Lallave v. Martinez

• Decision Date: 13 October 2022
• Docket Number: 22-CV-791 (NGG) (RLM),22-CV-4136 (NGG)
• Parties: VIRGINIA LALLAVE, Petitioner, v. F. MARTINEZ JR., MICHAEL CARVAJAL, and PATRICK MCFARLAND, Respondents. VIRGINIA LALLAVE, Petitioner, v. \MICHAEL CARVAJAL, and PATRICK MCFARLAND, Respondents.
• Court: U.S. District Court — Eastern District of New York

VIRGINIA LALLAVE, Petitioner,
v.
F. MARTINEZ JR., MICHAEL CARVAJAL, and PATRICK MCFARLAND, Respondents.

VIRGINIA LALLAVE, Petitioner,
v.
\MICHAEL CARVAJAL, and PATRICK MCFARLAND, Respondents.

Nos. 22-CV-791 (NGG) (RLM), 22-CV-4136 (NGG)

United States District Court, E.D. New York

October 13, 2022

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.

Pending before the court are Petitioner Virginia Lallave's motion for reconsideration of this court's previous decision on her First Step Act (“FSA”) credits and a newly filed Petition for a Writ of Habeas Corpus, which raises the same issue of her entitlement to FSA credits. For the reasons explained below, Petitioner's motion for reconsideration is DENIED, and her new Petition is GRANTED as to her First Step Act claim but DENIED as to her Accardi claim.

I, BACKGROUND

The court assumes familiarity with the factual and procedural background of this case, which is set forth in greater detail in the court's prior opinion, and includes information only to the extent it is relevant to the resolution of this motion. See Lallave v. Martinez, No. 22-CV-791 (NGG) (RLM), 2022 WL 2338896 (E.D.N.Y. June 29, 2022).

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On July 3, 2019, Petitioner pleaded guilty to (1) participating in a conspiracy to distribute substances containing a detectable amount of fentanyl and (2) participating in a conspiracy to distribute and possess with intent to distribute substances containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846. (See Plea Tr., United States v. Lallave (“Lallave I"), No. 19-CR-15 (AJN) (Dkt. 26) at 10; 1-14; Judgment, Lallave I (Dkt. 37).)^[1] Petitioner was sentenced to 42 months' imprisonment and three years of supervised release. (See Sentencing Tr., Lallave I (Dkt. 41) at 27:17-20.)

On July 2, 2020, pursuant to the expanded authority of the Bureau of Prisons (“BOP”) under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Petitioner was released from FCI Danbury and placed in the custody of the Bronx Community Reentry Center (the “Reentry Center”). (First Pet. (Dkt. 1) ¶¶ 12, 14.) While on home confinement, Petitioner has been the primary caretaker for her three children; a crucial caretaker for her father, who has renal failure and is on dialysis; employed in construction and maintenance; and has completed multiple courses. (Second Pet., Lallave v. Martinez (“Lallave III"), 22-CV-4136 (NGG) (Dkt. 1) ¶¶ 17-18.) The Reentry Center has supervised Petitioner and regularly tested her for controlled substance use. (First Pet. ¶¶ 19-20.)

In late January 2022, Petitioner's urine sample was positive for marijuana in violation of the BOP's Inmate Discipline Program. (See Incident Report (Dkt. 15-2).) After limited investigation and process, it was determined that Petitioner had violated the home confinement program, and the BOP imposed a sanction of a loss

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of good conduct time. (See DHO Report (Dkt. 15-12).) When Petitioner was given a copy of the paperwork, she was informed that she would be confined to the Reentry Center for 30 days. (First Pet. ¶ 31.) However, on February 8, 2022, U.S. Marshals brought Petitioner to the Metropolitan Detention Center (“MDC”) in Brooklyn. (Id. ¶ 33.) On February 11, 2022, Petitioner filed her initial petition (the “First Petition”), which included a request for enlargement. The court granted Petitioner's request for enlargement because of the irreparable harm that incarceration would cause to her family and employment, and she was released from the MDC on February 12, 2022. (See Id. ¶¶ 69-72; Feb. 11, 2022 Order.)

On June 29, 2022, this court issued an order resolving the claims in the First Petition. Of relevance here, the court declined to consider Petitioner's argument that the court should order the BOP to adjudicate her FSA credits. The FSA permits inmates to “earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4). This court found that there were two procedural hurdles to consideration of Petitioner's FSA credits. First, Petitioner raised the claim for the first time in her reply, and second, she had not exhausted her administrative remedies. See Lallave, 2022 WL 2338896, at *10-*11.

