MAROOF AHMED v. WARDEN OTISVILLE CAMP FCI (2023)

REPORT AND RECOMMENDATION TO HON. PAUL G. GARDEPHE: PETITION FOR HABEAS CORPUS

Petitioner Maroof Ahmed (“Ahmed” or “Petitioner”), proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 against the Warden of Federal Correctional Institution (“FCI”) Otisville (“Warden” or “Respondent”), challenging the Bureau of Prison's (“BOP”) statutory interpretation of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), resulting in the Warden's denial of Ahmed's transfer to home confinement. Ahmed contends that he is exempted from the requirement to exhaust all administrative remedies, but that, in the alternative, he did in fact exhaust them. He further argues that the petition should be granted because the BOP violated the Eighth Amendment, the Administrative Procedure Act (“APA”), and the Due Process Clause of the Fifth Amendment. Petitioner seeks injunctive relief and his immediate placement in home confinement. For the reasons that follow, I recommend that the petition be DENIED.

FACTUAL BACKGROUND

A. Petitioner's Conviction, Incarceration, And Health

On February 6, 2001, Ahmed pled guilty to heroin-related charges. United States v. Ahmed, et al, No. 99-CR-395-1, Dkt. 88. On April 5, 2004, Ahmed was sentenced to 188 months of imprisonment. Id. That sentence is to run concurrently with a term of imprisonment for 78 months that was ordered by a Court in the Eastern District of New York on April 27, 1999 for other heroin-related crimes. Id.; see also United States v. Ahmed, No. 97-CR-762-2, Dkt. 82. Ahmed will be eligible for home detention on September 30, 2028 and is scheduled for good conduct time release on March 31, 2030. (SENTRY Report dated July 5, 2023, attached as Ex. A to Wallace Decl.,¹ at 2-3.) At the time of filing his petition on January 13, 2023, Ahmed had served 48.3 percent of his sentence (id. at 4) and was incarcerated at FCI Otisville in New York state. Just over two months later, on March 21, 2023, Ahmed was transferred to FCI Danbury in the state of Connecticut. (Petitioner's Living Quarters History dated July 5, 2023, attached as Ex. C to Wallace Decl., at 2.)

Ahmed asserts that he “has immediate medical heart problems [and] a long list of additional medical problems.” (Pet. at 5.² ) More particularly, he claims that his “heart barely works with approximately 30% aorta capabilities” and that he “suffers from obesity and high blood pressure.” (Reply at 8.³ ) Nothing in the factual record shows that Ahmed pursued any administrative remedies to request home confinement.

B. The CARES Act

Petitioner's claims are all premised on the BOP's authority to transfer eligible prisoners to home confinement under the CARES Act. Congress passed the CARES Act on March 27, 2020 in response to the COVID-19 pandemic. Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281 (2020) (“CARES Act”). Section 12003(b)(2) of the CARES Act provides that “[d]uring the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.” CARES Act § 12003(b)(2).

In turn, Section 3624(c)(2) authorizes the BOP to “place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months.” 18 U.S.C. § 3624(c)(2); see, e.g., United States v. Woody, 463 F. Supp.3d 406, 409 (S.D.N.Y. 2020) (finding that “[b]ecause the Defendant was sentenced to 36 months’ imprisonment” and “has almost five months remaining on his sentence,” “he has more than [10] percent of his sentence to serve and therefore falls outside the ambit of Section 3624(c)(2)”); United States v. Pouryan, No. 11-CR-111-6, 2023 WL 3294360, at *1 n.3 (S.D.N.Y. May 5, 2023) (explaining that Defendant, “who has approximately 10 years remaining on his sentence ․ is ․ ineligible for home confinement placement until only 10 percent of his sentence remains, per 18 U.S.C. § 3624(c)(2)”). Thus, the CARES Act allows the Director of the BOP, under prescribed circumstances, to place an eligible inmate in home confinement for a longer portion of his sentence than is normally permitted under § 3624(c)(2), which otherwise limits home confinement to the shorter of either 10 percent or six months remaining of his sentence.

Since the start of the COVID-19 pandemic, the Attorney General has issued several memoranda to the BOP regarding steps it should take for the health and safety of inmates and BOP personnel. On March 26, 2020, the Attorney General directed the BOP to “prioritize the use of [its] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic.” Memorandum from the Attorney General on Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic to the Director of Bureau of Prisons (March 26, 2020) (“AG March Memo”) at 1.⁴ The AG March Memo also instructed the BOP to “consider the totality of circumstances for each individual inmate, the statutory requirements for home confinement, and [a] non-exhaustive list of discretionary factors.” Id. at 1-2.

Then, on April 3, 2020, the Attorney General exercised his authority under the CARES Act to make the necessary finding “that emergency conditions are materially affecting the functioning of the Bureau of Prisons.” Memorandum from the Attorney General on Increasing Use of Home Confinement At Institutions Most Affected By COVID-19 to the Director of Bureau of Prisons (Apr. 3, 2020) (“AG Apr. Memo”) at 1.⁵ The Attorney General directed the BOP to continue assessing all inmates for home confinement based on the factors set forth in the AG March Memo. Id. at 2.

