Wyckoff v. Warden, Belmont Corr. Inst.

• Decision Date: 11 March 2021
• Docket Number: CASE NO. 2:20-CV-5580
• Parties: JEROME WYCKOFF, Petitioner, v. WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JEROME WYCKOFF, Petitioner, v. WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:20-CV-5580

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

March 11, 2021

CHIEF JUDGE ALGENON L. MARBLEY

Chief Magistrate Judge Elizabeth P. Deavers

ORDER AND REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and § 2241. This matter is before the Court on the Petition, Respondent's Motion to Dismiss, Petitioner's Response in Opposition, and the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that the Motion to Dismiss (ECF No. 7) be DENIED, and that this action be DISMISSED.

Petitioner's motion for leave to file a Traverse and request for judicial notice of his state court filings (ECF Nos. 9, 10) are GRANTED.

I. BACKGROUND

Petitioner seeks release from his continued incarceration as unconstitutionally imposed due to the health risks he faces in prison from the COVID-19 pandemic. Petitioner is presently serving a term of 7 years' incarceration pursuant to his August 2018 guilty plea in the Stark County Court of Common Pleas for various drug offenses. Petitioner does not now challenge this underlying criminal conviction and apparently did not do so in the Ohio courts. He indicates that he has filed grievances within the prison system and a motion for judicial release under O.R.C. § 2929.20(N). He complains that the State of Ohio provides no adequate remedy to pursue relief on his claim that he is unconstitutionally incarcerated due to the impact of COVID-19 on prison facilities and in view of his health issues. He asserts that his continued incarceration violates due process and the Eighth Amendment because the prison cannot implement adequate social distancing and has failed to provide inmates with N-95 masks and inmates refuse to wear masks appropriately. He indicates that he suffers from COPD, prior pneumonia, blood clots, and obesity, and takes heart medication. Petitioner complains that he has been exposed to another COVID positive inmate. He seeks immediate release. (Petition, ECF No. 3, PAGEID # 67.) It is the Respondent's position that Petitioner's claim is not cognizable in habeas corpus proceedings under either 28 U.S.C. § 2254 or § 2241 and, alternatively, that Petitioner has failed to exhaust state court remedies.

II. MOTION TO DISMISS

a. Propriety of Habeas Corpus

Respondent argues at length that Petitioner's claim should be dismissed as not cognizable in habeas corpus proceedings because it involves a conditions of confinement claim that must be brought, if at all, in an action under 42 U.S.C. § 1983. Respondent acknowledges that the Sixth Circuit held in Wilson v. Williams, 961 F.3d 829, 838 (6th Cir. 2020) that prisoners seeking immediate release under the Eighth Amendment based on the health impact of COVID-19 may pursue relief under the provision of 28 U.S.C. § 2241, but argues that Wilson does not apply to state prisoners. Respondent argues that Cameron v. Bouchard, 815 F. App'x 978, 983 n. 1 (6th Cir. July 9, 2020), permitting pre-trial detainees and state prisoners to proceed on COVID-19 claim under § 2241 (citing Wilson), likewise does not apply, because Cameron involved an action filed under both 42 U.S.C. § 1983 and 28 U.S.C. § 2241. See id. at 980. Respondentrefers to Bradley v. Shoop, No. 2:20-cv-3897, 2021 WL 688859 (6th Cir. Jan. 8, 2021) (denying the request for a certificate of appealability), other federal district court cases from other states noting the disagreement among federal courts on the issue, and cases from the Sixth Circuit prior to Wilson and not involving COVID-19 claims in support.

This Court is not persuaded by Respondent's arguments. The Sixth Circuit in Wilson held as follows:

[W]here a petitioner claims that no set of conditions would be constitutionally sufficient the claim should be construed as challenging the fact or extent, rather than the conditions, of the confinement. See Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); cf. Terrell v. United States, 564 F.3d 442, 446-48 (6th Cir. 2009). The Supreme Court has held that release from confinement—the remedy petitioners seek here—is "the heart of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 498, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

The BOP's attempts to classify petitioners' claims as "conditions of confinement" claims, subject to the PLRA, are unavailing. . . .

Petitioners here [] contend that the constitutional violations occurring at Elkton as a result of the pandemic can be remedied only by release. The BOP's framing of the requested relief as seeking transfer or improvement to the BOP's COVID-19 response procedures overlooks the fact that petitioners in the subclass seek release. Because petitioners seek release from confinement, "the heart of habeas corpus," Preiser, 411 U.S. at 498, 93 S.Ct. 1827, jurisdiction is proper under § 2241.

Id. at 838. This Court is bound by that decision.

