Opinion
CIVIL NO. 3:20-CV-993
12-10-2020
GJETO PRELAJ, Petitioner, v. D.K. WHITE, Respondent.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
This case presents a federal habeas corpus petition filed by Gjeto Prelaj, a federal inmate housed at the Low Security Correctional Institution (LSCI) Allenwood, who is serving an 54-month federal sentence for conspiracy to engage in access device fraud. According to this habeas corpus petition, in addition to this pending federal sentence, Prelaj is also the subject of an immigration detainer seeking to hold him pending removal from the United States once his term of incarceration is completed. (Doc. 1).
According to Prelaj, the Bureau of Prisons recently determined that it can safely house the petitioner at LSCI Allenwood and has declined to grant him an early release from custody due to the current COVID-19 pandemic. This agency decision, in turn, has inspired the instant federal habeas corpus petition. Prelaj has filed a pleading styled as an emergency petition for habeas corpus relief. (Id.) In this petition Prelaj alleges that he "is a non-violent, non-terrorist, non-sexual offender, who has a high risk of mortality via Coronavirus-Disease . . . due to pre-existing medical conditions" including diabetes, high cholesterol and obesity. (Id.) Based upon these averments, and relying upon the provisions of the recently enacted Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Prelaj invites us to exercise our habeas corpus jurisdiction and afford him two types of extraordinary relief. First, he seeks an order lifting the immigration detainer that is lodged against him. In addition, Prelaj demands his immediate release from federal custody. While Prelaj makes these demands of the court, it appears uncontradicted that Prelaj has not fully exhausted his administrative avenues for relief within the Bureau of Prisons with respect to any of these claims. Thus, Prelaj comes before us as a habeas corpus petitioner who has not exhausted his administrative remedies.
This matter has been fully briefed by the parties. (Docs. 1, 5). Accordingly, this case is now ripe for resolution. Having reviewed this petition, and the government's response, for the reasons set forth below, it is recommended that this petition be denied.
II. Discussion
In our view, as discussed below, Prelaj's emergency petition faces a series of insurmountable legal obstacles that combine to defeat this request for release from custody.
A. The Exhaustion Doctrine Bars Consideration of This Habeas Petition.
At the outset, this petition suffers from a fundamental procedural flaw, since the petitioner has failed to properly exhaust his administrative remedies within the federal prison system. Although 28 U.S.C. § 2241 contains no express exhaustion requirement, "[o]rdinarily, federal prisoners are required to exhaust their administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241." Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998); see also, e.g., Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981). These exhaustion rules serve an important and salutary purpose. The Court of Appeals requires administrative exhaustion of a claim raised under § 2241 for three reasons: "(1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy." Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 761-62 (3d Cir. 1996); see also Gambino, 134 F.3d at 171; Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988).
In order to facilitate this administrative exhaustion requirement, the Bureau of Prisons has established a clearly-defined procedure for addressing inmate grievances. See 28 C.F.R. § 542, et seq. Pursuant to this grievance process, an inmate must first attempt resolution of any issue on an informal level by presenting the matter to staff and allowing staff to attempt an informal resolution before an administrative remedy request is filed. See 28 C.F.R. § 542.13(a). If an inmate is unable to resolve his concerns informally with the staff, the prisoner may file a formal written complaint at the institution level with the Warden within 20 calendar days of the event that forms the basis of the grievance. § 542.14(a). If the Regional Director denies the appeal and the inmate remains dissatisfied, the inmate can lodge a final appeal to the BOP's Central Office in Washington, D.C. within 20 days of the denial. § 542.15(a). If denied by the Central Office, the inmate may then file a civil action. §§ 542.10, 542.15.
This case presents the very paradigm of an unexhausted petition since there is no record of Prelaj ever attempting to raise these COVID-related release issues administratively with the Bureau of Prisons prior to filing this petition for writ of habeas corpus. This procedural default now has substantive consequences for the petitioner. With respect to unexhausted habeas claims like those presented here, "[c]ourts in the Middle District of Pennsylvania have consistently held that 'exhaustion of administrative remedies is not rendered futile simply because a prisoner anticipates he will be unsuccessful in his administrative appeals . . . . .'" Ross v. Martinez, No. 09-1770, 2009 WL 4573686, at *3 (M.D. Pa. Dec. 1, 2009) (quoting Malvestuto v. Martinez, No. CIV.A. 1:09-CV-1339, 2009 WL 2876883, at *3 (M.D. Pa. Sept. 1, 2009)). Quite the contrary, rigorously applying these exhaustion requirements, courts have consistently rejected habeas petitions where the inmate-petitioners have failed to fully exhaust their administrative remedies. See, e.g., Johnson v. Williamson, 350 F. App'x 786 (3d Cir. 2009); Pinet v. Holt, 316 F. App'x 169 (3d Cir. 2009); Moscato, 98 F.3d 757.
