychologist pursuant to 28 C.F.R. § 541.6 and Bureau of Prisons

(“BOP”) Program Statement 5270.09. (Id. at 154.) The psychologist noted that

Petitioner is a CARE3-MH inmate who has been diagnosed with schizophrenia and

has been prescribed Abilify pursuant to an involuntary medication order. (Id. 155-

56.) The psychologist concluded that Petitioner’s actions alleged in the incident

report appeared be related to his fixed belief that he is Allah and that he was hindered

by his lack of insight and demonstrated a lack of meaningful understanding and

appreciation for the nature of the alleged actions. (Id.) The psychologist noted that

Petitioner was unable to maintain a linear or coherent discussion for extended

lengths of time when certain topics, including the behavior alleged in the incident

report, were brought up. (Id.) Because of this, the psychologist concluded that

Petitioner would be unable to meaningfully participate in the disciplinary process

and recommended that he be found not responsible and not competent. (Id.)

Subsequently, the Unit Disciplinary Committee (“UDC”) found that Petitioner was

not competent and not responsible. (Id. at 153.) No sanctions were imposed. (Id.

at 157.)

In his § 2241 petition, Petitioner suggests that Respondent has violated his

rights under the Religious Freedom and Restoration Act by placing a substantial

burden on Petitioner’s “divine right to represent himself.” (Doc. No. 1 at 7.)

Petitioner also suggests that BOP staff have not provided adequate treatment as

required by the civil commitment order. (Id. at 8.) He also appears to suggest that

the finding that he is not competent should retroactively apply to render his criminal

conviction void. (Id. at 5-6.) Petitioner seeks all available relief, including a

“prisoner release order.” (Id. at 8.)

II. DISCUSSION

Respondent asserts that Petitioner’s § 2241 petition should be dismissed

because: (1) Petitioner failed to exhaust his administrative remedies; and (2) the

Court lacks subject matter jurisdiction because Petitioner is challenging something

other than the fact or duration of his confinement. (Doc. No. 15 at 5.) The Court

first considers Respondent’s jurisdictional arguments.

A. Challenges to Petitioner’s Criminal Conviction

In his § 2241 petition, Petitioner appears to challenge his criminal conviction,

including his competency to stand trial. It is well settled that to challenge the validity

of a sentence, a federal prisoner must file a motion to vacate pursuant to 28 U.S.C.

§ 2255 in the sentencing court, which is “already familiar with the facts of the case.”

See Boumediene v. Bush, 553 U.S. 723, 774-75 (2008); see also Russell v. Martinez,

325 F. App’x 45, 47 (3d Cir. 2009) (noting that “a section 2255 motion filed in the

sentencing court is the presumptive means for a federal prisoner to challenge the

validity of a conviction or sentence”). Conversely, a federal prisoner may challenge

the execution of his sentence, such as the denial or revocation of parole or the loss

of good-time credits, buy filing a petition pursuant to 28 U.S.C. § 2241 in the district

court for the federal judicial district where he is in custody. See 28 U.S.C. § 2241(a);

Rumsfeld v. Padilla, 542 U.S. 443-44 (2004); Coady v. Vaughn, 251 F.3d 480, 485

(3d Cir. 2001). However, if a petitioner shows “that a § 2255 motion ‘is inadequate

or ineffective to test the legality of his detention,’ . . . [he may] resort to § 2241 to

challenge the validity of the conviction or sentence.” See Brown v. Mendez, 167 F.

Supp. 2d 723, 726 (M.D. Pa. 2001); see also 28 U.S.C. § 2255(e); Litterio v. Parker,

369 F.2d 395, 395 (3d Cir. 1966) (“It is firmly established that the remedy available

to a federal prisoner under 2255 is exclusive in the absence of a showing that such

remedy ‘is inadequate or ineffective to test the legality of [the prisoner’s]

detention.’”).

A motion under § 2255 is not “inadequate or ineffective” if the sentencing

court has previously denied relief. See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.

