Joseph Percoco, a former top aide to New York Gov. Andrew Cuomo who was convicted on corruption charges in 2018, this week became the latest high-profile inmate at FCI Otisville to raise concerns about the federal Bureau of Prison's process for releasing prisoners to home confinement amid the COVID-19 pandemic.

Officials at the Orange County prison in upstate New York have sent mixed messages in recent weeks regarding whether white-collar inmates, such as President Donald Trump's former attorney Michael Cohen and ex-state Senate Majority Leader Dean Skelos, qualified for release after updated guidance from U.S. Attorney General Bill Barr, which said that inmates should not be considered for home confinement if they have served less than half of their sentence in prison.

Both Cohen and Skelos were told that they would be allowed to serve out the remainder of their sentences from home, after undergoing a mandatory 14-day quarantine period. However, attorneys for the two men were later informed that their clients' status remained under review by the BOP.

Percoco, meanwhile, had been serving a six-year sentence at FCI Otisville's minimum security prison camp for taking $300,000 in bribes from two companies with business before the state. His attorney, Walter Loughlin, said in a court filing Monday that his client was selected on April 11 for release to home confinement and would be transferred to isolation for a two-week quarantine.

But Loughlin said that, as of Monday, Percoco remained in quarantine with no new information about his status or eligibility for release. According to the filing, he had now entered his fourth week of quarantine.

"That was 24 days ago and counting," Loughlin wrote.

The five-page letter asked U.S. District Judge Valerie Caproni of the Southern District of New York to grant Percoco compassionate release, based on underlying health conditions that placed him at a heightened risk to serious complications from the coronavirus.

Percoco, however, had not petitioned the prison's warden for compassionate release 30 days before filing his motion with the court, an administrative hurdle that has doomed similar applications by inmates fearing for their health.

Loughlin argued that such a request "might well have been futile," given the previous assurances from the BOP, and argued that Percoco was entitled to compassionate release "on the merits." If there was a "genuine need" to quarantine for a longer period time, Loughlin said, Percoco could do so from home, where he and his family could maintain a safe distance.

"Because Mr. Percoco was led to believe on April 11 that it had been determined he was eligible for and being prepared for release, he had no reason to petition the warden for release," he said.

But Caproni on Tuesday denied the request, writing in a terse order that the "confusion at Otisville does not excuse defendant's failure to file a motion for compassionate release with the BOP."

While other Manhattan federal judges have ruled that the administrative exhaustion requirement can be waived due to "equitable exceptions," the Southern District bench remains split on the issue.

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