Sushovan Hussain v. Warden Allenwood FCI ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-1604
___________
SUSHOVAN HUSSAIN,
aka Hasan Tareque,
Appellant
v.
WARDEN ALLENWOOD FCI;
DIRECTOR FEDERAL BUREAU OF PRISONS;
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-21-cv-01635)
District Judge: Honorable Malachy E. Mannion
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 14, 2023
Before: KRAUSE, SCIRICA, and AMBRO, Circuit Judges
(Opinion filed: March 27, 2023)
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OPINION *
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Sushovan Hussain, a federal prisoner at FCI-Allenwood, appeals from orders of
the District Court denying his petition for a writ of habeas corpus brought pursuant to 28
U.S.C. § 2241 and his motion for reconsideration. For the following reasons, we will
affirm the District Court’s judgment.
Hussain, who is a citizen of the United Kingdom, was sentenced in May 2019 to
60 months’ imprisonment for wire fraud, conspiracy to commit wire fraud, and securities
fraud. See United States v. Hussain, 972 F.3d 1138 (9th Cir. 2020) (affirming the
judgment of conviction). In December 2020, he filed a request for home confinement
with prison officials pursuant to the Coronavirus Aid, Relief and Economic Security Act
(CARES Act), which expanded the authority of the Bureau of Prisons (BOP) under 18
U.S.C. § 3624(c)(2) to place a prisoner in home confinement in light of COVID-19. See
CARES Act § 12003(b)(2), Pub. L. No. 116–136, 134 Stat. 281 (2020). Hussain argued
that he was at increased risk of COVID-19 because he suffers from asthma. The warden
determined that Hussain was “ineligible” for home confinement placement because he is
subject to a detainer filed by Immigration and Customs Enforcement (ICE), and he had
served less than 50% of his sentence. See ECF No. 1-5.
In September 2021, Hussain filed a habeas petition challenging the denial of his
CARES Act request as unconstitutional and arguing that the Bureau of Prisons’ policies
discriminated against him on the basis of national origin. The District Court sua sponte
dismissed the petition for lack of jurisdiction pursuant to Rule 4 of the Rules Governing
§ 2254 Cases (made applicable to § 2241 petitions under Rule 1(b)), finding that Hussain
had not exhausted his administrative remedies. The District Court determined in the
2
alternative that, even assuming exhaustion, (1) it lacked jurisdiction to release prisoners
to home confinement under the CARES Act, and (2) the BOP did not abuse its discretion
in denying the home confinement request. See ECF No. 9. Finally, the District Court
determined that Hussain’s remaining claims were unrelated to the fact or duration of his
confinement and, therefore, were inappropriately raised in a § 2241 petition and more
properly raised in a Bivens 1 action. Hussain filed a timely motion for reconsideration,
which the District Court denied. This appeal ensued.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Because Hussain’s timely
appeal from the denial of his timely motion for reconsideration “brings up the underlying
judgment for review,” we will review the District Court’s dismissal order as well as its
order denying the motion for reconsideration. See McAlister v. Sentry Ins. Co., 958 F.2d
550, 552-53 (3d Cir. 1992). We review de novo the District Court’s dismissal of the
§ 2241 petition. See Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). We
may affirm on any basis supported by the record. See Murray v. Bledsoe, 650 F.3d 246,
247 (3d Cir. 2011) (per curiam).
Hussain challenges the District Court’s summary dismissal of the petition pursuant
to Habeas Corpus Rule 4, which provides for pre-answer dismissal of a plainly meritless
habeas petition. Hussain notes that the government can waive exhaustion, and therefore,
1
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); see also Brown v.
Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001) (“A Bivens action, which is the
federal equivalent of the [42 U.S.C.] § 1983 cause of action against state actors, will lie
where the defendant has violated the plaintiff’s rights under color of federal law.”).
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he argues, dismissal on the basis of failure to exhaust prior to its answer was improper.
The Government raises the exhaustion defense on appeal, its first opportunity to do so,
arguing that Hussain was required to appeal from the denial of his request for home
confinement and dismissing generally his futility arguments. But, like the District Court,
the Government does not grapple with Hussain’s compelling argument that exhaustion
would be futile because he claims that the criteria on which the BOP relied in denying his
request are unconstitutional. See Gallegos-Hernandez v. United States, 688 F.3d 190,
194 (5th Cir. 2012) (holding that exhaustion would be futile where prisoner challenged
the constitutionality of BOP’s regulations denying rehabilitation and halfway house
programs to ICE detainees as violative of his equal protection rights); Woodall v. Fed.
