United States District Court, M.D. North Carolina
2000, the petitioner Lewis Cornell was convicted of
conspiracy to distribute crack cocaine and sentenced to 360
months of imprisonment. 1:00-CR-204-3 at Doc. 299. His
sentence was later reduced to 240 months. Doc. 591. Last
fall, he filed a “Motion for Modification or Reduction
of Term of Imprisonment or Request that the Court Order the
Federal Bureau of Prisons to Do So Pursuant to 18 U.S.C.
§ 3582(C)(1)(A), ” which the Clerk docketed in a
new civil case as a petition pursuant to 28 U.S.C. §
2241. 1:17-CV-787 at Doc. 1. He contends that he is entitled
to “compassionate release” under the statutory
provision authorizing the Director of the BOP to move for a
modification on an inmate's sentence if
“extraordinary and compelling reasons warrant such a
reduction.” § 3582(c)(1)(A)(i).
motion, Mr. Cornell asserts that the Court has jurisdiction
to grant his motion and reduce his sentence because
extraordinary reasons exist under Title 18 of the United
States Code § 3582(c). Doc. 1 at 2. He asks the Court to
reduce his sentence or to exercise its inherent power to
recommend or direct the Director of the BOP to either agree
to a sentence reduction or to file a motion to reduce his
sentence. Doc. 1 at 9. He relies on United States v.
Holloway, 68 F.Supp.3d 310, 311 (E.D.N.Y. 2014) and
United States v. Fountain, No. CRIM. A. 91-63-16,
1993 WL 534219, at *1 (E.D. Pa. Dec. 17, 1993) for the
proposition that the Court has inherent authority to
recommend that the Director file the compassionate release
January 3, 2018, the United States Magistrate Judge filed an
Order and Recommendation, Doc. 3, pursuant to 28 U.S.C.
§ 636. The Magistrate Judge concluded that §
3582(c)(1)(A) only authorizes the Court to act when the
Director of the Bureau of Prisons files a motion and found no
statutory basis for the Court to “intervene in the
process.” Doc. 3 at 1-2. The Magistrate Judge further
concluded that to the extent Mr. Cornell was challenging the
decision by the Director not to file such a motion, that
issue could only be raised by a § 2241 petition for
habeas corpus brought in the district where Mr. Cornell is in
custody. Doc. 3 at 2-3. The Magistrate Judge recommended
denial of the motion without prejudice to a § 2241
motion in the proper district. Doc. 3 at 3.
Cornell timely filed objections. Doc. 5. He no longer
contends that the Court should order the BOP to file a
compassionate release motion, but he does contend that the
Court has the power to recommend to the BOP that it file such
a motion. He further disputes the Magistrate Judge's
conclusion that his motion should be treated as a § 2241
Cornell cites several cases which hold that § 2241 does
not authorize judicial review of the BOP's decision not
to file a motion for compassionate release. Waters v.
Rios, No. 17-CV-1367 (SRN/DTS), 2017 WL 3635315, at *1
(D. Minn. May 18, 2017), report and recommendation
adopted, No. 17-CV-1367 (SRN/DTS), 2017 WL 3668761 (D.
Minn. Aug. 23, 2017); Gutierrez v. Anderson, Civ.
No. 06-1714(JRT/JSM), 2006 WL 3086892 (D. Minn. Oct. 30,
2006); Morales v. United States, 353 F.Supp.2d 204,
205 (D. Mass. 2005).
are, however, cases which hold that § 2241 is or may be
an appropriate vehicle for an inmate's request for
compassionate release. See, e.g., Monsivais v.
Fox, No. CV 15-09695-R (KS), 2016 WL 768852, at *1 n.1
(C.D. Cal. Jan. 28, 2016); Harvey v. United States,
No. 08 CIV. 7487, 2009 WL 1939719, at *2 (S.D.N.Y. July 6,
2009); United States v. Maldonado, 138 F.Supp.2d
328, 332 (E.D.N.Y. 2001). And, as noted by the court in
Waters, “[s]everal courts have addressed
issues related to compassionate release presented in a habeas
petition without directly considering whether that was the
appropriate vehicle to do so.” Waters, 2017 WL
3668761, at *2 (collecting cases).
Mr. Cornell specifically disclaims relief before this Court
pursuant to § 2241, the Court need not decide this
issue. Instead, the Court will treat the motion as it is
presented by Mr. Cornell: as a § 3582(c)(1)(A) motion.
Cornell indirectly recognizes by abandoning his claim that
the Court should order the BOP to file a compassionate leave
motion, the cases - including those cited by Mr. Cornell -
unanimously hold that § 3582(c)(1)(A) does not give the
district courts any authority to review the BOP's
decision not to file a motion for compassionate release.
Waters, 2017 WL 3635315, at *1; Gutierrez,
2006 WL 3086892, at *2; Morales, 353 F.Supp.2d at
205; Glowka v. Zeigler, No. 5:13-CV-15324, 2014 WL
37087, at *4 (S.D. W.Va. Jan. 6, 2014). Many other courts
have agreed. For example, the Fourth Circuit by unpublished
opinion has held that a prisoner cannot seek review of the
BOP's refusal to file a compassionate relief motion
pursuant to 18 U.S.C. § 3582(c)(1)(A), the statute on
which Mr. Cornell relies. United States v. Dowdell,
669 Fed.Appx. 662 (4th Cir. 2016); accord,
Cruz-Pagan v. Warden, FCC Coleman-Low, 486 Fed.Appx.
