Sushovan Hussain v. Warden Allenwood FCI

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 22-1604 ___________ SUSHOVAN HUSSAIN, aka Hasan Tareque, Appellant v. WARDEN ALLENWOOD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) ___________ OPINION * ___________ 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 …

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