Patel v. Warden et al
| Firoz Patel |
| Warden and Attorney General Of The United States |
| 3:2023cv00366 |
| June 6, 2023 |
| US District Court for the Eastern District of Virginia |
| Mark R Colombell |
| David J Novak |
| Habeas Corpus (General) |
| 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus (Federal) |
| None |
Docket Report
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Filing 31
MEMORANDUM ORDER (Filing and Screening 2241 Petition) - that the petition is FILED. The Court will conduct a preliminary review of Petitioner's 2241 Petition. Petitioner must immediately advise the Court of his new address in writing in the event he relocates while the action is pending. SEE ORDER FOR DETAILS. Signed by Magistrate Judge Mark R. Colombell on 6/30/2023. Copy of Memorandum Order mailed to Petitioner.(jenjones, )
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Filing 30
NOTICE of Change of Address by Firoz Patel to CGA Associates, 50 Park Place, Suite 941, Newark, NJ 07102. (Attachments: #1 Envelope) (smej, )
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Filing 29
Case transferred in from District of Connecticut; Case Number 3:22-cv-01190. Original file and docket sheet received. (Additional attachment(s) added on 6/6/2023: #2 Prisoner Data Report) (ldab, ).
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Notification of transfer of 2241 Petition for Writ of Habeas Corpus from the District of Connecticut Case No. 3:22cv1190 to the Eastern District of Virginia. (ldab, )
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Filing 28
ORDER. Pursuant to the notice filed by Respondent, it now appears that Petitioner is no longer housed in Rhode Island, but is being held at a Regional Jail in Virginia, located in Richmond County. As such, for the reasons outlined in this Court's prior order at ECF No. 25, this case is properly transferred to the Eastern District of Virginia, and the Clerk of Court is directed to transfer this case to the Eastern District of Virginia immediately. Signed by Judge Sarala V. Nagala on 6/1/23. (Marks, Joshua) [Transferred from Connecticut on 6/6/2023.]
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Filing 27
NOTICE by Warden re 26 Order,,, re: Petitioner's Current Location (Coronado, Elena) [Transferred from Connecticut on 6/6/2023.]
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Filing 26
ORDER. The Court's orders at ECF Nos. 20, 22, and 24, that were mailed to Petitioner at the Donald W. Wyatt Detention Facility have been returned undeliverable due to Petitioner no longer residing at this address. Pursuant to Local Rule 83.1(c)(2), any self-represented party must provide an address where service can be made, and keep that address current. Here, Plaintiff has failed to do so, therefore no later than June 7, 2023, Petitioner shall provide the Court a current address where service can be made. Notwithstanding this general rule, due to the unusual procedural posture of this case, and the uncertainty regarding where Petitioner is, if the Government has any information as to where Petitioner is currently located, it shall file a notice with the Court providing his current location as soon as possible. Signed by Judge Sarala V. Nagala on 5/24/23. (Marks, Joshua) [Transferred from Connecticut on 6/6/2023.]
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JUDICIAL PROCEEDINGS SURVEY - FOR COUNSEL ONLY: The following link to the confidential survey requires you to log into CM/ECF for SECURITY purposes. Once in CM/ECF you will be prompted for the case number. Although you are receiving this survey through CM/ECF, it is hosted on an independent website called SurveyMonkey. Once in SurveyMonkey, the survey is located in a secure account. The survey is not docketed and it is not sent directly to the judge. To ensure anonymity, completed surveys are held up to 90 days before they are sent to the judge for review. We hope you will take this opportunity to participate, please click on this link: https://ecf.ctd.uscourts.gov/cgi-bin/Dispatch.pl?survey (Bozek, M.) [Transferred from Connecticut on 6/6/2023.]
