United States Court of Appeals For the First Circuit
No. 23-1722
JOEL ANTHONY COCKERHAM,
Petitioner, Appellant,
v.
AMY BONCHER,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Barron, Chief Judge, Kayatta and Aframe, Circuit Judges.
Sydney Strickland for appellant, Joel Anthony Cockerham. Thomas E. Kanwit, Assistant U.S. Attorney, with whom Joshua S. Levy, Acting U.S. Attorney, was on brief, for appellee, Amy Boncher.
December 27, 2024 BARRON, Chief Judge. This appeal concerns the
relationship between the federal habeas remedy set forth in 28
U.S.C. § 2241 and two provisions that govern federal civil
commitment, 18 U.S.C. § 4243 and § 4247. We affirm the ruling
below that the habeas petitioner here, Joel Cockerham, who is
confined at a federal facility in Massachusetts after being civilly
committed pursuant to § 4243 by a federal district court in the
Northern District of Mississippi, cannot raise in his habeas
petition a claim for discharge under that section. But we vacate
and remand the District Court's ruling that Cockerham cannot amend
his petition to bring what we conclude are the distinct claims he
seeks to bring challenging the suitability of the facility in which
he is confined.
I.
Before tracing the procedural history of Cockerham's
case, it is useful first to describe the underlying statutes that
bear on it. Those include not only the relevant federal habeas
statute, 28 U.S.C. § 2241, but also the statutory provisions that
govern federal civil commitment of persons who are found not guilty
by reason of insanity, 18 U.S.C. § 4243 and § 4247.
A.
The relevant federal habeas measure is 28 U.S.C. § 2241,
in which Congress set forth the federal courts' power to grant
writs of habeas corpus "within their respective jurisdictions."
- 2 - 28 U.S.C. § 2241(a). Section 2241 provides the standard habeas
remedy for individuals detained in violation of federal law,
Wallace v. Reno, 194 F.3d 279, 284 (1st Cir. 1999), and can be
used, among other things, to challenge the "manner of execution"
of a federal sentence, Muniz v. Sabol, 517 F.3d 29, 33-34 (1st
Cir. 2008); see also Rogers v. United States, 180 F.3d 349, 356-
57 (1st Cir. 1999).
As for the civil commitment measures, § 4243 of title 18
governs the civil commitment of a person found not guilty of a
federal criminal charge by reason of insanity. Under that
provision, a person found not guilty on that basis is "committed
to a suitable facility until such time as he is eligible for
release" under the statute. 18 U.S.C. § 4243(a). An initial
hearing must be held, at which the court in which the person was
found not guilty by reason of insanity must determine whether,
"due to a present mental disease or defect," that person's
"release" would "create a substantial risk of bodily injury to
another person or serious damage of property of another." Id.
§ 4243(c)-(e). If that court finds that such a danger exists,
then "the court shall commit the person to the custody of the
Attorney General," who "shall hospitalize the person for treatment
in a suitable facility," until either the state in which the person
was domiciled or tried "will assume responsibility for his custody,
care, and treatment," or until his "mental condition is such that
- 3 - his release, or his conditional release . . . would not create a
substantial risk of bodily injury to another person or serious
damage to property of another." Id. § 4243(e).
Subsection (f) of § 4243 governs "[d]ischarge" from the
civil commitment described in that section. Id. § 4243(f). It
provides that when the director of the facility in which the person
is hospitalized determines that release would no longer pose the
specified risk, the director must "promptly file a certificate to
that effect with the clerk of the court that ordered the
commitment." Id. The court that ordered the commitment must then
"order the [person's] discharge" or "hold a hearing . . . to
determine whether [that person] should be released." Id. Any
such hearing must be conducted pursuant to the same requirements
as the initial commitment hearing, which include representation by
counsel, a right to testify, to present evidence, and to subpoena
and cross-examine witnesses. Id. §§ 4243(f), 4247(d). If the
court finds after the hearing that the person's "release," with or
without conditions, "would no longer create a substantial risk of
bodily injury to another person or serious damage to property of
another," the court "shall order" the person's "discharge[],"
either conditionally "under a prescribed regimen of medical,
psychiatric, or psychological care or treatment," or
unconditionally. Id. § 4243(f).