As this court has previously explained when dismissing a federal prisoner's habeas petition for failure to exhaust administrative remedies:
In order for a federal prisoner to exhaust his administrative remedies, he must comply with 28 C.F.R. § 542. See 28 C.F.R. § 542.10, et seq.; Lindsay v. Williamson, No. 1:CV-07-0808, 2007 WL 2155544, at *2 (M.D. Pa. July 26, 2007). An inmate first must informally present his complaint to staff, and staff shall attempt to informally resolve any issue before an inmate files a request for administrative relief. 28 C.F.R. § 542.13(a). If unsuccessful at informal resolution, the inmate may raise his complaint with the warden of the institution where he is confined. 28 C.F.R. § 542.14(a). If dissatisfied with the response, he may then appeal an adverse decision to the Regional Office and the Central Office of the BOP. 28 C.F.R. §§ 542.15(a), 542.18. No administrative appeal is considered finally exhausted until a decision is reached on the merits by the BOP's Central Office. See Sharpe v. Costello, No. 08-1811, 2008 WL 2736782, at *3 (3d Cir. July 15, 2008).Miceli v. Martinez, No. 08-1380, 2008 WL 4279887, at *2 (M.D. Pa. Sept. 15, 2008).
This exhaustion rule in federal habeas corpus proceedings is also subject to a procedural default requirement. As the Third Circuit has explained:
[A] procedural default in the administrative process bars judicial review because 'the reasons for requiring that prisoners challenging disciplinary actions exhaust their administrative remedies are analogous to the reasons for requiring that they exhaust their judicial remedies before challenging their convictions; thus, the effect of a failure to exhaust in either context should be similar.' Sanchez [v. Miller, 792 F.2d 694, 698 (7th Cir. 1986)]. We require exhaustion for three reasons: (1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy. Bradshaw [v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981)]; see also Schlesinger v. Councilman, 420 U.S. 738, 756-57, 95 S. Ct. 1300, 1312, 43 L.Ed.2d 591 (1975) (exhaustion avoids duplicative proceedings and insures that judicial review will be informed and narrowed); McKart v. United States, 395 U.S. 185, 195, 89 S. Ct. 1657, 1663, 23 L.Ed.2d 194 (1969) (circumvention of administrative process diminishes effectiveness of an agency by encouraging prisoners to ignore its procedures). Requiring petitioners to satisfy the procedural requirements of the administrative remedy process promotes each of these goals.Moscato, 98 F.3d at 761-62. For these reasons, it is now well settled that: "a federal prisoner who challenges a [prison decision] within a federal institution, fails to exhaust his administrative remedies because of a procedural default, and subsequently finds closed all additional avenues of administrative remedy, cannot secure judicial review of his habeas claim absent a showing of cause and prejudice."
Id.
These basic legal tenets apply here and are fatal to this habeas corpus petition, which seeks judicial review of a prison placement decision under the CARES Act without full compliance by the petitioner with prison rules regarding appeals of such decisions. This court has specifically held that such claims must be administratively exhausted before they are presented in federal court. See e.g., Gottstein v. Finley, No. 3:20-CV-0935, 2020 WL 3078028, at *4 (M.D. Pa. June 10, 2020); Cordaro v. Finley, No. 3:10-CR-75, 2020 WL 2084960, at *5 (M.D. Pa. Apr. 30, 2020). Therefore, with respect to his CARES Act custody complaints, the petitioner is an inmate who has failed to fully exhaust his remedies and now fails to provide cause and prejudice that could excuse this earlier procedural default. Accordingly, these unexhausted claims should be dismissed.
B. To the Extent that the Petition Challenges Prelaj's Immigration Detainer or Removal Proceedings , it is Premature and Improper.
