Moore v. Federal Bureau of Prisons
MEMORANDUM OPINION AND ORDER: IT IS ORDERED that: 1. Opera Moore's 1 petition for a writ of habeas corpus, filed pur. to 28 U.S.C. § 2241, is DENIED; 2. The Court will enter an appropriate Judgment with this Memorandum Opinion and Order; 3. This matter is DISMISSED and STRICKEN from the Court's docket. Signed by Judge Joseph M. Hood on July 23, 2015. (MWZ) cc: COR (Mr. Moore via U.S. Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
FRANCISCO QUINTANA, Warden,
Civil No. 5:15-106-JMH
Petitioner Opera Moore is in custody of the Bureau of Prisons
(“BOP”) and is currently confined in the Federal Medical Center
located in Lexington, Kentucky (“FMC-Lexington”).
Moore has filed
a pro se motion for immediate release from custody, claiming that
his continued incarceration is a violation of his Eighth Amendment
rights. [D.E. 1].
In this motion, Moore challenges the BOP’s
decision denying his request for early release from custody under
its Reduction in Sentence (“RIS”) program, codified at 18 U.S.C.
§ 3582(c)(1)(A)(ii) and 4205(g).
purposes, the Clerk of the Court has properly classified Moore’s
motion as a petition for writ of habeas corpus filed pursuant to
28 U.S.C. § 2241.
The Court conducts an initial review of habeas petitions.
U.S.C. § 2243; Alexander v. N. Bureau of Prisons, 419 F. App’x
544, 545 (6th Cir. 2011).
It must deny a petition “if it plainly
appears from the [filing] 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 under Rule 1(b)).
evaluates Moore’s motion/petition under a more lenient standard
because he is not represented by an attorney.
Erickson v. Pardus,
551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th
At this stage, the Court accepts Moore’s factual
allegations as true, and construes all legal claims in his favor.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
In the present § 2241 habeas petition, Moore claims that he
has met all of the prerequisites under the BOP’s RIS program, also
known as the BOP’s Compassionate Release Program, but that the BOP
has denied his request for early release under this program and
that such denial violates his Eighth Amendment rights.
Opera Moore was convicted in August of 1996 in the Eastern
District of Missouri and is serving a 300-month sentence.
been incarcerated for approximately twenty (20) years.1 As grounds
Error! Main Document Only.Per the BOP’s website, Moore is age
75, and his projected release date is October 21, 2018. See
www.bop.gov/inmateloc/19575044 (last checked July 20, 2015).
for his request for early release from custody, he states that he
suffers from a plethora of acute, chronic, and painful medical
Moore submitted a request to the Warden for Compassionate
Release or RIS because he was an elderly inmate with medical
The Warden concluded that he met the requirements for
such release and forwarded his request to the BOP’s Central Office
for further review. [D.E. 1-1, Page ID# 7].
On March 25, 2015,
the BOP acknowledged that Moore had numerous medical conditions2,
but determined that a RIS was not appropriate for Moore at this
time and denied his request for a reduction in sentence pursuant
Release/Reduction in Sentence: Procedures for Implementation of 18
U.S.C.§ 3582(c)(1)(a) and 4205(g), Section 4(b) (“Elderly Inmates
with Medical Conditions”). [D.E. 1-1, Page ID## 6 and 8].
Moore suffers from severe peripheral vascular disease (narrowing
and hardening of the arteries to the extremities), pulmonary
fibrosis (scarring of lung tissue), chronic airway obstruction,
hypertension, rheumatoid arthritis, and chronic pain. He uses
an electric wheelchair to ambulate. He experiences significant
ischemic pain (pain related to a reduced blood supply) and is on
a chronic pain management regimen. He suffers from multiple comorbid medical conditions, but his condition is not terminal at
this time. [D.E. 1-1, Page ID# 8].
The BOP may seek the reduction of a prisoner's sentence in
federal court pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). The statute
states, “The court may not modify a term of imprisonment once it
has been imposed except that ... the court, upon motion of the
imprisonment ...” 18 U.S.C. § 3582(c)(1)(A) (emphasis added).
The Sixth Circuit has determined that a federal court lacks
jurisdiction to review a decision by the BOP not to seek a
compassionate release for an inmate under § 3582(c)(1)(A).
v. United States, 430 F. App’x 484, 485 (6th Cir.2011); see also
Engle v. United States, 26 F. App’x 394, 397 (6th Cir.2001) (“The
defendant's federal sentence based on the defendant's ill health,
except upon a motion from the Director of the Bureau of Prisons.”).
Other circuits have made the same determination.
See Fernandez v.
United States, 941 F.2d 1488, 1493 (11th Cir.1991); Simmons v.
Christensen, 894 F.2d 1041, 1043 (9th Cir.1990); Turner v. United
States Parole Comm'n, 810 F.2d 612, 615 (7th Cir.1987).
Sepanek, No. 12-CV-74-HRW, 2013 WL 954115 (E.D. Ky. March 11,
2013), this Court held that a prisoner is free to initiate the
compassionate release process, but the Court lacks jurisdiction to
order such relief in a § 2241 proceeding.
See Caudill v. Hickey,
No. 12–CV–7–KKC, 2012 WL 2524234, at *2 (E.D. Ky. June 29, 2011)
(holding that compassionate release must be requested in and
ordered by the sentencing court); Srivastava v. United States, No.
5:10–HC–2260–D, 2011 WL 3291823, at *2 (E.D.N.C. Aug. 1, 2011)
(finding that habeas petition seeking release because of allegedly
inadequate medical treatment was not cognizable under § 2241).
The Court is not unsympathetic to Moore’s plight and his
present health condition.
However, this Court simply does not
have jurisdiction to reverse the BOP’s decision not to move for a
reduction of Moore’s sentence under 18 U.S.C. § 3582(c)(1)(A)(i).
Accordingly, IT IS HEREBY ORDERED that:
Opera Moore’s petition for a writ of habeas corpus, filed
pursuant to 28 U.S.C. § 2241, [D.E. 1] is DENIED.
Memorandum Opinion and Order.
This matter is DISMISSED and STRICKEN from the Court’s docket.
This the 23rd day of July, 2015.
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