On April 13, 2021, the BOP issued internal guidance that both adopted the criteria listed in the AG March Memo and added factors to consider. Memorandum from Bureau of Prisons on Home Confinement to Chief Executive Officers (Apr. 13, 2021) (“BOP Apr. Guidance”).⁶ Although the CARES Act suspends the parameters of § 3624(c)(2), which only allowed the BOP to send an inmate to home confinement for the shorter of either 10 percent of his sentence or six months, the April 2021 internal guidance indicated that, for the BOP to send someone home, it must “[c]onfirm[ ] the inmate has served 50% or more of their sentence; or has 18 months or less remaining on their sentence and have served 25% or more of their sentence.” Id. at 2 (emphasis added). This factor was promulgated in a BOP Guidance that superseded one issued on November 16, 2020, which had directed only the prioritization, rather than the confirmation, of such inmates. Memorandum from Bureau of Prisons on Home Confinement to Chief Executive Officers (Nov. 16, 2020) (“BOP Nov. Guidance”) at 2.⁷

C. The “Covered Emergency Period”

Under the CARES Act, the BOP's authority to release an inmate to home confinement can be exercised only during the “covered emergency period.” CARES Act § 12003(b)(2). That period begins on the date of the declared national emergency and ends 30 days after the termination of that declaration. CARES Act § 12003(a)(2).

The President declared that the COVID-19 pandemic constitutes a national emergency on March 13, 2020. Proclamation No. 9994, 85 Fed. Reg. 15337 (March 13, 2020). As the pandemic continued to pose significant risks to the public, the President extended the national emergency period numerous times. See Notice, 86 Fed. Reg. 11599 (Feb. 24, 2021); Notice, 87 Fed. Reg. 10289 (Feb. 18, 2022); Notice, 88 Fed. Reg. 9385 (Feb. 10, 2023). Finally, on April 10, 2023, the President signed into law the termination of the national emergency relating to the COVID-19 pandemic. National Emergencies Act, Pub. L. No. 118-3, 137 Stat. 6 (2023). Accordingly, the CARES Act's home confinement authority ended 30 days later on May 11, 2023. See CARES Act § 12003(a)(2) (stating that “the term ‘covered emergency period’ ․ end[s] on the date that is 30 days after the date on which the national emergency declaration terminates”).

On April 4, 2023, the Attorney General issued a final rule affirming “that the Director [of the BOP] has the authority and discretion to allow prisoners placed in home confinement under the CARES Act to remain in home confinement after the expiration of the covered emergency period.” Home Confinement Under the CARES Act, 88 Fed. Reg. 19830, 19830 (Apr. 4, 2023) (to be codified at 28 C.F.R. pt. 0)). In other words, the BOP is not required “to return to secure custody inmates in CARES Act home confinement following the end of the covered emergency period.” Id. at 19831. But because the covered emergency period has terminated, the BOP does not presently have authority to newly transfer inmates to home confinement under the CARES Act.

PETITIONER'S HABEAS CLAIMS

The Court affords Ahmed's petition a liberal reading as required for a pro se litigant. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (pro se complaints are “held to less stringent standards than formal pleadings drafted by lawyers”) (internal quotation marks omitted); Felder v. United States Tennis Association, 27 F.4th 834, 841 (2d Cir. 2022) (“we construe [pro se] submissions liberally and interpret them to raise the strongest arguments that they suggest”) (internal quotation marks and brackets omitted); Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (“a court is ordinarily obligated to afford a special solicitude to pro se litigants”). Ahmed raises four grounds for habeas relief:

First, Ahmed alleges that BOP violated the Eighth Amendment by denying his transfer to home confinement under the CARES Act. (Pet. at 4.) Specifically, Ahmed claims the BOP determined on an ad hoc basis that Ahmed was not eligible for home confinement. Id. at 9. Ahmed contends that the BOP's consideration of the percentage of his sentence that he had served contravenes the eligibility criteria prescribed by the CARES Act and the ensuing AG Memoranda and BOP Guidances. Id. at 5-6, 9.

Second, Ahmed argues that the BOP violated his substantive due process rights under the Fifth Amendment by misinterpreting the CARES Act and the First Step Act (“FSA”) and consequently denying his transfer to home confinement. Id. at 11. Ahmed also claims his due process rights were violated because BOP policies were not enforced “in various instances,” such as “inadequate soap supplies early in the pandemic, staff not wearing [personal protective equipment], and understaffing over the winter holidays that slowed identification and isolation of sick inmates.” Id. at 11-12.

Third, Ahmed alleges that the BOP's decision to not transfer him to home confinement was arbitrary and capricious under the APA because the BOP unlawfully considered non-express criteria and prioritized prisoners who had served greater percentages of their sentences. Id. at 9-10.

Fourth, Ahmed claims that the BOP violated his procedural due process rights under the Fifth Amendment when it imposed “undue burdens” on his eligibility for home confinement under the CARES Act. Id. at 13. Although Ahmed does not make clear what these “undue burdens” are, the Court infers they are the BOP's alleged use of “ad-hoc placement methods” when it determined Ahmed's eligibility for home confinement. Id. at 6. Ahmed urges that the BOP's consideration of the Attorney General's memoranda and criteria beyond the language of the CARES Act resulted in an ad hoc decision. Id. at 9.

PROCEDURAL BACKGROUND

Ahmed filed the petition on January 13, 2023. (Dkt. 2.) He requested to proceed in forma pauperis (Dkt. 1), which the Court granted (Dkt. 3.) The Warden filed his response on July 5, 2023 (Dkt. 16) with an accompanying declaration (Dkt. 17). Ahmed replied on July 20, 2023. (Dkt. 18.) The matter was referred to me on July 27, 2023. (Dkt. 19.)

LEGAL STANDARD

“The ordinary vehicle for a federal prisoner to seek habeas relief is 28 U.S.C. § 2255, under which such a prisoner may have his sentence vacated or set aside.” Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). But when a federal prisoner “does not challenge the legality of his sentence, but challenges instead its execution subsequent to his conviction,” he may seek habeas relief under 28 U.S.C. § 2241. Id. Thus, an inmate appropriately files a § 2241 petition when challenging the “type of detention and prison conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001); see also Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (“This court has long interpreted § 2241 as applying to challenges to the execution of a federal sentence”).

