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Peterkin v. Board of Pardon and Paroles

United States District Court, D. Connecticut

June 25, 2019

DORAM ANTHONY PETERKIN, Petitioner,
v.
BOARD OF PARDONS AND PAROLES, Respondent.

          MEMORANDUM OF DECISION RE: MOTION TO DISMISS (DE#7)

          KARI A. DOOLEY, UNITED STATES DISTRICT JUDGE

         Statement of the Case

         On April 4, 2019, the petitioner, Doram Anthony Peterkin (“Petitioner”), a state prisoner currently confined at the Corrigan-Radgowski Correctional Institution in Uncasville, Connecticut, filed this Petition for Writ of Habeas Corpus (“Petition”) under 28 U.S.C. § 2254 against the Connecticut Board of Pardons and Paroles (“Respondent”). Pet. (DE#1). The sole ground raised in his petition is that the state court's imposition of special parole in addition to his term of imprisonment violates Connecticut General Statutes §§ 53a-28(b) and 54-125e, as recently amended by 2018 Conn. Acts 63 (“Public Act 18-63”). Id. at 9, 22. Petitioner requests that this Court vacate his special parole term. Id. at 22.

         On May 1, 2019, Respondent moved to dismiss the petition on two grounds: (1) the petition is time-barred under 28 U.S.C. § 2244(d)(1)(A); and (2) Petitioner failed to exhaust his state court remedies under 28 U.S.C. § 2254(b)(1)(A). Mot. to Dismiss (DE#7); Mem. of Law in Supp. of Resp't's Mot. to Dismss (“Resp't Mem.”) (DE#7-1). On May 20, 2019, Petitioner filed an opposition to Respondent's motion; Mot. in Opp'n of the Resp't Mot. to Dismiss (“Pet'r Opp'n”) (DE#8). For the following reasons, the Petition is dismissed without prejudice for failure to exhaust state court remedies.

         Standard of Review

         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). Accordingly, the Court is not “bound to accept conclusory allegations or legal conclusions masquerading as factual conclusions.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (quoting Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (internal quotation marks omitted)). “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 “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

         On May 9, 2016, Petitioner pleaded guilty in state court to two counts of possession with intent to sell a controlled substance, in violation of Connecticut General Statutes § 21a-277(a). Pet. at 2; State v. Peterkin, No. K21N-CR15-0128552-S (Conn. Super. Ct. May 9, 2016); State v. Peterkin, No. K21N-CR15-0126953-S (Conn. Super. Ct. May 9, 2016). The state court imposed a sentence of 731 days of imprisonment, followed by three years of special parole. Peterkin, No. K21N-CR15-0128552-S; Peterkin, No. K21N-CR15-0126953-S.

         On September 21, 2018, Petitioner filed a petition for writ of habeas corpus in state court. Peterkin v. Comm'r of Corr., No. TSR-CV18-4009732-S (Conn. Super. Ct. Sept. 21, 2018). Therein, Petitioner raised the same ground for relief that he asserts in the instant Petition, to wit, that the state court's imposition of special parole was rendered illegal by Public Act 18-63. State Pet., Resp't's Ex. C (DE#7-4). The state petition remains pending. On May 24, 2019, after filing the instant Petition in this Court, Petitioner filed a direct appeal from the state court judgment in the Connecticut Appellate Court. State v. Peterkin, No. AC 42980 (Conn. App. May 24, 2019). That appeal also remains pending.

         Discussion

         As indicated, Petitioner contends that Public Act 18-63 renders the state court's sentence of special parole illegal. The new legislation, which became effective on October 1, 2018, prohibits a state court from imposing a term of special parole for convictions of offenses under Chapter 420b of the Connecticut General Statutes, which includes § 21a-277(a), the offense of which Petitioner was convicted in May 2016. See Pet. at 23; Resp't Mem. at 6. Specifically, Public Act 18-63 amended the state's sentencing statute, § 53a-28(b), to provide as follows:

Except as provided in section 53a-46a, when a person is convicted of an offense, the court shall impose one of the following sentences: . . . (9) a term of imprisonment and a period of special parole as provided in section 54-125e, except that the court may not impose a period of ...

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