- 4 - Section 4243(f) is not the only provision that governs
"[d]ischarge," however. There is also § 4247(h) of title 18.
Section 4247 sets forth "[g]eneral provisions" applicable to all
forms of federal civil commitment. Subsection (h), like
§ 4243(f), is titled "[d]ischarge." And it supplements that
provision by providing,
Regardless of whether the director of the facility in which a person is committed has filed a certificate pursuant to . . . section 4243[(f)], counsel for the person or his legal guardian may, at any time during such person's commitment, file with the court that ordered the commitment a motion for a hearing to determine whether the person should be discharged from such facility, but no such motion may be filed within one hundred and eighty days of a court determination that the person should continue to be committed.
Id. § 4247(h).
There is one further provision that is relevant to this
appeal: subsection (g) of § 4247. Titled "[h]abeas corpus
unimpaired," § 4247(g) provides that "[n]othing contained in
section 4243 . . . precludes a person who is committed under . . .
such section[] from establishing by writ of habeas corpus the
illegality of his detention." Id. § 4247(g).
B.
With that background in place, we now rehearse how
Cockerham's case implicating the statutes just described comes to
us. In 2006, the District Court for the Northern District of
Mississippi found Cockerham not guilty by reason of insanity on
- 5 - federal obstruction of justice charges brought under 18 U.S.C.
§ 1503. Pursuant to § 4243, that court then ordered that
Cockerham undergo a psychological evaluation. See id. § 4243(b).
The psychologist testified that Cockerham's release
"would probably not create a substantial risk of bodily injury to
others provided he is medication-compliant and abstains from the
use of alcohol and illicit drugs," but determined that he would
need close supervision to ensure such compliance. The District
Court for the Northern District of Mississippi ordered Cockerham
committed to the custody of the U.S. Bureau of Prisons (BOP) "for
the specific purpose of attempting to formulate a workable plan of
conditional release." The BOP placed Cockerham at the Federal
Medical Center in Devens, Massachusetts ("FMC Devens").
In 2008, the District Court for the Northern District of
Mississippi ordered Cockerham conditionally released to a group
home; however, in 2010, Cockerham was again taken into custody
based on a threatening statement that he allegedly made regarding
two individuals at the group home. A psychological assessment
concluded that Cockerham "continues to suffer from serious mental
illness or defects, but does not present a substantial or imminent
threat of harm to himself or others," and recommended a "period of
inpatient care with the Court considering outpatient commitment
upon discharge."
- 6 - The District Court for the Northern District of
Mississippi ordered Cockerham committed to a "suitable facility"
and instructed the director of the facility to file notice with
the court when Cockerham was "no longer in need of custody for
care or treatment in said facility." Cockerham was again confined
at FMC Devens.
Between 2010 and Cockerham's filing in July 2022 of the
habeas petition that is before us on appeal, the warden at FMC
Devens filed periodic reports with the United States District Court
for the Northern District of Mississippi reporting on Cockerham's
mental condition.1 In nine out of the eleven reports filed over
that period, the warden recommended Cockerham for conditional
release. No action was taken by the District Court for the
Northern District of Mississippi in response to these reports.
On several occasions, Cockerham filed pro se motions
with the District Court for the Northern District of Mississippi,
seeking appointment of counsel and other relief. The court denied
these motions, most recently in October 2020, finding only that
Cockerham's "requests are not well-taken."
1 42 U.S.C. § 4247(e) requires the "director of the facility in which a person is committed" to submit "annual reports concerning th[at person's] mental condition" and "containing recommendations concerning the need for [that person's] continued commitment." The reports in this case were filed on roughly an annual basis.
- 7 - In July 2022, Cockerham filed a habeas petition pursuant
to § 2241 in the District Court for the District of Massachusetts,
given that he was being confined in Massachusetts and not in the
Northern District of Mississippi, the district in which he was
committed. The petitioner named as the respondent the warden of
FMC Devens, Amy Boncher.
Cockerham's petition explained that he was challenging
the "[v]alidity of [his] commitment and [his] excessive
incarceration," and that he was seeking "'nonconditional release'
back into society," as well as compensation from "all parties
involved" for the "substantial physical and mental damage" he
suffered. 2 Boncher filed a motion to dismiss, arguing that
Cockerham's § 2241 petition should be dismissed for lack of subject
matter jurisdiction and for failure to state a claim.