DISCUSSION

There are multiple reasons why the petition should be dismissed. First, Ahmed's claim is moot because he was transferred out of FCI Otisville, the facility whose conditions are at issue. Second, Ahmed did not exhaust administrative remedies within the BOP. Third, even if Ahmed's claims were not procedurally barred or mooted, they would fail on the merits.

I. Mootness

After Ahmed filed his petition on January 13, 2023, he was transferred from FCI Otisville, which lies in the Southern District of New York, to FCI Danbury, which lies in the District of Connecticut. (Petitioner's Living Quarters History at 2.) As a consequence, his petition is moot.

In the Second Circuit, “[i]t is well established that a prisoner's challenge to the conditions of their confinement becomes moot when the prisoner is transferred to a different facility.” Carter-Mitchell v. Hastings, No. 12-CV-4168, 2023 WL 3818565, at *2 (S.D.N.Y. June 5, 2023) (citing Thompson, 525 F.3d at 209); see, e.g., Thompson, 525 F.3d at 209 (§ 2241 petition mooted due to petitioner's transfer to a different facility); Cohen v. Jamison, No. 23-CV-1304, 2023 WL 3511124, at *2 (S.D.N.Y. Apr. 10, 2023) (“Because [petitioner] is no longer incarcerated at FCI Gilmer, where the allegedly unconstitutional events occurred, the petition is moot”); Ansari v. Tellez, No. 20-CV-2041, 2021 WL 2010399, at *3 (E.D.N.Y. Apr. 14, 2021) (§ 2241 challenge to conditions of confinement and seeking immediate release to home confinement mooted upon transfer to another facility); 13C Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 3533.8.3, nn.10, 12 (3d ed. 2023) (examples of challenges to prison conditions and practices mooted due to inmate's transfer to a different facility).

That is so “[b]ecause [the petitioner] brought his action for relief against the warden of a facility in which he concedes is no longer incarcerated[.]” Hill v. Zenk, 115 F. App'x 97, 97 (2d Cir. 2004); see also Goodall v. Von Blanckensee, No. 17-CV-3615, 2019 WL 8165002, at *5 (S.D.N.Y. July 19, 2019) (“injunctive relief relating to conditions of imprisonment ․ cannot be granted if the petitioner is no longer confined in the facility identified in the request for relief”) (internal quotation marks omitted), R. & R. adopted, 2020 WL 1082565 (S.D.N.Y. Mar. 5, 2020). “This outcome is required ‘even if the Section 2241 habeas petition was properly filed in the district of confinement prior to the transfer.’ ” Kidd v. Tellez, No. 21-CV-1344, 2023 WL 2652605, at *2 (E.D.N.Y. March 27, 2023) (quoting Allen v. Lindsay, No. 09-CV-1283, 2010 WL 5067907, at *2 (E.D.N.Y. Dec. 7, 2010)).

Since Ahmed is challenging the conditions of confinement and seeking injunctive relief against the warden of a facility in which he is no longer incarcerated, his petition is moot.⁸

II. Failure To Exhaust Administrative Remedies

Ahmed is procedurally barred from asserting his claims because he has not demonstrated that he exhausted administrative remedies or that he is exempt from the exhaustion requirement.

A. Requirement To Exhaust Administrative Remedies

Before filing a petition for habeas relief, including under § 2241, federal prisoners must exhaust all administrative remedies or justify their failure to do so. Carmona, 243 F.3d at 634; Atkinson v. Linaweaver, No. 13-CV-2790, 2013 WL 5477576, at *1 (S.D.N.Y. Oct. 2, 2013) (“[T]he Second Circuit has held in no uncertain terms that an inmate must exhaust his administrative remedies prior to seeking relief under Section 2241”). “Failure to exhaust administrative remedies results in a procedural default, which bars judicial review of the defaulted claim, unless the prisoner shows that the failure to exhaust should be excused.” Carter-Mitchell v. Hastings, No. 12-CV-4168, 2021 WL 8875452, at *6 (S.D.N.Y. Dec. 27, 2021). As a judicially imposed policy of prudence, exhaustion “protect[s] the authority of administrative agencies, limit[s] interference in agency affairs, develop[s] the factual record to make judicial review more efficient, and resolv[es] issues to render judicial review unnecessary.” United States v. Credidio, No. 19-CR-1644010, 2020 WL 1644010, at *2 (S.D.N.Y. Apr. 2, 2020) (quoting Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003)).

The Second Circuit recognizes several justifications for failure to exhaust administrative remedies. See Beharry, 329 F.3d at 62. “Specifically, exhaustion of administrative remedies may not be required when ‘(1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question.’ ” Id. (quoting Able v. United States, 88 F.3d 1280, 1288 (2d Cir. 1996)); see also Dov v. Warden, No. 21-CV-8750, 2022 WL 17730112, at *7 (S.D.N.Y. Dec. 16, 2022) (“Because exhaustion is not a statutory requirement, a prisoner may seek a waiver of the exhaustion requirement by demonstrating cause and prejudice if ‘legitimate circumstances beyond the prisoner's control preclude him from fully pursuing his administrative remedies’ ”) (quoting Carmona, 243 F.3d at 634).

“The burden of demonstrating that administrative remedies have been exhausted rests on the petitioner.” Fluvio Flete-Garcia v. J. Nash, No. 23-CV-195, 2023 WL 8358066, at *2 (D. Conn. Dec. 1, 2023); see also Carter-Mitchell, 2021 WL 8875452, at *6 (dismissing § 2241 petition because “Petitioner has not satisfied his burden to demonstrate exhaustion” and his claims were without merit). “The exhaustion requirement is excused ‘only if the prisoner comes forward with evidence of cause for his dereliction and consequent prejudice, and only then if cause-and-prejudice evidence outweighs the interests in judicial economy and accuracy behind the administrative exhaustion requirement.’ ” Goodall, 2019 WL 8165002, at *4 (quoting Bowens v. Federal Bureau of Prisons, No. 12-CV-5591, 2013 WL 3038439, at *3 (S.D.N.Y. June 18, 2013)).