1997). Nor is a § 2255 motion “inadequate or ineffective” merely because the inmate

“is unable to meet the requirements of [28 U.S.C.] § 2244 and § 2255(h), which

require a federal prisoner to obtain preauthorization from the appropriate United

States Court of Appeals before filing a second or subsequent § 2255 motion in the

sentencing court.” See Miller v. United States, No. 3:19-cv-2159, 2020 WL 820334,

at *2 (M.D. Pa. Jan. 9, 2020), report and recommendation adopted, 2020 WL

815777 (M.D. Pa. Feb. 18, 2020). Moreover, Ҥ 2255 is not inadequate or ineffective

merely because the petitioner cannot satisfy § 2255’s timeliness or other gatekeeping

requirements.” See Long v. Fairton, 611 F. App’x 53, 55 (3d Cir. 2015) (citing

Dorsainvil, 119 F.3d at 251). The Third Circuit:

permits access to § 2241 when two conditions are satisfied: First, a

prisoner must assert a “claim of ‘actual innocence’ on the theory that

‘he is being detained for conduct that has subsequently been rendered

non-criminal by an intervening Supreme Court decision’ and [Third

Circuit] precedent construing an intervening Supreme Court

decision”—in other words, when there is a change in statutory caselaw

that applies retroactively in cases on collateral review. And second, the

prisoner must be “otherwise barred from challenging the legality of the

conviction under § 2255.” Stated differently, the prisoner has “had no

earlier opportunity to challenge his conviction for a crime that an

intervening change in substantive law may negate.”

Bruce v. Warden Lewisburg USP, 868 F.3d 170, 180 (3d Cir. 2017) (quoting

Dorsainvil, 119 F.3d at 251). If a petitioner improperly challenges a federal

conviction or sentence under § 2241, the § 2241 petition must be dismissed for lack

of jurisdiction. See Cradle v. United States, 290 F.3d 536, 539 (3d Cir. 2002).

In the instant case, Petitioner’s § 2241 petition “fail[s] to satisfy § 2255(e)’s

safety valve provision.” Lanter v. Warden Lewisburg USP, 844 F. App’x 489 (3d

Cir. 2021). Nothing in the record indicates that Petitioner “had no earlier

opportunity to challenge his conviction for a crime that an intervening change in

substantive law may negate.” Gardner v. Warden Lewisburg USP, 845 F.3d 99, 103

(3d Cir. 2017). Moreover, Petitioner has filed a § 2255 motion and numerous

motions seeking leave to file a successive § 2255, all of which have been denied.

See In re Kerr, No. 20-2233 (6th Cir. Apr. 29, 2021) (Doc. No. 9.) Petitioner’s

inability to meet § 2255’s gatekeeping requirements does not render § 2255

inadequate or ineffective. See Long, 611 F. App’x at 55 (citing Dorsainvil, 119 F.3d

at 251). Petitioner’s challenges to his criminal conviction are, therefore, subject to

dismissal for lack of jurisdiction.

B. Challenges to Incident Report 3443114

Petitioner also appears to challenge Incident Report 3443114, which charged

him with committing a violation of Code 334, Conducting a Business Without

Authorization. As noted supra, however, no sanctions were imposed because the

UDC determined that Petitioner was not competent and not responsible. It is well

settled that “prison disciplinary proceedings are not part of a criminal prosecution

and the full panoply of rights due a defendant in such proceedings does not apply.”

Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Nevertheless, the Supreme Court

has held that that there can be a liberty interest at stake in disciplinary proceedings

in which an inmate loses good conduct time. Id. at 557. In the instant case, Petitioner

did not receive any sanctions that affected the duration of his sentence. Petitioner,

therefore, cannot maintain a cognizable due process claim regarding Incident Report

3443114. Cf. Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002) (affirming the

dismissal of a habeas petition where the imposed disciplinary sanctions did not result

in the loss of good conduct time).