Cockerham was appointed counsel by the District Court,
and the appointed counsel opposed the motion to dismiss.
Cockerham subsequently filed a motion to amend his petition. In
his proposed amended petition, Cockerham claimed that he was
challenging
the conditions of his confinement, specifically "the outrageous time" being held in a prison, which is not the least restrictive alternative, thereby constituting "excessive incarceration." Stated otherwise, Mr. Cockerham challenges the manner of
2 The District Court issued an order indicating that it would not consider any claim for damages as damages are not available in a habeas action. This claim is not at issue on appeal.
- 8 - execution of his civil commitment.
As relief, the proposed amended petition sought an order directing
Cockerham's "conditional release to a residential hospital
facility."
In his proposed amended petition, Cockerham raised two
bases for the relief sought. First, he alleged that his
confinement at FMC Devens is unlawful because "FMC Devens is not
a 'suitable facility' within the meaning of 18 U.S.C.
§ 4247(a)(2)." This is so, he claimed, because FMC Devens "is
overly restrictive relative to [his] mental health condition" in
that it is a "prison environment" where he has "received minimal
and largely ineffective treatment." He further contended that
"[p]rison psychologists have repeatedly recommended a less
restrictive and more therapeutic setting." As an alternate basis
for the relief, Cockerham alleged that his "[c]ontinued,
indefinite, interminable confinement . . . in a penal setting"
violates his due-process rights because "[t]here is no
overwhelming governmental interest which justifies" the
government's failure to "treat[] [him] humanely in the least
restrictive setting possible."
Boncher opposed Cockerham's motion to amend. The
District Court granted the motion to dismiss and denied Cockerham's
motion to amend. The District Court reasoned that it lacked
jurisdiction over Cockerham's § 2241 petition on the ground that
- 9 - he should have sought relief from the committing court -- here,
the District Court for the Northern District of
Mississippi -- pursuant to 18 U.S.C. § 4247(h). The District
Court further concluded that amendment of the petition would be
futile because the amended petition likewise "seeks relief from
confinement," and therefore "the Northern District of Mississippi
is the proper court to hear Petitioner's claims." Cockerham
timely filed this appeal.
II.
We begin with Cockerham's challenge to the District
Court's determination that his original § 2241 petition must be
dismissed for lack of jurisdiction because 18 U.S.C. § 4247(h)
provides the very relief that he seeks. Our review is do novo.
González-Cancel v. Partido Nuevo Progresista, 696 F.3d 115, 118
(1st Cir. 2012).
Nothing in § 4247(h) speaks expressly to jurisdiction.
The government also cites to no authority that establishes that
the existence of an alternative remedy to the relief sought by a
habeas petitioner in and of itself strips a federal court of its
jurisdiction to hear a habeas petition. Moreover, in the context
of administrative exhaustion, the Supreme Court of the United
States has expressly treated the availability of an alternative
remedy as sometimes providing a "prudential reason[]" not to permit
- 10 - a detainee to seek habeas relief without suggesting that the
availability of such a remedy establishes a jurisdictional bar to
consideration of a § 2241 petition for habeas relief. See
Boumediene v. Bush, 553 U.S. 723, 793 (2008) (considering, "[i]n
light of [its] conclusion that there is no jurisdictional bar . . .
whether there are prudential barriers to habeas corpus review,"
and observing that "for prudential reasons th[e] Court has required
exhaustion of alternative remedies before a prisoner can seek
federal habeas relief"); cf. Timms v. Johns, 627 F.3d 525, 530-32
(4th Cir. 2010) (relying on "[p]rudential concerns" to conclude
that a habeas remedy was not appropriate where petitioner, a
civilly committed person, had not exhausted his alternative
remedies (quoting Munaf v. Geren, 553 U.S. 674, 693 (2008))).