B. The BOP's Administrative Remedy Process

BOP established the Administrative Remedy Program (“ARP”) “to allow an inmate to seek formal review of an issue relating to any aspect of his/her own confinement.” 28 C.F.R. § 542.10. The ARP provides a four-step process for an inmate challenging their conditions of confinement, consisting of, in order: (1) an informal resolution with prison staff, id. § 542.13; (2) an initial filing of a formal written request through a BP-9 form, id. § 542.14; (3) an appeal to the appropriate Regional Director through a BP-10 form, id. § 542.15; and, finally, (4) an appeal to the General Counsel through a BP-11 form, id.; see also Zenquis v. Pullen, No. 22-CV-1151, 2023 WL 2931585, at *2 (D. Conn. Apr. 13, 2023) (specifying deadlines for each step of the ARP).

Absent a showing of cause and/or prejudice, a petitioner must pursue all available appeals of the ARP in order to satisfy the requirement to exhaust all administrative remedies. Carter-Mitchell, 2021 WL 8875452, at *7 (under the ARP, “an administrative claim is not considered fully exhausted until all available appeals have been pursued”). If an inmate does not receive a response within the reply deadline, “the inmate may consider the absence of a response to be a denial at that level” and must pursue the next ARP step. 28 C.F.R. § 542.18; see also George v. Morrison-Warden, No. 06-CV-3188, 2007 WL 1686321, at *3 (S.D.N.Y. June 11, 2007) (“The Second Circuit does not excuse a failure to exhaust when an inmate/plaintiff admittedly did not appeal to the highest available level of administrative review and provides no justifiable explanation for his failure to do so”) (citing Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004)).

C. Ahmed's Statements Of Exhaustion And Exemption Are Merely Conclusory

Ahmed argues that he in fact “exhausted all of his administrative remedies” despite “numerous failed requests” and “unavailable administrative remedies.” (Pet. at 2 (emphasis omitted).) He alleges that “the remedies were nevertheless predetermined, biased, and physically unavailable.” (Reply at 6.) The Warden argues that such “conclusory statements” lack factual support and that Ahmed failed to demonstrate an otherwise applicable excuse from the exhaustion requirement. (Resp. at 6-7.⁹ ) The Warden is correct.

Ahmed has presented nothing to demonstrate the he availed himself of any administrative remedies or that they were somehow unavailable to him or futile. He does not acknowledge any required step of the ARP, let alone demonstrate how and when he properly proceeded through it. Cf. Lallave v. Martinez, 635 F. Supp.3d 173, 182 (E.D.N.Y. 2022) (petitioner found to have satisfied exhaustion requirement through exhibits documenting each step of the ARP). Nor has he made any showing that the BOP either thwarted his attempts or unlawfully predetermined the matter. Cf. Zenquis, 2023 WL 2931585, at *5 (petitioner provided documentation demonstrating that prison staff “at the very least, hindered – if not affirmatively thwarted –” his reasonable attempts to exhaust the ARP). Ahmed's merely conclusory assertions do not establish either his having exhausted administrative remedies or being excused from doing so. See Crumble v. United States, No. 23-CV-4427, 2023 WL 5102907, at *6 (S.D.N.Y. Aug. 7, 2023) (exhaustion not established because Plaintiff did not provide sufficient information regarding his attempts to exhaust administrative remedies); Rosenberg v. Pilar, No. 21-CV-5321, 2021 WL 6014938, at *3 (S.D.N.Y. Dec. 20, 2021) (petitioner did not provide sufficient facts to support assertion that exhaustion would have been futile because the BOP predetermined the matter); Razzoli v. Strada, No. 10-CV-4802, 2013 WL 837277, at *2 (E.D.N.Y. March 6, 2013) (stating that conclusory statements are insufficient to excuse petitioner's failure to exhaust administrative remedies).

A liberal reading of the petition suggests a claim that Ahmed's medical conditions give rise to an exemption based on extraordinary circumstances or irreparable harm. But, as with the potential exemptions he directly asserts, Ahmed provides no facts or support to plausibly assert that continuing his confinement in prison rather than home would cause irreparable harm to his health. For instance, Ahmed has not provided any medical records to show that he is facing an imminent, severe medical consequence due to an elevated risk of exposure to COVID-19. Compare Emery v. Pullen, No. 22-CV-1003, 2023 WL 348114, at *6 (D. Conn. Jan. 20, 2023) (finding that petitioner was not exempt from exhausting remedies where medical records indicate that petitioner was receiving treatment and not at risk of losing her eyesight imminently) with United States v. Fernandez, No. 12-CR-445, 2020 WL 2731236, at *6 (S.D.N.Y. May 26, 2020) (exhaustion exempted because the BOP's inadequate COVID-19 precautions at the time placed petitioner in “mortal danger” based on his well-documented medical condition and status as a “Chronic-Care-Inmate”).

D. The BOP Did Not Misinterpret The CARES Act

Ahmed argues that BOP misinterpreted the CARES Act and that he is exempt from exhausting administrative remedies because exhaustion is not required for claims that turn only on statutory interpretation. (Pet. at 7.) He cites Third Circuit authority for that proposition, which is not binding on this Court although there is some support for it in one case brought to the attention of the Court by the Warden. See United States ex rel Stanbridge v. Quinlan, 595 F. Supp. 1145, 1148 n.2 (S.D.N.Y. 1984) (citing McKart v. United States, 395 U.S. 185, 197-98 (1969)). In 1984, however, the Supreme Court established the principle that federal courts should defer to a federal agency's permissible interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The so-called Chevron doctrine has come under renewed scrutiny by the Supreme Court, and its vitality has been questioned.¹⁰ Regardless, Ahmed's claims are meritless. Ahmed's exemption argument that the BOP misinterpreted the CARES Act does not present a bona fide question of statutory interpretation.