77, 79 (11th Cir. 2012); DeLuca v. Lariva, 586
Fed.Appx. 239, 240 (7th Cir. 2014) (holding that the
BOP's decision not to move for compassionate relief is
“judicially unreviewable”); see,
e.g., Crowe v. United States, 430 Fed.Appx.
484, 485 (6th Cir. 2011) (collecting cases from 7th, 9th, and
11th Circuits); Meyer v. U.S. Bureau of Prisons, No.
3:17-CV-434-MOC, 2017 WL 3725613, at *5 (W.D. N.C. Aug. 29,
2017) (holding that “there is no legal basis for the
Court to grant Petitioner relief under § 3582(c)(1)(A)
absent the Bureau of Prisons' motion [for compassionate
relief], which it has chosen not to pursue in this
case.”); Burrell v. United States, No.
7:11-CR-00147-F-1, 2015 WL 5021947, at *3 (E.D. N.C. Aug. 21,
2015) (holding that “[t]he BOP's decision to deny
Burrell's request for compassionate release is not
reviewable by this court.”); see also United States
v. Hudson, 44 Fed.Appx. 457, 458 (10th Cir. 2002)
(noting that only the Director of the BOP can make a motion
for early release pursuant to § 3582(c)(1)(A)(i)).
motion and in his objections, Mr. Cornell asks the Court to
“use its auxiliary power to achieve the ends of
justice, ” and to “recommend that the BOP file a
§ 3582(c)(1)(A) motion.” Doc. 5 at 3; see
Doc. 1 at 9. He relies on Fountain, 1993 WL 534219,
at *1, in which a district court made such a recommendation
to the BOP, and on Holloway, 68 F.Supp.3d 310, in
which the district court recommended to the United States
that it not oppose a Rule 60(b) motion related to
court does not find either of these cases persuasive. In
Fountain, the court did not discuss its authority to
make such a recommendation, nor did it evaluate any other
factors beyond its belief that there was “considerable
merit” to defendant's request in deciding to make
its recommendation. Fountain, 1993 WL 534219,
at*1. As best the Court can tell, no other court
has followed the lead of the Fountain court to make
a similar recommendation.
facts of Holloway are significantly different from
those here. Mr. Cornell has not filed a Rule 60(b) motion,
and § 3582(c)(1)(A) does not authorize a motion for
compassionate release by the government. For the same
reasons, the summary order entered in United States v.
Tate, 3:94CR147, Doc. 151 (W.D. N.C. 2017), does not
support Mr. Cornell's motion here. Moreover, the Fourth
Circuit has not approved the rationale applied in
Holloway, and it appears that every district court
within this Circuit which has addressed the issue has
declined to apply Holloway to reduce a
defendant's sentence. See, e.g., United States v.
Carrizoza, No. 1:02-CR-00045-MR-1, 2017 WL 2951920, at
*2 (W.D. N.C. July 10, 2017); Green v. United
States, No. 4:06-cr-01322-TLW-4, 2017 WL 679644, at *3
(D.S.C. Feb. 12, 2017) (“Notably absent from
Holloway is an explanation of any statutory or
constitutional basis for vacating Holloway's
convictions.”); Slade v. United States, Nos.
4:08-CR-3-FL, 4:13-CV-132-FL, 2016 WL 3911918, at *4 (E.D.
N.C. July 15, 2016) (“Holloway is not binding
on this court, and it involved different charges and
resentencing considerations.”), appeal
dismissed, 675 F. App'x. 360 (4th Cir. 2017);
Wade v. United States, Nos. JKB-15-3372,
JKB-77-0565, 2015 WL 7732834, at *2 (D. Md. Nov. 30, 2015)
(“While the Holloway ruling is educational and
the court is sympathetic to Wade's documented medical
situation, it finds no basis to apply the benefits of the
Holloway decision, a New York federal district court
ruling, to Wade's criminal cases.”).
in § 3582(c) gives the Court the authority to make a
recommendation to the BOP. Congress has made initiation of
the compassionate release program an executive function under
the control of the Bureau of Prisons and there has been no
claim that the BOP has not followed its own rules or has
violated Mr. Cornell's constitutional rights in the way
it runs the program or applies the rules to him. Courts are
ordinarily not in the business of offering advisory opinions.
Moreover, it would be unusual to say the least for a court to
initiate the compassionate leave process by making a
“recommendation” to the BOP and then to rule on
the selfsame motion by the BOP once it was made. Indeed, such
a process might well raise a question about the court's
court's inherent authority is generally vested to manage
the affairs of the court, Link v. Wabash R.R. Co.,
370 U.S. 626, 630 (1962), and must be exercised with caution.
Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). It
is not a license to intervene in decisions committed to the
discretion of the Bureau of Prisons. To the extent the Court
has discretion to make such a recommendation in its inherent
authority, the Court declines to exercise it here. See
generally, United States v. Lucas, 460
Fed.Appx. 86, 87 (3d Cir. 2012) (upholding district
court's decision to deny an inmate's motion to issue
a non-binding recommendation to the BOP and noting that while
“no statute or rule limits the District Court's
discretion in issuing a non-binding recommendation, ”
such an action is not explicitly authorized by statute.)
IS THEREFORE ORDERED ...