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April 1, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 118 (down from 164) Currently positive-testing staff: 140 (unchanged) Recovered inmates currently in the BOP: 53,485 (down from 53,487) Recovered staff: 12,532 (unchanged)


Institutions with the largest number of currently positive-testing inmates:

Cumberland FCI: 16 (down from 63)

Otisville FCI: 16 (unchanged)

Sheridan FCI: 9 (unchanged)

Institutions with the largest number of currently positive-testing staff:

Central Office HQ: 30 (unchanged)

Victorville Medium I FCI: 13 (unchanged)

Victorville USP: 13 (unchanged)

System-wide testing results: Presently, BOP has 135,453 federal inmates in BOP-managed institutions and 13,147 in community-based facilities. Today's stats: Completed tests: 128,823 (unchanged) Positive tests: 55,471 (unchanged)


Total vaccine doses administered: 309,488 (up from 309,167)


Case Note: A cautionary tale for effectuating service on the Warden...


In U.S,. v. Marcus Walton, 2022 WL 950351 (S.D. Ohio Mar. 30, 2022) (Watson, J.), the court found that a certified mail receipt accompanied by undated compassionate release request addressed to the warden is insufficient to prove exhaustion because the court won’t assume the warden signed or otherwise received the receipt, explaining: “The Government first argues that Defendant failed to exhaust his administrative remedies. Resp., ECF No. 742. Defendant asserts he did exhaust his administrative remedies based on an unsigned and undated request form, and a signed certified mail return receipt, both of which he attached to his motion. ECF No. 715, at PAGEID # 3690. A motion under 18 U.S.C. § 3582(c)(1)(A) requires a defendant to exhaust administrative remedies or wait at least thirty days after requesting relief from the Bureau of Prisons (“BOP”), before filing a motion with the Court. There are good reasons for this requirement. This Court is not well-positioned to evaluate how the BOP can best handle a crisis at each of its facilities or which inmates are best suited for early release to home confinement. Further, it is the defendant's burden to demonstrate that he has exhausted administrative remedies. See, e.g., United States v. Lewis, No. 1:18-CR-123-2, 2020 WL 6827498, at *3 (S.D. Ohio Nov. 21, 2020) (“[Defendant] must prove with evidence that he made a request to the warden, and that it was received by the warden, in order to establish that thirty days elapsed before he moved this Court for relief.”); United States v. Nelson, No. 1:08-CR-068, 2021 WL 615366, at *2 (S.D. Ohio Feb. 17, 2021) (explaining that a defendant must attach evidence to support his assertion that he has exhausted administrative remedies); United States v. Poole, 472 F. Supp. 3d 450, 455 (W.D. Tenn. 2020) (“The defendant bears the burden of showing he has exhausted his administrative remedies and is entitled to compassionate release.”). A few courts have addressed whether a signed certified mail receipt, accompanied only by a request letter, can demonstrate that a Defendant has exhausted his administrative remedies, with varying results. For example, in United States v. Knox, No. 3:12-CR-0252-B, 2020 WL 4432852 (N.D. Tex. July 31, 2020), the court found that the defendant's request letter in combination with a certified mail receipt was not proof that the compassionate release request “ever reached the warden,” and so held that the Defendant failed to exhaust administrative remedies. Id. at *2–3. In contrast, the court in United States v. Montgomery, 481 F. Supp. 3d 1179 (E.D. Wash. 2020) held that a certified mail receipt and an undated request showed that the Defendant had petitioned the warden and was sufficient to establish exhaustion of administrative remedies. Id. at 1181. The Court finds that, at least on the facts of this case, Defendant has failed to satisfy the exhaustion requirement. Turning first to the certified mail receipt, the Court finds it is insufficient to show that the Warden received Defendant's request. The certified mail address, which presumably was completed by Defendant, clearly indicates that it was addressed to “Warden Wolfe.” ECF No. 715, at PAGEID # 3690. Whether Warden Wolfe received it, however, is less clear. The receipt is signed by someone with the first name “B” or “G” or “Bran” or “Gram” or something similar; and the last name of “Willison” or “Willson.” Id. Defendant has not explained who this person is, or how (or if) they are connected to the Warden. Further, Defendant has provided no proof that the receipt-signor actually delivered the request to the Warden. And as to the request itself, it is not dated or signed, nor does it give any other indication that it was ever received by any prison official. ECF No. 715, at PAGEID # 3689. Considering all these factors, Defendant has failed to satisfy his burden of showing that he exhausted his administrative remedies. So, Defendant's motion is denied on that basis.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified the fatality announced yesterday as Marvin Hersch, 82, of FCI Butner Medium. The number of inmate-related COVID deaths remains at 292. Eleven of the inmates died while on home confinement. Staff deaths remain at 7

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