IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION 3:14cr229 UNITED STATES OF AMERICA, vs. Plaintiff, JAMELL CURETON, MOTION FOR MODIFICATION OF CONDITIONS OF CONFINEMENT Defendant. COMES NOW, the Defendant, Jamell Cureton, by and through his attorneys, Christopher W. Adams and S. Frederick Winiker, III, and hereby makes the following motion to modify conditions of confinement, based on, inter alia, the Defendants Due Process rights, as well as his Eighth Amendment rights. Specifically, the Defendant respectfully requests the Court enter an order removing the Defendant from solitary confinement. In the alternative, the Defendant respectfully requests the Court order that the conditions of confinement imposed by the Government, pursuant to Special Administrative Measures (SAM) 28 CFR 501.3, be modified upon the Defendant s designation to the Federal Bureau of Prisons (BOP) to allow the Defendant to serve his sentence in general population, rather than in solitary confinement. This motion is being filed upon receipt of a SAMs memorandum produced by the Government on Friday, April 21, 2017. In addition, the undersigned received confirmation from the Federal Bureau of Prisons, today, on April 24, 2017 that it has no review authority, as defined in 28 CFR 542.18, to hear any appeal in this matter. BACKGROUND The Defendant has been in custody since June 3, 2014. However, he has been in held in solitary confinement, while in the custody of the United States Marshal, since January 12, 2015. The Defendant has been housed in these conditions both at the Case 3:14-cr-00229-MOC Document 571 Filed 04/24/17 Page 1 of 7
Mecklenburg County Jail as well as at the Caldwell County Jail. See Exhibit A, Declaration of Jamell Cureton, April 24, 2017. On February 17, 2016, the Government produced to the undersigned a memorandum from the former United States Attorney General stating that the Government sought and the Attorney General approved that the Defendant be held pursuant to the authority of 28 CFR 501.3 and under SAMs. See Exhibit A to Sentencing Memorandum, filed separately. In addition to strictly limiting the Defendant s contact, screening mail and communications, including communication from counsel, it provided that the Defendant continue to be held in solitary confinement. On September 21, 2016, the defendant pled guilty to Counts 1 through 10 of the Third Superseding Bill of Indictment. Pursuant to terms of a written plea agreement, the parties agree that the defendant will be sentenced to a term of life imprisonment without the possibility of parole for Counts 1 3, and 6 10. Sentencing is scheduled for April 25, 2017. Following the Defendant s guilty plea, Counsel for the Defendant attempted to reach an informal resolution with the Government. Specifically, it was requested that the SAMs be allowed to expire upon the one year anniversary/renewal date. In particular, it was requested that the Government, pursuant to the authority granted to it under the terms of the SAMs directive, allow the conditions to expire upon designation of the Defendant to BOP. On February 3, 2017, the Government stated to counsel that SAMs conditions had been renewed. On February 17, 2017, the Government very briefly elaborated that it was opposed to lifting the SAM. A copy of the SAM renewal was requested. A Department of Justice Memorandum, dated January 10, 2017, authorizing the renewal of SAMs 2 Case 3:14-cr-00229-MOC Document 571 Filed 04/24/17 Page 2 of 7
conditions was provided, for the first time, to the undersigned counsel on April 21, 2017. See Exhibit B to Sentencing Memorandum, filed separately. Pursuant to the provisions of 28 CFR 542.15, the Defendant, through counsel, appealed the SAMs designation by sending correspondence to the United States Marshal for the Western District of North Carolina, then to the BOP Regional Director of the Mid- Atlantic Regional Office. Both entities have replied that they lack the authority to review an appeal of the Government s SAMs order. As of April 24, 2017, the BOP Regional Director directed the undersigned to consult, instead, with the Government. See Exhibit B, Correspondence. Thus, pursuant to the regulations promulgated by the Department of Justice, the Defendant has exhausted any administrative remedy available to him. See United States v. Abu Ali, 528 F.3d 210, 244 (4th Cir. 2008). In the renewed request for SAMs, it appears the Government added allegations similar to allegations made in its Motion to Expedite Sentencing, dated November 15, 2016 (Doc 525). The Government alleged the Defendant possessed a weapon while in the Mecklenburg County Jail on October 22, 2016. The Government appeared to argue to DOJ that this allegation shows the Defendant continues to be a threat, warranting the SAMs be renewed. However, the undersigned had, in the Fall of 2016, communicated with the Government, asking it look closer at such allegations and to advise the Court, accordingly. As described in the Defendant s Motion to Reconsider (Doc 538), the Defendant advised the Court that based on a document provided to the Defendant, the Mecklenburg County Sheriff s Department, upon review of the allegations, had determined there was insufficient evidence to sustain the allegations against the Defendant. See Declaration, Exhibit A, Decision on Appeal of Disciplinary Hearing, November 2, 2016. However, the 3 Case 3:14-cr-00229-MOC Document 571 Filed 04/24/17 Page 3 of 7