Nonetheless, we need not resolve the jurisdictional
question here. And that is so because we conclude that, reviewing
de novo, Hernandez-Lara v. Lyons, 10 F.4th 19, 26 (1st Cir. 2021),
Cockerham's petition fails on the merits for precisely the same
reasons that the District Court dismissed it on jurisdictional
grounds, see Restoration Pres. Masonry, Inc. v. Grove Eur. Ltd.,
325 F.3d 54, 59-60 (1st Cir. 2003) (applying the rule that a court
may bypass difficult jurisdictional questions so long as those
questions implicate only statutory, rather than Article III,
jurisdiction); see also Francis v. Maloney, 798 F.3d 33, 36 (1st
- 11 - Cir. 2015) (reviewing court may affirm dismissal of a habeas
petition on any basis apparent in the record).
Cockerham's original § 2241 petition challenges the
validity of his ongoing civil commitment and seeks his
"'nonconditional release' back into society." In seeking to have
his "commitment lifted," Cockerham's original petition does not
assert a specific basis for relief. The District Court, however,
concluded that § 4247(h) provides a mechanism by which Cockerham
could assert those claims.3
On appeal, Cockerham neither contends that his claims
could not be raised in a § 4247(h) hearing, nor that those claims
assert any basis for relief other than the provisions of § 4243
that govern a person's eligibility for "discharge." See 18 U.S.C.
3 In reaching this conclusion and in citing Archuleta v. Hedrick, 365 F.3d 644 (8th Cir. 2004), the District Court appears to have understood Cockerham's original petition to be invoking a statutory entitlement to unconditional release under the standards set forth in § 4243. See id. at 648-49 (explaining that, to the extent petitioner "alleges that he meets the standards for conditional or unconditional release under 18 U.S.C. § 4243," such "statutory relief" may, by virtue of § 4247(h), be granted only by the committing court (emphasis added)). Cockerham does not contend on appeal that his original petition should be understood as raising any other basis for relief, or that such claims cannot be raised in a § 4247(h) hearing. We thus proceed on the understanding that the only claim at issue with respect to Cockerham's appeal of the District Court's dismissal of his original petition is the statutory claim that Cockerham's continued commitment is unlawful under the standards set forth in § 4243.
- 12 - § 4243(f). Thus, to the extent that Cockerham asserts such a
statutory entitlement under § 4243 to an unconditional
"discharge," Congress plainly established in § 4247(h) a statutory
mechanism by which a civilly committed person may raise such a
claim in the committing court. See id. § 4247(h) (providing that,
regardless of whether the director of a facility has certified a
person's eligibility for release, that person may, "at any time
during [their] commitment, file . . . a motion for a hearing to
determine whether the person should be discharged").
In the usual case, the fact that Congress has set up a
specific "mechanism" to "deal with [such claims]" suggests that
"federal courts should refrain from entertaining" a habeas
petition raising those very issues, at least until the statutory
mechanism has run its course. Boumediene, 553 U.S. at 795. And
Cockerham has not advanced any argument on appeal that the
mechanism created by § 4247(h) for obtaining a "discharge" under
the standards set forth in § 4243 is not reasonably available to
him or that pursuing relief under that provision would be futile.4
4 Cockerham argues for the first time in his reply brief that the failure of the District Court for the Northern District of Mississippi to construe his pro se motions to that court as a request for a hearing pursuant to § 4247(h) or to appoint him counsel, as requested, evinces that court's inadequate response to his attempt to raise his claims first in that forum. Because Cockerham did not press this argument to the District Court, nor in his opening brief, we reach no conclusion as to the impact, if any, of those prior motions on the appropriateness of a habeas remedy in this case. See Sparkle Hill, Inc. v. Interstate Mat - 13 - Thus, just as the Supreme Court in Boumediene reasoned that
prudential considerations weigh against the exercise of a federal
court's habeas power under § 2241 when an alternative but
unexhausted remedy is readily available to the petitioner, so,
too, in this case, prudential considerations caution against
granting Cockerham habeas relief given the statutory mechanism
Congress put in place at § 4247(h) to address § 4243 discharge
claims. See id. at 793-95 (reasoning that Guantanamo detainees
would normally be required to rely on "alternative
processes" -- specifically, an appeal of their combatant-status
determinations to the Court of Appeals -- before seeking a writ of
habeas corpus); see also Stack v. Boyle, 342 U.S. 1, 6-7 (1951)
(concluding that "the District Court should withhold relief in [a]
collateral habeas corpus action where an adequate remedy [for
petitioner's allegedly excessive bail is] available in the
criminal proceeding [and] has not been exhausted").
