Summary
concluding that risk of contracting virus was not a "special circumstance" even for defendant with underlying health conditions
Summary of this case from In re Extradition of Al-NouriOpinion
No. 3:19-cv-03078-N (BT)
05-01-2020
Tito Jay RISNER, Petitioner, v. Gary FOWLER, Respondent.
George R. Milner, III, Milner & Finn, Dallas, TX, Nina Marino, Pro Hac Vice, Kaplan Marino, Beverly Hills, CA, Michael Mowla, Michael Mowla PLLC, Cedar Hill, TX, for Petitioner. David L. Jarvis, US Attorney's Office, Dallas, TX, Amy Weiner, US Department of Justice, Washington, DC, for Respondent.
George R. Milner, III, Milner & Finn, Dallas, TX, Nina Marino, Pro Hac Vice, Kaplan Marino, Beverly Hills, CA, Michael Mowla, Michael Mowla PLLC, Cedar Hill, TX, for Petitioner.
David L. Jarvis, US Attorney's Office, Dallas, TX, Amy Weiner, US Department of Justice, Washington, DC, for Respondent.
ORDER
REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE
This is a habeas corpus proceeding under 28 U.S.C. § 2241. Petitioner Tito Jay Risner is in the custody of the United States Marshal pursuant to a Certification of Extradition and Order of Commitment under 18 U.S.C. § 3184. He is currently confined at the Federal Correctional Institution in Seagoville, Texas (FCI Seagoville). On April 10, 2020, Risner filed a "Motion for Release to Monitored Home-Confinement Pending the Outcome of this Writ Proceeding" (ECF No. 12). For the following reasons, the motion is denied.
I.
More than 25 years ago, Risner was convicted in the Republic of Colombia in absentia of aggravated homicide and sentenced to twenty years' confinement. See In the Matter of the Extradition of Tito Jay Risner a/k/a Jay Michael Risner a/k/a Tito , No. 3:18-MJ-765-BN, 2019 WL 6118377 (N.D. Tex. Nov. 18, 2019). Colombia subsequently requested Risner's extradition, and on November 16, 2018, the United States filed a Complaint on Colombia's behalf requesting the extradition. Risner was arrested in Dallas, Texas, on November 16, 2018, and he has been in federal custody since his arrest.
On November 18, 2019, a United States Magistrate Judge in this District issued a Memorandum Opinion and Order, finding that Risner may be extradited to Colombia for the offense of aggravated homicide. On December 3, 2019, the Magistrate Judge issued a Certification of Extradition and Order of Commitment pursuant to 18 U.S.C. § 3184 certifying the matter for the Secretary of State's consideration under 18 U.S.C. § 3186 and committing Risner "to the custody of the United States Marshal" pending the Secretary's decision on extradition.
On December 31, 2019, Risner filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 challenging the November 18, 2019 Order finding him extraditable to Colombia. The government filed its response to the petition on March 15, 2020. Risner's reply is due May 6, 2020.
On April 10, 2020, Risner filed the pending motion seeking immediate release to home confinement due to his concerns that he could be exposed to the COVID-19 virus while he is incarcerated at FCI Seagoville. Risner argues he is particularly vulnerable to the virus due to his advanced age—he is 76—and underlying medical conditions, including hypothyroidism, high blood pressure, and divcerticulosis. The government filed a response to the motion on April 17, 2020, and Risner filed a reply on April 22, 2020. The matter is now fully briefed and ripe for determination.
II.
Risner argues he is entitled to release on bail pending the outcome of the habeas proceeding because he is at high risk to succumb to COVID-19 if he contracts it. He tacitly concedes there is no presumption of bail in extradition proceedings, and he acknowledges that "[b]ail should be denied in extradition proceedings absent ‘special circumstances.’ " In the matter of Extradition of Russell , 805 F.2d 1215, 1216 (5th Cir. 1986) (citing Wright v. Henkel , 190 U.S. 40, 62-63, 23 S.Ct. 781, 47 L.Ed. 948 (1903) ; see also Beaulieu v. Hartigan , 554 F.2d 1, 2 (1st Cir. 1977) ("Unlike the situation for domestic crimes, there is no presumption favoring bail. The reverse is rather the case.").
