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The following papers numbered 1-8 were read on Petitioners’ application for a writ of habeas corpus and Respondents’ motion to dismiss the proceeding: Order to Show Cause — Verified Petition and Memorandum / Exhibits — Affidavits (2)           1-4 Notice of Motion — Affirmation/Exhibits — Affidavit — Supplemental Affidavit          5-8 To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.   Upon the foregoing papers, the Petition is disposed of as follows: A. Petitioner’s Claim Petitioner Joseph Wilcox is currently being held in Respondents’ custody at the Otisville Correctional Facility (“OCF”), serving a duly imposed sentence of imprisonment upon his convictions for Burglary in the Third Degree, Endangering the Welfare of a Child, Criminal Obstruction of Breathing, and Aggravated Unlicensed Operation in the First Degree. He applies for a writ of habeas corpus, asserting that (1) by virtue of his age and underlying physical condition, as well as crowded and unsanitary prison conditions at OCF which limit his ability to practice “social distancing”, he is especially vulnerable to infection by the COVID-19 virus; (2) in consequence, he is being unlawfully detained in violation of his rights under the Eighth Amendment to the United States Constitution and parallel provisions of the New York State Constitution; and (3) the only effective measure prison authorities can take to mitigate the risk to his health is his immediate release; in consequence whereof (4) he claims entitlement to a court order directing his release to home confinement. B. Petitioner’s Age and Underlying Medical Condition Petitioner is only 33 years of age. There is no evidence that persons of such age are especially vulnerable to the COVID-19 virus. As for his “underlying physical condition,” Petitioner claims that he was diagnosed with asthma when young and requires an inhaler to breathe. However, the medical records annexed to the Petition are bereft of evidence supporting that claim: they reflect naught but Petitioner’s self-reporting after the onset of the COVID-19 “pandemic.” Critically, a DOCCS’ “Medical Problem List” dated April 30, 2020 does not include asthma or respiratory complaints. Quite evidently, Petitioner did not report his alleged asthma and need for an inhaler upon entering the prison system. On April 26, 2020, while he was incarcerated at the Ulster Correctional Facility, Petitioner was attacked and sustained multiple fractures to his face and jaw. On April 27, 2020, he was evaluated at the Orange Regional Medical Center (“ORMC”). The report states: Respiratory ROS; no cough, shortness of breath, or wheezing.” He tested negative for COVID-19. He underwent an operation involving a “maxillomandibular fixation”, i.e. his jaw was wired shut. A post-operative note states: “[t]he patient was then transferred to the Postanesthesia Recovery Room breathing spontaneously without any difficulty.” Petitioner was transferred to OCF on or about May 19, 2020. As part of his “Health Screening”, he was asked, “Do you have any current health problem or complaints?” He reported his fractured jaw, but neither asthma nor respiratory complaints. He was admitted to the OCF infirmary on Mary 19, 2020. A May 20th progress note reflects Petitioner’s request for an inhaler, but his lungs were found to be “clear in all fields.” Progress notes from May 22, May 23, May 24, May 27, June 1 and June 2 reflect “no complaints.” In People ex rel. Wadia v. George R. Vierno Center, 185 AD3d 713 (2d Dept. 2020), the Second Department held that the Supreme Court did not err in denying a pre-trial detainee’s habeas petition for release from prison due to COVID-19 “since [he] is 27 years old, has no underlying medical conditions, and has shown no symptoms of COVID-19.” See, id. C. Conditions At OCF Rebutting Petitioner’s wholly conclusory allegation of the deficiency of OCF’s response to the COVID-19 virus, the affidavits by OCF warden Delta Barometre detail at considerable length