GOLDBERG v. ORTIZ

Filing 5

OPINION. Signed by Judge Noel L. Hillman on 5/23/2017. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Petitioner,
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v.
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WARDEN ORTIZ,
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Respondent.
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______________________________:
MARK GOLDBERG,

Civ. Action No. 16-5535 (NLH)
OPINION

APPEARANCES:
Mark Goldberg
67605-054
Fort Dix
Federal Correctional Institution
Inmate Mail/Parcels
East: P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro se

HILLMAN, District Judge
On or about August 15, 2016, Petitioner Mark Goldberg
(“Petitioner”), a prisoner confined at the Federal Correctional
Institution (“FCI”) in Fort Dix, New Jersey, filed this Petition
for Writ of Habeas Corpus Under 28 U.S.C. § 2241, challenging
the Bureau of Prisons’ (“BOP”) refusal to file a motion on his
behalf for a compassionate release/sentence reduction pursuant
to 18 U.S.C. § 3582(c)(1)(A). 1

(ECF No. 1.)

Petitioner

The Petition and supplemental documents also include incidents
regarding denial of medical treatment and other conditions of
1

thereafter filed a “Motion for Summary Judgment” and a
“Supplement Petition for a Writ of Habeas Corpus Under 28 U.S.C.
§ 2241.”

(ECF Nos. 2, 3.)

For the reasons stated below, the

Petition will be dismissed for lack of jurisdiction.
I.

BACKGROUND
On November 4, 2015, Petitioner submitted his initial

request for compassionate release to the Warden of Fort Dix,
seeking a reduction in sentence so he can obtain custody of his
biological child who is currently in foster care.
On December 3, 2015, the warden denied his request.

(Pet. 1, 5.)
(Id.)

On

March 8, 2016, Petitioner sent a second request for
compassionate release to the warden, which was also denied.
(Id. at 2.)

Petitioner filed an administrative appeal, which

was denied by the BOP’s Central Office.

(Id.)

Despite letters

from the sentencing judge suggesting that she would support the
decision of the BOP to seek compassionate release on behalf of
Petitioner, Petitioner’s subsequent requests for release have
been denied.

(Supplemental Pet., ECF No. 3.)

In the instant Petition, Petitioner is requesting that the
Court order the BOP to “prepare and file a Motion supporting

confinement issues. However, such claims are not cognizable in
a habeas petition and must be brought in a civil rights action.
See Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002) (“when the
challenge is to a condition of confinement such that a finding
in plaintiff's favor would not alter his sentence or undo his
conviction, [a civil rights action] is appropriate”).
2

[Petitioner’s] Compassionate Release/Reduction in Sentence, 18
U.S.C. 3582(c)(1)a with [his] Sentencing Chief Judge Loretta
Preska.”
II.
A.

(Pet. 6.)

DISCUSSION
Legal Standard
Under 28 U.S.C. § 2241(c), habeas relief may be extended to

a prisoner only when he “is in custody in violation of the
Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3).

Habeas corpus review under § 2241 “allows

a federal prisoner to challenge the ‘execution’ of his
sentence.” Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241
(3d Cir. 2005).

Review is available “where the deprivation of

rights is such that it necessarily impacts the fact or length of
detention.” Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002).
Pursuant to Rule 1(b) and Rule 4 of the Rules Governing
Section 2254 Cases, this Court is required to preliminarily
review all habeas petitions to determine whether it “plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief.”

A district court is

“authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face.”
512 U.S. 849, 856 (1994).
B.

Analysis

3

McFarland v. Scott,

In the instant Section 2241 Petition, Petitioner is
requesting that this Court order the BOP to file a motion for
compassionate release on Petitioner’s behalf, pursuant to 18
U.S.C. § 3582(c)(1)(A).

18 U.S.C. § 3582(c)(1)(A) provides in

relevant part that “[t]he court may not modify a term of
imprisonment once it has been imposed except that--in any case-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…”
(emphasis added).
Based on the statutory language, “courts have generally
held that the BOP's decision to file a motion under §
3582(c)(1)(A)(i) or its predecessor is not judicially reviewable
. . . [.] The statute plainly vests the decision to pursue
relief solely with the BOP.”

See Fields v. Warden Allenwood

USP, No. 17-1045, 2017 WL 1241953, at *1 (3d Cir. Apr. 4, 2017)
(per curiam); see also Chu v. Hollingsworth, No. 14-4598, 2014
WL 3730651, at *3 (D.N.J. July 28, 2014)(citing 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); Crowe v. United States, 430 F. App'x 484, 485
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(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”)).
Here, Petitioner does not challenge the execution of his
sentence.

Rather, he is challenging the BOP’s decision not to

file a motion to reduce his sentence on his behalf.

However, as

outlined above, this Court is without jurisdiction to order the
BOP to file such motion.

See Fields, 2017 WL 1241953, at *1;

Share v. Krueger, 553 F. App'x 207, 209 (3d Cir. 2014)
(“[i]ndeed, without a motion from the BOP, the district courts
have no authority to reduce a federal inmate's sentence based on
special circumstances”).

As such, the Court will dismiss the

petition.
III. CONCLUSION
For the reasons set forth above, the Petition will be
DISMISSED.

An appropriate Order follows.

Dated: May 23, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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