The Bail Reform Act does not apply to international extradition proceedings. See United States v. Ramnath , 533 F. Supp. 2d 662, 666-67 (E.D. Tex. 2008) ("The United States Bail Reform Act of 1984 establishes substantive law and procedures regarding bail for defendants accused of committing crimes within the United States. This statute does not govern international extradition actions because they are not domestic criminal cases.") (footnote omitted)); In the matter of Extradition of Nagy , 2017 WL 6558487 (N.D. Ohio Dec. 21, 2017) ("An international extradition proceeding is not considered a criminal case, and therefore the Bail Reform Act, Title 18 U.S.C. § 3141 et. seq. , does not apply.") (citing cases).
To be released on bail, Risner must show by clear and convincing evidence that (i) he is not a flight risk or a danger to the community and (ii) "a special circumstance or a combination of factors that, in the aggregate, constitute a special circumstance that creates a compelling case for release on bail." Ramnath , 533 F. Supp.2d at 666. While "[t]here are no bright-line parameters defining what constitutes a special circumstance," Risner must make "an extraordinary showing of conditions not merely applicable to all defendants facing extradition." In the matter of Extradition of Schumann , 2018 WL 4777562, at *6 (N.D. Il. Oct. 3, 2018) (citation omitted).
Courts have considered special circumstances to include "the raising of substantial claims upon which the appellant has a high probability of success, a serious deterioration of health while incarcerated, and unusual delay in the appeal process." Salerno v. United States , 878 F.2d 317, 317 (9th Cir. 1989) (citations omitted). "Courts have considered and rejected a lengthy list of claimed special circumstances, including: the fugitive's character, background, and/or ties to the community, the fact that the fugitive may have been living openly, discomfort, special dietary needs, or medical concerns that can be attended to while incarcerated." See In the Matter of the Extradition of Noeller , 2017 WL 6462358 (N.D. Ill. Dec. 19, 2017) (citations omitted). The determination of special circumstances is left to the sound discretion of the trial judge. Ramnath , 533 F. Supp. 2d at 666 ; In re Extradition of Gonzalez , 52 F. Supp. 2d 725, 736 (W.D. La. 1999).
A. The extradition statute does not prohibit consideration of bail.
As an initial matter, the government argues that "under the plain language of the extradition statute, 18 U.S.C. § 3184, an international fugitive whose extraditability a court has certified to the Secretary of State is not eligible for bail." Resp. at 1 (ECF No. 14). The government contends "this statute requires that after certifying a fugitive as extraditable, which the Magistrate Judge did on December 3, 2019, the Court ‘shall issue [a] warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.’ " Id. at 12-13. The government cites In re the Matter of the Extradition of Markey , 2010 WL 610975, at *4 (N.D. Ind. Feb. 18, 2010), wherein the court stated: "[t]he law is clear" that the court lacks authority to release a fugitive after certification. But in Markey , both parties agreed that the court lacked authority to grant release. And other courts have declined to follow Markey , deciding instead that they have the authority to grant bail after a fugitive has been certified as extraditable under the federal common law doctrine of "special circumstances." See Matter of Extradition of Blasko , 2019 WL 498986, at *3 (E.D. Cal. Feb. 8, 2019) ("[S]ince Markey agreed that the Court had no authority to release him after finding him extraditable, the opinion contains no analysis or discussion to support the conclusion that the court did not have the authority to grant bail and the Court finds Markey to have little precedential value."); Nezirovic v. Holt , 990 F. Supp.2d 594, 599 (W.D. Va. 2013) (finding Markey's "precedential value is negligible" because the extradictee did not contest the issue of bail and "[f]ollowing the plain weight of authority, therefore, the court concludes that Wright v. Henkel allows a court to release an extradictee on bond pending habeas review following certification of the extradition by a magistrate judge."); In the Matter of Extradition of Gonzalez , 2015 WL 1409327, at *5 n.1 (N.D. Cal. Mar. 27, 2015) (stating Markey is not persuasive authority because the decision "contains no analysis" and "the petitioner agreed with the government's position."); Gon v. Holder , 2013 WL 5726292, at *2 (W.D. Va. Oct. 22, 2013) (finding Markey is "contradicted by the numerous decisions of other courts" and is "not persuasive"). See also Wroclawski v. United States , 634 F. Supp. 2d 1003, 1006 (D. Ariz. 2009) (finding court has authority to grant release defendant on bail post-certification under doctrine of special circumstances). In view of the weight of authority holding that a district court has authority to release a fugitive after certification, the Court declines to find that § 3184 prohibits it from considering Risner's request for bail.