Bureau of Prisons, 432 F.3d 235, 239 n.2 (3d Cir. 2005) (recognizing that exhaustion of
administrative remedies may be futile where the petitioner “is not challenging the
application of the BOP regulations, but their validity”).
Turning to the District Court’s alternative basis for its dismissal, Hussain argues
that the District Court erred in failing to address his “discrimination” claims. We agree.
The District Court correctly noted that federal courts are not authorized to direct that an
inmate’s sentence be served in home confinement. See 18 U.S.C. § 3624(c)(2); see also
CARES Act, Pub. L. 116-136, Div. B, Title II, § 12003(b)(2) (providing that “the
Director of the [BOP] may lengthen the maximum amount of time for which the Director
is authorized to place a prisoner in home confinement under [§ 3624(c)(2)]”); United
States v. Houck, 2 F.4th 1082, 1085 (8th Cir. 2021); United States v. Saunders, 986 F.3d
1076, 1078 (7th Cir. 2021). It was also arguably correct that it could consider whether
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the BOP abused its discretion in the exercise of its authority. See Vasquez v. Strada, 684
F.3d 431, 434 (3d Cir. 2012) (reviewing for abuse of discretion the BOP’s decision to
limit a petitioner’s pre-release placement under § 3624(c)(6)(C)); Tapia v. United States,
564 U.S. 319, 331 (2011) (noting that “the BOP has plenary control, subject to statutory
constraints, over ‘the place of the prisoner's imprisonment,’ § 3621(b), and the treatment
programs (if any) in which he may participate”). The District Court determined that the
BOP did not abuse its discretion in denying the request for home confinement on the
basis that Hussain had not served more than 50% of his sentence. To the extent that the
BOP relied on this factor, we agree with the District Court that the determination was
neither arbitrary nor an abuse of discretion. 2
But “in addition” to that factor, the BOP determined that Hussain was ineligible
for home confinement because of his ICE detainer. ECF No. 1-5 at 3. Hussain argued
that the BOP’s policy allowing reliance on that factor was both contrary to the Attorney
General’s directive that the BOP consider “all at-risk inmates – not only those who were
previously eligible for transfer” 3 and unconstitutional. The District Court erroneously
2
Prior to the CARES Act, the BOP could authorize home confinement for the shorter of
10% of the imprisonment term or six months. See 18 U.S.C. § 3624(c)(2). In the wake
of the CARES Act, the BOP prioritized for consideration those inmates who had served
50% or more of their sentence or who had 18 months or less remaining on their sentence
and had served 25% or more of their sentence. See Bureau of Prisons Memorandum,
April 13, 2021 (BOP Memo),
https://www.bop.gov/foia/docs/Home%20Confinement%20memo_2021_04_13.pdf
3
Mem. from Att’y Gen. to Dir. of Bureau of Prisons, April 3, 2020 (“AG Memo”)
https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf
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concluded that this claim and Hussain’s other “discrimination” claims must be raised in a
Bivens action. We have recognized that a petitioner’s challenge to the BOP’s regulations
implementing § 3624(c) is a challenge to the manner in which the sentence is being
executed and, therefore, is properly brought under § 2241. See Woodall, 432 F.3d at
243-44 (noting that “the criteria for determining [a prisoner’s] placement are instrumental
in determining how a sentence will be ‘executed’”). Hussain claimed that the BOP
deemed him ineligible for home confinement and rehabilitative programs based on
erroneous or unconstitutional criteria; because these benefits could impact the duration of
his time in prison, Hussain’s “discrimination” claims are challenges to the execution of
his sentence and, therefore, were appropriately raised in a § 2241 petition. See Gallegos-
Hernandez, 688 F.3d at 194. And, to the extent that any exhaustion requirement was
futile, the District Court erred in failing to address the claims. Nevertheless, because the
claims plainly lack merit, the error was harmless.