the extensive coronavirus protocols that have been adopted at OCF to protect inmates and staff from the virus. Her affidavits further establish that between early May and early August of 2020 only nine (9) inmates contracted COVID-19, and as of August 3, 2020, 53 of the 54 OCF inmates who had tested positive for the virus had recovered. In People ex rel. Ferro v. Brann, 183 AD3d 758 (2d Dept. 2020), the Second Department affirmed the dismissal of a habeas petition by a convicted prisoner seeking release due to COVID-19, writing: The petitioner has failed to demonstrate that Pasha’s imprisonment is illegal [cit.om.]. Contrary to the petitioner’s contention, the petitioner has not demonstrated that prison officials have been deliberately indifferent to Pasha’s medical needs or that Pasha is entitled to immediate release from custody as a remedy for any failure to address his medical needs (see People ex rel. Sandson v. Duncan, 306 AD2d 716, 717…, People ex rel. Kalikow v. Scully, 198 AD2d 250…. [cit.om.]). See, id. D. The Nature and Scope of Habeas Corpus Relief A person illegally imprisoned may petition for a writ of habeas corpus to inquire into the cause of such detention and for deliverance. CPLR §7002(a). As a general rule, habeas relief does not lie unless the petitioner is entitled to immediate release from prison. See, People ex rel. Douglas v. Vincent, 50 NY2d 901 (1980); People ex rel. Lane v. Vincent, 32 NY2d 940 (1973); People ex rel. Rodriguez v. Fludd, 180 AD3d 734 (2d Dept. 2020); People ex rel. Calixte v. Simpson, 177 AD3d 758 (2d Dept. 2019); People ex rel. Cassar v. Margiotta, 150 AD3d 1254, 1256 (2d Dept. 2017); People ex rel. Lifrieri v. Lee, 116 AD3d 720 (2d Dept. 2014); People ex rel. Bazil v. Marshall, 77 AD3d 982 (2d Dept. 2010). However, this rule is not cut in stone. Addressing the nature and scope of habeas corpus, the Court of Appeals has written: In spite of the fact that it is well settled that one may not by means of a writ of habeas corpus challenge imprisonment or restraint “by virtue of the final judgment…of a competent tribunal of…criminal jurisdiction [cit.om.], it seems quite obvious that any further restraint in excess of that permitted by the judgment or constitutional guarantees should be subject to inquiry. An individual, once validly convicted and placed under the jurisdiction of the Department of Correction [cit.om.], is not to be divested of all rights and unalterably abandoned and forgotten by the remainder of society. People ex rel. Brown v. Johnston, 9 NY2d 482, 485 (1961). See, People ex rel. Jacobson v. Warden, Brooklyn House of Detention, 77 AD2d 937 (2d Dept. 1980) (habeas corpus has been held to apply where “the manner and circumstances of the detention are such as to extend beyond that which is authorized by the judgment and commitment order” [citing People ex rel. Brown v. Johnston, supra]). The Court of Appeals went on: The State’s right to detain a prisoner is entitled to no greater application than its correlative duty to protect him from unlawful and onerous treatment [cit.om.], mental or physical. “[R]elief other than that of absolute discharge” should be forthcoming… Id., 9 NY2d at 485 (quoting Matter of Albori, 218 Cal. 34, 37). Indeed, the Court of Appeals long ago suggested in dicta that a court may have authority to order the release of a convicted prisoner on a habeas corpus petition contesting, not the lawfulness of the sentence imposed, but rather the lawfulness of the conditions of his confinement. See, People ex rel. Hall on behalf of Haralambou v. LeFevre, 60 NY2d 579 (1983) (alleged Eighth Amendment violation). However, this Court is aware of no case — and Petitioner has cited none — where a New York court has actually made such an order. New York courts are constrained by CPL §430.10, which bars the judiciary from changing, suspending or interrupting a criminal sentence once the term or period of imprisonment has commenced. The question accordingly arises whether, and if so, under what circumstances a New York court