CHU v. HOLLINGSWORTH

Filing 2

MEMORANDUM OPINION. Signed by Judge Renee Marie Bumb on 7/28/2014. (dmr)(n.m.)

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________________
:
SCHUCHING M. CHU,
:
: Civil Action No. 14-4598 (RMB)
Petitioner,
:
:
v.
:
MEMORANDUM OPINION
:
JORDAN HOLLINGSWORTH,
:
:
Respondent.
:
_______________________________________
:
BUMB, District Judge:
This matter comes before the Court upon Petitioner’s § 2241
petition (“Petition”), see Docket Entry No. 1, which arrived
accompanied by his filing fee.

See id.

On December 3, 2007, the Government charged Petitioner (a
naturalized United States citizen born in Taiwan) and ten of his
co-defendants with smuggling Chinese counterfeit goods worth at
least $200 million into the United States, trafficking in Chinese
counterfeit goods, conspiracy to defraud the United States and to
smuggle/traffic counterfeit goods, etc.

See USA v. Chu, Crim.

Action No. 07-1143 (DC) (S.D.N.Y.), Docket Entries Nos. 1, 46 and
193 (indicating that Petitioner is also known as “Michael Chu”
and “Shu Chung Michael Chu”). Upon entering his guilty plea,
Petitioner filed a pre-sentencing memorandum: (a) stressing that
his sentencing range, under the plea deal reached, had reduced to
97-to-121 months; and (b) requesting maximum leniency in light of

the facts that, “at sentencing [he would be] 72½ years old . . .
[and] the average life expectancy of a person 72 years of age,
like [Petitioner,] is 12.04 years.”
at 6-7.

Id., Docket Entry No. 145,

Petitioner’s sentencing court duly considered these

facts and sentenced him to the shortest term available under the
plea deal, i.e., to a series of concurrent term with the 97-month
term being the longest.

See id., Docket Entry No. 148.

Petitioner then filed a direct appeal attacking his sentence
and a § 2255 motion asserting ineffective assistance of counsel
on the grounds that his counsel allegedly failed to explain to
him the terms of his plea deal and the sentence he faced.
id., Docket Entries Nos. 153 and 191.

See

Having his § 2255 motion

denied by his sentencing court, see id., Docket Entry No. 193,
Petitioner filed an appeal as to that collateral ruling.
id., Docket Entry No. 197.

See

The Second Circuit denied his direct

as well as collateral appeals for the reasons detailed by the
sentencing court, see id., Docket Entries Nos. 198 and 199, that:
(a) expressly reflected on the fact that, at the time of his §
2255 motion, Petitioner was 75 years old and suffered “from
advanced diabetes”; and (b) pointed out that Petitioner’s counsel
succeeded at negotiating the plea deal that yielded the
sentencing range 75% less than what Petitioner was facing ab
initio in light of the magnitude of his crimes and his bribing of
an undercover agent disguised as a union representative (who was

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paid $100,000 so to allow smuggling of counterfeit Chinese goods
through the Port Newark-Elizabeth Marine terminal in New Jersey).
Id., Docket No. 193, at 2-7.
As of now, Petitioner is completing his imposed term and
expecting to be released on December 20, 2014, that is, in less
than five months.

Notwithstanding his anticipated pre-release

transfer to a community correctional center (“CCC”), Petitioner
filed an administrative application with his warden seeking
compassionate release on the basis of his advanced age and
physical ailments.
5.

See Instant Matter, Docket Entry No. 1-1, at

The warden responded by detailing the standard applicable to

compassionate release applications and Petitioner’s circumstances
that rendered him unsuitable for that remedy.

See id.

Petitioner appealed, albeit untimely, to the Bureau of Prisons’
(“BOP”) Regional Office, which dismissed his appeal on the
timeliness grounds.

See id. at 1.

Petitioner did not seek

review from the Central Office of the BOP.

See id. at 4

(Petitioner’s list of exhibits making this fact apparent).
Instead, Petitioner filed the Petition at bar asserting that the
warden must have abused his discretion by denying Petitioner a
compassionate release.

See id., Docket Entry No. 1 (citing the

BOP policies and regulations).

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Petitioner’s challenges are subject to dismissal as
unexhausted administratively and, in addition, as
jurisdictionally deficient and for the lack of merit.
The BOP Administrative Remedy Program is a multi-tier
process that is available to inmates confined in institutions
operated by the BOP for “review of an issue which relates to any
aspect of their confinement.”

28 C.F.R. § 542.10.

An inmate

must initially attempt to informally resolve the issue with
institutional staff.

See 28 C.F.R. § 542.13(a).

If informal

resolution fails or is waived, an inmate may submit a BP-9
Request to “the institution staff member designated to receive
such Requests (ordinarily a correctional counsel [representing
the warden])” within 20 days of the date on which the basis for
the Request occurred, or within any extension permitted.
C.F.R. § 542.14.

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An inmate who is dissatisfied with the warden’s

response to his BP-9 Request may submit a BP-10 Appeal to the
Regional Director of the BOP within 20 days of the date the
warden signed the response.

See 28 C.F.R. § 542.15(a).