“When analyzing an agency's interpretation of a statute, we often apply the two-step framework announced in Chevron.” King v. Burwell, 576 U.S. 473, 485 (2015). First, the court determines whether the statute is ambiguous, and that “inquiry begins with the plain language of the statute.” Peralta-Taveras v. Attorney-General, 488 F.3d 580, 584 (2d Cir. 2007). “When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’ ” Connecticut National Bank v. Germain, 503 U.S. 249, 253-54 (1992) (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)). Second, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. Here, the relevant language of the CARES Act is unambiguous.

The statute states that “the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.” CARES Act § 12003(b)(2) (emphases added). The plain language does not mandate that the BOP must transfer an inmate to home confinement under any circumstances. See Milchin v. Warden, No. 22-CV-195, 2022 WL 1658836, at *2 (S.D.N.Y. May 25, 2022) (“Like a transfer to home release under section 3621(b) ․ the decision to grant a transfer to home confinement under the CARES Act is reserved to the discretion of BOP”); United States v. Nnawuba, No. 18-CR-117-6, 2022 WL 1322207, at *6 n.2 (S.D.N.Y. May 3, 2022) (“The decision to grant [home confinement under the CARES Act] is reserved to the discretion of the BOP”); United States v. Ogarro, No. 18-CR-373-9, 2020 WL 1876300, at *6 (S.D.N.Y. Apr. 14, 2020) (home confinement authority under the CARES Act is “exclusively within the discretion of the BOP; the Court lacks authority to order [it]”).

Ahmed has not identified any ambiguity in the words of the CARES Act. To the contrary, the meaning of the statute's provision regarding home confinement authority has been extensively litigated and uniformly interpreted (in relevant part) in the Second Circuit since the start of the COVID-19 national emergency period. “[C]ourts considering requests to be transferred to home confinement have consistently denied such requests, as they lack authority to order such transfers.” Milchin, 2022 WL 1658836, at *2 (recognizing that the court did not have authority to transfer petitioner to home confinement under CARES Act); see also, e.g., Dov, 2022 WL 17730112, at *6 (same); Pittman v. Pullen, No. 22-CV-208, 2022 WL 7505381, at *4 (D. Conn. Oct. 13, 2022) (same). As such, Ahmed's challenge to the same statutory provision regarding home confinement authority does not “involve questions of statutory interpretation of first impression in this [C]ircuit” and thus does not exempt the exhaustion requirement. Quinlan, 595 F. Supp. at 1147-48.

Further, Ahmed's petition exemplifies the kind of claims that should not be exempt from exhaustion because they are grounded in the exercise of agency discretion. See McKart, 395 U.S. at 193-94 (explaining that the requirement to exhaust administrative remedies is particularly important “where the function of the agency and the particular decision sought to be reviewed involve exercise of discretionary powers granted the agency by Congress, or require application of special expertise”); Hajati v. United States Department of Probation, No. 22-CV-887, 2023 WL 2895903, at *2 (D. Conn. March 24, 2023) (finding statutory interpretation exception inapplicable “because the BOP is in the best position to assess whether there was an error in considering Petitioner's [claim] under the FSA and should be given an opportunity to correct any such error”) (internal quotation marks omitted). Ahmed challenges a decision that lies squarely within the BOP's discretion and expertise pursuant to 18 U.S.C. § 3624(c)(2). See CARES Act § 12003(b)(2) (authorizing only the Director of the BOP to expand its pre-existing authority under § 3624(c)(2)); 18 U.S.C. § 3621(b) (“The Bureau of Prisons shall designate the place of the prisoner's imprisonment”). The BOP is in the best position to determine whether any errors were made with respect to decisions on conditions of confinement and should be given the opportunity to correct them. See Ogarro, 2020 WL 1876300, at *2 (“[Exhaustion requirement] protects administrative agency authority by guaranteeing agencies the ‘opportunity to correct [their] own mistakes’ ”) (quoting Woodford v. Ngo, 548 U.S. 81, 89 (2006)). As there is no bona fide issue of statutory interpretation to be determined, Ahmed is not exempt from the exhaustion requirement on that basis.

In short, the petition should be dismissed because Ahmed has failed his burden to present any basis to find that he exhausted his administrative remedies or that he is exempt from exhausting them.¹¹

III. Ahmed's Claims Nonetheless Fail On The Merits

Even though Ahmed's petition should be dismissed as moot and failure to exhaust administrative remedies, his claims also fail on the merits.

A. The BOP Did Not Misapply The CARES Act

Ahmed's claims are predicated largely on his contention that the BOP did not adhere to the CARES Act. As noted above in discussing exhaustion of remedies, there is no bona fide issue of statutory interpretation. Ahmed nevertheless claims that the BOP misapplied the CARES Act by basing its denial of his transfer to home confinement on a factor not identified in the Act, specifically the percentage of time he had served. (Pet. at 4; Reply at 2.) He concedes, however, that both the CARES Act and the Attorney General's memoranda conferred exclusive discretion on the Director of the BOP in determining eligibility for home confinement. (See Pet. at 5-6.) That is fatal to his claim.

