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Salvagno v. Williams

United States District Court, D. Connecticut

June 27, 2019

ALEX SALVAGNO Petitioner,
v.
D.K. WILLIAMS, WARDEN Respondent.

          RULING ON MOTIONS

          Michael P. Shea, U.S.D.J.

         Petitioner Alex Salvagno, an inmate confined at Federal Correctional Institution (“FCI”) Danbury, asks the Court to reconsider two of its orders in this habeas action based on supposed procedural infirmities. The Court previously granted the motion of Respondent D.K. Williams (the warden at FCI Danbury) to dismiss Salvagno's petition for lack of subject matter jurisdiction because it did not fall within the “Triestman” exception for challenges to the imposition of a sentence under 28 U.S.C. § 2241. (ECF No. 16.) Salvagno's first motion seeks to vacate that decision under Fed.R.Civ.P. 59(e) and 60(b), requests copies of sentencing records in his underlying case, and asks to amend his petition after receiving those records. (ECF No. 18.) The Court denied Salvagno's request for sentencing records, but reserved judgment on the remainder of the motion and ordered further briefing from both parties. (ECF No. 19.) Salvagno then filed a second motion seeking reconsideration of the portion of that order denying his request for transcripts. (ECF No. 20.) Williams filed a response addressing Salvagno's second motion. (ECF No. 21.) Salvagno filed a third motion seeking to expedite the Court's decision. (ECF No. 22.) The Court then vacated in part its earlier order denying his request for the sentencing records, provided two transcripts only recently made publicly available, and solicited further briefing from Salvagno. (ECF No. 23.) In response, Salvagno filed a fourth motion seeking to stay or continue the proceedings, which the Court denied. (ECF Nos. 24, 25.) For the following reasons, the Court now DENIES Salvagno's three remaining motions. (ECF No. 18, 20, 22.)

         I. Factual & Procedural Background

         The Court assumes familiarity with the background of Salvagno's criminal case, his appeal from his resentencing on a Booker-Crosby remand, and his various post-trial proceedings, which are discussed at length in the Court's ruling granting Williams' motion to dismiss. (ECF No. 16 at 2-11.) The Court recounts here only the background necessary for the resolution of these motions.[1]

         On December 11, 2017, Salvagno filed the § 2241 petition in this case, which claimed that his twenty-five-year sentence violated due process because the sentencing court relied on information that years later turned out to be wrong. (ECF No. 1; see generally ECF No. 1-1.) Although he acknowledged that a § 2241 petition may not ordinarily be used to attack a sentence, Salvagno argued that this Court should reach his claim on the merits under the so-called “Triestman” exception because he asserted “actual innocence” of conduct on which his sentence was based - namely, a nine-level enhancement for conduct resulting in a “substantial likelihood of death or serious bodily injury” under U.S.S.G. § 2Q1.2(b)(2). (ECF No. 1-1 at 4-7.) In particular, Salvagno argued that the sentencing court had wrongly imposed the enhancement based on the testimony of the government's expert, Dr. Stephen Levin. (Id. at 15, 17-18.) According to Salvagno, Dr. Levin's prediction that 29 of Salvagno's 100 longest-exposed workers would contract cancer or asbestosis over a 15- to 20-year time frame based on an estimated average fiber count of 160 fiber-years was conclusively proved false by later evidence. (Id. at 15-16.)

         On January 16, 2018, the Court ordered Williams to respond to Salvagno's petition. (ECF No. 3.) On March 12, 2018, Williams moved to dismiss the petition for lack of subject matter jurisdiction. (ECF No. 7.) Williams' motion argued that Salvagno did not satisfy the Triestman exception because his claim of innocence of the enhancement under U.S.S.G. § 2Q1.2(b)(2) was not a cognizable claim of “actual innocence, ” was not provable on the existing record, and could have been (and was) raised during his sentencing and his appeal from his resentencing on a Booker-Crosby remand. (ECF No. 7-1 at 9-13.) Salvagno filed an opposition brief on April 10, 2018. (See ECF No. 11 at 10-21.) On April 24, 2018, Williams filed a reply brief. (ECF No. 13 at 5- 7.) On May 7, 2018, Salvagno filed a motion for leave to file a sur-reply that attached his proposed brief. (ECF No. 14 at 6-9.)