The

inmate may appeal to the Central Office on a BP-11 form within 30
days of the day the Regional Director signed the response.
id.

See

Appeal to the Central Office is the final administrative

appeal.

See id.

If responses are not received by the inmate

within the time allotted for reply, “the inmate may consider the

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absence of a response to be a denial at that level.”

28 C.F.R. §

542.18
Here, Petitioner failed to comply with the last two steps of
the administrative process because his appeal to the Regional
Office was untimely, and his appeal to the Central Office was
never attempted.

Correspondingly, his claims are subject to

dismissal as unexhausted.
While a dismissal for failure to exhaust is without
prejudice, here, prejudicial dismissal appears warranted since
Petitioner’s claims are raised without proper jurisdiction and,
in addition, are substantively meritless.
Generally, a § 2244 habeas petition is the proper vehicle
for a federal prisoner to challenge the fact – or calculation of
the duration – of his confinement, as it was imposed by the
sentencing court. See Preiser v. Rodriguez, 411 U.S. 475, 494
(1973); Tedford v. Hepting, 990 F.2d 745, 748 (3d Cir. 1993).
“Habeas relief is clearly quite limited: The underlying purpose
of proceedings under the ‘Great Writ’ of habeas corpus has
traditionally been to ‘inquire into the legality of the
detention, and the only judicial relief authorized was the
discharge of the prisoner or his admission to bail, and that only
if his detention were found to be unlawful.’” Leamer v. Fauver,
288 F.3d 532, 540 (3d Cir. 2002) (quoting Powers of Congress and
the Court Regarding the Availability and Scope of Review, 114
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Harv. L. Rev. 1551, 1553 (2001)).

Hence, while the habeas law

knows a handful of expansions of this core principle and,
occasionally, allows a federal prisoner to challenge the
“execution” of his sentence by raising slightly different
grounds, those expansions are invariably narrowly tailored.

See,

e.g., Ganim v. Fed. Bureau of Prisons, 235 F. App’x 882, (3d Cir.
2007) (relying on Woodall v. Fed. Bureau of Prisons, 432 F.3d 235
(3d Cir. 2005), and Pischke v. Litscher, 178 F.3d 497 (7th Cir.
1999), for the observation that § 2241 habeas jurisdiction is
present only in those challenges to denial of transfer where the
sought transfer necessarily entails “a quantum change in the
level of custody,” as is in a transfer from a prison to a CCC).
One of these narrowly-tailored expansions allowing for
habeas relief is the compassionate grounds, codified in 18 U.S.C.
§ 3582, pursuant to which a federal prisoner may be released from
incarceration prior to the end of a validly-imposed sentence.
That provision reads, in relevant part:
The court may not modify a term of imprisonment once it
has been imposed except that . . . the court, upon
motion of the Director of the Bureau of Prisons, may
reduce the term of imprisonment . . . if it finds that
. . . extraordinary and compelling reasons warrant such
a reduction . . . .
18 U.S.C. § 3582(c)(1)(A)(I) (emphasis supplied).
This statutory language makes it clear that, in order for an
inmate to be even considered for habeas relief, a motion for his

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sentence reduction should be filed by the Director of the BOP
after the Director approves an inmate’s application for
compassionate release.

Without satisfying this condition

precedent, an inmate has no basis for seeking habeas review.
id.

See

It follows that the BOP has broad discretion as to whether

to move the court for a sentence modification.

In light of this

broad statutory grant of discretion, federal appellate and
district courts have determined that the BOP’s decision regarding
whether or not to file a motion for compassionate release is
simply judicially unreviewable.

See Fernandez v. United States,

941 F.2d 1488, 1493 (11th Cir. 1991) (holding that the BOP’s
decision whether to seek a compassionate release under the
predecessor to § 3582(c)(1)(A)(i) was unreviewable); Simmons v.
Christensen, 894 F.2d 1041, 1043 (9th Cir. 1990) (same); Turner
v. U.S. Parole Comm’n, 810 F.2d 612, 615 (7th Cir. 1987) (same);
see also Crowe v. United States, 430 F. App’x 484, 485 (6th Cir.
2011) (“the BOP’s decision regarding whether or not to file a
motion for compassionate release is judicially unreviewable”)
(collecting cases); Engle v. United States, 26 F. App’x 394, 397
(6th Cir. 2001) (a district court lacks “jurisdiction to sua
sponte grant compassionate release,” and“[a] district court may
not modify a defendant’s federal sentence based on the
defendant’s ill health, except upon motion from the Director of
the Bureau of Prisons”); Crawford v. Woodring, 2009 U.S. Dist.
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LEXIS 127300 (C.D. Cal. Dec. 11, 2009) (dismissing, as
unreviewable, prisoner’s § 2241 request for an order directing
the BOP to move for early release under § 3582(c)(1)(A)(i));
Gutierrez v. Anderson, 2006 U.S. Dist. LEXIS 79580 (D. Minn. Oct.
30, 2006) (same); accord United States v. Yuk Rung Tsang, 2014
U.S. Dist. LEXIS 26580, at *2 ( E.D. Mich. Mar. 3, 2014) (“a
federal court lacks jurisdiction to review a decision by the BOP
not to seek a compassionate release”); United States v. Stokes,
2013 U.S. Dist. LEXIS 146042 (N.D. Ohio Oct. 9, 2013) (same);
Johnson v. United States, 2013 U.S. Dist. LEXIS 68809 (W.D. Ky.
May 14, 2013); Huff v. United States, 2012 U.S. Dist. LEXIS
106656 (E.D. Tenn. July 31, 2012); United States v. Najib
Shemami, 2012 U.S. Dist. LEXIS 27125 (E.D. Mich. Mar. 1, 2012).
Indeed, the district courts in this Circuit reached the same
conclusion and, moreover, the Court of Appeals for the Third
Circuit affirmed that finding.