This conclusion accords with the rulings of sister
Circuits. In Archuleta v. Hedrick, 365 F.3d 644 (8th Cir. 2004),
for example, the Eighth Circuit considered a § 2241 petition
Corp., 788 F.3d 25, 29 (1st Cir. 2015); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Nonetheless, given that we vacate and remand this case for further consideration by the District Court, we note that Cockerham is not barred on remand from making an argument concerning the adequacy of the District Court for the Northern District of Mississippi's response, nor do we opine on whether mandamus relief may be available to him on that basis in the Fifth Circuit.
- 14 - brought by a person civilly committed under § 4243. Archuleta
asserted that his continued commitment violated § 4243 because he
met the standard for release under the statute. Id. at 647-48.
The Eighth Circuit reasoned that habeas relief was not appropriate
in that case because § 4247(h) "expressly provide[s] a procedure
for the remedy [petitioner] seeks." Id. at 648. Likewise, the
Fourth Circuit in Timms v. Johns dismissed a § 2241 petition
brought by a person committed under a similar civil commitment
scheme because it reasoned that the petitioner "was at all times
free" to raise his various claims in his ongoing commitment action.
627 F.3d at 532-33; see also id. at 533 ("Because Timms has failed
to exhaust the alternative remedies available for review of his
detention in the pending Commitment Action and has failed to
demonstrate exceptional circumstances sufficient to excuse his
failure, the district court should have refrained from exercising
jurisdiction over Timms' habeas petition.").
C.
Cockerham does assert in response that a civilly
committed person may always seek habeas relief under § 2241,
regardless of whether § 4247(h) is directed towards addressing the
very type of claim that he raises, and regardless of whether any
attempt has been made to first seek relief under that provision.
He relies for this contention on § 4247(g), which is titled
"[h]abeas corpus unimpaired" and expressly provides that a person
- 15 - civilly committed under § 4243 may "establish[] by writ of habeas
corpus the illegality of his detention."
Cockerham's contention is that, even for claims that
§ 4247(h) was plainly designed to address, § 4247(g) entitles him
to bypass § 4247(h) altogether in favor of a habeas remedy, without
making any showing that § 4247(h) is inadequate to address his
claim. He argues that this is so because the alternative
conclusion would "render § 4247(g) superfluous."
But that is not so. A civilly committed person remains
free to raise in a habeas petition claims of illegality other than
those that § 4247(h) was put in place to address.5 And, although
Cockerham is right to point out that the inclusion of § 4247(g)
5 We have no occasion to determine whether any claim -- even one seeking release -- other than a claim asserting a statutory entitlement to release under § 4243 may, or must, be brought under § 4247(h). See, e.g., Archuleta, 365 F.3d at 648 (concluding that petitioner's claim that his confinement is unlawful because "the statute pursuant to which he was committed is unconstitutional," may be brought in a § 2241 habeas petition, unlike a claim for release under § 4243). However, we note that Congress's decision to include § 4247(g), while not enough to allow Cockerham to bypass § 4247(h) when raising the very type of claim that provision is designed to address, would nonetheless appear to caution against an interpretation of the two provisions that would effectively preclude a person from raising any claims -- or even most claims -- in a habeas proceeding. Indeed, such a conclusion would raise concerns that the narrow conclusion we reach today does not raise about nullifying congressional intent with respect to § 4247(g). After all, Cockerham is right to point out that it is atypical that Congress expressly preserves habeas, especially given that only an "unmistakably clear statement" could do away with such relief. Boumediene v. Bush 553 U.S. 723, 738 (2008) (quoting Hamdan v. Rumsfeld, 548 U.S. 557, 575 (2006)).
- 16 - distinguishes this statutory scheme from other instances in which
courts have concluded that the existence of an alternative remedy
precludes a person from seeking habeas relief, he does not explain
why this distinction alone would require us to infer from § 4247(g)
that a civilly committed person may bypass § 4247(h) altogether.