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Filing 25
ORDER OF TRANSFER. Petitioner filed this action for writ of habeas corpus pursuant to 28 U.S.C. 2241 on September 21, 2022. ECF No. 1. At that time, he was incarcerated at FCI Danbury in Danbury, Connecticut. On April 20, 2023, the Court entered an order noting that it had come to the Court's attention that the Petitioner had been released from the custody of the Bureau of Prisons ("BOP") on April 14, 2023, and seeking the Government's input on whether the petition was moot as a result. ECF No. 20. The Government contends that, while certain of Petitioner's claims are rendered moot by his release from BOP custody, other claims relating to vacatur of his convictions are not moot because Petitioner is facing collateral consequences from these convictions, including possible deportation. ECF No. 21. Petitioner agrees with the Government that his petition is not moot, and also informed the Court that he is no longer being housed at FCI Danbury, but has been moved to the Donald W. Wyatt Detention Facility in Rhode Island. ECF No. 23. The U.S. Supreme Court "has made clear that '[w]henever a [28 U.S.C.] 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement,'" under what is known as the immediate custodian rule. Skaftouros v. United States, 667 F.3d 144, 146 n.1 (2d Cir. 2011) (alterations in original) (quoting Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004)). The question of the proper location for a habeas petition under the immediate custodian rule is "best understood as a question of personal jurisdiction or venue," as opposed to a limitation on the subject matter jurisdiction of a court. Padilla, 542 U.S. at 451 (Kennedy, J., concurring); see Cruz v. Decker, No. 18-CV-9948 (GBD) (OTW), 2019 WL 4038555, at *2 (S.D.N.Y. Aug. 27, 2019), aff'd, No. 18-CIV-9948 (GBD) (OTW), 2019 WL 6318627 (S.D.N.Y. Nov. 26, 2019) (collecting cases and noting that "[c]ourts have found that Padilla's 'immediate custodian rule is a venue rule'"). Where a 2241 petitioner has been redesignated to a prison facility in another jurisdiction, a court may transfer the petition to the jurisdiction in which the petitioner is being held. See Perez v. Breckon, No. 9:17-CV-00353-JKS, 2019 WL 652410, at *2 (N.D.N.Y. Feb. 15, 2019) (tentatively concluding that transfer of 2241 petition to judicial district in which petitioner had been relocated was appropriate "[b]ecause [the petitioner]... may receive relief should the [transferee district] find his claims meritorious"); see also Lemus-Pineda v. Whittaker, 354 F. Supp. 3d 473, 475-76 (S.D.N.Y. 2018) (transferring 2241 petition after finding that "the interests of justice will be served by transferring the petition to [the jurisdiction where the petitioner is being held] rather than dismissing it entirely").As noted above, Petitioner is no longer in the custody of a facility within the District of Connecticut. Therefore, the District of Connecticut is no longer the proper venue for this petition. Based on the claims in the petition, however, the petitioner may yet be entitled to relief should his claims be found meritorious. Therefore, rather than dismissing this action, the Court will be transferring this petition to the United States District Court for the District of Rhode Island. Before it does, however, the Court feels compelled to note, that while Petitioner has designated this a petition under 28 U.S.C. 2241 challenging the execution of his sentence, it appears to the Court that this petition may in fact raise claims more properly brought under 28 U.S.C. 2255, challenging the imposition of his sentence. See Adams v. United States, 372 F.3d 132, 13435 (2d Cir. 2004) (considering claims for ineffective assistance of counsel under 2255). This distinction is of some import as "the sentencing court... is the proper venue for adjudication of the 2255 petition." Fisher v. Hudson, 665 F. App'x 59, 61 (2d Cir. 2016). Therefore, if this petition is actually one for relief under 2255 petition, it would be appropriately decided in the District Court for the District of Columbia, as that is the sentencing court. Nevertheless, while "it is well-settled that a district court may convert a 2241 petition to a 2255 motion in appropriate circumstances," Ching v. United States, 298 F.3d 174, 176 (2d Cir. 2002), the Second Circuit has been clear that "district courts should not recharacterize a motion purportedly made under some other rule as a motion made under 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharacterized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized." Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998). The reason for this rule is that if this Court were to convert the petition to one made under 2255 and subsequently deny it, Petitioner would be prohibited from bringing a second petition pursuant to 2255. Id. Such a concern is especially salient here, where Petitioner in fact brought another petition pursuant to 2255 in the District Court for the District of Columbia after he filed the instant petition. See United States v. Patel, 1:18-CR-53-(2) (RDM), ECF No. 161. As this Court is no longer the correct venue to hear the current 2241 petition, it declines to address whether the petition should be converted, since that decision may have significant consequences for Petitioner. Therefore, it leaves such a determination to the transferee court. The Clerk of Court is directed to transfer this case to the United States District Court for the District of Rhode Island. Signed by Judge Sarala V. Nagala on 5/22/23. (Marks, Joshua) [Transferred from Connecticut on 6/6/2023.]