may order the release of a convicted prisoner because the conditions of his confinement violate his rights under the Eighth Amendment. E. Habeas Corpus In COVID-19 Cases Thousands of incarcerated persons nationwide have petitioned for habeas corpus relief based on allegations that prison officials have in violation of their Eighth Amendment rights exhibited “deliberate indifference” to their serious medical needs in the face of the COVID-19 “pandemic.” Seeking outright discharge from custody in lieu of more limited relief, many like Petitioner here have alleged that the only effective measure prison authorities can take to mitigate COVID-19 risks is the prisoners’ immediate release. Incarcerated prisoners have a right under the Eighth Amendment to the United States Constitution to adequate health care to address serious medical needs. See, Estelle v. Gamble, 429 U.S. 97, 102-104 1976). The United States Supreme Court has yet to determine whether prisoners may challenge the conditions of their confinement via habeas corpus to vindicate their Eighth Amendment rights. In Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), that Court wrote: [W]e have left open the question whether [prisoners] might be able to challenge their confinement conditions via a petition for a writ of habeas corpus. See Bell v. Wolfish, 441 U.S. 520, 526, n. 6…. (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement”); Preiser v. Rodriguez, 411 U.S. 475, 499…. (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making custody illegal”). Ziglar v. Abbasi, supra, 137 S.Ct. at 1862-63. In Wilborn v. Mansukhani, 795 Fed.Appx. 157 (4th Cir. 2019), the Fourth Circuit observed that “[s]even of the ten circuits that have addressed the issue in a published decision have concluded that claims challenging conditions of confinement cannot be brought in a habeas petition.” Id., at 163 (adhering to previous holdings that conditions of confinement claims are not cognizable in a habeas action).1 See, Hallinan v. Scarantino, 2020 WL 3105094 at *11 (E.D.N. Car., June 11, 2020). The Second Circuit has held, to the contrary, that Eighth Amendment “conditions of confinement” claims may be presented on a petition for habeas corpus. See, Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008). However, both state and federal courts within the Second Circuit have consistently held that a prisoner serving a duly imposed sentence of imprisonment upon conviction of a crime is not entitled to release from prison upon a petition for habeas corpus alleging a deprivation of adequate medical care in violation of the Eighth Amendment. See, People ex rel. Ferro v. Brann, 183 AD3d 758 (2d Dept. 2020); People ex rel. Barnes v. Allard, 25 AD3d 893, 894 (3d Dept. 2006); People ex rel. Sandson v. Duncan, supra, 306 AD2d 716 (3d Dept.), lv. denied 1 NY3d 501 (2003); People ex rel. Kalikow v. Scully, 198 AD2d 250, 250-251 (2d Dept. 1993); Stewart v. United States, 2013 WL 4044756 at n.3 (S.D.N.Y., Aug. 9, 2013); Casiano v. United States, 2008 WL 4191684 at *8 (E.D.N.Y. 2008); Ruiz v. United States, 2000 WL 1029186 at *3 (S.D.N.Y. 2000); Caldwell v. United States, 992 F.Supp. 363, 366 (S.D.N.Y. 1998). See also, Vernon v. United States, 2017 WL 6939207 at *7 (11th Cir. 2017); Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005); Fernandez v. United States, 941 F.2d 1488, 1494 (11th Cir. 1991); Gomez v. United States, 899 F.2d 1124, 1125-26 (11th Cir. 1990). In the wake of the COVID-19 crisis, a handful of courts entertaining habeas corpus petitions made by prisoners seeking release have proceeded on the theory that (1) where the prisoner claims that no set of conditions within the prison would be sufficient to protect his constitutional rights, and (2) nothing short of an order terminating his confinement would be sufficient to alleviate the constitutional violation, then (3) his claim should be construed as challenging the fact or duration, not merely the conditions, of his confinement, wherefore it is cognizable in habeas corpus. See, Wilson