Government neither included this information in subsequent pleadings with the Court, or, apparently, with the Department of Justice. ARGUMENT The Defendant has no other recourse, short of being designated to BOP under SAMs condition, than to request relief from the Court. As noted in a concurring opinion by Justice Kennedy, Of course, prison officials must have discretion to decide that in some instances temporary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exact a terrible price. See, e.g., Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol y 325 (2006) (common side-effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors). Davis v. Ayala, 135 S. Ct. 2187, 2208-10 (2015), Justice Kennedy, concurring. The Fourth Circuit Court of Appeals has also recognized that a defendant has a Due Process right to a protectable liberty interest against security detention. Incumaa v. Stirling, 791 F.3d 517, 527 (4th Cir. 2015). In the context of civil litigation by inmates of the South Carolina Department of Corrections, the Fourth Circuit held that a triable issue existed as to the prisoner s Due Process claims by virtue of the lack of review of the prison s decisions to hold prisoners in administrative segregation. Id at 533. Relying on the analysis in Wilkinson v. Austin, 545 U.S. 209, 224, 125 S. Ct. 2384, 2395 (2005), the Fourth Circuit reasoned that absent robust administrative review, that included some notice of the charges against [the inmate] and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation, a prisoner s Due Process rights can be abrogated. Incumaa, 791 F.3d at 533; citing Hewitt v. Helms, 459 U.S. 460, 476, 103 S. Ct. 864 (1983). 4 Case 3:14-cr-00229-MOC Document 571 Filed 04/24/17 Page 4 of 7
The issue of SAMs restrictions in the few Fourth Circuit decisions addressing the subject typically involved cases of international terrorism. See United States v. Abu Ali, 528 F.3d 210 (4th Cir. 2008). In Abu Ali, the Fourth Circuit found a defendant had not exhausted his administrative remedies, pursuant to the regulations, and was not entitled to judicial relief on his Due Process and other claims as a result of SAMs restrictions. Id. at 244. The facts of that case stand in stark contrast to the case at hand. In the case at hand, the decision to impose SAMs conditions rests only with the Government. Despite the administrative review procedures outlined in the regulations governing SAMs, such review does not actually exist. The BOP Regional Director, to whom an appeal is to be directed under 28 CFR 542.15, stated today that he had no jurisdiction to review the SAMs designation in this case. Absent meaningful review, assertions such as the Government s claim that the Defendant poses some new threat, cannot be rebutted. In this case, a meaningful review would otherwise demonstrate that the Defendant does not pose some unusual threat at this time, and that he should otherwise be evaluated to serve his sentence in a manner commensurate with his BOP security designation. Absent an order rescinding the SAMs, BOP will not have the opportunity to evaluate the actual security concerns of the Defendant, resulting in a designation that impairs his liberty interests and protected under his Due Process and Eighth Amendment rights. /// 5 Case 3:14-cr-00229-MOC Document 571 Filed 04/24/17 Page 5 of 7
THERFORE, the Defendant respectfully requests the Court issue an order either immediately rescinding the SAMs conditions of solitary confinement, or that such conditions be removed upon the Defendant s designation to BOP. Respectfully submitted this 24 th day of April, 2017. /s/ Christopher W. Adams 102 Broad Street, Suite C Charleston, SC 29401-2276 (Phone) (843) 577-2153 (Fax) (877) 883-9114 chris@chrisadamslaw.com /s/ S. Frederick Winiker, III NC State Bar No. 22390 Winiker Law Firm, PLLC 435 East Morehead Street Charlotte, NC 28202 (Phone) (704) 333-8440 (Fax) (704) 831-5274 swiniker@winikerlaw.com Attorneys for Jamell Cureton 6 Case 3:14-cr-00229-MOC Document 571 Filed 04/24/17 Page 6 of 7
