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Howard F. Mccloy v. United States of America

May 11, 2012

HOWARD F. MCCLOY, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM AND ORDER OF COURT DENYING DEFENDANT'S MOTION FOR HABEAS CORPUS RELIEF (DOC. NOS. 135 and 137)

In this action, Petitioner, Howard F. McCloy, a federal inmate in the custody of the Bureau of Prisons, filed a "Motion for Speedy Hearing and Advancement on Calendar and Motion for Declaratory Judgment Under Federal Rules of Civil Procedure 57, Pursuant to 28 U.S.C. § 2201." See Doc. Nos. 135 and 137 in the criminal action. This Court ordered the United States of America to respond to said Motion, and the Assistant United States Attorney did so on May 9, 2012. See Doc. No. 2, in civil action. Based on the Government's Response and after careful consideration of information supplied by Petitioner in his Motion, this Court will deny Petitioner's Motion for the reasons that follow.

I. Background

A. Procedural History

On January 14, 2011, Petitioner pled guilty to one count of Conspiracy in violation of 18 U.S.C. § 371 and one count of Dealing in Explosive Materials without a license in violation of 18 U.S.C. §§ 842(a)(1) and 2. Pursuant to this Court's Order, a Presentence Investigation Report was prepared which indicated that Petitioner was undergoing Chelation Therapy which was not FDA approved. Doc. No. 81 at p. 9, ¶ 37. This Report also noted that he took several different vitamin and mineral supplements as part of his Chelation Therapy. Id. at p. 10, ¶39.

On July 27, 2011, this Court sentenced Petitioner to fifteen months imprisonment for each violation -- which was the lowest end of the guideline range for each offense -- and then ran the sentences concurrently. Doc. No. 105.

B. Petitioner's Motion

Petitioner indicated in his Motion that he is a 64-year old male inmate with "severe health problems." His primary concern is that he was and/or is unable to receive Chelation Therapy for one or more of his ailments.*fn1 See Doc. No. 136 generally. When deprived of this Chelation Therapy, Petitioner claims he underwent a cardiac episode in February of 2012, and "is afraid to even deal with the [prison] medical staff and lost all confidence in their abilities." Id. at p. 9. He claims that two months prior to his cardiac incident (on December 16, 2012) he filed a compassionate release request with the Warden at his prison in order to gain access to Chelation Therapy. Id.

Petitioner claims that "[t]hese circumstances are most certainly extraordinary and compelling, and without favorable adjudication, may become tragic." Id. Petitioner seeks "either a compassionate release from prison . . . or placement in a halfway house or home confinement so that he may seek or resume his Chelation Therapy." Id. at p. 10.

C. The Government's Response

The Government contends that Petitioner's request for a "compassionate release" from prison or relocation to a halfway house or his own home under home confinement should not be construed as motion filed pursuant to 28 U.S.C. § 2255. Rather, the Government opines that Petitioner's request is one that falls within the ambit of 28 U.S.C. § 2241.

The Government next posits that under § 2241, Petitioner is essentially challenging the execution of his sentence, as opposed to the validity of the sentence which would fall within the ambit of a § 2255 claim. If this claim is deemed to be one filed under § 2241, the Government first contends that this Court lacks personal jurisdiction over the warden, who is the proper respondent to a § 2241 Petition, given that Petitioner was (and possibly still is) housed note at FCI-Elkton located in Columbiana County, Ohio.

Next, the Government contends that even if this Court had jurisdiction over FCI-Elkton's warden, Petitioner has failed to exhaust his administrative remedies prior to filing this habeas petition. And finally, the Government contends that because Petitioner is currently awaiting RRC (i.e. ...


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