C. Challenges to Civil Commitment and Conditions of Confinement

While Petitioner’s § 2241 petition is not a model of clarity, he challenges the

fact and execution of his civil commitment order, as well as various conditions of

confinement, including the mental health treatment he is receiving at USP

Allenwood. With respect to any claims regarding his conditions of confinement, the

Supreme Court has noted that “habeas corpus is not an appropriate or available

federal remedy” if the prisoner “attacking something other than the fact or length of

his confinement, and he is seeking something other than immediate or more speedy

release.” Preiser v. Rodriguez, 411 U.S. 475, 494 (1973). As the United States

Court of Appeals has explained:

When read together, there is a logical and coherent progression of

Supreme Court jurisprudence clarifying when § 1983 [or Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971),] is unavailable: whenever the challenge ultimately attacks the

“core of habeas”—the validity of the continued conviction or the fact

or length of the sentence—a challenge, however, denominated and

regardless of the relief sought, must be brought by way of a habeas

corpus petition. Conversely, when the challenge is to a condition of

confinement such that a finding in plaintiff’s favor would not alter his

sentence or undo his conviction, an action under § 1983 [or Bivens] is

inappropriate.

Leamer, 288 F.3d at 542. Thus, to the extent Petitioner raises constitutional claims

regarding his conditions of confinement, he must do so by filing a separate civil

action pursuant to Bivens.

Petitioner, however, may challenge his civil commitment pursuant to 18

U.S.C. § 4245 via his § 2241 petition. See In re Mendez, 137 F. App’x 502, 503 (3d

Cir. 2005). Upon review of the record, however, the Court concludes that Petitioner

is lawfully confined for mental health care and treatment under 18 U.S.C. § 4245.

The psychologist noted that Petitioner has a history of non-compliance with his

medication as well as “a longstanding patter of delusional ideation (including

believing he is ‘Allah’), disorganized and disordered thinking, auditory

hallucinations, irritability/agitation, and disruptive behavior. (Doc. No. 15-2 at 155.)

When he is not medicated, Petitioner displays several symptoms of psychosis. (Id.)

Even when medicated, Petitioner “remains delusional and psychotic with cognitive

and interpersonal rigidity, [but] presents as calmer and more emotionally stable and

with improved behavioral control and functioning.” (Id.) Moreover, the

Government has continued to file reports indicating that Petitioner continues to

suffer from significant mental illness for which hospitalization is needed. See

generally United States v. Kerr, No. 6:09-cv-3438 (W.D. Mo.); see also Kerr v.

Lynch, No. 17-3337-CV-S-RK-P, 2017 WL 11606758, at *2 (W.D. Mo. Oct. 24,

2017). Petitioner’s § 2241 petition “fails to set forth non-conclusory allegations and

particularized facts as to why his confinement pursuant to 18 U.S.C. § 4245 should

be amended in light of these determinations.” Kerr, 2017 WL 11606758, at *2.

Accordingly, any challenge to his civil commitment must be dismissed.1

III. CONCLUSION

Based on the foregoing, Petitioner’s petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241 (Doc. No. 1) will be dismissed. Any claims

challenging Petitioner’s conditions of confinement will be dismissed without

prejudice to his right to assert them in a civil rights action pursuant to Bivens. Any

claims challenging his criminal conviction will be dismissed for lack of jurisdiction

1 Given the conclusion that many of Petitioner’s challenges are not cognizable under § 2241 and

that he has failed to set forth facts as to why his civil commitment should be amended, the Court

declines to address Respondent’s argument that Petitioner failed to exhaust his administrative

remedies.

without prejudice to Petitioner’s right to file a § 2255 motion in the sentencing court,

subject to the pre-authorization requirements set forth in 28 U.S.C. §§ 2244 and

2255(h), as they may apply. An appropriate Order follows.

s/ Sylvia H. Rambo

United States District Judge

Dated: May 18, 2021