United States v. Perkins
| Decision Date | 13 May 2021 |
| Docket Number | CRIMINAL ACTION NO. 3:18-CR-205-CRS |
| Citation | 539 F.Supp.3d 719 |
| Parties | UNITED STATES of America, Plaintiff v. Adrian PERKINS, Defendant |
| Court | U.S. District Court — Western District of Kentucky |
Ebert H. Haegele, U.S. Attorney Office, Louisville, KY, for Plaintiff.
This matter is before the Court for consideration of a motion of the defendant, Adrian Perkins, pro se , seeking a reduction of his term of imprisonment due to poor health which has placed him in fear of serious illness or death from the COVID-19 virus (DN 76). The Court denied Perkins’ earlier motion for compassionate release on June 19, 2020 for failure to exhaust his administrative remedies. (DN 61). On June 12, 2020, he filed a request for compassionate release with Warden Francisco J. Quintana at the Federal Medical Center ("FMC") Lexington. The Warden denied his request on July 29, 2020 noting that Perkins did not meet the medical requirements of Program Statement 5050.50 for compassionate release. (DN 76-1). The Warden instructed Perkins that he had a right to appeal the decision within twenty days of receipt of the denial. Perkins does not indicate that he appealed the decision. Instead, he filed the present motion for compassionate release five months after the warden's denial of his request. (DN 76). The United States has responded and objected to the motion on grounds of failure to exhaust administrative remedies and also on the merits (DN 79).
The World Health Organization declared the novel coronavirus known as COVID-19 a pandemic on March 11, 2020.1 The President of the United States declared a national emergency on March 13, 2020 and the Governor of the Commonwealth of Kentucky declared a state of emergency even earlier, after the first confirmed case of COVID-19 on March 6, 2020.2 As of the date of this writing, there are 142,238,073 confirmed cases worldwide and 3,032,124 deaths; in the United States, there are 31,350,025 confirmed cases and 561,921 deaths.3 Further elaboration concerning the seriousness of the COVID-19 pandemic is unnecessary. The health risks associated with COVID-19, especially for those individuals confined to nursing homes or incarcerated in our jails and prisons where outbreaks can yield catastrophic result is apparent. However, the developments in the fight against the coronavirus are rapidly evolving worldwide and we must address each inmate's situation individually in the context currently presented when considering requests for compassionate release. Suffice it to say that the Court addresses motions for compassionate release, and Perkins’ motion in particular here, with the gravity of the situation in mind.
Perkins is serving a 57-month prison sentence after pleading guilty in 2019 to conspiracy to distribute over 50 grams of heroin and possession with intent to distribute 391 grams of methamphetamine. This was not his first narcotics conviction. Perkins is incarcerated at the Federal Medical Center ("FMC") Lexington and is receiving medical care there.
18 U.S.C. § 3582(c)(1)(A) permits a court to modify a term of imprisonment and grant what is known as "compassionate release" for extraordinary and compelling reasons. Prior to December 2018, motions for compassionate release could only be made by the Director of Prisons. However, the First Step Act, PL 115-391, 132 Stat 5194 (Dec. 21, 2018), amended 18 U.S.C. § 3582(c)(1)(A) to allow defendants to bring such motions on their own behalf "after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." 18 U.S.C. § 3582(c)(1)(A).
Perkins has provided a copy of a Response to Inmate Correspondence from Warden Quintana dated July 29, 2020 responding to Perkins’ June 12, 2020 request for compassionate release (DN 76-1). Perkins contends that since more than thirty days elapsed between his request to the warden and the warden's response, he should be deemed to have exhausted his administrative remedies in accordance with what has come to be referred to as the "lapse of 30 days" provision contained in the statute. United States v. Alam , 960 F.3d 831, 833-34 (6th Cir. 2020) ().
Perkins suggests that he has exhausted his administrative remedies despite the fact that after the lapse of thirty days he did not file his motion with the Court. Instead, he did nothing and received a response from Warden Quintana seventeen days thereafter, affording him the avenue to exhaust his available appeal rights, a path he did not pursue. The Court does not have a copy of Perkins’ request, but it appears to have been forty-seven days from request to decision, according to the dates included in the warden's response.