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Filing 24
ORDER. Based on the representations in the response filed at ECF No. 23, the Clerk of Court is directed to update Petitioner's address to: Firoz Patel, Inmate No. 22356-075, Donald W. Wyatt Detention Center, 950 High Street, Central Falls, R.I. 02863-1506. Signed by Judge Sarala V. Nagala on 5/8/23. (Marks, Joshua) [Transferred from Connecticut on 6/6/2023.]
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Filing 23
Response re #21 Response, filed by Firoz Patel. (Attachments: #1 Envelope) (Mendez, D) [Transferred from Connecticut on 6/6/2023.]
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Filing 22
ORDER. Based on the representations in Respondents' briefing and certificate of service filed on April 26, the Clerk of Court is directed to update Petitioner's address to: Firoz Patel, Bureau of Prisons Register No. 22356-075, Strafford Co. Correctional Facility, 266 County Farm Road, Dover, NH 03820. As a result of this change in address, and any potential delay in receipt of filings it may have caused, Petitioner's time to respond to Respondents' filing is sua sponte extended to May 25, 2023. The Clerk of Court is directed to mail a copy of this order, as well as the order at ECF No. 20, to Petitioner at his new above-listed address. Signed by Judge Sarala V. Nagala on 4/28/23. (Marks, Joshua) [Transferred from Connecticut on 6/6/2023.]
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Filing 21
RESPONSE re 20 Order, filed by Warden. (Coronado, Elena) [Transferred from Connecticut on 6/6/2023.]
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Filing 20
ORDER. It has come to the Court's attention that Petitioner was released from the custody of the Bureau of Prisons on April 14, 2023. In light of this fact, no later than April 27, 2023, the Government shall file a brief outlining its position on whether this development has rendered the instant petition moot. Any response from Petitioner shall be filed no later than May 11, 2023. Signed by Judge Sarala V. Nagala on 4/20/23. (Marks, Joshua) [Transferred from Connecticut on 6/6/2023.]
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Filing 19
Reply To Governments' Answer Opposing The 2241 Petition For Writ Of Habeas Corpus, filed by Firoz Patel. (Attachments: #1 Envelope) (Mendez, D) [Transferred from Connecticut on 6/6/2023.]
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Filing 18
ORDER denying #11 Motion for Bail. Petitioner requests that the Court grant him bail and allow him to be released pending disposition of his habeas petition. While a federal court may grant a petitioner bail pending adjudication of his habeas petition, bail is not routinely granted and is appropriate "only in unusual cases, or when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective." See Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). To be granted bail, Petitioner must demonstrate that the habeas petition raises substantial claims and that extraordinary circumstances exist. Id. This is undoubtedly "a difficult standard to meet," Oliphant v. McGill, No. 3:08-CV-1728(WWE), 2010 WL 717905, at *1 (D. Conn. Feb. 23, 2010), and one that Petitioner has not met here.The Court first addresses whether Petitioner has demonstrated extraordinary circumstances which make bail necessary in order to allow the habeas remedy to be effective. Petitioner argues that "imminent risks posed" by the COVID-19 pandemic, as well as the Government's repeated requests for extensions of time to respond to his petition, constitute extraordinary circumstances. Respondent has now filed its opposition to the petition. Thus, Petitioner's concerns regarding unwarranted delay of the Government's response are no longer present. Turning to his concerns regarding COVID-19, Petitioner submits that he is forty-nine years old, has a BMI of 35, and suffers from sleep apnea, sinusitis, and hypertension. The CDC has recognized that a BMI of 35 and hypertension might present increased risks from COVID-19. See People with Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last updated Jan. 26, 2023). The Second Circuit, however, has noted that the CDC "states that hypertension only 'possibly' increases the risk one faces from COVID-19" and, thus, an inmate suffering from this condition does not show extraordinary circumstances warranting bail pending a decision on his habeas petition. Daum v. Eckert, No. 20-3354, 2021 WL 4057190, at *2 (2d Cir. Sept. 7, 2021), amended Sept. 8, 2021 (summary order).Similarly, the CDC recognizes that having a BMI between 30 and 40 "can make you more likely to get very sick." People with Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last updated Jan. 26, 2023). As this condition appears to present no greater risk than hypertension, the Court does not believe it constitutes