Phelps v. Superintendent

Background

Darryl Phelps filed a petition seeking compassionate release because of the COVID-19 pandemic. The opinion states that he was incarcerated at Gouverneur Correctional Facility for a parole violation, had originally been convicted in 1997 in New York County, and had a next parole hearing date in May 2021. Phelps asserted that he was 60 years old, suffered from hypertension, and faced “imminent danger” of contracting COVID-19. He did not describe his confinement conditions. He also submitted a letter seeking a temporary restraining order directing his release to a “residence facility.”

Phelps styled the application as a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), a provision applicable to federal prisoners. The court held that provision inapplicable because Phelps was in custody pursuant to a state-court judgment. Because he sought immediate release from incarceration, the court stated that the application appeared to be a petition for a writ of habeas corpus under 28 U.S.C. § 2254, the federal procedure for challenging state custody.

Filing-fee and prior-filing requirements

The court stated that Phelps was barred under 28 U.S.C. § 1651 from filing a new action without prepaying fees, including a § 2254 petition, unless he first obtained the court’s permission to file. The court also noted a separate restriction under 28 U.S.C. § 1915(g), commonly called the “three-strikes” provision, but explained that this restriction generally does not apply to habeas proceedings.

A person proceeding with a habeas petition in that court must either pay the $5 filing fee or submit a signed application to proceed without prepaying fees, commonly called an IFP application. Phelps submitted neither the fee nor an IFP application.

Ruling

The court ordered Phelps to pay the $5 filing fee or submit a completed and signed IFP application within 30 days of the order. If the court granted the application, Phelps would be allowed to proceed without prepaying the fee. The court also allowed him to notify the court within 30 days that he wanted to withdraw the application rather than have it recharacterized as a § 2254 petition. If he did not comply within the permitted time, the action would be dismissed.

The court directed the Clerk of Court to mail the order to Phelps and note service on the docket. It did not require an answer at that time. The court certified that an appeal from the order would not be taken in good faith and denied permission to appeal without prepaying fees. The order did not decide whether Phelps was entitled to release.