As explained above, the CARES Act allows the Director of the BOP, “as [he] determines appropriate,” to place an eligible inmate in home confinement for a longer portion of his sentence than the shorter of 10 percent or six months otherwise proscribed under § 3624(c)(2). CARES Act § 12003(b)(2). To guide the BOP in making its determination, the Attorney General identified a list of “non-exhaustive list of discretionary factors.” AG March Memo at 1 (emphases added). The BOP subsequently acted on its discretionary authority by promulgating additional factors – beyond the “non-exhaustive” list identified by the Attorney General – to be assessed for home confinement eligibility. BOP Apr. Guidance at 1-2. One of those factors is particularly relevant because it provides clear ground for finding that Ahmed is not eligible for home confinement.

That factor instructs confirmation that the inmate has either served 50 percent or more of his sentence or has 18 months or less remaining on his sentence and served 25 percent or more of his sentence. BOP Apr. Guidance at 2. The BOP acted well within its discretion in promulgating and considering that factor. Indeed, those criteria are far more generous than the statutory thresholds that require an inmate to have completed all but the shorter of 10 percent or six months of his sentence. Even so, Ahmed did not qualify. As of July 5, 2023, Ahmed had served 48.3 percent of his sentence and had a projected released date of March 31, 2030, which is indisputably more than 18 months away. (SENTRY Report at 4.) The BOP thus did not misapply the CARES Act.¹²

B. The BOP Did Not Violate The Eighth Amendment

Ahmed claims that the conditions of his confinement violate the Eighth Amendment.¹³ “[A] prison official violates the Eighth Amendment only when two requirements are met.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). “First, the deprivation alleged must be, objectively, sufficiently serious.” Id. (internal quotation marks omitted). Where the inmate complains of an elevated risk to harm, such as exposure to COVID-19, the Court must “assess whether society considers the risk ․ to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 35-36 (1993).

Second, the prison official must have demonstrated “deliberate indifference” to the inmate's health or safety. Estelle, 429 U.S. at 104-05. “The second requirement follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” Farmer, 511 U.S. at 834 (internal quotation marks and citations omitted). The first element commonly is referred to as the objective element and the second as the subjective element. See Helling, 509. U.S. at 35 (describing the two prongs as “the subjective and objective elements”); Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015) (same). Here, Ahmed does not set forth a basis to establish either element.

1. Objective Element: Seriousness Of The Deprivation

At the beginning of the COVID-19 pandemic, courts readily found the objective prong to be satisfied due to the novel and pervasive nature of the coronavirus. See Fernandez-Rodriguez, 450 F. Supp.3d at 351 (citing a list of such cases). During that time, there was plenty of “evidence of elevated COVID-19 risks compared to the outside community.” Chunn v. Edge, 465 F. Supp.3d 168, 201 (E.D.N.Y. 2020). Even so, petitioners had to make “a comparable showing that those within the facility face a higher risk of infection than those outside of it.” Id. at 202.

Ahmed states that he has “immediate medical heart problems [and] a long list of additional medical problems.” (Pet. at 5.) In addition, he claims that his “heart barely works with approximately 30% aorta capabilities” and that he “suffers from obesity and high blood pressure.” (Reply at 8.) That certainly sounds serious, assuming there were supporting evidence, but there is not. Other than conclusory statements about the BOP's failure to enforce its own COVID-19 protective measures – which Ahmed admits does not constitute deliberate indifference (Pet. at 12) – Ahmed has not demonstrated that his remaining confinement in prison poses a risk “so grave that it violates contemporary standards of decency.” Helling, 509 U.S. at 36.

2. Subjective Element: Deliberate Indifference

Ahmed also has not established that BOP officials acted with “deliberate indifference.” Estelle, 429 U.S. at 104-05. Nothing in the petition or otherwise before the Court indicates that any BOP official “[knew] of and disregard[ed]” either Ahmed's health conditions and medical needs, whatever those may be, Farmer, 511 U.S. at 837, or the inadequacy of protective measures. Cf. Credidio, 2020 WL 1644010, at *2 (no finding of deliberate indifference based on “numerous and significant plans and protocols recently implemented by the BOP to protect prisoners”); Fernandez-Rodriguez, 470 F. Supp.3d at 354 (even where the record established that petitioners’ concerns were credible, there was still no deliberate indifference where BOP officials took reasonable measures).

While the absence of either element would negate Ahmed's Eighth Amendment claim, there is no basis on the existing record for finding that he suffered from a sufficiently serious condition or that any BOP official acted with deliberate indifference.

C. Judicial Review Under The APA Is Precluded

Ahmed also contends that the BOP's denial of his transfer to home confinement was arbitrary and capricious under § 706(2)(A) of the APA. (Pet. at 9.) The APA provides judicial review to “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. However, judicial review is unavailable if either the underlying statute precludes it or the agency action is committed to agency discretion by law. Id. §§ 701(a)(1)-(2); see also Heckler v. Chaney, 470 U.S. 821, 828 (1985) (§ 701(a)(1)] “applies when Congress has expressed an intent to preclude judicial review” and § 701(a)(2) applies “if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion”); Larson v. United States, 888 F.3d 578, 587 (2d Cir. 2018) (“APA review is limited to (1) final agency action (2) not committed to agency discretion by law (3) where Congress has not implicitly or explicitly precluded judicial review”). Here, both exceptions preclude review.

