Baltes v. Williams

          MEMORANDUM OF DECISION RE: MOTION TO DISMISS (DE#10)

          Kari A. Dooley United States District Judge.

         Statement of the Case

         On 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.

         Standard of Review

          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)).

         This 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.

         The 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).

         Finally, 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).

         Facts and Procedural History

         The 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.

         On June 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 charges.

         The 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.^[1] 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)

         In 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.

         On 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 ...