The Sixth Circuit noted in Cameron that Respondent's argument that no cognizable habeas claim had been presented was "inconsistent" with the holding in Wilson, but declined to address this non-jurisdictional procedural issue, instead denying the claim on the merits. Cameron, 815 F.App'x at 983 n.1. Moreover, this Court previously has rejected Respondent's argument, see Horner v. Warden, Belmont Corr. Inst., No. 2:20-cv-6118, 2021 WL 540057, at *1 (S.D. Ohio Jan. 8, 2021) ("Where the petitioner requests immediate release from confinement, his claim may properly be addressed in a petition for a writ of habeas corpus.") (citationsomitted); Aultman v. Shoop, No. 2:20-cv-3304, 2020 WL 4287535, at *1 (S.D. Ohio July 27, 2020) (Plaintiff's request for immediate release from custody fails to state a claim under 42 U.S.C. § 1983 and must be brought under the provision of 28 U.S.C. § 2241) (citing Wilson, 961 F.3d at 838); Gerald v. Warden, Lebanon Corr. Inst., No. 1:20-cv-603, 2020 WL 8370958, at * 2 (S.D. Ohio Aug. 27, 2020) (concluding that state prisoners' COVID-19 claims may properly be brought under the provision of 28 U.S.C. § 2241) (citing Van Diver v. Nagy, No. 20-11340, 2020 WL 4696598, at *2 (E.D. Mich. Aug. 13, 2020) (other citations omitted)) as have other federal district courts in the Sixth Circuit, see Blackburn v. Noble, 479 F.Supp.3d 531, -- (E.D. Ky. 2020) (the provision of 28 U.S.C. § 2241 provides avenue of relief for state prisoners seeking immediate release based on COVID-19) (citing Wilson, 961 F.3d at 838; Malam v. Adducci, 452 F.Supp.3d 643, 649 (E.D. Mich. 2020)); but see Jaeger v. Wainwright, No. 1:19-cv-2853, 2020 WL 3961962, at *3 (N.D. Ohio July 7, 13, 2020) (and cases cited therein) (holding that a habeas action by state prisoners bringing COVID-19 claim must be brought under the provision of 28 U.S.C. § 2254 ) (citations omitted).

Bradley, referred to by the Respondent, does not hold to the contrary. The Sixth Circuit in Bradley the petitioner's request for a certificate of appealability from the dismissal of a habeas corpus petition filed under the provision of 28 U.S.C. § 2254 raising a COVID-19 claim, declining to construe the action under 28 U.S.C. § 2241:

True, the Sixth Circuit recently permitted federal inmates to bring a claim similar to Bradley's under 28 U.S.C. § 2241. See Wilson v. Williams, 961 F.3d 829, 838-39 (6th Cir. 2020). But Bradley petitioned under 28 U.S.C. § 2254, not 28 U.S.C. § 2241, and "our interpretation of § 2241 does not control our interpretation of § 2254." Bailey v. Wainwright, 951 F.3d 343, 347 (6th Cir. 2020). Nor does anything require "courts to convert § 2254 petitions to petitions under § 2241[.]" Allen v. White, 185 F. App'x 487, 489 (6th Cir. 2006).

Bradley, 2021 WL 688859, at *2. Thus, Bradley does not stand for the proposition that Petitioner's claim cannot be brought in a petition for habeas corpus relief under the provision of 28 U.S.C. § 2241.

b. Exhaustion

Respondent alternatively argues that the Court should dismiss this action as unexhausted because Petitioner has failed to pursue appropriate state court relief. Respondent does not indicate, however, the appropriate means by which Petitioner should present his claim to the state courts.

"Before a prisoner may seek habeas corpus relief under § 2241, he must first exhaust his administrative remedies[.]" Melchor v. Williams, No. 4:20-cv-1022, 2020 WL 4558458, at *1 (N.D. Ohio June 12, 2020) (citing Settle v. Bureau of Prisons, No. 16-5279, 2017 WL 8159227, at *2 (6th Cir. Sept. 20, 2017)); see also Walker v. Warden, Warren Corr. Inst., No. 1:20-cv-302, 2020 WL 6392463, at *2 (citing Medina v. Williams, 823 F. App'x 676-77 (10th Cir. 2020) (noting that the dismissal of a prisoner's COVID-19 claims brought under § 2241 was proper because the petitioner failed to demonstrate that he has exhausted his available state remedies); Elleby v. Smith, No. 20-cv-2935, 2020 WL2611921, at *4 (S.D.N.Y. May 22, 2020) (joining federal district courts around the country that have recently dismissed, or held dismissible, COVID-19-related petitions for failure to exhaust state remedies) (collecting cases); Malloy v. Dist. Attorney of Montgomery Cty., No. 20-1804, 461 F.Supp.3d 168, 2020 WL 2571170, at *3 (E.D. Pa. May 21, 2020) (dismissing COVID-19 habeas petition for failure to exhaust, finding the "[p]etition contains no suggestion that Petitioner has attempted to exhaust the state court process through emergency motion or petition to the state trial or appellate courts"); Griffin v. Cook, No. 3:20-cv-589, 2020 WL 2735886, at *5 (D. Conn. May 26, 2020) (dismissing COVID-19 petition for lack of exhaustion); Resch v. Rewerts, No. 1:20-cv-515, 2020 WL 3396625, at *4 (W.D. Mich. June 19, 2020) (same)).

Petitioner states that he has presented his claim to the Ohio Supreme Court in a state habeas corpus action and in a motion for judicial release in the state trial court. Petitioner also...