United States District Court, D. Connecticut
GEORGE W. BALTES, Petitioner,
MEMORANDUM OF DECISION RE: MOTION TO DISMISS
A. Dooley United States District Judge.
of the Case
August 15, 2018, the petitioner, George W. Baltes, a prisoner
in the custody of the United States Bureau of Prisons
(“BOP”) and currently confined at the Federal
Correctional Institution in Danbury, Connecticut, filed this
petition for writ of habeas corpus under 28 U.S.C. §
2241 against D.K. Williams, the warden of the prison. He
challenges the BOP's refusal to transfer his custody to
New York correctional authorities and to designate his New
York facility as his place of confinement for his federal
sentence. He argues such a transfer and designation is
necessary to give effect to the United States District
Court's determination that his federal sentence was to
run concurrent with his New York state sentence. (DE#1). On
October 15, 2018, the respondent moved to dismiss the
petition for failure to state a plausible claim for relief
under Federal Rule of Civil Procedure 12(b)(6). Respondent
asserts that the BOP's decision to keep the petitioner in
federal custody was proper because it has primary
jurisdiction over the petitioner. And absent a transfer of
custody, the respondent asserts that it cannot require the
state of New York to commence the running of his state
sentence, especially since New York authorities have already
determined that the state sentence will run consecutive to
the federal sentence. (DE#10). The petitioner filed a brief
response to the motion on October 22, 2018 with additional
authority in support of his position, (DE#11) and the
respondent followed with a reply. (DE#12). On November 19,
2018, the petitioner filed a motion to file a sur-reply on
the pending motion to dismiss. (DE#13). His motion included
his argument in sur-reply. Although the petitioner did not
seek leave of Court to file a sur-reply before submitting his
written argument, as required by Local Rule 7(d), in the
interest of justice, the Court will GRANT the
petitioner's motion and accept his sur-reply. For the
following reasons, however, the motion to dismiss the
petition is GRANTED.
Section 2241 grants federal courts jurisdiction to issue
writs of habeas corpus to prisoners “in custody in
violation of the Constitution or laws or treaties of the
United States.” Cephas v. Nash, 328 F.3d 98,
103 (2d Cir. 2003); see also Roccisano v. Menifee,
293 F.3d 51, 57 (2d Cir. 2002). “A writ of habeas
corpus under § 2241 is available to a federal prisoner
who does not challenge the legality of his sentence, but
challenges instead its execution subsequent to his
conviction.” Bullock v. Reckenwald, No.
15-CV-5255 (LTS) (DF), 2016 WL 5793974, at *7 (S.D.N.Y. Aug.
24, 2016) (quoting Carmona v. U.S. Bureau of
Prisons, 243 F.3d 629, 632 (2d Cir. 2001)). This
includes claims arising from “such matters as the
administration of parole, computation of a prisoner's
sentence by prison officials, prison disciplinary sanctions .
. . and prison conditions.” United States v.
Salvagno, No. 02-CR-51 (LEK), 2008 WL 5340995, at *2
(N.D.N.Y. Dec. 19, 2008) (quoting Jiminian v. Nash,
245 F.3d 144, 146 (2d Cir. 2001)).
Court reviews a motion to dismiss a habeas petition according
to the same principles as a motion to dismiss a civil
complaint under Fed.R.Civ.P. 12(b)(6). See Purdy
v. Bennett, 214 F.Supp.2d 348, 353 (S.D.N.Y. 2002). To
survive a motion to dismiss, the petition “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when . . .
[the] [petitioner] pleads factual content that allows the
[C]ourt to draw the reasonable inference that the [respondent
is] liable for the misconduct alleged.” Id.
The plausibility standard is not a probability requirement;
the petition must show, not merely allege, that the
petitioner is entitled to relief. See id.
Court must accept as true the factual allegations in the
petition and draw all reasonable inferences in the
petitioner's favor. Ashcroft, 556 U.S. at 678.
This principle does not, however, apply to the legal
conclusions that the petitioner draws in the petition.
Id.; Bell Atlantic Corp., 550 U.S. at 555;
see also Amaker v. New York State Dept. of Corr.
Servs., 435 Fed.Appx. 52, 54 (2d Cir. 2011) (same).
“Where . . . the [petition] was filed pro se,
it must be construed liberally with ‘special
solicitude' and interpreted to raise the strongest claims
that it suggests.” Hogan v. Fischer, 738 F.3d
509, 515 (2d Cir. 2013) (quoting Hill v. Curcione,
657 F.3d 116, 122 (2d Cir. 2011)). Nevertheless, a pro
se petition still must “state a claim to relief
that is plausible on its face.” Mancuso v.
