United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
MICHAEL P. SHEA, U.S.D.J.
Salvagno (“Salvagno”) is an inmate confined at
Federal Correctional Institution (“FCI”) Danbury.
He filed this petition for a writ of habeas corpus under 28
U.S.C. § 2241 against D.K. Williams
(“Williams”), the warden at FCI Danbury, to
challenge the twenty-five year sentence imposed after he was
found guilty of racketeering conspiracy, violating and
conspiring to violate the Clean Air Act (“CAA”)
and Toxic Substances Control Act (“TSCA”), and
filing false personal income tax returns. Salvagno argues
that his sentence violates due process because the sentencing
court relied on information that years later turned out to be
materially untrue, and that this Court should hear his claim
- brought after several earlier challenges to his conviction
and sentence failed - because he is actually innocent of the
conduct that formed the basis of a substantial sentencing
enhancement imposed on him under the United States Sentencing
Guidelines. (ECF No. 1 at 6; ECF No. 1-1 at 2-31.)
January 16, 2018, the Court ordered Williams to show why it
should not grant the relief sought by Salvagno. (ECF No. 3.)
Williams now moves to dismiss Salvagno's petition under
Rule 12(b)(1) of the Federal Rules of Civil Procedure for
lack of subject matter jurisdiction. (ECF No. 7-1 at 5-13.)
For the reasons discussed below, the Court GRANTS
Williams' motion to dismiss and DISMISSES Salvagno's
following facts are drawn from Salvagno's petition,
Williams' motion to dismiss, and where applicable, court
documents in the underlying criminal case against
was the President and principal owner of AAR Contractor, Inc.
(“AAR”), an asbestos abatement company operating
in New York. (ECF No. 112 at ¶¶ 1, 9,
02-cr-00051-LEK (N.D.N.Y.).) On January 15, 2003, Salvagno,
AAR, and other defendants were indicted in the Northern
District of New York on charges of racketeering conspiracy,
conspiracy to violate the CAA and TSCA, multiple violations
of the CAA, and three counts of filing false personal income
tax returns. (ECF No. 7-1 at 2; see ECF No. 112,
02-cr-00051-LEK (N.D.N.Y.).) In short, the Indictment alleged
that AAR, with Salvagno at its helm, had performed dry
removals of asbestos without appropriate precautions or
safety gear at dozens of sites and then falsified air
monitoring tests to show that the work was lawfully done.
(See generally ECF No. 112, 02-cr-00051-LEK
(N.D.N.Y.).) Following a four-month trial, the jury found
Salvagno guilty on all charges on March 30, 2004. (ECF No.
7-1 at 2.)
the guilty verdict, the judge held an eleven-day sentencing
hearing, taking testimony from fact and expert witnesses
called by both parties. Among the many contested issues,
Salvagno and the government hotly disputed the applicability
of U.S.S.G. § 2Q1.2(b)(2), which provides for a
sentencing enhancement of nine levels if the offense
“resulted in a substantial likelihood of death or
serious bodily injury.” Federal Sentencing Guidelines
Manual § 2Q1.2(b)(2) (2000). (See ECF Nos. 394,
395, 02-cr-00051-LEK (N.D.N.Y.).)
Government's primary expert witness concerning the
applicability of § 2Q1.2(b)(2) was Dr. Stephen M. Levin,
an expert in asbestos exposure. Dr. Levin testified that he
reviewed the indictment, trial testimony, and numerous
affidavits, and spoke with three former AAR workers to gain
familiarity with the facts on which to base his opinions.
(See also ECF No. 1117, Oct. 27, 2004 Hrg. at Tr.
15-17 (the “Oct. 27, 2004 Hrg.”), 02-cr-00051-LEK
No. 394 (N.D.N.Y.).) Based on his review, Dr. Levin opined
that he believed that there was a substantial likelihood of
death or serious bodily injury as defined in §
2Q1.2(b)(2), because “there is very significant
likelihood that individuals will contract cancer, which I
consider a grave threat to human health, as well as severe
and impairing asbestosis as a consequence of the exposures
that have been described to me . . . .” (Id.
Tr. 62:19-24.) In particular, Dr. Levin estimated that a core
group of 100 employees who had worked for AAR for 4 years or
more without respiratory protection were exposed to asbestos
in the range of 160 “fiber-years.” (Id.
Tr. 63:19-23.) As Dr. Levin explained, a fiber-year is the
average No. of asbestos fibers per cubic centimeter
multiplied by the No. of years a person is exposed to that
average concentration. (See Id. Tr. No.
30:9-13 (“[F]iber years really means being exposed to a
certain concentration of asbestos in the air for a certain
period of time because it's accumulated exposure that
determines the risk of disease, not just the exposure at any
Levin testified that his estimate of a 160 fiber-year
concentration was based on his review of the trial
transcript, affidavits, and his discussions with AAR workers.