extraordinary circumstances. Petitioner has presented no evidence that his remaining health concerns--including that he is forty-nine years old and has sleep apnea and sinusitis--in any way increase his risk for serious disease from COVID-19. Thus, the Court does not believe these conditions present extraordinary circumstances warranting bail. Moreover, in opposition to the motion for bail, Respondent represents that Petitioner has had two doses of the Pfizer COVID vaccine, as well as a third "booster" dose. ECF No. 13 at 6. It is now beyond dispute that such vaccines greatly reduce the likelihood of serious illness related to COVID. Nor does Petitioner's description of the situation at FCI Danbury help his cause. The facts cited by Petitioner, including the calls for investigation by Senators Murphy and Blumenthal, are severely out of date. For instance, Petitioner states that as of January 2022--more than a full year ago--there were 89 confirmed COVID cases among inmates at FCI Danbury. As of today, however, FCI Danbury has no confirmed active cases of COVID among either staff or inmates. BOP Covid-19 Statistics (last updated February 15 2023) https://www.bop.gov/coronavirus/covid19_statistics.html. Petitioner has provided no recent information showing that FCI Danbury presents such a risk to petitioner's health that it qualifies as an extraordinary circumstance warranting bail. To the extent Petitioner seeks bail due to the medical circumstances of Petitioners wife and daughter, those conditions also do not rise to the level of exceptional circumstances warranting bail. While the Court is sympathetic to the difficulties that family members of incarcerated persons face, the allegations here are insufficient to meet the legal standard of extraordinary circumstances.It has been nearly three years since the COVID-19 pandemic began. At this time, the dangers posed by COVID-19 are, thankfully, not extraordinary. Were the present dangers a justification for bail pending disposition of a habeas petition, bail would be warranted in nearly every situation. This is simply not the law. Finally, the Court notes that as Petitioner has failed to demonstrate extraordinary circumstances requiring bail, the Court need not, and does not, examine whether Petitioner has raised substantial claims in his petition. The Court will take up the merits of the petition in due course. Accordingly, Petitioner's Motion for Bail is DENIED. Signed by Judge Sarala V. Nagala on 2/15/23. (Marks, Joshua) [Transferred from Connecticut on 6/6/2023.]
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Filing 17
REPLY to #13 Memorandum in Opposition re #11 MOTION for Bond filed by Firoz Patel. (Bozek, M.) [Transferred from Connecticut on 6/6/2023.]
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Filing 16
ORDER. Any reply to the Government's Response to Petition for Writ of Habeas Corpus shall be filed no later than February 24, 2023. Signed by Judge Sarala V. Nagala on 2/3/23. (Marks, Joshua) [Transferred from Connecticut on 6/6/2023.]
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Filing 15
ORDER. The Court has received multiple calls from Petitioner's brother informing the Court that a reply in further support of Petitioner's motion for bail had been mailed to the Court. As of today the Court has yet to receive this document. The Court will refrain from considering the motion until February 10, 2023. If the Court has not received the document by that date, it will begin consideration of the motion without it. Signed by Judge Sarala V. Nagala on 2/3/23. (Marks, Joshua) [Transferred from Connecticut on 6/6/2023.]
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Filing 14
RESPONSE re #1 Petition for Writ of Habeas Corpus filed by Warden. (Coronado, Elena) [Transferred from Connecticut on 6/6/2023.]
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Filing 13
Memorandum in Opposition re #11 MOTION for Bond filed by Warden. (Coronado, Elena) [Transferred from Connecticut on 6/6/2023.]
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Set Deadline as to #11 Notice Of Emergent Motion For BailResponse due by 1/13/2023. (Bozek, M.) [Transferred from Connecticut on 6/6/2023.]
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Filing 12
ORDER. The Respondents shall file any opposition to Petitioner's Motion for Bail (ECF No. #11 ) no later than January 13, 2023. Signed by Judge Sarala V. Nagala on 1/4/23. (Marks, Joshua) [Transferred from Connecticut on 6/6/2023.]
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Filing 11
Notice Of Emergent Motion For Bail, by Firoz Patel. (Mendez, D) [Transferred from Connecticut on 6/6/2023.]
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Deadline updated for Warden: Opposition to Petition due by 2/1/2023. (Bozek, M.) [Transferred from Connecticut on 6/6/2023.]
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Filing 10
ORDER granting #8 Motion for Extension of Time. The Government's opposition to the Petition shall be filed no later than February 1, 2023. Although the Court appreciates Petitioner's arguments that there are other grounds raised in the petition besides that related to the treaty transfer, the Court believes it is most efficient to allow the Government to respond to all of the matters raised in the petition in one filing. As the investigation concerning the treaty transfer remains pending, an extension of time for the Government to file its response until February 1, 2023, is appropriate. Petitioner's arguments that the Government did not comply with Local Rule 7(b)(3) are well-taken. The Court has already once reminded Respondent's counsel about the conferral requirements of Local Rule 7(b). See ECF No. 7. Counsel is now reminded that, pursuant to Local Rule 7(b)(3): "All motions for extension of time shall be filed at least three (3) business days before the deadline sought to be extended, except in cases in which compelling circumstances warranting an extension arise during the three days before the deadline. Any motion for extension of time filed fewer than three business days before the deadline sought to be extended shall, in addition to satisfying all other requirements of this Rule, set forth reasons why the motion was not filed at least three business days before the deadline in question." Any future failures to comply with Local Rule 7(b) will result in the denial of non-compliant motions for extension of time. Signed by Judge Sarala V. Nagala on 12/13/22. (Marks, Joshua) [Transferred from Connecticut on 6/6/2023.]
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Filing 9
Opposition to #8 MOTION for Extension of Time until February 1, 2023 to respond to 4 Order to Show Cause, filed by Firoz Patel. (Attachments: #1 envelope)(Bozek, M.) [Transferred from Connecticut on 6/6/2023.]
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Filing 8
MOTION for Extension of Time until February 1, 2023 to respond to 4 Order to Show Cause,, by Warden. (Attachments: #1 Exhibit A)(Coronado, Elena) [Transferred from Connecticut on 6/6/2023.]
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Set Deadline: Show Cause Response due by 12/1/2022. (Bozek, M.) [Transferred from Connecticut on 6/6/2023.]
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Filing 7
ORDER granting Motion for Extension of Time. Respondent's response to the Court's Order to Show Cause shall be filed no later than December 1, 2022. The Court notes that Petitioner's incarceration does not excuse Respondent from the requirement of Local Rule 7(b) that Respondent at least attempt to ascertain the position of Petitioner regarding a request for an extension of time. Any future motions for extensions of time must fully comply with Local Rule 7(b). Nonetheless, even assuming Petitioner were to oppose the present motion, the Court grants it, as Respondent has shown good cause for the requested continuance and the short delay will not unduly prejudice Petitioner. Signed by Judge Sarala V. Nagala on 11/15/22. (Marks, Joshua) [Transferred from Connecticut on 6/6/2023.]
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Filing 6
MOTION for Extension of Time until December 1, 2022to respond to 4 Order to Show Cause,, by Warden. (Coronado, Elena) [Transferred from Connecticut on 6/6/2023.]
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Filing 5
NOTICE of Appearance by Elena Lalli Coronado on behalf of Warden (Coronado, Elena) [Transferred from Connecticut on 6/6/2023.]
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Set Deadline: Show Cause Response due by 11/15/2022. (Bozek, M.) [Transferred from Connecticut on 6/6/2023.]
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Filing 4
ORDER TO SHOW CAUSE. It is hereby ORDERED that respondents file a response on or before November 15, 2022, why the relief prayed for in the petition for writ of habeas corpus should not be granted. It is further ORDERED that the Clerk of Court serve a copy of this order and a copy of the petition and all attachments, to respondents' representative, AUSA Michelle McConaghy of the Office of the United States Attorney, by email on or before October 5, 2022. Signed by Judge Sarala V. Nagala on 10/4/22. (Marks, Joshua) [Transferred from Connecticut on 6/6/2023.]
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Filing fee received from CGA Associates Inc: $ 5.00, receipt number 25692 (Chartier, AnnMarie) [Transferred from Connecticut on 6/6/2023.]
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Filing 3
ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER. Signed by Judge Sarala V. Nagala on 9/21/2022. (Mendez, D) [Transferred from Connecticut on 6/6/2023.]
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Filing 2
STANDING PROTECTIVE ORDER. Signed by Judge Sarala V. Nagala on 9/21/2022. (Mendez, D) [Transferred from Connecticut on 6/6/2023.]
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Filing 1
PETITION for Writ of Habeas Corpus, filed by Firoz Patel.(Mendez, D) [Transferred from Connecticut on 6/6/2023.]
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