On July 14, 2022, Petitioner filed a motion for reconsideration of this court's decision. (See Mot. for Reconsideration (Dkt. 30).) She argued that at the time of the First Petition she had enough FSA credits to entitle her to immediate release, and that at the time she filed her motion for reconsideration, she had exhausted her administrative remedies. (See id.) On the same day, Petitioner filed her second petition (the “Second Petition”), which raised the same issue of her FSA credits, in order to provide the court with an alternative mechanism for granting the same relief. (See Second Pet.) The Second Petition alleges a violation of the

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FSA and of the principle set forth in Accardi v. Schaughnessy that agencies must comply with their own regulations. See 347 U.S. 260 (1954). Defendants filed a consolidated opposition to both of Petitioner's requests, arguing that she failed to exhaust her administrative remedies and is ineligible for FSA credits. (See Opp, (Dkt. 37).)

II. MOTION FOR RECONSIDERATION

A. Standard of Review

In the Second Circuit, “[t]he threshold for prevailing on a motion for reconsideration is high.” Nakshin v. Holder, 360 Fed.Appx. 192, 193 (2d Cir. 2010) (summary order).^[2] The party seeking reconsideration must establish: (1) that the court overlooked critical facts or controlling decisions that could have changed its decision, see Schrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995); (2) an intervening change in controlling law; (3) new evidence; or (4) the need to correct “clear error or prevent manifest injustice.” See Virgin Atl. Airways v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d. Cir. 1992). A motion for reconsideration is “not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012). The court has substantial discretion on a motion for reconsideration. See Market Am. Ins. Co. v. Linhart, No. 11-CV-5094 (SJF) (GRB), 2012 WL 5879107, at *2 (E.D.N.Y. Nov. 16, 2012).

B. Discussion

Petitioner argues that the court erred in finding that that she would not be entitled to immediate release and should have

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waived administrative exhaustion on that basis. (Mot. for Reconsideration at 4.) In its decision on the First Petition, this court noted that administrative exhaustion might be waived if Petitioner was entitled to immediate release. See Lallave, 2022 WL 2338896, at *10. However, following other courts in this Circuit, this court concluded that Petitioner would not be entitled to immediate release because courts could not compel the BOP to calculate FSA credits during the phase-in period. See id. Petitioner helpfully directs the court to a regulation, which clarifies that after the FSA phase-in period, which ended on January 15, 2022, courts can mandate the calculation of credits that accumulated during the phase-in period. See 28 C.F.R. §§ 523.42. Thus, she contends that she would have been entitled to immediate release, and this court should have waived administrative exhaustion. In opposition, Respondents argue that Petitioner “fails to point to any proper grounds for reconsideration” and note the high bar for reconsideration. (Opp. at 9.)

This court's decision did not rest exclusively on the fact that Petitioner was likely not entitled to immediate release. Instead, the court merely noted that had Petitioner been entitled to release as of February 2022, “it may be appropriate to consider the FSA claim at this time.” See Lallave, 2022 WL 2338896, at *10. This court went on to explain that courts in this Circuit have taken different approaches to the question of whether exhaustion can be excused on the basis of irreparable harm where a petitioner maybe entitled to immediate release. Id. (collecting cases). Further, in discussing administrative exhaustion in relation to one of Petitioner's other claims, this court noted that

[c]ourts have frequently found that even continued detention does not constitute irreparable harm. See Torres v. Decker, No. 18-CV-10026 (VEC), 2018 WL 6649609, at *3 (S.D.N.Y. Dec. 19, 2018) (finding that prolonged detention is not an irreparable injury that excuses exhaustion); Giwah v. McElroy,

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No. 97-CV-2524, 1997 WL 782078, at *4 (S.D.N.Y. Dec. 19, 1997) (“If incarceration alone were the irreparable injury complained of, then the exception would swallow the rule that the INS administrative remedies must be exhausted.”). Rather, courts find irreparable harm only in exceptional circumstances, such as where a defendant is being held in solitary confinement. See, e.g., United States v. Basciano, 369 F.Supp.2d 344, 349 (E.D.N.Y. 2005) (finding irreparable harm where defendant was being held in solitary confinement and “faced with the prospect of perpetual detention without access to judicial review under circumstances that raise a serious and urgent constitutional question while the BOP fiddles”); Brooks v. Terrell, No. 10-CV-4009 (AKT), 2010 WL 9462575, at *5 (E.D.N.Y. Oct. 14, 2010) (holding that detention in solitary confinement could constitute irreparable harm).

Id. at *9. In light of this precedent, the court noted that the fact that Petitioner was serving her sentence in home confinement, where she is able to live with her family and work, largely undermines the policy choice that has been made in certain instances to waive exhaustion where immediate release is possible. Id.

In deciding not to waive administrative...