United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
a federal prisoner proceeding pro se, filed this petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
The matter is before the court for a preliminary review under
28 U.S.C. § 2243, which provides that the court need not
seek a response from the respondent when it is clear on the
face of the petition that petitioner is not entitled to
in the United States District Court for the Eastern District
of Virginia found petitioner guilty of conspiring to cause a
false distress call to be communicated to the United States
Coast Guard, in violation of 18 U.S.C. § 371, and
causing a false distress call to be sent to the United States
Coast Guard, in violation of 14 U.S.C. § 88(c).
United States v. Deffenbaugh, 709 F.3d 266, 268 (4th
Cir. 2013). The trial court sentenced petitioner to 84 months
imprisonment. Id. The Fourth Circuit affirmed the
district court's judgment. Id. at 276.
Petitioner's release date is January 24, 2020.
See BOP Inmate Locator,
http://www.bop.gov/inmateloc/ (search by inmate number) (last
visited April 22, 2019)
February 2019, petitioner initiated this action by filing a
motion for injunctive relief (DE 1). The court directed
petitioner to file his claim on the forms prescribed for use
by this court, and petitioner did so (DE 3, 4). In his motion
and petition, petitioner seeks his immediate release under
the Federal Bureau of Prison's (“BOP”)
Elderly Home Detention Program, citing the First Step Act of
2018, P.L. 115-391, and 34 U.S.C. § 60541. (See
Mot. (DE 1) 1-2; Pet. (DE 4) 3).
First Step Act modifies 34 U.S.C. § 60541 to provide:
(A) The Attorney General shall conduct a pilot program to
determine the effectiveness of removing eligible elderly
offenders and eligible terminally ill offenders from a Bureau
of Prisons facilities and placing such offenders on home
detention until the expiration of the prison term to which
the offender was sentenced.
(B)In carrying out a pilot program as described in
subparagraph (A), the Attorney General may release some or
all eligible elderly offenders and eligible terminally ill
offenders from the Bureau of Prisons facilities to home
detention upon written request from either the Bureau of
Prisons or an eligible elderly offender or terminally ill
No. 115-391, § 603. The First Step Act further modifies
34 U.S.C. § 60541 to state: “the term eligible
elderly offender means an offender in the custody of the
Bureau of Prisons - (I) who is not less than 60 years of age;
(ii) who is serving a term of imprisonment that is not life
imprisonment . . . and has served the greater of 10 years or
2/3 of the term of imprisonment to which the offender was
sentenced . . .” Id.
to these amendments, discretion to release a prisoner to home
confinement lies solely with the Attorney General. 34 U.S.C.
§ 60541. Accordingly, this court lacks authority to
order petitioner's release. See, e.g., Xiao v. La
Tuna Fed. Corr. Inst., No. EP-19-CV-97-KC, 2019 WL
1472889, at *3 (W.D. Tex. Apr. 3, 2019) (dismissing §
2241 petition relying on § 60541); United States v.
Curry, No. CR 6:06-082-DCR, 2019 WL 508067, at *1 (E.D.
Ky. Feb. 8, 2019) (“Because the First Step Act gives
the Attorney General the discretion to determine if
and when home confinement is appropriate, this Court does not
have the authority to grant the requested relief.”)
(emphasis in original)); Burg v. Nicklin, No.
EP-19-CV-24-FM, 2019 WL 369153, at *3 (W.D. Tex. Jan. 29,
2019) (discussing § 60541 and concluding that prisoners
have no constitutional or statutory right to be placed in
home confinement, and the BOP has the discretion to determine
whether to assign a prisoner to home confinement).
filings could also be liberally construed as a request for
compassionate release. Title 18 U.S.C. § 3582(c)(1)(A),
as amended by the First Step Act, allows a federal prisoner
to file a motion for compassionate release after exhausting
all administrative appeals of a refusal by the BOP to bring
such a motion on the prisoner's behalf. See
First Step Act of 2018, P.L. 115-391, § 603(b)(1);
see also United States v. Bell, No. 3:93-CR-302-M,
2019 WL 1531859, at *1 (N.D. Tex. Apr. 9, 2019); United
States v. Overcash, No. 3:15-CR-263-FDW-1, 2019 WL
1472104, at *1 (W.D. N.C. Apr. 3, 2019).
it is not clear whether the BOP has refused to file a motion
for compassionate release on petitioner's behalf, and, if
so, whether petitioner exhausted his administrative appeals.
Even assuming petitioner fully exhausted the claim, the
“BOP's decision regarding whether or not to file a
motion for compassionate release is judicially
unreviewable.” Crowe v. United States, 430
Fed.Appx. 484, 485 (6th Cir. 2011) (collecting cases);
see DeLuca v. Lariva, 586 Fed.Appx. 239, 240 (7th
Cir. 2014); Cruz-Pagan v. Warden. FCC Coleman-Low,
486 Fed.Appx. 77, 79 (11th Cir. 2012); 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). If petitioner now seeks to
file his own motion for compassionate release, such a motion
must be filed in the sentencing court. See 18 U.S.C.
§ 3582(c)(1)(A); see also Ray v. Unnamed
Respondent, No. 5:18-HC-2252-FL, (DE 8) (dismissing
without prejudice § 2241 petition seeking compassionate
release based on First Step Act amendments); Himmel v.
Upton, No. 4:18-CV-804-O, 2019 WL 1112923, at *2 n. 6
(N.D. Tex. Mar. 11, 2019) (“any motion for
compassionate release under the newly amended provision of 18
U.S.C. § 3582(c)(1)(A) should be filed in the sentencing
court”); Pappalardo v. Holland, No.
5:18-HC-2056, (DE 24) (E.D. N.C. March 8, 2019) (denying
§ 2241 petition seeking compassionate release and noting
petitioner may seek relief in the sentencing court); Camp
v. United States of America, No. 5:19-HC-2001-BO, (DE 7)
(E.D. N.C. March 6, 2019) (transferring motion for
compassionate release to sentencing court); Mohrbacher v.
Ponce, No. CV18-00513-DMG (GJS), 2019 WL 161727, at *1
n. l (C.D. Cal. Jan. 10, 2019) (noting whether the First Step
Act supports compassionate release is properly resolved in
motion for sentence reduction).
these reasons, the court denies petitioner's motion for
injunctive relief and dismisses the instant petition without
prejudice. See Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008) (noting that, inter
alia, preliminary injunctive relief ...