CERTIFICATE OF SERVICE I hereby certify that the attached pleading was served upon the following attorney by electronic service through the court s ECF filing process: Elizabeth Greene Assistant United States Attorney United States Attorney s Office 227 West Trade Street, Suite 1650 Charlotte, NC 28202 Email: Elizabeth.Greene@usdoj.gov Don Gast Assistant United States Attorney United States Attorney s Office 100 Otis St., Ste. 233 Asheville, NC 28801 Email: Don.Gast@usdoj.gov This the 24 th day of April, 2017. /s/ Christopher W. Adams 102 Broad Street Suite C Charleston, SC 29401-2276 (Phone) (843) 577-2153 (Fax) (877) 883-9114 chris@chrisadamslaw.com /s/ S. Frederick Winiker, III NC State Bar No. 22390 Winiker Law Firm, PLLC 435 East Morehead Street Charlotte, NC 28202 (Phone) (704) 333-8440 (Fax) (704) 831-5274 swiniker@winikerlaw.com Attorneys for Jamell Cureton 7 Case 3:14-cr-00229-MOC Document 571 Filed 04/24/17 Page 7 of 7
Case 3:14-cr-00229-MOC Document 571-1 Filed 04/24/17 Page 1 of 4
Case 3:14-cr-00229-MOC Document 571-1 Filed 04/24/17 Page 2 of 4
Case 3:14-cr-00229-MOC Document 571-1 Filed 04/24/17 Page 3 of 4
Case 3:14-cr-00229-MOC Document 571-1 Filed 04/24/17 Page 4 of 4
April 13, 2017 Kelly M. Nesbit United States Marshal Western District of North Carolina 401 West Trade Street Charlotte, NC 28202 Via First Class Mail and Facsimile (704) 344-6523 Irwin Carmichael Mecklenburg County Sheriff 700 E. 4th St. Charlotte, NC 28202 Via First Class Mail and Facsimile (704) 336-6118 Re: Jamell L. Cureton, PID 368061; United States v. Cureton, 3:14cr229 Gentlemen: I am appointed counsel to Mr. Cureton in the matter referenced above. As you are aware, Mr. Cureton has been in the custody of the United States Marshal since his arrest on November 14, 2014. He is currently in custody at the Mecklenburg County Jail in solitary confinement. On February 16, 2016, I was provided a memorandum signed by Attorney General Loretta Lynch, dated February 2, 2016, providing her authorization for Mr. Cureton to be held pursuant to Special Administrative Measures (SAMs) pursuant to 28 CFR 501.3. At the time, Mr. Cureton was in custody at the Caldwell County Jail. Thereafter, on March 9, 2016, Mr. Cureton was transported to the Mecklenburg County Jail. Mr. Cureton was first held in solitary confinement conditions at the Mecklenburg County jail, prior to being transported to the Caldwell County Jail on May 18, 2015. He was held in solitary confinement at the Caldwell County Jail and has remained in solitary confinement conditions while in U.S. Marshal s custody, to date. As you are also aware, Mr. Cureton accepted responsibility for the allegations lodged against him and pleaded guilty on September 21, 2016. Case 3:14-cr-00229-MOC Document 571-2 Filed 04/24/17 Page 1 of 5
Mr. Cureton poses no threat of danger to himself or other prisoners or individuals. Nevertheless, he has been held in solitary confinement for almost two (2) years. Authorization for SAMs was not granted until February 2016. While I have been told by Assistant United States Attorney Don Gast that SAMs measures were renewed, he declined to provide any evidence or documentation of such renewal. Mr. Gast was requested, as of November 2016, to allow the SAMs to lapse and to release Mr. Cureton from solitary confinement. He has declined to do so. As attempts for informal resolution to this matter have been exhausted, I request you release Mr. Cureton from conditions of solitary confinement. He not only suffers from signs of mental decompensation, such conditions are cruel and unusual, pursuant to the Eighth Amendment of the United States Constitution. His continued solitary confinement further violates his Constitutional rights to Due Process and interception of correspondence from counsel violates his Sixth Amendment right. Please contact me at your earliest convenience with your response to this correspondence. Very truly yours, S. Frederick Winiker, III Cc: Don Gast, AUSA Charis Adams, Esq. Case 3:14-cr-00229-MOC Document 571-2 Filed 04/24/17 Page 2 of 5
April 20, 2017 John F. Caraway Regional Director Federal Bureau of Prisons RO Mid-Atlantic Regional Office 302 Sentinel Dr, Suite 200 Annapolis Junct., MD 20701 Via Overnight Fedex, Facsimile (301) 317-3119 and email MXRO/ExecAssistant@bop.gov Re: Jamell L. Cureton; United States v. Cureton, 3:14cr229 United States District Court for the Western District of North Carolina; Emergency Appeal of Special Administrative Measures pursuant to 28 CFR 542.15 Mr. Caraway: I am appointed counsel to Mr. Cureton in the matter referenced above. Mr. Cureton has been in the custody of the United States Marshal since his arrest on November 14, 2014. He is currently in custody at the Mecklenburg County Jail in solitary confinement. As described below, Mr. Cureton has been housed in solitary confinement for almost two years. However, he has not had any administrative review of his conditions of confinement, nor any opportunity for redress. Among other things, Mr. Cureton has not been advised, nor provided any written notice to him (or through counsel) of any renewal of SAMs authorization upon its expiration in February of 2017. Further, at the facility