         On January 4, 2019, the Court granted Williams' motion to dismiss for lack of subject matter jurisdiction because Salvagno's petition did not fall within the Triestman exception to challenge the imposition of his sentence under § 2241. (ECF No. 16.) The Court concluded that Salvagno's claim did not satisfy the Triestman exception because it did not raise a cognizable claim of “actual innocence” and in any event was not provable on the existing record. (ECF No. 16 at 33.) In making these determinations, the Court reviewed Dr. Levin's testimony at Salvagno's sentencing hearing, which neither party had attached to its pleadings or briefing. Even though Dr. Levin had testified in 2004, the transcripts of his testimony were not filed on the docket in Salvagno's criminal case until October and November 2018 - i.e., after the parties in this case had submitted their briefing on the motion to dismiss - because (according to the docket notation in that court) they were “inadvertently not provided to the Clerk for docketing” until then. (ECF Nos. 1117, 1118, USA v. Salvagno et al., 02-cr-00051-LEK (N.D.N.Y.)) This Court disclosed its consideration of these transcripts, among others, in a footnote in the ruling. (ECF No. 16 at 2 n.1.)[2]

         Following the Court's grant of the motion to dismiss, the Clerk entered judgment against Salvagno on January 10, 2019. (ECF No. 17.) On January 28, 2019, Salvagno filed a motion (a) seeking to vacate the judgment under Fed.R.Civ.P. 59(e) and 60(b), (b) requesting copies of certain itemized sentencing transcripts (including the transcripts of Dr. Levin's testimony) and the government's sentencing memorandum in order to “effectively respond to the adverse factual and legal points raised by the Court sua sponte in its order, ” and (c) asking for an opportunity to amend his petition after he received the requested records. (ECF No. 18; Id. at 13.) In response to his motion, on January 30, 2019, the Court issued the following order:

The Court has reviewed the 18 motion to vacate and reserves judgment, as follows. The Court will give Mr. Salvagno an opportunity to address the sentencing transcripts not made available on the public docket until October and November 2018. Mr. Salvagno may file a supplemental brief addressing these materials and any other argument he wishes to make with respect to the Court's 16 order within 30 days. The brief shall be limited to 20 pages. Williams may file any response within 30 days of Salvagno's filing and Williams' response shall likewise be limited to 20 pages. No. replies will be allowed. The Court will not issue an order requiring Mr. Salvagno to receive the sentencing transcripts itemized in his motion. Mr. Salvagno has failed to show that he did not have an opportunity to order these transcripts in connection with this petition, his previous habeas petitions, or his appeal from his conviction. The Court reserves judgment on the remainder of his motion. The Clerk is directed to mail a copy of this order to Mr. Salvagno.

(ECF No. 19.) On February 25, 2019, Salvagno filed an “objection and motion to reconsider Court's 1/30/2019 order” that challenged the Court's denial of his request to receive the sentencing transcripts necessary to amend his petition. (ECF No. 20.) On March 27, 2019, Williams filed an objection responding only to Salvagno's second motion. (ECF No. 21.)

         On April 11, 2019, Salvagno filed a “motion to expedite ruling” based on the supposed prejudice that the January 10, 2019 judgment was causing him in the compassionate release litigation in the sentencing court. (ECF No. 22.) In response to his motion, on May 16, 2019, the Court issued the following order vacating in part its earlier order:

It appears that Mr. Salvagno did have access, through his lawyers, to the two sentencing transcripts recently made available on the public docket in his criminal case (ECF Nos. 1117, 1118, USA v. Salvagno et al., 02-cr-00051-LEK (N.D.N.Y.)), because they are quoted in his sentencing memorandum and his appellate brief. Nonetheless, Mr. Salvagno claims that he does not have access to either transcript. Therefore, the Court VACATES its 19 order dated January 30, 2019 in part and will instruct the Clerk's Office to mail to Mr. Salvagno these two transcripts not made available on the public docket until October and November 2018, which are attached to this order. The Clerk is directed to mail a copy of this order, including all attachments to this order, to Mr. Salvagno.
As with the 19 order, Mr. Salvagno may file a supplemental brief addressing these materials within 21 days. The brief shall be limited to 20 pages. Williams may file any response within 14 days of Salvagno's filing and Williams' response shall likewise be limited to 20 pages. No. replies will be allowed.
If Mr. Salvagno wishes to access . . . these transcripts more quickly, he is free to do so through his recently appointed counsel in his criminal case. The Court is not vacating the portion of the 19 order denying Mr. Salvagno's request for the remaining transcripts itemized in his motion.

