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Stewart v. United States

United States District Court, Second Circuit

August 9, 2013

LYNNE STEWART, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

AMENDED OPINION AND ORDER

JOHN G. KOELTL, District Judge.

The petitioner, Lynne Stewart, seeks an order pursuant to 28 U.S.C. § 2255 and 18 U.S.C. § 3582 reducing her sentence to time-served, or in the alternative, granting her immediate release on conditions consistent with her medical needs. The petitioner has been diagnosed with metastatic breast cancer. The Bureau of Prisons ("BOP") denied a recent application for compassionate release, but subsequently, within the past three weeks, the petitioner's current treating oncologist has given the petitioner a prognosis of less than 18 months to live. On August 7, 2013, the petitioner submitted a renewed application for compassionate release to the BOP, which is currently pending.

The petitioner now argues that the failure of the BOP to file a motion seeking a reduction in the petitioner's sentence pursuant to 18 U.S.C. § 3582, the Compassionate Care Act, is unconstitutional because it violates separation of powers doctrines and constitutes cruel and unusual punishment in violation of the Eighth Amendment.

The Compassionate Care Act, the United States Sentencing Guidelines, and a substantial array of prior authority make it clear that a motion by the BOP is a prerequisite to the Court's reduction of a sentence based on compassionate release. That statutory framework and its implementation in this case do not violate any separation of powers doctrines or constitute cruel and unusual punishment.

The petitioner has appropriately submitted a renewed motion for compassionate release to the BOP, and the Court is prepared to give prompt and sympathetic consideration to any motion by the BOP that seeks compassionate release. But the current application seeking to circumvent a motion by the BOP is without merit and is denied.

I.

A.

On February 10, 2005, following a jury trial, the petitioner was convicted of one count of conspiring to defraud the United States in violation of 18 U.S.C. § 371; one count of providing and concealing material support to a conspiracy to murder persons in a foreign country in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 2; one count of conspiracy to provide and conceal such support in violation of 18 U.S.C. § 371; and two counts of making false statements in violation of 18 U.S.C. § 1001. United States v. Stewart , 590 F.3d 93, 108 (2d Cir. 2009). The Court of Appeals affirmed the conviction, but remanded for resentencing. Id. at 152.

On July 15, 2010, this Court resentenced the petitioner principally to a 120-month term of incarceration to be followed by a two-year term of supervised release. The Court of Appeals affirmed the sentence. United States v. Stewart , 686 F.3d 156, 163-64 (2d Cir. 2012). The petitioner began serving her sentence in November 2009.

B.

In or about November 2005, the petitioner was diagnosed with breast cancer. (Shellow Decl. ¶ 10.) In 2006, after treatment, the petitioner's cancer went into remission, but the petitioner began a five-year course of oral chemotherapy which she completed in prison. (Shellow Decl.¶ 10; Ex. L ¶ 1.)

The petitioner is incarcerated at the Federal Medical Center in Carswell, Texas ("FMC Carswell"). (Shellow Decl. ¶ 15.) On September 28, 2012, a PET/CT scan confirmed that the petitioner's breast cancer had recurred. (Shellow Decl. ¶ 11.) The petitioner has received treatment from Dr. Prasanthi Ganesa at the Center for Cancer and Blood Disorders in Fort Worth, Texas. (Shellow Decl. ¶ 23A; Ex. G.) On May 10, 2013, Dr. Ganesa reported that the petitioner was responding well to treatment, that she was able to perform her activities of daily living, and that the "overall prognosis for the patient[] is 2 years." (Shellow Decl. ¶ 23A; Ex. G.) However, the petitioner's initial treating physician has estimated that the petitioner's prognosis is less than twelve months at this time, and an outside consulting physician has estimated that the prognosis is six months. (Shellow Decl. ¶¶ 23B-C.) The petitioner also reports that she has great difficulty with the activities of daily living. (Shellow Decl. ¶ 24.)

C.

On April 12, 2013, the petitioner filed a formal request with the warden of FMC Carswell for compassionate release pursuant to 18 U.S.C. § 3582. (Shellow Decl. ¶ 15; Ex. L.) On May 10, 2013, the warden forwarded the petitioner's application to the BOP Central Office with a recommendation that it be approved. (Shellow Decl. ¶ 16.)

On June 24, 2013, the Director of the BOP informed the warden at FMC Carswell that the petitioner's application was denied because although the petitioner's cancer "is very serious, she is not suffering from a condition that is terminal within 18 months. Accordingly, [the petitioner] does not present circumstances considered to be extraordinary and compelling to merit RIS [a reduction in sentence] at this time." (Shellow Decl. ¶ 20; Ex. M (second alteration in original).) This correspondence also stated that the petitioner could "request reconsideration of her [] request should her condition change." (Shellow Decl. Ex. M.)

After an examination on July 15, 2013, Dr. Ganesa has now reported that the petitioner's "expected survival [is] less than 18 [months], she was diagnosed with [metastatic cancer] in Nov. 2012. She is appropriate for compassionate release in my opinion." (Shellow Decl. Ex. O, at 3.) On August 7, 2013, the petitioner submitted a revised ...


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