Cockerham may mean to argue that he must have such a
statutory entitlement to bypass § 4247(h), because otherwise his
habeas right would be "impaired" under § 4247(g). But insofar as
he means to advance this text-based argument, he does not explain
how a person's habeas right would be impaired short of a suspension
of the writ. And, given Boumediene, we do not see how precluding
Cockerham from simply bypassing altogether the mechanism Congress
put in place at § 4247(h) to address statutory claims for
"discharge" under § 4243 -- when he is asserting just such a
claim -- would amount to a suspension of the writ. See 553 U.S.
at 795.
For the same reason, we also do not find persuasive
Cockerham's invocation of cases setting forth the standard for a
congressional suspension of the writ. We are addressing here only
whether Cockerham may bypass the alternative remedy that Congress
expressly set forth for certain types of claims, not whether habeas
would be unavailable even if that remedy proved inadequate or
otherwise unavailable.
- 17 - III.
Cockerham separately argues that the District Court
erred in denying his motion to amend his original § 2241 petition.
The District Court did so on the ground that amendment would be
futile because Cockerham's proposed amended petition, like his
original petition, "ultimately seeks relief from confinement," and
thus amendment "would not change the Court's determination that
the Northern District of Mississippi is the proper court to hear
Petitioner's claims." We disagree with this characterization of
Cockerham's proposed amended petition and, as we will explain, for
that reason, vacate and remand, so that his motion for leave to
amend may be addressed in a manner consistent with this decision.
The proposed amended petition is expressly styled as a
challenge to the "manner of execution of [Cockerham's] civil
commitment" and to the "conditions of his confinement," rather
than a bare claim for "discharge" under the statute. Thus, in
setting forth his statutory claim, Cockerham's proposed amended
petition specifically invokes the Attorney General's statutory
obligation under 18 U.S.C. § 4243(e) to "hospitalize the [civilly
committed] person for treatment in a suitable facility." 18
U.S.C. § 4243(e) (emphasis added); see also id. § 4247(a)(2)
(defining "suitable facility" as "a facility that is suitable to
provide care or treatment given the nature of the offense and the
- 18 - characteristics of the defendant"); id. § 4247(i)(C) (obligating
the Attorney General, "before placing a person in a facility
pursuant to [§ 4243]," to "consider the suitability of the
facility's rehabilitation programs in meeting [that person's]
needs"); see also, e.g., Garcia v. Spaulding, 324 F. Supp. 3d 228,
233 (D. Mass. 2018) (entertaining a § 2241 petition based on an
alleged failure to satisfy the statutory "suitable facility"
requirement). The proposed amended petition alleges that
Cockerham's confinement at FMC Devens violates this statutory
requirement because FMC Devens is "overly restrictive relative to
[his] mental health condition" and because his treatment there has
been "minimal and largely ineffective." The proposed amended
petition further points to the fact that FMC Devens is a "prison
environment" as evidence that it is not a "suitable" facility in
which to provide him with mental health care or treatment.
Likewise, in setting forth his due process claim,
Cockerham's proposed amended petition again does not seek
"discharge" from confinement. Rather, in that claim, he alleges
only that the "years and years of incarceration" to which he has
been subjected "also violates his fundamental rights . . . as
guaranteed by the Fifth Amendment of the United States
Constitution" because there is "no overwhelming governmental
interest" in depriving him of his "right to be left alone, and if
- 19 - not left alone, treated humanely in the least restrictive setting
possible" (emphasis added).
Thus, we do not understand Cockerham to be seeking in
his proposed amended petition the same relief sought in his
original petition -- that is, "discharge" from confinement under
§ 4243. To the contrary, we understand him to be seeking placement
in a "residential non-penal hospital setting where he would have
more freedom tha[n] he has at FMC Devens" -- in other words,
placement in a "suitable facility," or, as Cockerham puts it in
due-process terms, placement in "the least restrictive setting
possible." That this relief is distinct from "discharge" is
further illustrated by the fact that § 4243 imposes a separate
statutory requirement that a civilly committed person be confined
in a "suitable facility," which applies in addition to the
statutory provisions governing discharge. Compare 18 U.S.C.
§ 4243(d)-(f) (requiring discharge upon a finding that such
person's release would not "create a substantial risk of bodily
injury to another person or serious damage to property of
another"), with id. § 4243(a) (requiring that a person "shall be
committed to a suitable facility until such time as he is eligible
for release").