B. Risner fails to show he is not a flight risk.
Risner acknowledges he must show by clear and convincing evidence that he is not a flight risk. See Mot. at 18 (ECF No. 12) (citing In re Extradition of Gonzalez , 52 F.Supp.2d at 735 and In re Extradition of Nacif-Borge , 829 F.Supp. 1210, 1215 (D. Nev. 1993) ). Risner states that if he is released to monitored home confinement, he will reside with his son and will comply with any conditions of home confinement. He further states:
Risner also submitted a declaration from his son confirming that Risner would reside with him. (ECF No. 12-1 at 2).
He has no place to which to "flee." At 76 years old, he will not likely make it far if he tries to "flee." He is obviously not going to "flee" to Colombia. Travel to most other countries is locked down. Travel to even other parts of the United States is restricted. Further, Risner is not going to "jump bail" and commit a violation under 18 U.S.C. § 3146 (Penalty for Failure to Appear) and risk a prison sentence of up to five years. See 18 U.S.C. § 3146(a) & (b)(1)(A)(ii) (2020).
Id. at 18 (emphasis in original). He also argues:
Further, the elderly and chronically ill like Risner—regardless of what crime they are accused of—pose a lower risk of violating supervision particularly during a global pandemic during which even leaving the house will endanger their lives. See, e.g., See generally U.S. Sentencing Commission, The Effect of Aging on Recidivism Among Federal Offenders (Dec. 2017) (Age Report), available at https://www.uscourts.gov/sites/default/files/82230.pdf, last accessed April 8, 2020.
Id. at 26.
The government responds that Risner has a high incentive to flee because he is facing a twenty-year sentence in Columbia. The government states Risner, "faces the risk he could spend the rest of his life incarcerated," and that "Risner's incentive to flee has only increased now that the Court has certified his extradictability to the Secretary of State." Gov't's Resp. (ECF No. 14 at 13.)
The government argues that Risner has the ability and financial means to flee, stating:
Risner is presumptively a national of Colombia and the United States, and has represented himself on multiple occasions as being from Spain, which is a member of the European Union. He also has used multiple names, including on government documents – for example, Jose Tito Rodriguez Calderon on his
Colombian identification, Tito Jay Risner Calderon on his marriage certificate, Tito Jay Risner on his U.S. Certificate of Naturalization, Jay Michael Risner on his Texas driver's license, and Tito Risner in [an] insurance litigation in this District. His access to these identities (nationalities and aliases) indicates ability to assume others, and would make flight and integration easier.
Id. at 19. (citations and footnotes omitted).
The government further states, "Risner and his children – who have defended his bail pursuit – together have received millions of dollars in life insurance settlement proceeds" from the decedent's life insurance policies, id. at 20, and "Risner also has admitted that, as the government previously asserted, he co-owns, with his son, real property, whose assessed value he stated in December 2018 was USD $350,000." Id.
The government also argues home monitoring would be insufficient, stating "[t]he U.S. Probation Office has advised the U.S. Attorney's Office that location-monitoring equipment is currently not available. Moreover, GPS monitoring, even if available, would be insufficient to mitigate the high flight risk Risner poses." Id. at 23. And, "[c]ontrary to Risner's suggestion, travel restrictions under the pandemic do not materially reduce his flight risk. Current travel bans do not extend worldwide and do not prevent him from escaping to an underground domestic location." Id. at 21.
The Court finds Risner has failed to show by clear and convincing evidence that he is not a flight risk. The Magistrate Judge has certified that he is extraditable to Columbia where he has been convicted and sentenced to twenty years in prison. Although he challenges his extradition in his pending habeas case, the risk that he may spend the remainder of his life in prison is a high incentive to flee. Further, he did not rebut the evidence that he has the ability and financial means to flee. He did not contest the government's assertion that he is a Columbian national and that he has previously falsely claimed to be from Spain. He also did not contest that he has used multiple different names on government-issued identification documents.
The COVID-19 pandemic does not materially alter the Court's assessment of Risner's risk of flight. He has failed to show any domestic travel restrictions, or that he would be prohibited from travelling to numerous international destinations. Although he claims he would not leave his house during the pandemic for fear of contracting the virus, this statement is insufficient to establish he is not a flight risk. Similarly, his assertion that he would not "jump bail" and thereby expose himself to a possible five-year sentence does not alter the risk assessment when he is facing a twenty-year sentence in Columbia. Finally, GPS monitoring would not alleviate the flight risk. An ankle monitor—even assuming one were available—can be removed. See United States v. Okhumale , 2020 WL 1694297, at *5 (N.D. Tex. Apr. 7, 2020) (noting that a defendant "can easily remove a monitor or leave ... home confinement," and "[e]ven if probation or law enforcement officials act quickly, they have no way of knowing Defendant's location once the monitor is removed); United States v. Morris , 2020 WL 1694301, at *5 (N.D. Tex. Apr. 6, 2020) (finding that defendant, who sought release with electronic monitoring due to COVID-19 related concerns, "has not met his burden to show by clear and convincing evidence that he is not a flight risk or danger to the community"). The Court finds Risner has failed to establish by clear and convincing evidence that he is not a flight risk. Because Risner has failed to show he is not a flight risk, the Court need not consider whether he is a danger to community, or whether there are special circumstances warranting his release. See Ramnath , 533 F. Supp. 2d at 666. The Court, however, as discussed below, also finds Risner has failed to establish special circumstances justifying his release.
C. Risner has failed to establish special circumstances for release.
As the Magistrate Judge noted in his December 27, 2018 Memorandum Opinion and Order denying bail, a minority of courts apply a preponderance of the evidence standard to the special circumstances issue, but he determined that the clear and convincing standard was appropriate. See In the Matter of the Extradition of Tito Jay Risner a/k/a Jay Michael Risner a/k/a Tito , No. 3:18-MJ-765-BN, 2018 WL 6809796. (ECF No. 33 at 14). This Court is also persuaded that adopting the clear and convincing evidence standard is appropriate, but the Court would reach the same conclusions regarding the lack of special circumstances justifying release even if a preponderance of the evidence standard applied.
Risner argues there are special circumstances for his release because his age and medical condition make him especially vulnerable to the COVID-19 virus. Specifically, he states he is 76 years old and suffers from the following medical conditions:
Risner also argues he has established special circumstances due to "an unusual delay in the appeal process." Mot. at 18 (ECF. No. 12). He does not explain this claim and therefore fails to meet his burden of establishing delay as a special circumstance.
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• Elevated prostate markers (PSA);
• Parkinson-like tremors casing uncontrolled shaking at times;
• Hypothyroidism, which causes problems with his heart rate and body temperature;
• Risner suffered a stroke at some point in the past;
• In 2005, Risner suffered from an atrial fibrillation, which is an abnormal heart rhythm (arrhythmia ), where blood flow between the top to lower chambers of his heart varies from beat-to-beat, causing his heart to pump blood into the body inefficiently;
• In 2004, Risner had surgery for a Patent Foramen Ovale (PFO) to repair a hole in his heart;
• High blood pressure for which Risner takes medication; and
• Diverticulosis, which is where pockets develop in the lining of his digestive tract, and when they get infected or inflamed, he suffers from diverticulitis and experiences considerable pain.