The problematic circumstances here are that, on the one hand, Perkins received a response and did not appeal, despite that avenue being fully available to him. Thus, he never "fully exhausted his administrative rights" as required by 18 U.S.C. § 3582(c)(1)(A), a prerequisite before a defendant may seek compassionate relief from the Court. On the other hand, Perkins did not receive a response to his request to the warden within thirty days, and § 3582(c)(1)(A) provides that "after the lapse of thirty (30) days since the warden's receipt of a request to move on defendant's behalf for a sentence reduction," the defendant may file his motion for compassionate release directly with the Court, thus relieving a defendant of further delay. As Warden Quintana delivered a response to Perkins sixteen days late, Perkins seeks to capitalize on this delay to bypass the appeal process. But Perkins has one foot in each camp in this instance. He chose not to appeal and asserts the "lapse of 30 days" provision, yet he did not file his motion with this Court for another five months after receipt of Warden Quintana's denial. For the reasons articulated below, the Court finds that Perkins has failed to "fully exhaust all administrative rights," and that the "lapse of 30 days" provision is unavailable to him to avoid this exhaustion requirement.
After considering various opinions addressing the exhaustion provisions of the First Step Act, the Court concludes that the thirty-day exception to the exhaustion requirement was not designed to provide a "gotcha" mechanism when a response is actually received after the thirty day period and the defendant has an available avenue to fully exhaust his rights. Rather, the "lapse of 30 days" provision was designed to address cases in which no prompt response is forthcoming from the BOP and a defendant is left in limbo awaiting agency action. The statute tries to strike a reasonable balance between affording the BOP time to address the request, initially and on appeal, before there is review by the courts and ensuring there is no undue delay in the agency process. A defendant is thus deemed to have exhausted and may file his motion with the Court without waiting further for a BOP response after a lapse of thirty days from the date of his request to the warden.
The "lapse of 30 days" language has been variously interpreted as a "lapse of time" provision or a "futility" provision.
Under the "lapse of time" interpretation, once thirty days passes from the warden's receipt of a defendant's request for compassionate release, the defendant may petition the federal court for relief whether or not the warden has responded within the thirty-day period. The "lapse of time" is viewed simply as a waiting period before judicial relief may be sought.
This interpretation would completely emasculate the requirement of full exhaustion of all administrative rights. Higher level review by the BOP by way of administrative appeal would be rendered entirely optional. "Preventing prisoners from charging straight to federal court serves important purposes." United States v. Alam , 960 F.3d 831, 835 (6th Cir. 2020). The BOP is uniquely positioned to assess prisoners’ mental and physical health and potential risk to the public if released, and whether extraordinary and compelling reasons exist for compassionate release. See United States v. Haas , Civ. No. 6:17-cr-00037-GFVT-HAI-1, 2020 WL 4593206 (E.D. Ky. Aug. 7, 2020) ’ citing United States v. Zukerman , 451 F.Supp.3d 329, 332-33 (S.D.N.Y. 2020) ; Alam , 960 F.3d at 834.
Indeed, in enacting the First Step Act, Congress sought to enhance the effectiveness of the BOP's compassionate release review scheme, not replace it. See United States v. Smith , 460 F.Supp.3d 783 (E.D. Ark. 2020) ; United States v. Ng Lap Seng , 459 F.Supp.3d 527, 536 (S.D.N.Y. 2020) ().
Reading the "lapse of 30 days" language as a "futility" provision satisfies the apparent dual objectives of Congress to respect the BOP's process while ensuring expeditious and expanded access to the Courts for defendants.
In Haas, supra , the district court explained that § 3582(c)(1)(A) requires the defendant to "fully exhaust all administrative rights" and where the BOP responds to the defendant's request within thirty days, the defendant is required to see the appeals process through and the "lapse of 30 days" provision has no bearing on the case. Haas, supra , at *5. The court noted, however, that the Sixth Circuit has yet to specifically address whether a defendant must fully exhaust his appeals when he receives a response from the BOP within the thirty-day window. Id. Concluding...
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