(See, e.g., Id. Tr. 56:22 -57:7.)
In particular, Dr. Levin testified that at AAR, “for
the most part the removal of asbestos was done under dry
conditions, as opposed to wet, which would suppress dust and
that the removal was carried out at a very rapid pace which
resulted in almost constant presence of visible dust in the
air, at times described as so heavy as it looked like a
snowstorm or a blizzard, and this was a recurrent thing
depending on the pace of the work.” (Id. Tr.
55:3-10.) He similarly testified that, based on one former
employee's description, AAR's removal of asbestos
from pipe fittings and elbows led to the “constant
presence of visible dust” in the air, due in part to
the lack of ventilation:
[The individual] would use a knife, a hammer, anything to
pound the material in dry fashion to remove it from the
surface that it was adhering to, creating dust in his
breathing zone that was very visible and the same individual
described frequently performing these operations in enclosed
areas where the door would be locked, no ventilation would be
present and where there was the constant presence of visible
dust that could be seen in the air. Even under relatively low
lighting one would see the mist of drifting asbestos fiber
flinting in the air across the light source.
(Id. Tr. 57:16-25.) Comparing this information to
published measurements regarding the air concentrations
attending particular abatement activities of the type that
AAR's employees engaged in (e.g. “dry
rip[ping]” and sweeping and bagging of asbestos
debris), Dr. Levin constructed a “range of likely fiber
concentrations that would have been present had real
measurements been taken during the time that these operations
were carried out in this case” and adopted the lowest
estimate in the range of 160 asbestos fibers per cubic
centimeter. (Id. Tr. 58:1-59:8; Tr.
63:3-8.).Dr. Levin then estimated that the 100
workers in the “core group” were exposed to that
air concentration 25% of the time (despite evidence
suggesting a greater percentage),  resulting in a total average
exposure of 40 fibers per cubic centimeter, which he
characterized as a “really conservative estimate of
their real exposure.” (Oct. 27, 2004 Hrg. Tr. 63:8-23.)
Multiplying this figure by the four years worked by these 100
employees, Dr. Levin concluded that the average asbestos
exposure for each was 160 fiber-years. (Id. Tr.
calculate how many of the workers would likely suffer injury
at this exposure level, Dr. Levin applied the “OSHA
risk assessment model, ” which “was based on the
observation of many working populations, and their disease
and death experience.” (Id. Tr. 63:23-64:3.)
Based on that risk assessment model, Dr. Levin concluded that
among the group of 100 core AAR workers, he anticipated 20
cases of asbestos-related cancers and 9 of severe and
impairing asbestosis. (Id. Tr. 64:3-7.) He also
noted that AAR employees who worked for less than four years
(and thus were excluded from the group of 100) were also at a
substantial risk of contracting these same diseases, though
in smaller No. due to their shorter exposure period.
(Id. Tr. 64:8-15.)
Levin further testified that he would be
“surprised” if none of the 100 workers developed
asbestos-related illness after 15 years or more.
(Id. Tr. 70:19-71:7 (“I would expect a great
majority of workers, if we looked at their X-rays 20 years
down the road, we are going to see a clear area of
asbestos-related scarring on their films. . . . [I]f we look
only at that group of hundred workers who worked without
respiratory protection for over four years, I would be very
surprised to find a single X-ray that looked normal if we
followed them 20 years.”); see also Id. Tr.
66:24- 67:4 (same for workers who worked longer than 4 years
with AAR).) In sum, Dr. Levin supported his conclusion that
Salvagno's conduct had caused substantial likelihood of
death or serious bodily injury as defined in §
2Q1.2(b)(2) with a risk assessment model that estimated that
29 of the 100 longest-exposed AAR workers would contract
cancer or asbestosis over a 15- to 20-year time frame, based
on an estimated average fiber count for these workers of 160
fiber-years. (See ECF No. 1-1 at 15.)
cross-examination, Dr. Levin acknowledged that if his
estimate of 160 fiber-years was incorrect, it would affect
the No. of individuals he anticipated would suffer serious
illness. (ECF No. 1118, November 3, 2004 Hearing Tr. 62:7-13
(the “Nov. 3, 2004 Hrg.”), 02-cr-00051-LEK No.
394 (N.D.N.Y.).) Nonetheless, Dr. Levin stated that while
there was some uncertainty in the precise No. of individuals
that would be affected, he was “entirely
comfortable” in saying that serious disease would
result from the exposure levels described to him:
Q Okay. Now, you would agree, wouldn't you, that if the
160 No. that you started with is wrong, your analysis would
have a problem, right?
A If the 160 fiber years turned out not to be the dose,
whatever the dose ultimately turned out to be, either greater
or lesser, would influence the No. of people that anticipate
would suffer serious illness.
Q And what you did to come out with 160 was you took -- you
made an estimate based on some studies, correct?