Further, Prelaj's petition also seeks to vacate an immigration detainer that is lodged against the petitioner. To the extent that the petitioner seeks to invoke habeas relief at this time, while he is serving a federal criminal sentence, to preemptively litigate what he anticipates to be future immigration detention, his petition is premature and fails for a single, simple reason. Habeas jurisdiction under § 2241 to challenge immigration actions only extends to persons who are actually "in custody" of immigration officials. When a prisoner serving a federal sentence seeks to challenge his future anticipated immigration detention and removal, courts have uniformly held that the district court lacks jurisdiction to entertain such challenges since:
According to most courts which have considered the custody question, a prisoner who is serving a criminal sentence is not in [immigration] custody simply because the [immigration officials have] lodged a detainer against him with the prison where he is incarcerated. See Garcia-Echaverria v. United States, 376 F.3d 507, 510-11 (6th Cir. 2004); Zolicoffer v. United States Department of Justice, 315 F.3d 538, 541 (5th Cir. 2003).Green v. Apker, 153 F. App'x 77, 79 (3d Cir.2005). See also Drabovskiy v. Warden, FCI Allenwood, No. 4:10-CV-2226, 2010 WL 5463332, at *4 (M.D. Pa. Nov. 1, 2010), report and recommendation adopted, No. 4:10-CV-2226, 2010 WL 5463069 (M.D. Pa. Dec. 29, 2010). Simply put, given § 2241's custody requirement, Prelaj—who is serving a criminal sentence—may not attempt at this time to preemptively litigate the lawfulness of this immigration detainer.
Moreover, to the extent that Prelaj is inviting us under the guise of our federal habeas corpus jurisdiction to make substantive and preemptive rulings affecting the outcome of his upcoming immigration removal proceedings, it is well settled that we are barred from doing so by:
[T]he REAL ID Act, 8 U.S.C. § 1252(b)(9), which provides that "[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order," 8 U.S.C. § 1252(b)(9) (emphasis added), which may occur exclusively through a petition for review in the courts of appeals. § 1252(a)(5). Section 1252(b)(9) expressly precludes district court review "by habeas corpus ... or by any other provision of law (statutory or nonstatutory)" of an order of removal or "questions of law or fact, including interpretation and application of constitutional provisions" arising from any action taken or proceeding brought to remove an alien from the United States. § 1252(b)(9). Thus, the Supreme Court has construed § 1252(b)(9) as channeling judicial review of all "decisions and actions leading up to or consequent upon final orders of deportation," including "non-final order[s]," into one proceeding exclusively before a court of appeals. Reno v. Am.-Arab Anti-Discrimination Com., 525 U.S. 471, 483, 485 (1999) (emphasis added).Lopez v. Doll, No. 1:18-CV-1592, 2018 WL 4939447, at *4 (M.D. Pa. Oct. 4, 2018), report and recommendation adopted, No. 1:18-CV-1592, 2018 WL 4928964 (M.D. Pa. Oct. 11, 2018). Therefore, under the REAL ID Act, we simply lack jurisdiction to make any substantive rulings that would affect Prelaj's upcoming removal proceedings. Instead, his exclusive pathway for substantive immigration relief lies with the immigration judge, the Board of Immigration Appeals, and the Court of Appeals.
C. Prelaj May Not Bring a Claim for Habeas Relief Under the CARES Act.
There is yet another fundamental flaw in this petition. Citing to the newly enacted provisions of the CARES Act, which conferred additional discretion upon the Bureau of Prisons to authorize the early release of some offenders during the current COVID-19 pandemic, Prelaj invites us to order prison officials to exercise this discretion and direct his release. This we cannot do. On this score, Prelaj's petition confuses and conflates the discretion conferred upon prison officials with the jurisdiction of this court. Simply put:
[T]he determination of which inmates qualify for home confinement under the CARES Act is with the BOP Director. See 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). Thus, "[c]ourts ... do not have power to grant relief under Section 12003 of the CARES Act." Id.United States v. Cruz, 455 F. Supp. 3d 154, 159 (M.D. Pa. 2020). Accordingly, the rising tide of case law has consistently held that it is the responsibility of the Bureau of Prison, and not the courts, to make these COVID-related release determinations. Therefore, petitioners may not seek judicial relief under these provisions of the CARES Act. See, e.g., United States v. Sawicz, 2020 WL 1815851, *1 (E.D.N.Y. April 10, 2020); 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 WL 1984117, *3 (M.D. Pa. April 27, 2020) (same); United States v. Williams, 2020 WL 2748287, *1 (E.D. Tenn. May 27, 2020); United States v. Davis, No. 3:10-CR-187, 2020 WL 4530730, at *7 (M.D. Pa. Aug. 6, 2020); United States v. Frazier, No. CR 16-355, 2020 WL 6747979, at *3 (E.D. Pa. Nov. 17, 2020).
D. Prelaj's Constitutional Claims Fail.
Finally, Prelaj's petition can be liberally construed as raising Eighth Amendment constitutional concerns regarding the conditions of his confinement and the adequacy of his prison health care. However, even when cast in this light, the petition fails as a matter of law.