(ECF No. 23.) The Court attached to its order the two sentencing transcripts of Dr. Levin's testimony (ECF Nos. 1117, 1118, USA v. Salvagno et al., 02-cr-00051-LEK (N.D.N.Y.)), which the court-only notation indicates that the Clerk's Office mailed to Salvagno.[3] On June 3, 2019, Salvagno filed a motion to stay the proceedings or, in the alternative, to extend by 60 days the deadline to respond to the Court's May 16, 2019 order. (ECF No. 24.) The Court denied that motion in a text order on June 5, 2019, stating in relevant part:

The Court will not stay this action, nor will it grant Mr. Salvagno an extension of time to respond. The Court's 23 order gave Mr. Salvagno an opportunity to address the two transcripts not made available on the public docket until October and November 2018, but his recent 11-page filing does not make any new arguments based on those transcripts or sufficiently explain why he needs additional time to address anything in these transcripts.

(ECF No. 25.)

         II. Legal Standards

         A. Rule 59(e) and Local Rule 7(c)

         Under Rule 59(e), “[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Fed.R.Civ.P. 59(e). A party may also file a motion for reconsideration under District of Connecticut Local Rule of Civil Procedure 7(c). See D. Conn. L.R. 7(c). That rule provides that “[s]uch motions will generally be denied unless the movant can point to controlling decisions or data that the court overlooked in the initial decision or order.” Id.

         “A motion for reconsideration filed under Local Rule 7(c) is equivalent as a practical matter to a motion for amendment of judgment under Fed.R.Civ.P. 59(e).” Kelly v. Honeywell Int'l, Inc., No. 3:16-CV-00543 (VLB), 2017 WL 6948927, at *2 (D. Conn. May 25, 2017) (citing City of Hartford v. Chase, 942 F.2d 130, 133 (2d Cir. 1991)). “[E]ach seeks to reopen a district court's decision on the theory that the court made mistaken findings in the first instance.” City of Hartford, 942 F.2d at 133. “Under either rule, the standard for granting a motion for reconsideration is strict.” Marshall v. City of Meriden, No. 3:11-CV-577 (JCH), 2017 WL 5513202, at *1 (D. Conn. Mar. 13, 2017) (citation and internal quotation marks and modification omitted). “A motion for reconsideration should be granted only when the defendant identifies an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (citation and internal quotation marks omitted). “It is well-settled that Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple' . . . .” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998).

         B. Rule 60(b)

         Rule 60(b) allows a court to set aside a judgment or order for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Rule 60(b) is “a mechanism for ‘extraordinary judicial relief' invoked only if the moving party demonstrates ‘exceptional circumstances.'” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (citation omitted). “The decision whether to grant a party's Rule 60(b) motion is committed to the ‘sound discretion' of the district court.” Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012). A Rule 60(b) motion must be made “within a reasonable time, ” or, for reasons (1), (2), and (3) above, “no more than a year after the entry of the judgment or order or the date of the proceeding.” Fed.R.Civ.P. 60(c)(1). In habeas corpus proceedings in particular, a post-judgment motion may only be treated as a proper request for relief under Rule 60(b) if it “relates to the integrity of the federal habeas proceeding, not to the integrity of the criminal trial.” Harris v. United States, 367 F.3d 74, 80 (2d Cir. 2004) (citation omitted).

         C. Post-Judgment Leave to Amend

         Leave to amend a complaint should be freely given when justice so requires. Fed.R.Civ.P. 15(a). “Leave to amend, though liberally granted, may properly be denied for: undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Ruotolo, 514 F.3d at 191 (citation and internal quotation marks omitted). “Where, however, a party does not seek leave to file an amended complaint until after judgment is entered, Rule 15's liberality must be tempered by considerations of finality.” Williams v. Citigroup Inc.,659 F.3d 208, 213 (2d Cir. 2011) (per curiam). “[A] party seeking to file an amended complaint postjudgment must first have the judgment vacated or set aside pursuant to Rules 59(e) or 60(b).” Id. (quoting Ruotolo, 514 F.3d at 191). Nonetheless, “it might be appropriate in a proper case to take into account the nature of the ...


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