Mot. at 11 (ECF No. 12).
In his extradition case, the Magistrate Judge considered Risner's age and alleged medical condition and denied his motion for bail stating:
Risner has not shown a special circumstance or a combination of factors that, in the aggregate, constitute a special circumstance that creates a compelling case for release on bail. Although he is not as young as he used to be, Risner has not shown that his health condition is either life-threatening or so serious that his medical needs cannot be accommodated by the United States Marshal's Service while in custody.
See In the Matter of the Extradition of Tito Jay Risner a/k/a Jay Michael Risner a/k/a Tito , No. 3:18-MJ-765-BN. (ECF No. 33 at 38-39).
Although, the Magistrate Judge denied his motion for bail during his extradition case, Risner states, "[s]ince Risner was detained, circumstances have dramatically changed. Now, Risner's continued detention poses a grave danger to Risner and the health of the community." Mot. at 20 (ECF No. 12). He argues he is especially vulnerable to COVID-19, stating:
Coronavirus/COVID-19 kills the sick and elderly at incredible rates. In fact, "8 out of 10 deaths reported in the U.S. have been adults 65 years and older." See CDC, Older Adults , available at https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/older-adults.html, last accessed on April 8, 2020. The estimated percent of people requiring hospitalization in adults 65-84 years old is 31-59%, the age group in which Risner falls. Further, 4-11% of adults 65-84 years old have died.
* * *
It is very important to note that cardiovascular disease is on top of this list, and hypertension is third. As stated above and reflected in Kevin Risner's declaration, in 2005, Risner suffered from an atrial fibrillation, an abnormal heart rhythm (arrhythmia ). And in 2004, Risner had surgery for a Patent Foramen Ovale (PFO) to repair a hole in his heart. Risner also suffers from high blood pressure for which he takes medication. Thus, Risner has significant problems with his heart and hypertension (numbers 1 and 3 on the morbidity list), making him exceptionally susceptible to Coronavirus/COVID-19. Citing See World Health Organization, Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19) at 12 (February 28, 2020), available at https://www.who.int/docs/default-source/coronaviruse/who-china-jointmission-on-covid-19-final-report.pdf, last accessed on April 4, 2020.
Mot. at 13-14 (ECF No. 12).
Risner also argues that the danger of contracting COVID-19 while incarcerated is a special concern. He states that, "as of April 8, 2020, per BOP's information, 253 federal inmates and 85 BOP staff have confirmed positive test results for Coronavirus/COVID-19. Only 19 inmates and seven staff have recovered. Eight inmates have died. See BOP, COVID-19 Coronavirus , available at https://www.bop.gov/coronavirus/, last accessed April 9, 2020." Mot. at 6 (ECF No. 12). And he cites Memoranda issued by Attorney General Barr directing the BOP to "prioritize the use of your various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic," and identifying "several BOP units where there are significant risks of infection where reviews of inmates should begin immediately." Mot. at 27-28 (citing Memoranda Prioritizing of Home Confinement as Appropriate in Response to COVID-19 Pandemic and Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 ). Finally, he claims his continued incarceration during the COVID-19 pandemic violates his right to be free from cruel and unusual punishment under the Eighth Amendment.
The government responds that Risner's claims do "not account for precautions the Bureau of Prisons (BOP) has implemented to protect against, and mitigate, any spread of COVID-19. BOP has planned for potential transmissions of the virus since January 2020, incorporating Centers for Disease Control and Prevention (CDC) guidance." Gov's Resp. at 27-28 (ECF No. 14) (citing Okhumale , 2020 WL 1694297, at *6 ("[BOP] has implemented measures for addressing the COVID-19 pandemic to minimize the detainees['] exposure[.]").