With respect to these constitutional habeas corpus claims based upon Prelaj's conditions of confinement, recently the Court of Appeals has held that a habeas petitioner's "claim that unconstitutional conditions of confinement . . . require . . . release is cognizable in habeas." Hope v. Warden York Cnty. Prison, 972 F.3d 310, 325 (3d Cir. 2020). However, such claims, while legally cognizable, are judged against exacting standards. Thus, "a possible habeas attack on the conditions of confinement [is] cognizable in a federal habeas action only in extreme cases." Id. at 324 (emphasis in original) (citations omitted).
In this case, Prelaj's constitutional claims are premised upon alleged violations of the Eighth Amendment's prohibition against cruel and unusual punishment. Several overarching and animating constitutional considerations govern analysis of any Eighth Amendment claim. As the United States Court of Appeals for the Third Circuit has observed:
The Eighth Amendment protects against infliction of "cruel and unusual punishment." However, "not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny." Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). "After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Id. (citation and internal quotations omitted). "It is obduracy and wantonness, not inadvertence
or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock." Id.Fuentes v. Wagner, 206 F.3d 335, 344-45 (3d Cir. 2000).
Resolution of an Eighth Amendment claim therefore "mandate[s] an inquiry into a prison official's state of mind." Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Two considerations define that inquiry. We must first determine if the deprivation was sufficiently serious to fall within the Eighth Amendment's zone of protections. Id. at 298, 111 S. Ct. 2321. If not, our inquiry is at an end. However, if the deprivation is sufficiently serious, we must determine if the officials acted with a sufficiently culpable state of mind. Id. In other words, we must determine if they were motivated by a desire to inflict unnecessary and wanton pain. "What is necessary to establish an 'unnecessary and wanton infliction of pain ...' varies according to the nature of the alleged constitutional violation." Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).
Thus, while prison officials may violate an inmate's rights under the Eighth Amendment to the United States Constitution by displaying "deliberate indifference" to an inmate's medical needs, to sustain such a claim an inmate must:
[M]eet two requirements: (1) "the deprivation alleged must be, objectively, sufficiently serious;" and (2) the "prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation marks and citations omitted). In prison conditions cases, "that state of mind is one of 'deliberate indifference' to inmate health or safety." Id. "Deliberate indifference" is a subjective standard under Farmer-the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety.Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001).
The same guiding principles apply to inmate complaints regarding their conditions of confinement. "When an Eighth Amendment claim arises in the context of a challenge to conditions of confinement, we must determine if prison officials acted with 'deliberate indifference' to the inmate's health." Fuentes, 206 F.3d at 345 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). "The objective inquiry is whether the inmate was 'denied the minimal civilized measure of life's necessities.'" Id. (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1991)). In this setting, it is clear that:
The Eighth Amendment prohibits punishments inconsistent with "evolving standards of decency that mark the progress of a maturing society." Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L.Ed.2d 630 (1958)). Conditions of prison confinement violate the Eighth Amendment only if they "deprive inmates of the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)Atkinson v. Taylor, 316 F.3d 257, 272 (3d Cir. 2003). Thus, these claims also require proof of a both culpable state of mind and objective proof of physical conditions of confinement that shock the conscience and depart from minimal civilized standards of life's necessities.
Judged by these standards, Prelaj's Eighth Amendment claims fail since the Respondents have shown without contradiction that prison officials have taken reasonable steps to address the COVID-19 pandemic within its institutions. Thus, LSCI Allenwood is in compliance with the modified operations benchmarks that the Bureau of Prisons has implemented nationally. (Doc. 5, Ex. 1, Declaration of Drew Inman at ¶¶ 9-16.) In particular, the BOP has had a Pandemic Influenza Plan in place since 2012 and has modified its operations nationally in response to the COVID-19 pandemic. Further and notably, as of July 2020, there had been no confirmed or suspected cases of COVID-19 among inmates at LSCI Allenwood. Given the measures undertaken by prison staff, and the success prison officials have enjoyed curtailing the spread of the pandemic at this facility, it simply cannot be said that the Respondents have been deliberately indifferent to Prelaj's medical needs. Nor has Prelaj shown that that he is being confined in a setting that deprives him of the minimal civilized measure of life's necessities. In the absence of such proof, Prelaj's Eighth Amendment claims fail, and his petition for writ of habeas corpus should be denied.
III. Recommendation
Accordingly, for the foregoing reasons, upon consideration of this Petition for Writ of Habeas Corpus, IT IS RECOMMENDED that the Petition be DENIED, and since the petitioner has not demonstrated "a substantial showing of the denial of a constitutional right," 28 U.S.C § 2253(c)(2); see also Buck v. Davis, 137 S. Ct. 773- 75 (2017); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000) a certificate of appealability should not issue.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 10th day of December 2020.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge