United States District Court, D. New Jersey
Goldberg, Fort Dix Federal Correctional Institution Inmate
Mail/Parcels East: Petitioner Pro se.
L. HILLMAN, U.S.D.J.
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 1 The Petition and supplemental documents also
include incidents regarding denial of medical treatment and
other conditions of 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.
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. (Pet. 1,
5.) On December 3, 2015, the warden denied his request.
(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.)
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”). [Petitioner's]
Compassionate Release/Reduction in Sentence, 18 U.S.C.
3582(c)(1)a with [his] Sentencing Chief Judge Loretta
Preska.” (Pet. 6.)
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).
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.”
McFarland v. Scott, 512 U.S. 849, 856 (1994).
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…”
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
(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”)).
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 ...