In response, the government contends that Cockerham's
proposed amended petition challenges "the length of his
commitment" and that § 4247(h) plainly "applies with equal force"
- 20 - to such a claim. In that regard, the government emphasizes
Cockerham's assertion that the "outrageous time" he has been "held
in a prison, which is not the least restrictive alternative, []
constitute[s] 'excessive incarceration.'"
We do not understand Cockerham's proposed amended
petition, however, to be claiming that his confinement must be
ended due to its length. Rather, we understand his proposed
amended petition to be claiming that he has been unlawfully subject
to "excessive incarceration" -- that is, he has been unlawfully
confined in a penal setting rather than the "suitable facility"
that § 4243 prescribes, or the "least restrictive setting
possible" that he asserts the Due Process Clause requires.
Of course, our understanding of the nature of these
claims would not matter if amendment would be futile because the
claims would have to be dismissed in any event. But the District
Court's sole basis for concluding that amendment would be futile
is that dismissal of the amended claims would be required for
exactly the same reasons that Cockerham's § 4243 discharge claim
required dismissal. Cockerham asserts, however, that the
existence of § 4247(h) -- the measure that, for the reasons
explained, warrants affirmance of the dismissal of his discharge
claim -- does not itself render futile his effort to amend his
petition to challenge the suitability of his place of confinement
- 21 - under § 4243 and the Due Process Clause. He argues that is so
because § 4247(h) "is not an available remedy for the complaint in
the Amended Petition" -- namely, "assignment to a prison setting
as opposed to a hospital or other similar facility."
The government does contend at points in its briefing to
us that a challenge to the facility in which a person is confined
must be brought in a § 4247(h) hearing. But elsewhere in its
briefing the government asserts that "[r]equiring a person civilly
committed to challenge the basis of that commitment, i.e., their
continued dangerousness as a result of mental illness, via []
§ 4247(h) would not prevent a person so committed from using a
writ of habeas corpus to challenge conditions of their confinement
other than the fundamental fact of the need for confinement"
(emphasis added). Yet, as we have explained, Cockerham in these
proposed claims challenges only the government's decision to
confine him at FMC Devens, not the fundamental validity of his
confinement vel non.
The government does attempt to square the circle by
asserting that because § 4247(h) "includes the type of conditional
release that [Cockerham] seeks," it necessarily encompasses the
claims in his proposed amended petition. And, in that same vein,
the government asserts -- albeit in a cursory manner -- that a
"challenge to the place of confinement is inextricably intertwined
with a determination of the need for confinement as both involve
- 22 - a determination of the individual's dangerousness and the
suitability of release either without conditions or with
conditions."
It is not obvious to us, however, that the suitability
claims Cockerham advances in his proposed amended
petition -- whether stated in statutory or due-process
terms -- could be raised in a § 4247(h) hearing, or, indeed, that
those are the sorts of claims that § 4247(h) was designed to
address. Cf. 18 U.S.C. § 4247(h) (providing an avenue to seek
"discharge" that does not depend on whether the "director of the
facility in which [that] person is committed has . . . certifi[ed]
pursuant to [§ 4243(f)]" that the person no longer meets the
statutory standard for commitment). Nor is it evident to us that
such claims are "inextricably intertwined," as the government
asserts, with the sort of claim that § 4247(h) is designed to
address. See Garcia, 324 F. Supp. 3d at 235 ("When a patient
seeks precisely what § 4247(h) provides -- discharge from civil
commitment -- the proper venue would presumptively be the
committing court. But where he attacks the manner of execution
of his commitment without challenging the validity of his continued
confinement, his claim properly sounds in habeas . . . .").
Thus, even if § 4247(h) is the proper mechanism by which
to seek discharge under § 4243 (conditional or not), that fact
does not resolve whether § 4247(h) also provides a forum for the
- 23 - claims that Cockerham advances in his proposed amended petition.
See, e.g., id. (reasoning that "[t]he fact that [petitioner] could
challenge the validity of his commitment through § 4247(h) does
not constitute an alternative avenue of relief when he does not
seek to have his commitment declared invalid and then to be
discharged, but rather seeks alternative placement to serve his
valid commitment"). Nor is it difficult to see, as a practical
matter, why a request for relief of that kind, unlike a challenge
to the fact of continued commitment, might be properly addressed
in a court other than the committing court, as would be the case
here if Cockerham were permitted to proceed under § 2241.
