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Salvagno v. Director, Bureau of Prisons

United States District Court, D. Connecticut

November 7, 2017

ALEX SALVAGNO, Petitioner,
v.
DIRECTOR, BUREAU OF PRISONS, Respondent.

          ORDER OF DISMISSAL

          Michael P. Shea, U.S.D.J.

         On February 22, 2017 the petitioner, Alex Salvagno, an inmate currently incarcerated at the Federal Correctional Institution in Danbury, Connecticut (“FCI Danbury”), brought a petition for writ of habeas corpus [Doc.#1] under 28 U.S.C. § 2241 in this Court. For the following reasons, the petition for writ of habeas corpus is DISMISSED.

         I. Standard of Review

         A petitioner seeking to challenge the execution of his sentence may bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001); Carmona v. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). “A § 2241 petition is generally the appropriate vehicle to raise claims arising from such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions . . . and prison conditions. United States v. Salvagno, 02 CR 51 (LEK), 2008 WL 5340995, *2 (N.D.N.Y. Dec. 19, 2008) (internal quotation marks omitted).

         A federal court has jurisdiction over a habeas corpus petition if the petitioner is “in custody and the custody is allegedly in violation of the Constitution or laws or treaties of the United States.” Nichols v. Fed. Bureau of Prisons, 16 Civ. 9140 (BRM), 2016 WL 7232771, *1 (D.N.J. Dec. 14, 2016) (quoting 28 U.S.C. § 2241(c)(3)) (citing Maleng v. Cook, 490 U.S. 488, 490 (1989)). This Court is required under Rules 1(b) and 4 of the Rules Governing Section 2254 Cases to review preliminarily all habeas petitions to determine whether it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” The court must construe a pro se habeas petition liberally to determine whether the petitioner is entitled to relief. See Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir. 1991); Mamarella v. County of Westchester, 898 F.Supp. 236, 237 n.1 (S.D.N.Y. 1995) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). The court may “dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).

         II. Background

         Following a jury trial in 2004, the petitioner was convicted in the United States District Court for the Northern District of New York of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), conspiracy to violate the Clean Air Act and the Toxic Substances Control Act, violations of the Clean Air Act, and income tax evasion. Pet. 1; United States v. Salvagno, 343 F. App'x 702, 703 (2d Cir. 2009). On December 23, 2004, the district court sentenced him to 300 months imprisonment and ordered him to pay over two million dollars in forfeiture and over twenty-three million dollars in restitution. Salvagno, 343 F. App'x at 703. The Second Circuit affirmed his convictions on direct appeal. Id. at 702. The petitioner was later resentenced in accordance with a decision from the United States District Court for the Northern District of New York. United States v. Salvagno, 02 CR 51 (HGM), 2006 WL 149048 (N.D.N.Y. Jan. 17, 2006).

         In March 2015, the petitioner submitted a request for a reduction in sentence (“RIS”) under 18 U.S.C. § 3582(c)(1)(A)(i), also known as a request for compassionate release, to then Warden H. Quay at FCI Danbury based on family circumstances, particularly so that he could care for his son who was ill. Pet'r's Mem. at 3.

         Section 3582(c)(1)(A)(i) authorizes a court, “upon motion of the Director of the Bureau of Prisons, ” to reduce an inmate's term of imprisonment if it finds that “extraordinary and compelling reasons warrant such a reduction.” The Bureau of Prisons (“BOP”) uses § 3582(c)(1)(A) in “extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing.” 28 C.F.R. § 571.60. An inmate seeking compassionate release under § 3582(c)(1)(A) must first submit a written request to the warden, explaining the extraordinary or compelling circumstances warranting release and his proposed plans upon release, including where he will reside and how he will support himself. 28 C.F.R. § 571.61. If after reviewing the inmate's request, the warden determines that a sentence reduction is warranted, he or she must refer the matter in writing to the Office of General Counsel. 28 C.F.R. § 571.62. If the General Counsel determines that the request warrants approval, he or she will solicit the opinion of either the Medical Director or the Assistant Director of the Correctional Programs Division, depending on the nature of the request, and the United States Attorney's Office in the district where the inmate was sentenced. Id. He or she will then forward the opinions and the entire matter to the Director of the BOP “for final decision, subject to the general supervision and direction of the Attorney General and Deputy Attorney General.” Id. If the Director agrees that the request warrants approval, he will contact the United States Attorney in the district where the inmate was sentenced and move the sentencing court to reduce the inmate's sentence to time served. Id. Upon granting of the motion, the warden of the institution where the inmate is confined will then release the inmate. Id.

         If the warden, General Counsel, or BOP Director deny the inmate's RIS request, he or she must provide the inmate with a written notice explaining the reasons for the denial. 28 C.F.R. § 571.63. The inmate may appeal the warden's denial of his request through the Administrative Remedy Procedure outlined in subpart B of 28 C.F.R. § 542. Id. However, a denial by either the General Counsel or BOP Director “constitutes a final administrative decision” and is not appealable. Id.

         After reviewing the petitioner's RIS request, Warden Quay wrote a letter to the General Counsel recommending that the petitioner's request be approved. Pet'r's Mem. At 8-9, see also ECF No. 1-7. The Office of General Counsel then gathered input from the United States Attorney's Office and the Assistant Director for the Correctional Programs Division, in accordance with 28 C.F.R. § 571.62, and court filings and transcripts from the petitioner's family court proceedings. While the investigation was pending, the petitioner filed a motion under 28 U.S.C. § 2255 in the United States District Court for the Northern District of New York, the district that sentenced him, to compel the BOP to expedite its response to the RIS request.

         After conducting its investigation, the General Counsel denied the petitioner's RIS request, reasoning as follows:

Mr. Salvagno's RIS is denied because of his criminal conduct. Over several years he directed employees of his company to perform illegal stripping and disposal of asbestos and to conduct fraudulent air monitoring and laboratory analysis, in an effort to cover up illegal abatement procedures. His conduct increased the likelihood of death of or serious bodily injury to at least 468 victims, a number of whom were present in contaminated elementary schools, churches and offices, and resulted in a total loss of $22, 875, 575.46.
Also, two of Mr. Salvagno's children are being cared for by their maternal uncle, and the family court has directed that the third child remain in foster care. ...

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