Hussain claimed that the BOP denied him home confinement and the ability to
participate in rehabilitative programs on the basis of his national origin, in violation of his
rights under the Equal Protection Clause. 4 See Plyler v. Doe, 457 U.S. 202, 210 (1982)
(noting that “[a]liens, even aliens whose presence in this country is unlawful, have long
4
Although Hussain also argues that the BOP’s home confinement policy was in
contravention of the CARES Act, he does not point to any specific provision of the Act
that was arguably violated. Rather, he points only to the Attorney General’s
Memorandum, which we note provided “guidance” to the BOP in implementing the
CARES Act and directed the BOP to review “all at-risk inmates” and determine those
which the BOP “deem[ed] suitable candidates for home confinement.” See AG Memo at
1-2. Pursuant to that Memorandum, the BOP developed a list of factors for determining
suitable candidates for home confinement, which included “[c]onfirming the inmate does
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been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth
Amendments”). To establish an equal-protection claim, “a plaintiff must at a minimum
allege that he was intentionally treated differently from others similarly situated by the
defendant and that there was no rational basis for such treatment.” Phillips v. County of
Allegheny, 515 F.3d 224, 243 (3d Cir. 2008).
Contrary to Hussain’s argument, his equal protection claims are not subject to a
strict scrutiny analysis. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312-13 (1976)
(explaining that equal protection analysis requires strict scrutiny "only when the
classification impermissibly interferes with the exercise of a fundamental right or
operates to the peculiar disadvantage of a suspect class"). First, there is no
fundamental right to home confinement or to participate in rehabilitative programs. See
Gallegos-Hernandez, 688 F.3d at 196 (noting that ICE detainee’s equal protection claim
based on exclusion from rehabilitative and early-release programs did not involve a
fundamental right). Second, BOP policy excludes from eligibility for home confinement
all prisoners with detainers, not just non-citizen prisoners subject to an ICE detainer, see
BOP Memo at 2. See McLean v. Crabtree, 173 F.3d 1176, 1186 (9th Cir. 1999)
(“[b]ecause ‘prisoners with detainers’ does not constitute a suspect class, the detainer
exclusion is valid so long as it survives the rational basis test, which accords a strong
presumption of validity”). And “the statute and regulations [providing for rehabilitation
and early release programs] classify prisoners – not as aliens and non-aliens – but as
not have a current detainer.” See BOP Memo at 2.
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those who have ICE detainers against them and those who do not.” Gallegos-Hernandez,
688 F.3d at 196 (citing 28 C.F.R. § 550.55(b) (listing inmates not eligible for early
release)).
Hussain contends that the BOP’s policies are discriminatory because non-citizen
prisoners are subject to an ICE detainer on the basis of their national origin while
prisoners are subject to other types of detainers on the basis of their “demonstrable
conduct.” ECF No. 1-1 at 26. But regardless of the basis for a detainer, the BOP has a
legitimate interest in preventing any prisoner from fleeing his detainer while on home
confinement, and because the BOP’s policies are rationally related to that interest and to
its interest in limiting rehabilitative programs to inmates who have a lawful right to
remain in the United States, they are constitutionally valid. See Gallegos-Hernandez, 688
F.3d at 196 (noting support for “the determination that ICE detainees are ineligible to
participate in prerelease halfway house confinement is rationally related to preventing
those detainees from fleeing during the community-based portion of those programs);
McLean, 173 F.3d at 1186 (“[E]xcluding prisoners with detainers from participating in
community-based treatment programs, and consequently from sentence reduction
eligibility, is at least rationally related to the BOP's legitimate interest in preventing
prisoners from fleeing detainers while participating in community treatment programs.”).
Because these claims were plainly without merit, they were subject to dismissal, and the
District Court properly denied reconsideration. 5
5
Hussain maintains on appeal that the District Court wrongfully dismissed his claim that
BOP policy regarding earned time credits “clearly and unambiguously deviates from the
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Based on the foregoing, we will affirm the District Court’s judgment.
legislative text of the” First Step Act of 2018 (FSA), Pub. L. No. 115-391, 132 Stat. 5194
(enacted Dec. 21, 2018). Reply Br. at 12. But Hussain did not clearly present this claim
to the District Court. See United States v. Melendez, 55 F.3d 130, 136 (3d Cir. 1995)
(holding that when a defendant fails to raise an issue before the district court, the
appellate court cannot address it on appeal). In the background section of his § 2241
petition, Hussain made passing reference to his inability to earn time credits under the
FSA, see ECF No. 1-1 at 16, and in support of his general argument that BOP practices
and policies overall are discriminatory, he provided an example (“for instance”) that a
non-citizen “will be entitled to no benefit” if they participate in rehabilitative programs,
id. at 21-22. Although courts construe pro se habeas petitions liberally, see, e.g., Rainey
v. Varner, 603 F.3d 189, 198 (3d Cir. 2010), we will not create claims that a habeas
petitioner did not pursue, particularly when, as here, he also failed to specify the claim in
his motion for reconsideration.
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