First, Congress expressly specified that “[t]he provisions of sections ․ 701 through 706 of title 5, United States Code [i.e., the APA], do not apply to the making of any determination, decision, or order under this subchapter,” which includes § 3624(c)(2). 18 U.S.C. § 3625. The CARES Act's home confinement provision broadens the BOP's authority to grant home confinement pursuant to § 3624(c)(2). CARES Act § 12003(b)(2). Accordingly, the BOP's home confinement determinations, whether under the CARES Act or not, are statutorily precluded from judicial review. See Goodchild v. Ortiz, No. 21-CV-790, 2021 WL 3914300, at *19 (D.N.J. Sept. 1, 2021) (“Extended home confinement under the CARES Act falls under § 3642(c), and is thus exempted from judicial review”); Roberson v. Cox, No. 20-CV-04109, 2020 WL 13827143, at *7 (D.S.D. Nov. 19, 2020) (CARES Act is not a new statutory authorization for home confinement, but a waiver of ordinary limits under § 3642(c); thus home confinement decisions remain precluded from APA judicial review “even after the passage of the CARES Act”); see also Milchin, 2022 WL 1658836, at *2 (“Any decision of BOP relating to the place of confinement ‘is not reviewable by any court’ ”); Cotona v. Federal Bureau of Prisons, No. 13-CV-609, 2013 WL 5526238, at *1 (S.D.N.Y. Oct. 7, 2013) (“ ‘The plain language of this statute specifies that the judicial review provisions of the APA, 5 U.S.C. §§ 701-706, do not apply to “any determination, decision, or order” made pursuant to 18 U.S.C. §§ 3621-3624’ ”) (quoting Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011)).

Second, as explained above, the decision under the CARES Act and § 3624(c)(2) to transfer an inmate to home confinement is reserved exclusively to the BOP's discretion. Milchin, 2022 WL 1658836, at *2; Cotona, 2013 WL 5526238, at *1. Simply put, “the CARES Act does not afford the district court the ability to order a prisoner released to home confinement; that authority continues to rest solely with the BOP.” Pittman, 2022 WL 7505381, at *4 (internal quotation marks omitted).

D. Petitioner Does Not Have A Protected Liberty Interest

Ahmed claims that the BOP violated both his substantive and procedural due process rights under the Fifth Amendment. (Pet. at 11-13.) First, he contends that the BOP's erroneous interpretation of the CARES Act and FSA “gives rise to unfair atypical hardship.” (Id. at 11.) Second, he alleges that the BOP failed to enforce its own policies regarding COVID-19 protective measures, such as providing adequate staffing and supplies of soap and personal protective equipment. (Id. at 12.) The Warden asserts that Ahmed does not have a protected liberty interest sufficient to find a Fifth Amendment violation. (Resp. at 10.) The Warden is correct.

The Due Process Clause of the Fifth Amendment provides, “[n]o person shall be ․ deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. In order to find a violation, “[w]e first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed [ ] were constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam) (citing Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). The Supreme Court has rejected the argument that “any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause.” Meachum v. Fano, 427 U.S. 215, 224 (1976) (emphasis in original). Rather, “given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution.” Id.

Courts thus find that “the Due Process Clause does not afford sentenced defendants a right to any particular type of custody (such as home confinement).” Sclafani v. Kane, No. 20-CV-0463, 2020 WL 4676414, at *3 (E.D.N.Y. Aug. 12, 2020); see also Cardoza v. Pullen, No. 22-CV-0591, 2022 WL 3212408, at *7 (D. Conn. Aug. 9, 2022) (“a prisoner does not have a general due process right to be housed in a particular institution, and the due process protections of the Fifth Amendment do not apply to transfers between institutions”). In other words, because Ahmed is subject to a constitutional conviction, his concern with the place of his confinement does not by itself, or by his petition as alleged, trigger a Fifth Amendment violation.

Additionally, Ahmed does not provide anything more than a few conclusory sentences regarding the BOP's alleged nonenforcement of its COVID-19 policies. (Pet. at 12.) He fails to identify any particular BOP policy statement or program that was purportedly unenforced. Further, he makes a passing reference to insufficient soap supplies “early in the pandemic,” id., which further compounds the speculative nature of the claim as Ahmed was incarcerated in several different facilities since 2020. (Petitioner's Living Quarters History at 2-3.) Even so, “noncompliance with [internal prison regulations] does not typically offend due process.” Wentzel v. Pliler, No. 21-CV-9245, 2022 WL 9798257, at *6 (S.D.N.Y. Oct. 17, 2022); Reeb, 636 F.3d at 1227 (“A habeas claim cannot be sustained based solely upon the BOP's purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law”). Ultimately, the Court cannot find that an unspecified BOP facility's nondescript failure to adhere to an unidentified BOP policy arises to a violation of Ahmed's substantive due process rights.

Ahmed has not identified deprivation of a liberty interest that is afforded due process protections. Accordingly, he has no claim for violation of his procedural due process rights. Kerry v. Din, 576 U.S. 86, 90 (2015) (“it remains the case that no process is due if one is not deprived of ‘life, liberty, or property’ ”).

CONCLUSION

For the foregoing reasons, I recommend that the petition be DENIED and the action dismissed. To the extent not addressed above, the Court has considered Petitioner's arguments and found to be without merit. Accordingly,

DEADLINE FOR FILING OBJECTIONS AND PRESERVING APPEAL

Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Any party shall have fourteen (14) days to file a written response to the other party's objections. Any such objections and responses shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Paul G. Gardephe, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, at United States Courthouse, 500 Pearl Street, New York, New York 10007. Any request for an extension of time for filing objections must be addressed to Judge Gardephe. Failure to file timely objections will result in a waiver of the right to object and will preclude appellate review.

Copies transmitted to all counsel of record.

FOOTNOTES

1.   “Wallace Decl.” refers to the Declaration of John Wallace, which can be found at Dkt. 17 and was filed on July 5, 2023.

2.   “Pet.” refers to Ahmed's Petition for Writ of Habeas Corpus, which can be found at Dkt. 26. Although Ahmed commenced this action by filing his petition on January 13, 2023 at Dkt. 2, he refiled a copy on October 31, 2023 at Dkt. 26 at the Court's request because two pages from the initial filing were missing.

