In United States vs. Alam, the 6th Circuit upheld a dismissal of a compassionate release case for failure to wait 30 days.
Alam’s Offense Conduct and Compassionate Release Filing
Alam is in prison having pled guilty to health care fraud and wire fraud. He suffers from obesity, diabetes, sleep apnea and coronary artery disease. He has kidney stones and bladder issues.
He reached out to the BOP on March 25, asking for a compassionate release. On April 4, Alam moved for emergency relief in court. The government responded that Alam had not complied with the statute’s administrative exhaustion requirement. The court agreed and dismissed the suit without prejudice. Alam appealed.
Alam and the 30-day requirement
As many of you know, A court can modify a term of imprisonment if the Bureau of Prisons files a motion in court for it or “Or it may come through a motion filed by the inmate after he has “fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the [prisoner]’s behalf” or after “the lapse of 30 days from the receipt of such a request by the warden of the [prisoner]’s facility, whichever is earlier.” Alam could not have followed this statute because he only waited 10 days after reaching out to the warden to send his request in.
The court determined Alam’s failure to wait 30 days does not deprive the court of subject matter jurisdiction. “A prescription limits our subject-matter jurisdiction only if “the Legislature clearly states that [the] prescription counts as jurisdictional.” Fort Bend County v. Davis, 139 S. Ct. 1843, 1850 (2019).” This does not clearly limit their jurisdiction, it only “imposes a requirement on prisoners before they may move on their own behalf: They must “fully exhaust all administrative rights” or else they must wait for 30 days after the warden’s “receipt of [their] request.”
Even though the 30 days is not a subject matter jurisdiction thing, it is still mandatory. The Sixth Circuit determined that this was a claim processing rule. As such, “Because “Congress sets the rules” when it comes to statutory exhaustion requirements, the judiciary has a role to play in exception-crafting “only if Congress wants [it] to.” Nothing in § 3582(c)(1)(A) suggests the possibility of judge-made exceptions.” In addition, Alam cannot show that there are any exceptions to the mandatory-claim processing rules (waiver or forfeiture).
Here is something else that the courts said:
“Speed matters, yes. But accuracy matters too. Preventing prisoners from charging straight to federal court serves important purposes. It ensures that the prison administrators can prioritize the most urgent claims. And it ensures that they can investigate the gravity of the conditions supporting compassionate release and the likelihood that the conditions will persist. These are not interests we should lightly dismiss or re-prioritize.”
The court also indicated that 30 days is not unreasonable: “Recall that inmates can identify the ongoing public health crisis in their initial petition to their wardens. If that doesn’t work, prisoners can pursue administrative review. If that also comes up short (or if 30 days pass), prisoners have the option to go to federal court. Thirty days hardly rises to the level of ‘an unreasonable or indefinite timeframe.’”
Should the Court Dismiss or Abate?
Finally, the court determined that the right thing for them to do would be to dismiss the motion than holding it in abatement, citing that the Supreme Court had previously applied this remedy. Further, “If (rather than dismissing) we sat on untimely compassionate release motions until the 30-day window ran its course, we could end up reviewing stale motions. Better to have Alam refile with the benefit of whatever additional insight he may have gleaned.”
The Sixth Circuit dismissed Alam’s motion without prejudice. 20-1298
With this, the Sixth Circuit joins the Third in from United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020). We covered this in a previous newsletter which you can view here: https://www.gordondefense.com/update-for-april-18-2020/
It is worth noting that Washington vs Barr did not even come up in the court’s decision. I think that this is going to go all the way up as these decisions continue to show up. In the meantime I want you all to consider the following to move your compassionate releases through the process quicker:
1. Seek your own medical records: My understanding is that you can go to your unit team. This process may be faster than your attorney sending you a HIPPA form and, getting it back and then doing an open records request. You can do this first while you are waiting on your administrative remedies.
2. You or a loved one reach out to the warden: If you are still considering hiring an attorney that is great. In the meantime, you or a loved one can reach out to the warden under BOP program statement 5050.50 and ask for release. See:
“§ 571.61 Initiation of request – extraordinary or compelling circumstances:
b. The Bureau of Prisons processes a request made by another person on behalf of an inmate in the same manner as an inmate’s request. Staff shall refer a request received at the Central Office to the Warden of the institution where the inmate is confined.”
It is important to remember that when you or your loved one ask for release that you/they specifically ask for compassionate release under 3582(c)(1)(a), 4205(g) and BOP program Statement 5050.50. If you are going to ask for relief under the CARES Act then I would consider sending that in a separate letter. If your loved ones seek this for you then they should consider sending it off Certified Mail, Return Receipt Requested with a green card for a signature.
3. Treat the Administrative remedies as hot potatoes. The BP 9, 10 and 11 forms are things that you will need to fill out before you can get into court. They need to be filled out and sent in the day after the last one is returned. Period. So if you get your denial on a Monday, then on Tuesday your BP9 needs to be sent out. You should assume that they all are going to get denied regardless of how well-thought-out and reasoned they are. So get the next one out the very next day.
The Law Office of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve. For more information on appeals please click here. If you can also add us on Facebook or Twitter.