A Measurements taken during this operation in a No. of
[. . . ]
Q And would you agree that making that kind of exposure
assessment based on the information you had is bad science?
A No, I wouldn't call it bad science. It's the best
we can do in the absence of actual measurements. And as I
indicated, I would much rather have data that were obtained
during the actual processes of removal for this group of 4
workers, but those data were not available.
Q Well, is there a point that as a doctor you would just say
that you simply don't have enough data to predict
A Absolutely not. You know, given the circumstances I have
had described to me in this case with the levels of exposure
that have been described, I feel entirely comfortable in
saying the exposure levels were sufficient to produce human
disease 20 and 25 years down the road, and while I can't
precisely quantify it, I have no doubt that many workers will
suffer scarring lung disease and unfortunately a No. will
also develop cancers. My estimate was based on OSHA's
risk assessment with my extrapolation from work process
measurements done elsewhere and taking a conservative look at
that, my understanding is that the level that I described
here may well be low given the amount of dry brooming and
sweeping that was a continual activity during the course of
the larger project, not just at the end of the day, so
resuspension of this material ongoing during the day
apparently characterized lots of these jobs, and I would give
somewhat higher estimate than I offered had I been aware of
how often the dry sweeping and cleaning was going on during
the day of this project.
(Nov. 3, 2004 Hrg. Tr. 62:7-64:1.) In other words, Dr. Levin
believed that even if his 160-fiber year count was wrong,
“given the circumstances I have had described to me in
this case with the levels of exposure that have been
described, ” some amount of asbestos-related disease
would occur among the workers over a 20- to 25-year
Salvagno recites in his petition, he called two experts at
sentencing: Robert Sheriff, a certified industrial hygienist,
and Dr. Peter Barrett, a diagnostic radiologist. (ECF No. 1-1
at 18, 20.) Mr. Sheriff testified that the actual fiber-year
count for the “core group” would be less than 1.6
fiber-years, which (even assuming that they did not wear
respirators at all over four years) would result in
“less than one” of those individuals developing
asbestos-related disease. (ECF No. 1-1 at 19; ECF No. 1-4 at
11, 13.) Mr. Sherriff noted that this level of asbestos
exposure was permitted by U.S. Department of Labor
regulations. (ECF No. 1-1 at 20; ECF No. 1-4 at 15-17.) In
Dr. Barrett's testimony, he criticized Dr. Levin's
reliance on what he described as inapplicable literature and
concluded, based on comparable studies, that the fiber-year
count for Salvagno's workers was actually closer to 1 or
1.5 fibers in a given year. (ECF No. 1-1 at 21-22; ECF No.
1-5 at 12-13, 14-15.) In addition, Salvagno presented the
written testimony of Dr. William Rogers, a physician in
occupational medicine, who examined Salvagno's workers
annually between 1990 and 1999, including by taking chest
X-rays. (ECF No. 1-1 at 23.) According to Salvagno, Dr.
Rogers concluded that there was no difference between
Salvagno's workers and other asbestos workers he had
examined and that his examination findings were “not
consistent with individuals working in heavy concentrations
of dust without the use of any respirators.”
record materials available to me do not disclose whether the
sentencing judge made a specific determination on the record
as to whether U.S.S.G. § 2Q1.2(b)(2) applied.
Nonetheless, the sentencing judge adopted the enhancements
set forth in the PSR, which according to Salvagno included
the § 2Q1.2(b)(2) enhancement and which the sentencing
judge concluded “were proven at trial and during the
comprehensive sentencing hearing, ” resulting in a
total offense level of 40. (Dec. 23, 2004 Hrg. Tr. 156:4-13.)
On December 23, 2004, the judge sentenced Salvagno to 20
years on the racketeering count and 5 years on the remaining
counts, to run concurrent to each other but consecutive to
the 20 years for the racketeering count, for a total 300 of
months imprisonment. (Id. Tr. 156:13-22.)
August 30, 2006, upon remand in light of United States v.
Booker,543 U.S. 220 (2005) and United States v.
Crosby,397 F.3d 103 (2d Cir. 2005), the district court
resentenced Salvagno to the same custodial sentence. (ECF No.
7-1 at 2-3.) Salvagno filed an appeal in which he challenged,
among other alleged errors, the district court's
conclusion that U.S.S.G. § 2Q1.2(b)(2) applied.
See Appellant's Br., United States v.
Salvagno, 2008 WL 6153930, at *117-27 (2d. Cir. January
29, 2008) (sufficiency of the evidence challenge to §
2Q1.2(b)(2) enhancement and observing that “[i]f it
turns out that Levin was wrong, then there may very well be
no AAR workers who have developed asbestos-related disease;
Alex Salvagno, however will still be in prison.”). The
Second Circuit affirmed his conviction. (ECF No. 1 at 2.)
Although the Court of Appeals' summary order did not
specifically address his ...