Hynes, 379 Fed.Appx. 60, 61 (2d Cir. 2010) (quoting
Ashcroft, 556 U.S. at 678).
in deciding a motion to dismiss, the Court may consider
“statements or documents incorporated into the
complaint by reference . . . and documents possessed by or
known to the [petitioner] and upon which [he] relied in
bringing the suit.” ATSI Communications, Inc. v.
Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). The
Court may also “take judicial notice of public records
such as pleadings, orders, judgments, and other documents
from prior litigation, including state court cases.”
Lynn v. McCormick, No. 17-CV-1183 (CS), 2017 WL
6507112, at *3 (S.D.N.Y. Dec. 18, 2017) (citing Lou v.
Trutex, Inc., 872 F.Supp.2d 344, 349 n.6 (S.D.N.Y.
2012)); see also Samuels v. Air Transport Local 504,
992 F.2d 12, 15 (2d Cir. 1993).
and Procedural History
Court notes at the outset that the facts and procedural
history of this case are not in dispute. The prosecution of
the petitioner by both state and federal authorities is
detailed in the public record of both cases.
10, 2011, federal authorities arrested the petitioner for
conspiracy to possess with intent to distribute and to
distribute cocaine, in violation of 21 U.S.C.
§§§ 841(a)(1), 841(b)(1)(A) and 846. (DE#1-1
at 34); (DE#10-2 at 2). He was taken into federal custody and
detained. While his federal case was pending, the state of
New York charged the petitioner with violating his probation
based on the new federal charges. The petitioner pleaded
guilty to the violation charge in New York state court, and
on July 27, 2011, the state court revoked his probation and
sentenced the petitioner to an indeterminate period of one to
three years' imprisonment. Of significance to this
petition, at the time of the sentencing, the petitioner was
still in the primary custody of the federal authorities.
Although the petitioner's attorney and the state court
judge both took note of the pending federal case, the state
court's ruling was silent as to whether the New York
sentence would run consecutive to, or concurrent with, any
federal sentence which might be subsequently imposed in the
event the petitioner was convicted on the pending federal
petitioner pled guilty to the federal charges, and on August
21, 2013 the United States District Court for the Northern
District of New York sentenced him to 121 months of
imprisonment. Sentencing Tr., United States v.
Baltes, No. 11-CR-282 (MAD), DE#270 (N.D.N.Y. Aug. 21,
2013). In doing so, the judge stated that the 121-month
sentence “shall run concurrent to any state sentence
you are currently serving.” Id. However, at that
time, the petitioner, though previously sentenced by the
state court, was not “currently serving any state
sentence” because the petitioner had remained in
federal custody throughout his federal prosecution. On
October 16, 2013, two months after the federal sentence was
imposed, the state of New York lodged a detainer with the BOP
indicating that it was treating the petitioner's New York
sentence of one to three years imprisonment' as being
consecutive to his federal sentence. (DE#10-3)
November of 2015, the petitioner filed a motion in the State
of New York County Court to “clarify” his state
sentence. Specifically, he sought a clarification that his
state sentence “was to run concurrently to any sentence
imposed in the federal case.” The state court denied
his motion and ruled that the state sentence is consecutive
because there was no federal sentence in existence at the
time the state sentence was imposed, and therefore, the
interplay between the two sentences was an issue that could
only be addressed in the federal court. In a subsequent
letter to the petitioner's attorney, the New York
Department of Corrections and Community Supervision
(“NYDOCCS”) added that the New York Penal Law
does not permit a sentence to run concurrently with a term of
imprisonment that has not yet been imposed, and therefore,
the state sentence would not commence until the petitioner is
received by the NYDOCCS.
April 6, 2017, the petitioner filed an Informal Resolution
with his correctional counselor requesting that the detainer
be removed and that federal authorities transfer him to state
custody so that he may begin serving his state sentence.
(DE#1-1 at 1-2). The counselor declined to afford the
petitioner any relief because the NYDOCCS deemed his state
sentence as being consecutive to the federal sentence and
federal authorities still had primary jurisdiction over him.
(DE#1-1 at 3). The petitioner thereafter filed an
administrative remedy requesting the same relief, arguing
that his federal sentence was ordered to run concurrent with
his state sentence. (DE#1-1 at 4). The respondent, Warden
Williams, denied his request on February 23, 2018. (DE#1-1 at
7). He reasoned that 18 U.S.C. § 3621(a) requires a
person convicted in federal court to be committed to the
custody of the BOP “until the ...