Hower v. Beard

Filing 4

MEMORANDUM OPINION & ORDER : 1) Hower's 1 Petition is DENIED; 2) This action is DISMISSED and STRICKEN from the docket; and 3) Judgment shall enter. Signed by Judge Joseph M. Hood on 6/25/20.(JLS)cc: CORand Michael David Hower by US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
MICHAEL DAVID HOWER,
Petitioner,
V.
H. ALLEN BEARD, JR., Warden,
Respondent.
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Civil Case No.
0:20-cv-074-JMH

MEMORANDUM OPINION
AND ORDER
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Petitioner Michael David Hower is a federal inmate currently
confined at the Federal Correctional Institution (“FCI”)-Ashland,
located in Ashland, Kentucky.

Proceeding without counsel, Hower

has filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241, in which he seeks compassionate release from custody
pursuant to 18 U.S.C. § 3582(c)(1)(A).

[R. 1].

This matter is before the Court to conduct the initial
screening required by 28 U.S.C. § 2243.

Alexander v. Northern

Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011).

A

petition will be denied “if it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to
relief.”

Rule 4 of the Rules Governing § 2254 Cases in the United

States District Courts (applicable to § 2241 petitions pursuant to
Rule 1(b)).
1 

In February 2009, Hower pled guilty in the United States
District Court for the Western District of Michigan to one count
of sexual exploitation of a child in violation of 18 U.S.C. §§
2251(a), (e) and 2256 (Count One) and one count of receipt of child
pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1),
2256.

United States v. Hower, No. 1:08-cr-084-RJJ-1 (W.D. Mich.

2008).

In December 2009, he was sentenced to a total term of

imprisonment of 420 months, consisting of a term of 260 months on
Count One and 240 months on Count Two, to be served concurrently
with Count One, except for 60 months.

Id.

Hower is currently

projected to be released from the custody of the federal Bureau of
Prisons

(“BOP”)

on

December

26,

2037.

See

https://www.bop.gov/inmateloc/ (last visited on June 24, 2020).
On May 26, 2020, Hower filed a motion for compassionate
release pursuant to 18 U.S.C. § 3582 in the Court that sentenced
him, citing the risk of death posed to him should he contract
COVID-19 in light of his current medical condition.

United States

v. Hower, No. 1:08-cr-084-RJJ-1 (W.D. Mich. 2008) at R. 118.
Hower’s motion was denied on June 10, 2020. Id. at R. 119. Hower’s
motion to vacate that Court’s Order denying his request for
compassionate release was denied on June 24, 2020.
121.

2

Id. at R. 120,

On June 22, 2020, the Clerk of this Court received Hower’s §
2241 petition, also seeking compassionate release pursuant to 18
U.S.C. § 3582(c)(1)(A), citing Hower’s “unusual medical risks and
vulnerabilit[ies] that put him at a much higher risk of death if
he contracts COVID-19.”

[R. 1].

He affirmatively states that he

has not exhausted his administrative remedies with respect to his
claims, explaining that his informal request to the Warden was
denied and that, although he filed a BP-9 with the Warden on June
16, 2020, he has not yet received a response, but “[h]e will deny
it.” [R. 1, at 8]. Hower cites the Sixth Circuit’s recent decision
in Wilson v. Williams, No. 20-3447, --- F.3d ---, 2020 WL 3056217,
at *5 (6th Cir. June 9, 2020), claiming that it stands for the
proposition that a prisoner seeking compassionate release under §
3582 may file a habeas petition pursuant to § 2241 without first
exhausting any available administrative remedies.

[R. 1, at 7-

8].
However, Hower’s petition must be denied without prejudice.
As

an

initial

Williams.

matter,

Hower

mischaracterizes

the

holding

in

In Williams, the Sixth Circuit explained that “where a

petitioner claims that no set of conditions [of confinement] would
be constitutionally sufficient the claim should be construed as
challenging the fact or extent, rather than the conditions, of the
confinement,” thus the petitioner may file a § 2241 habeas petition
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rather than pursue his claims in a civil rights complaint filed
pursuant to 42 U.S.C. § 1983 or Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971).

Wilson v. Williams, No.

20-3447, --- F.3d ---, 2020 WL 3056217, at *5 (6th Cir. June 9,
2020).

However,

requirement

that

at
a

no

point

petitioner

did
must

Wilson

even

exhaust

address

the

the

available

administrative remedies before filing such a petition, much less
hold that exhaustion was not required.
In fact, in United States v. Alam, 960 F.3d 831, 2020 WL
2845694 (6th Cir. 2020), the Sixth Circuit specifically rejected
the argument that a prisoner seeking compassionate release under
18 U.S.C. § 3582(c)(1)(A) need not comply with that statute’s
administrative exhaustion requirement prior to seeking relief in
federal court.

In Alam, the Sixth Circuit affirmed the district

court’s dismissal of a prisoner’s § 3582 motion filed prior to
exhaustion, explaining that “because this exhaustion requirement
serves valuable purposes (there is no other way to ensure an
orderly processing of applications for early release) and because
it is mandatory (there is no exception for some compassionaterelease requests over others), we must enforce it.”

Id. at *1.

The Sixth Circuit further found that the “unprecedented” COVID-19
pandemic

does

not

warrant

a

departure

from

the

exhaustion

requirement, as “[t]he seriousness of COVID-19 and its spread in
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many prisons make it all the more imperative that the prisons have
authority to process these applications fairly and with due regard
for the seriousness of each inmate's risk.”

Id. at *4.

Moreover, in Wilson, the Sixth Circuit further explained that
“[a] district court reviewing a claim under § 2241 does not have
authority to circumvent the established procedures governing the
various forms of release enacted by Congress.”

Wilson, 2020 WL

3056217, at *6. Hower’s motion, though filed as a § 2241 petition,
is actually a motion for modification of a sentence made pursuant
to 18 U.S.C. § 3582.

However, a § 3582(c) motion for modification

of an imposed term of imprisonment must be made to the Court that
sentenced him, and may not be filed in this Court.

See 18 U.S.C.

§ 3582(c) (providing the limited circumstances under which the
court that imposed a sentence may modify that sentence).

Indeed,

“although the [Bureau of Prisons] has the ability to recommend
compassionate release, only the sentencing court is authorized to
reduce a term of imprisonment.”
*11.

See Wilson, 2020 WL 3056217, at

That Hower has already requested such relief from his

sentencing court and his request has been denied does not somehow
authorize this Court to revisit that decision.
Because the motion filed by Hower is not a proper petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241, his request
for relief will be denied.
5

Accordingly, it is ORDERED as follows:
(1) Petitioner Michael David Hower’s petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1] is DENIED;
(2) This action is DISMISSED and STRICKEN from the Court’s
docket; and
(3) Judgment shall be entered contemporaneously with this
Memorandum Opinion and Order.
This 25th day of June, 2020.

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