Opinion
CRIMINAL CASE NO. 1:02-cr-00063-MR-WCM
02-10-2021
UNITED STATES OF AMERICA, Plaintiff, v. DAVID CLARENCE WARD, Defendant.
ORDER
THIS MATTER is before the Court on the Defendant's "Motion Pursuant to 18 U.S.C. § 3582(c)(1)(A) Consideration of First Step Act (All)" [Doc. 56].
I. BACKGROUND
On November 5, 2002, a jury found the Defendant guilty of one count of bank robbery; one count of armed bank robbery; one count of possession of a firearm during and in relation to a crime of violence; and one count of possession of a firearm by a convicted felon. [Doc. 25]. On January 28, 2003, the Court imposed a sentence of 430 months' imprisonment. [Doc. 30: Judgment]. The Defendant is currently incarcerated at USP Atlanta, and his projected release date is April 16, 2054.
See https://www.bop.gov/inmateloc/ (last visited Feb. 8, 2021).
On January 26, 2021, the Defendant filed the present motion seeking compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). [Doc. 56]. For grounds, the Defendant cites his "outstanding conduct" while in BOP custody and the ongoing coronavirus pandemic as grounds for release. [Id.]. He further argues that if he were sentenced today, he likely would have received a lesser sentence. [Id.]. Finally, the Defendant requests the appointment of counsel to represent in seeking a compassionate release. [Id. at 2].
II. DISCUSSION
Section 3582(c)(1)(A), as amended by The First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018), permits a defendant to seek a modification of his sentence for "extraordinary and compelling reasons," if the defendant has "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." 18 U.S.C. § 3582(c)(1)(A). The Court of Appeals for the Fourth Circuit has held that a district court lacks the authority to modify a sentence except in the narrow circumstances and procedures set forth in § 3582. See United States v. Goodwyn, 596 F.3d 233, 235 (4th Cir. 2010). The Defendant has the burden of demonstrating that he has complied with the requirements of § 3582 or that exhaustion of such remedies would be futile. See United States v. Freshour, No. 5:06-cr-00013-KDB-DCK, No. 2020 WL 3578315, at *1 (W.D.N.C. July 1, 2020) (Bell, J.).
The Fourth Circuit has not yet ruled on whether the exhaustion requirements in § 3582(c)(1)(A) are jurisdictional or merely a claims-processing rule. This Court, however, need not decide that issue in order to resolve the present motion. Either way, the Defendant must exhaust his administrative remedies as defined in § 3582(c)(1)(A) before filing a motion for compassionate release in this Court. See Ross v. Blake, 136 S. Ct. 1850, 1857 (2016) (finding that "mandatory exhaustion statutes . . . establish mandatory exhaustion regimes, foreclosing judicial discretion"); United States v. Williams, No. CR JKB-15-0646, 2020 WL 1506222, at *1 (D. Md. Mar. 30, 2020) (denying motion for reduction of sentence because defendant failed to exhaust his administrative remedies, but declining to decide whether exhaustion requirement is jurisdictional).
Here, the Defendant does not make any showing that he has submitted a compassionate release request to the warden of his facility prior to filing his request with the Court. The language of Section 3582(c)(1)(A) is clear: Before a defendant may seek a modification of his sentence in the courts, the defendant must first exhaust all administrative remedies or wait thirty days after submitting a request for release from the warden without receiving any response before filing a motion for a sentence reduction. Thus, the Defendant has not complied with the requirements of the statute, and the Court cannot grant the requested relief. Accordingly, the Defendant's motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A) is denied without prejudice.
The Defendant moves for the appointment of counsel to represent him in connection with filing a motion for compassionate release. The Defendant has no constitutional right to the appointment of counsel to file post-conviction motions. Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (citing Coleman v. Thompson, 501 U.S. 722, 756-57 (1991)); Rouse v. Lee, 339 F.3d 238, 250 (4th Cir. 2003), cert. denied, 541 U.S. 905 (2004) (citing Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987) (no constitutional right to counsel beyond first appeal of right)).
The Court may, in some circumstances, appoint counsel to represent a prisoner when the interests of justice so require and the prisoner is financially unable to obtain representation. See 18 U.S.C. § 3006A(a)(2)(B). In the instant case, however, the Defendant has failed to demonstrate that the interests of justice warrant the appointment of counsel. See United States v. Riley, 21 F. App'x 139, 141-42 (4th Cir. 2001).
IT IS, THEREFORE, ORDERED that the Defendant's "Motion Pursuant to 18 U.S.C. § 3582(c)(1)(A) Consideration of First Step Act (All)" [Doc. 56] is DENIED. The denial of the Defendant's request for compassionate release is WITHOUT PREJUDICE to refiling after the Defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the Defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the Defendant's facility, whichever is earlier.
IT IS FURTHER ORDERED that the Defendant's request for the appointment of counsel [Doc. 56] is DENIED.
IT IS SO ORDERED.
Signed: February 10, 2021
/s/_________
Martin Reidinger
Chief United States District Judge