The government states the "BOP has continued to modify its operations as necessary" and that the BOP plan provides for:
• Screening Inmates and Staff: All newly arriving inmates are screened for COVID-19 symptoms and exposure risk factors. Asymptomatic inmates with exposure risk factors are quarantined; symptomatic inmates with exposure risk factors are isolated and tested pursuant to local health authority protocols. In areas with sustained community transmission, all facility staff will be screened for self-reported risk factors and elevated temperatures. Health Services staff are conducting rounds and checking inmate temperatures at least once daily. In locations where inmates are in quarantine or isolation, Health Services staff are conducting rounds and temperature checks twice daily.
• Suspension of Social Visits and Tours: BOP has suspended all social visits, to limit the number of people entering the facility and interacting with detainees. To ensure that familial relationships are maintained, BOP has increased detainees' telephone allowance to 500 minutes per month. Facility tours have been suspended.
• Suspension of Legal Visits: BOP has placed a 30-day hold on legal visits (to be reevaluated after 30 days) though visits will be permitted on a case-by-case basis after counsel has been screened for infection. Confidential legal calls are allowed to ensure access to counsel.
• Suspension of Inmate Movements: To prevent transmission between institutional populations, BOP has ceased movement of inmates and detainees among its facilities, though there will be exceptions for medical treatment and similar exigencies. Inmate and detainee movement may continue as required to operate judicial proceedings or to process transfers related to forensic studies, writs, Interstate Agreements on Detainers, medical or mental health reasons, and residential facility placement.
• Modified Operations: Wardens will modify operations to maximize social distancing.
• Staff Training and Movement: Official staff travel, except relocation travel, is suspended. Staff training is suspended, except basic training for new staff. As of Phase V of the BOP's Action Plan COVID-19 response, BOP has implemented practices whereby staff are assigned to static posts and facilities to minimize movement and transmission.
• Sanitation: BOP has educated as to CDC best practices regarding disease transmission and prevention, including sanitation via broadcast messages on inmate bulletin boards and town halls. Cleaning supplies have been provided to inmates and increased sanitation measures are undertaken in each facility. BOP has published extensive guidance to all staff regularly and has a special Coronavirus page on its intranet and public website. Staff have access to these resources and regular video updates by BOP's Director. Common areas are sanitized multiple times a day, and cells can be cleaned at least once a day. Wardens are making rounds among the staff and inmate population, communicating with staff on all shifts to answer questions. BOP sites have also posted hygiene signage (hand washing, etc.) throughout. Inmates cleared to prepared meals are asymptomatic and screened.
• Protective equipment: All BOP staff and inmates have been issued cloth masks to use, particularly when social distancing is not possible. Any staff working in a quarantine unit where asymptomatic inmates are housed are required to wear masks and gloves. Any staff working in an isolation unit (where symptomatic inmates are housed), are required to wear masks, gowns and gloves. Staff are not required, but can opt to, wear masks while walking on the compound, per CDC recommendations to wear masks where social distancing measures are difficult to maintain.
Gov's Resp. at 27-28 (ECF No. 14).