See, e.g., Share v. Krueger, 2012

U.S. Dist. LEXIS 181919 (M.D. Pa. Dec. 26, 2012), aff’d, 553 F.
App’x 207, 209 (3d Cir. 2014) (declining to apply the narrow
Woodall expansion of the habeas mandate to the claims challenging
an administrative denial of compassionate release and concluding
that an application seeking judicial review of such denial,
“despite the title it bears, [would] not [be] properly brought as
a § 2241 petition”).

Hence, Petitioner’s application is subject

to prejudicial dismissal for lack of jurisdiction.
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Moreover, even if this Court were to: (a) factor in that
Krueger was an unpublished Court of Appeals’ decision; and (b)
hypothesize that the Court of Appeals might render a different
determination in a precedential opinion, the Petition still fails
because the very fact that Petitioner’s age and health
circumstances had already been considered by his sentencing Court
and the Second Circuit would necessarily render his claims
meritless.
A substantively indistinguishable scenario was entertained
by the Fifth Circuit in Todd v. Federal Bureau of Prisons, 2002
U.S. App. LEXIS 28589 (5th Cir. 2002).

In Todd, an inmate filed

a § 3582(c)(1)(A) request for “compassionate release” in light of
the inmate’s advanced age, poor health and the hard life he had
oversees prior to his incarceration in the United States.
See id. at *3.

His request was denied by the warden, who noted

that those circumstances were already taken into consideration at
the time when the length of the inmate’s sentence was determined.
See id.

When the inmate appealed to the Regional Office, he was

further explained that a recommendation for compassionate release
required “extraordinary circumstances that could not have been
reasonably foreseen at the time of sentencing.”

Id.

He then

appealed to the Central Office, which guided him that §
3582(c)(1)(A) was, generally, restricted to those inmates who
suffered from such a serious medical condition that it was likely
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to be “terminal, with a determinate life expectancy.”

Id.

Displeased with these administrative findings, the inmate filed a
§ 2241 petition and, having it denied, appealed to the Fifth
Circuit.

The Fifth Circuit took notice of the above-cited

decisions (where other courts of appeal ruled that § 2241
jurisdiction does not lie for the purposes of review of
administrative decisions to decline filing a motion for
“compassionate release”) but, prudentially, ruled as follows:
Although we must always be sure of [subject matter]
jurisdiction, as a prudential matter we decline to
decide this question because [the inmate’s] claim fails
even if we assume that [there is § 2241] jurisdiction
to review his [claims]. The [Administrative Procedure
Act] requires us to hold unlawful and set aside any
agency action that is arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.
Section 3582(c)(1)(A) itself gives the [BOP] discretion
to reduce the term of imprisonment if “extraordinary
and compelling reasons warrant such a reduction.” The
Bureau’s regulation implementing the statute states
that the Bureau uses 3582(c)(1)(A) “in particularly
extraordinary or compelling circumstances which could
not reasonably have been foreseen by the court at the
time of sentencing.” The warden, Regional [Office and
Central Office] specifically noted that the [age/
health/prior life events] circumstances cited by [the
inmate] in support of his request for compassionate
release were taken into account . . . when his sentence
was determined. [Thus,] the Bureau’s decision not to
grant [the inmate’s] request was made in accordance
with its regulations, and was not arbitrary or
capricious.
Id. at *4-5 (footnotes omitted).
The Todd reasoning is on point here.

Petitioner’s

sentencing judge was already presented with and duly considered

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the impact of Petitioner’s age and health: at the time when the
judge sentenced Petitioner and, in addition, when the judge
addressed Petitioner’s collateral § 2255 attack.

The Second

Circuit, being presented with the same, affirmed Petitioner’s
sentence directly and collaterally adopting the factual findings
and rationale of the sentencing judge’s conclusions.
Petitioner now invites this Court to sit in de facto
appellate review of the Second Circuit.
do.

That this Court cannot

While Petitioner argues that his warden’s determination was

an abuse of discretion under the BOP’s policies and regulations,
his claims fail for the reasons articulated in Todd.
Thus, Petitioner’s claims are also subject to prejudicial
dismissal on the merits, in addition to being subject to
dismissal because of their jurisdictional and procedural defects.
Accordingly, the Petition, Docket Entry No. 1, will be
denied on these three alternative grounds: as unexhausted, as
filed without proper jurisdiction and as meritless substantively.
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: July 28, 2014

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