Under § 4243(e), the committing court commits a person
who meets the statutory dangerousness standard "to the custody of
the Attorney General." 18 U.S.C. § 4243(e). It is the Attorney
General, and not the committing court, under whose authority and
at whose direction that person is assigned to a specific facility.
Id. A challenge to that assignment -- whether under § 4243 or the
Due Process Clause -- therefore "does not challenge the validity
of [a] commitment [order] as issued by the committing court," but
rather challenges "the execution of the commitment as implemented
by the warden overseeing [that person's] confinement." Garcia,
324 F. Supp. 3d at 235.
Thus, insofar as the government is suggesting that
Cockerham's claims cannot be brought under § 2241 because they
- 24 - would then be heard in the district of confinement rather than the
district in which the commitment was ordered, we do not see why
this fact about where the claims would be heard requires the
conclusion that they may not be so brought. Inasmuch as
Cockerham's § 2241 petition "challenges the aspect of his
commitment related to th[e] [District of Massachusetts]" -- that
is, "the manner in which the BOP has chosen to carry out his
commitment" -- there would not appear to be anything necessarily
incongruous about such a claim being heard in the District of
Massachusetts, given the nature of the claim itself.6 Id. at 235-
36.
6 We note in this regard that, although the government disagrees with Cockerham's characterization of his proposed amended petition, it does not appear to dispute that, as a general matter, § 2241 is the appropriate vehicle by which to challenge the "manner of execution" of a person's confinement. See Francis v. Maloney, 798 F.3d 33, 36 (1st Cir. 2015) (§ 2241 is a proper vehicle "to contest one's imprisonment in a specific facility"); see also Muniz v. Sabol, 517 F.3d 29, 32 (1st Cir. 2008) (considering, in a § 2241 action, whether Bureau of Prisons (BOP) regulations delaying petitioner's transfer to a less restrictive facility violated a federal statute requiring, among other considerations, that BOP assign prisoners to an "appropriate and suitable" facility (quoting 18 U.S.C. § 3621(b))). Nor does the government appear to contest that a § 2241 petition, if properly brought, must be brought in the district in which a person is confined, regardless of the authority that ordered the confinement. See Thompson v. Barr, 959 F.3d 476, 491 (1st Cir. 2020) (citing Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004)); cf. Rasul v. Bush, 542 U.S. 466, 483-84 (2004) (explaining that "[s]ection 2241, by its terms, requires nothing more" than "the District Court's jurisdiction over petitioners' custodians"); Munaf v. Geren, 553 U.S. 674, 686 (2008) ("[A]ctual custody by the United States suffices for jurisdiction, even if that custody could be viewed as 'under . . . color of' another authority . . . ." - 25 - Nonetheless, the District Court did not clearly address
whether a challenge of this sort is cognizable under § 4247(h), as
the parties did not tee up that question cleanly for the District
Court's consideration. We thus vacate and remand for the District
Court to address this issue in the first instance. In doing so,
though, we note one final point.
The government, in advancing its argument for affirming
the denial of Cockerham's motion for leave to amend does frame
many of its arguments as if there is a jurisdictional bar to the
District Court considering Cockerham's claims. But, for the
reasons discussed above, those arguments can also be understood as
reasons for dismissing the petition on the merits. We thus need
not -- and do not -- address whether the arguments the government
advances are properly understood to concern the jurisdiction of
the court to hear the petition or the merits of that petition.
And, of course, there will be no need for the District Court to
resolve that question on remand, even if it agrees that § 4247(h)
bars Cockerham's claims, as it may then simply assume that there
is jurisdiction and dismiss the petition on the merits, just as we
have done in affirming the District Court's dismissal of the
original petition.7 And if the court finds that § 4247(h) does
(second alteration in original)). 7 Should the District Court determine that Cockerham's suitability challenge likewise must be brought under § 4247(h) in front of the committing court, we note that the District Court may - 26 - not bar his claim, there will be no jurisdictional impediment to
hearing the § 2241 claim.
transfer Cockerham's petition to that court for consideration under that provision. See Archuleta, 365 F.3d at 649 (citing 28 U.S.C. § 1406(a)).
- 27 -