v. Williams, 2020 WL 1940882 at *5 (N.D. Ohio Apr. 22, 2020), appeal filed (6th Cir. Apr. 27, 2020); Martinez-Brooks v. Easter, 2020 WL 2405350 at *16 (D. Conn. May 12, 2020); Cameron v. Bouchard, 2020 WL 2569868 at *27 (E.D. Mich. May 21, 2020); Malam v. Adducci, 2020 WL 1672662 at *3 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020). However, the weight of authority is to the contrary. Taking its lead from the U.S Supreme Court’s decision in Ziglar v. Abbasi, supra, the Court in Wragge v. Ortiz, 2020 WL 2745247 (D.N.J. May 27, 2020) wrote: Certainly, Petitioners’ Eighth Amendment claims sound more in the nature of the type of habeas claim the Supreme Court in Preiser hypothesized, but has yet to recognize: “[w]hen a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.” The Supreme Court resurrected this idea more recently in Abbasi. Yet, although the petitioners in Abbasi alleged they were held in tiny, empty, constantly lighted cells for over 23 hours per day without basic hygiene, and subjected to physical abuse, including broken bones, and verbal abuse, including sexual and religious insults, the Supreme Court did not find it was such a case for habeas relief “to remove the restraints making the custody illegal.” Abbasi, 137 S.Ct. at 1853. The Court’s decision is telling of just how extraordinary the case must be for habeas jurisdiction to lie before a prisoner may be released from lawful custody based on a condition of confinement. Even accepting Petitioners’ allegations as true, BOP has taken measures to reduce the spread of COVID-19, but Petitioners want much more. The relief Petitioners seek, ordering temporary enlargement of custody (or bail pending habeas corpus) with appropriate precautionary public health and safety measures for all Class Members…and issuing writs of habeas corpus “if temporary enlargement does not bring the conditions at Fort Dix into compliance with the Eighth Amendment and the Rehabilitation Act” would require the Court to “serve as a de facto ‘super warden.’” [cit.om.]. This Court does not find this case to be that “extraordinary case” where it should expand habeas jurisdiction, more extraordinary than even Abbasi, where the Supreme Court did not see fit to extend habeas jurisdiction over a conditions of confinement claim involving outright alleged physical abuse of prisoners who were not serving a sentence upon conviction of a crime. Abbasi, 137 S.Ct. at 1863. In the final analysis, given the foregoing jurisprudence, this Court finds that this is not the Eighth Amendment “exceptional case” to warrant habeas jurisdiction. Wragge v. Ortiz, supra, 2020 WL 2745247 at *19 (emphasis added). See also, e.g., Hudson v. Ortiz, 2020 WL 4696745 (D.N.J. Aug. 13, 2020); Van Diver v. Nagy, 2020 WL 4696598 (E.D. Mich. Aug. 13, 2020); Anguiano v. United States, 2020 WL 4597076 (C.D. Cal. Aug. 11, 2020); Keys v. Warden, FCC Coleman — Low, 2020 WL 3962233 (M.D. Fla. July 13, 2020); Hallinan v. Scarantino, supra, 2020 WL 3105094 (E.D.N. Car., June 11, 2020); Wilson v. Ponce, 2020 WL 3053375 (C.D. Cal. June 10, 2020). F. Conclusion As a general rule, the purpose of habeas corpus is to address unlawfulness in the fact or duration of the petitioner’s confinement, and relief will lie where on that account the petitioner is entitled to immediate release from custody. Only in truly extraordinary cases may a writ of habeas corpus issue based instead on a challenge to the conditions of the petitioner’s confinement. This is not such a case. For reasons shown above, Petitioner has not established that he is peculiarly vulnerable to COVID-19 based on his age or underlying physical condition; that Respondents have exhibited a deliberate indifference to his medical needs; or that his immediate release from custody is necessary to address those needs. See, People ex rel. Ferro v. Brann, supra. It is therefore ORDERED, ADJUDGED AND DECREED, that the Petition for habeas corpus is dismissed. Dated: August 25, 2020

 
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