The Court takes the COVID-19 pandemic very seriously, and it does not discount Risner's vulnerability to adverse consequences from the virus due to his age and underlying medical conditions. But Risner has failed to establish that the risk of contracting COVID-19 while in FCI Seagoville is a special circumstance warranting relief. Cf. United States v. Okhumale , 2020 WL 1694297, at *6 ("Defendant's concerns about the pandemic are not without merit, [but] that alone is insufficient to warrant release" under the Bail Reform Act.); United States v. Hernandez , 2020 WL 1876102, at *3 (N.D. Tex. Apr. 14, 2020) (observing a growing number of jurisdictions have found that generalized COVID-19 fears and speculation are insufficient to establish a "compelling reason" for temporary release under 18 U.S.C. § 3142(i) ). Risner does not allege he has been exposed to the virus while incarcerated, or that anyone he is in contact with has been exposed. Although he argues COVID-19 infections and deaths have occurred at federal prisons, he provides no information about the conditions at FCI Seagoville. Attorney General Barr has not identified FCI Seagoville as a BOP facility combating significant infections. And, currently, the BOP website shows that only one inmate at FCI Seagoville has tested positive for the virus, no staff have tested positive for the virus, and no deaths have occurred from COVID-19. See https://www.bop.gov/coronavirus (last accessed May 1, 2020). There is no evidence that the safety measures the BOP has implemented at FCI Seagoville are ineffective at protecting against the spread of COVID-19. Risner's general concern that he may contract COVID-19 while incarcerated, while understandable, does not warrant release. See Morris , 2020 WL 1694301, at*5 (finding defendant who is detained pending sentencing failed to establish his morbid obesity and diabetes, which conditions placed him at a higher risk of severe illness from COVID-19, warranted release from the Dallas County Jail even though the Jail had several cases of COVID-19) (citing United States v. Martin , 447 F.Supp.3d 399, 401-02 (D. Md. Mar. 17, 2020) (finding that the defendant's underlying medical conditions of asthma, diabetes, and high blood pressure, which placed him at a higher risk for COVID-19, were alone insufficient to overcome presumption of detention); see also United States v. Martinez , 2020 WL 1666804 (W.D. Okl. Apr. 3, 2020) (denying release to similarly situated defendant stating defendant does not allege he has been exposed to COVID-19, nor that anyone he is in contact with has been exposed, and that jail administrators established comprehensive precautionary measures).
Additionally, the cases Risner cites where courts granted release to "terminally ill" defendants do not establish that he is entitled to relief. See Mot. at 20 (ECF No. 12). Rather, the decisions Risner cites were based on facts that showed the detainee was acutely ill and the detention facility could not provide adequate care. See United States v. Adams , 2019 WL 3037042 (D. Or. July 10, 2019) (granting release under the Bail Reform Act for pre-trial detainee with serious medical conditions and stating "[r]elease for a presumptively dangerous defendant is only appropriate when a defendant produces evidence of an extraordinary life-threatening medical condition the BOP cannot treat and further shows the safety of the community may be reasonably assured through conditions of release."); United States v. Johnston , 2017 WL 4277140 (D. D.C. Sept. 22, 2017) (granting pre-trial detainee release under the Bail Reform Act to obtain cancer treatment after prison's failure to timely provide treatment); United States v. Scarpa , 815 F. Supp. 88 (E.D.N.Y. 1993) (releasing pre-trial detainee to hospital where detainee's "condition is without question grave and rapidly deteriorating" and prison officials were unable to adequately care for him); United States v. Cordero Caraballo , 185 F. Supp.2d 143 (D. Puerto Rico. 2002) (releasing pre-trial detainee from U.S. Marshal Service custody where BOP would not accept him due to his medical condition). Here, Risner has not established that he is suffering from a serious medical condition that the BOP is unable to properly treat. Instead, he is concerned that he may contract COVID-19 while incarcerated. Given the absence of evidence that Risner has been exposed to COVID-19 at FCI Seagoville, or that FCI Seagoville has any significant number of COVID-19 infections, and the lack of an evidence to show FCI Seagoville would not be able to treat Risner if he contracted COVID-19, the cited cases are inapposite.
Finally, Risner's Eighth Amendment claim is without merit. The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. "[I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’ " Bell v. Wolfish , 441 U.S. 520, 539, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Although the Fifth Circuit does not appear to have considered whether continued pretrial detention during the COVID-19 pandemic violates the Eighth Amendment, courts in this district have rejected such challenges. See United States v. Hernandez , 2020 WL 1876102 (N.D. Tex. Apr. 14, 2020) (collecting cases).
III.
Risner has failed to establish that he is eligible for release. The Court therefore DENIES Risner's motion.
SO ORDERED.