United States District Court, D. Connecticut
MEMORANDUM OF DECISION RE: MOTION TO DISMISS
A. DOOLEY, UNITED STATES DISTRICT JUDGE
of the Case
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.
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.
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).
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).
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).
and Procedural History
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.
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.
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