where he is housed, he has no access to a form BP-10 as described in 542.15. This correspondence is intended to serve in lieu of such form as one, frankly, cannot be located on any Federal Bureau of Prisons public website after diligent search. Further, given the Due Process violations that have occurred, to date, Mr. Cureton respectfully requests you treat this appeal as an emergency, as defined under 542.18. I otherwise intend to promptly file a motion with the Court absent immediate action by you and other relevant agencies of the United States Department of Justice. On February 16, 2016, I was provided a memorandum signed by Attorney General Loretta Lynch, dated February 2, 2016, providing her authorization for Mr. Cureton to be held pursuant to Special Administrative Measures (SAMs) pursuant to 28 CFR 501.3. At the time, Mr. Case 3:14-cr-00229-MOC Document 571-2 Filed 04/24/17 Page 3 of 5
Cureton was in custody at the Caldwell County Jail. Thereafter, on March 9, 2016, Mr. Cureton was transported to the Mecklenburg County Jail. However, Mr. Cureton was first held in solitary confinement conditions at the Mecklenburg County Jail, prior to being transported to the Caldwell County Jail on May 18, 2015. No SAMs order was in place. He was then held in solitary confinement at the Caldwell County Jail and has otherwise remained in solitary confinement conditions while in U.S. Marshal s custody, to date. Mr. Cureton accepted responsibility for the allegations lodged against him and pleaded guilty on September 21, 2016. Mr. Cureton poses no threat of danger to himself or other prisoners or individuals. Nevertheless, he has been held in solitary confinement for almost two (2) years. Authorization for SAMs was not granted until February 2016. While I have been told by Assistant United States Attorney Don Gast that SAMs measures were renewed, he declined to provide any evidence or documentation of such renewal. Mr. Gast was requested, as of November 2016, to allow the SAMs to lapse and to release Mr. Cureton from solitary confinement. He has declined to do so. On April 13, 2017, I sent correspondence similar to this note to the United States Marshal for the Western District of North Carolina, as well as the Sheriff of Mecklenburg County as I am not aware of any other entity that can be considered Mr. Cureton s warden as described in the regulations. To date, I have received no reply. As attempts for informal resolution to this matter have been exhausted, as well as after lodging a formal grievance with his warden, I request you immediately release Mr. Cureton from conditions of solitary confinement so that he might be returned to general population. He not only suffers from signs of mental decompensation, but such conditions are cruel and unusual, pursuant to the Eighth Amendment of the United States Constitution. His continued solitary confinement without adequate process for redress further violates his Constitutional rights to Due Process. Interception of correspondence from counsel violates his Sixth Amendment rights. Please contact me at your earliest convenience with your response to this correspondence. Very truly yours, S. Frederick Winiker, III Cc: Don Gast, AUSA Chris Adams, Esq. Case 3:14-cr-00229-MOC Document 571-2 Filed 04/24/17 Page 4 of 5
Jamell L. Cureton; United States v. Cureton, 3:14cr229 United States District Court for the Western District of North Carolina; Emergency Appeal of Special Administrative Measures pursuant to 28 CFR 542.15 MXRO/Exec Assistant~ MXRO/Exec Assistant~ <MXRO/Exec.Assistant~@bop.gov> Mon, Apr 24, 2017 at 12:02 PM To: S Frederick Winiker <swiniker@winikerlaw.com> Good Morning Mr. Winker, You did not provide a Register Number for Mr. Cureton. However, from reading your letter, it appears Mr. Cureton is housed in the Mecklenburg County Jail via the U.S.Marshals in the Western District of North Carolina. Therefore, he is not in Bureau of Prisons' custody. Your office will need to contact the U.S. Marshals' office and the U.S. Attorney's Office. Unfortunately, I cannot be of much help. >>> S Frederick Winiker <swiniker@winikerlaw.com> 4/20/2017 7:27 PM >>> TO: John F. Caraway Regional Director Federal Bureau of Prisons RO Mid-Atlantic Regional Office Please see the attached letter, also sent via facsimile and overnight delivery regarding an Emergency Appeal of Special Administrative Measures pursuant to 28 CFR 542.15 in the abovereferenced matter. Please do not hesitate to contact me at your earliest convenience. As described in this correspondence, I intend to promptly file a motion for relief in this District absent a reply. Thank you for your kind attention to this matter. S. Frederick Winiker, III, Esq. Winiker Law Firm, PLLC 435 East Morehead Street Charlotte, NC 28202-2609 Office: (704) 333-8440 Fax: (704) 831-5274 www.winikerlaw.com Case 3:14-cr-00229-MOC Document 571-2 Filed 04/24/17 Page 5 of 5