3.   “Reply” refers to Ahmed's Reply to the Warden's opposition to his Petition for Writ of Habeas Corpus. The Reply can be found at Dkt. 18 and was filed on July 20, 2023.

4.   Available at https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf.

5.   Available at https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf.

6.   Available at https://www.bop.gov/foia/docs/Home%20Confinement%20memo_2021_04_13.pdf.

7.   Available at https://www.bop.gov/foia/docs/Updated_Home_Confinement_Guidance_20201116.pdf.On December 21, 2022, the BOP issued a further superseding memorandum to which neither party cites in their briefs. Memorandum from Bureau of Prisons on Home Confinement Criteria and Guidance to Chief Executive Officers (Dec. 21, 2022) (“BOP Dec. Guidance”), available at https://prisonprofessors.com/wp-content/uploads/2023/01/Updated-Memo-HC-under-the-CARES-ACT_Redact.pdf. It is unclear whether this memorandum would have been in effect at the time the BOP evaluated Petitioner's eligibility for home confinement. Regardless nothing in the superseding memorandum affects the Court's analysis of Petitioner's claims.

8.   It also bears noting that the conditions on which Ahmed's petition is based have changed materially. On April 10, 2023, the COVID-19 national emergency came to an end. See National Emergencies Act; see also U.S. Dep't of Health & Hum. Servs., Fact Sheet: End of the COVID-19 Public Health Emergency (May 9, 2023), available at https://www.hhs.gov/about/news/2023/05/09/fact-sheet-end-of-the-covid-19-public-health-emergency.html (noting that the Department of Health and Human Services was planning for the end of the COVID-19 public health emergency on May 11, 2023). Consistent with those developments, the statistics as of November 2, 2023 for COVID-19 at FCI Otisville show no active COVID-19 cases and no related deaths out of 1,091 inmates, 694 of whom are vaccinated, and those at FCI Danbury show no active COVID-19 cases and no related deaths out of 967 inmates, 560 whom are vaccinated. Federal Bureau of Prisons, Inmate COVID-19 Data (as of Nov. 2, 2023), available at https://www.bop.gov/about/statistics/statistics_inmate_covid19.jsp. The Court takes judicial notice of those statistics, which are “relevant matters of public record.” Our Wicked Lady LLC v. Cuomo, No. 21-CV-0165, 2021 WL 915033, at *1 n.2 (S.D.N.Y. March 9, 2021) (quoting Giraldo v. Kessler, 594 F.3d 161, 164 (2d Cir. 2012)); see, e.g., Fernandez-Rodriguez v. Licon-Vitale, 470 F. Supp.3d 323, 329 n.2 (S.D.N.Y. 2020) (“The Court additionally take's [sic] judicial notice of the latest infection statistics and symptoms as published by the CDC and BOP”). In short, the threat posed by the conditions challenged by Ahmed has greatly diminished.

9.   “Resp.” refers to the Warden's Response in opposition to Ahmed's Petition for Writ of Habeas Corpus. The Response can be found at Dkt. 16 and was filed on July 5, 2023.

10.   The Supreme Court has granted certiorari in two cases to address the continued viability and scope of Chevron in Loper Bright Enterprises v. Raimondo, 143 S. Ct. 2429 (2023) and Relentless, Inc. v. Department of Commerce, No. 22-1219, 2023 WL 6780370 (U.S. Oct. 13, 2023).

11.   Even if the Court were to excuse Ahmed's failure to exhaust, the petition would still need to be dismissed as moot. See Razzoli, 2013 WL 837277, at *2 (“In any event, even if the Court were to excuse [Petitioner]’s failure to exhaust, it would still dismiss the petition because his transfer to the Federal Detention Center renders this action moot”).

12.   Another factor identified by the BOP would also have provided ample basis for denying home confinement. That factor gives consideration to “the inmate's institutional discipline history for the last twelve months.” BOP Apr. Guidance at 1. Under the Warden's judgment, “[i]nmates who have received a 300 or 400 series incident report in the past 12 months may be referred for placement on home confinement.” Id. at 1-2; see also 28 C.F.R. § 541.3 (2022) (the BOP's Inmate Discipline Program categorizes prohibited acts based on severity: Greatest (100-series); High (200-series); Moderate (300-series); and Low (400-series)). Ahmed, however, had a recent incident report with severity grade of 108. (Ahmed's Disciplinary Report dated February 2023, attached as Ex. B to Wallace Decl., at 2.) Such an offense is clearly beyond the BOP's threshold of 300 or 400 series incidents and could properly serve as a basis for denying Ahmed's transfer.

13.   Courts in this Circuit have consistently recognized that the Eighth Amendment framework is the appropriate analysis for a § 2241 habeas petition alleging unconstitutional conditions of confinement, including with respect to COVID-19. See, e.g., Tashbrook v. Petrucci, No. 20-CV-5318, 2022 WL 884974, at *3 (S.D.N.Y. March 25, 2022) (“Because petitions brought pursuant to § 2241 challenge the conditions of an inmate's confinement, the relevant inquiry is whether the conditions in which the inmate is being housed violate the Eighth Amendment's prohibition against cruel and unusual punishment”); Fernandez-Rodriguez, 470 F. Supp.3d at 348 (same application of Eighth Amendment analysis to § 2241 challenge to conditions of confinement based on risk of COVID-19); Broaddus v. Pullen, No. 22-CV-172, 2022 WL 4598854, at *3 (D. Conn. Sept. 30, 2022) (§ 2241 petition challenging conditions of confinement include COVID-19-related conditions that threaten the inmate's medical wellbeing).

ROBERT W. LEHRBURGER UNITED STATES MAGISTRATE JUDGE