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September 28, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Quick Facts (Full BOP Stats can be found here) Currently positive-testing inmates: 484 (down from 540) Currently positive-testing staff: 501 (down from 548) Recovered inmates: 43,117 (up from 43,026) Recovered staff: 7,717 (up from 7,639)


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

Sheridan FCI: 75 (down from 90)

Herlong FCI: 70 (down from 112)

Beaumont USPI: 67 (up from 60)

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

Oakdale I FCI: 27 (unchanged)

Phoenix FCI: 27 (unchanged)

Forrest City Low FCI (16)

System-wide testing results: Presently, BOP has 131,590 federal inmates in BOP-managed institutions and 14,355 in community-based facilities. Today's stats: Completed tests: 122,141 (up from 122,071) Positive tests: 43,132 (up from 43,095)

Total vaccine doses administered: 225,886

Case Note: Is the Warden's denial of transfer to home confinement under the CARES Act reviewable under 28 U.S.C. § 2241?


In VINCENT MICHAEL MARINO Petitioner v. WARDEN HOWARD Respondent, 2021 WL 4341113 (M.D. Pa. Sept. 23, 2021) (Mannion, J.), the court found that, although a court cannot force the BOP to transfer a defendant to home confinement pursuant to the CARES Act, it can review the BOP’s decision not to in a motion brought under 28 USC § 2241, explaining: "Although the Court cannot review Marino's challenge to the BOP's decision under the CARES Act, the Court may assess “whether the BOP abused its discretion.” Vasguez v. Strada, 684 F.3d 431, 434 (3d Cir. 2012) (citing Barden v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981); Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990) (“If this designation impacts the fact or duration of a prisoner's sentence, the BOP's decision is subject to judicial review for abuse of discretion”); United States v. Allen, 124 F. App'x. 719, 721 (3d Cir. 2005); Rush v. Shartle, Civ. No. 13-4788 (NLH), 2015 WL 5567307, at *7 (D.N.J. Sep. 22, 2015) (citing Keohane, 921 F.2d at 480-83 (“The decision of the BOP is subject to judicial review only for abuse of discretion”).The Court will review the BOP's decision for abuse of discretion in denying Petitioner's request for home confinement based on Petitioner's history of violence. See Vasguez, 684 F.3d at 434. “The test is not whether a reviewing court would weigh the factors differently. The writ may issue only where an error is fundamental and carries a serious potential for a miscarriage of justice.” Eccleston v. United States, 390 F. App'x 62, 65 (3d Cir. 2010). An incorrect determination by the BOP regarding an inmate's “eligibility for early release ... carries a potential for a miscarriage of justice that can be corrected through habeas corpus.” Reeves v. Federal Bureau of Prisons, Civ. No. 13-1795 (JBS), 2014 WL 673019, at *1 (D.N.J. Feb. 21, 2014) (citing Murray v. Carrier, 477 U.S. 478, 495 (1986); Keohane, 921 F.2d at 479). The Third Circuit has held that the BOP's review of statutory factors and ultimate denial of a Petitioner's appeal is a valid “exercise of discretion.” Eccleston, 390 F. App'x at 65; see also Pickettv. Warden McKean FCI, 726 F. App'x 104, 107 (3d Cir. 2018); Wilson v. Strada, 474 F. App'x 46, 48 (3d Cir. 2012). “[T]he CARES Act does not mandate home confinement for any class of inmate.” Stroman, 2020 WL 4448056, at *7 (internal quotation omitted). Additionally, “nothing in the Act grants individual prisoners the right to serve the remainder of their sentence in home confinement.” Gottstein v. Finley, 3:20-CV-0935, 2020 WL 3078028, at *7 (M.D. Pa. June 10, 2020) (quoting United States v. Soliz, Crim. No. 2:16-190-3, 2020 WL 2500127, at *4 (S.D. Tex. May 14, 2020)). The record reflects that Petitioner's request for home confinement was denied based on his conviction being categorized as a crime of violence and having a Medium Risk Recidivism level factor. Per the Department of Justice's March 26, 2020 Memorandum (“Memorandum”) in affect at the time, regarding home confinement, an inmate's history of violence is a serious consideration in granting home confinement. (Doc. 7-5). Although Marino may have met other factors within the Memorandum, the BOP determined that he was not a priority candidate for home confinement based on his history of violence. Id. This determination is in accordance with the Memorandum.”



Death Watch (press releases announcing BOP COVID-related deaths may be found here): The BOP has identified a previously counted inmate fatality as William Waller 56, of FCI Mendota Satellite Camp, who died September 25, 2021. The inmate death toll remains at 258. Eight of these inmates died while on home confinement. Staff deaths remain at 6.




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