Marra v. Cook

          RULING ON MOTION TO DISMISS

          Stefan R. Underhill United States District Judge

         On March 5, 2018, Thomas E. Marra, Jr., an inmate currently confined at the Garner Correctional Institution in Newtown, Connecticut, brought a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 against Scott Semple, the Commissioner of the Connecticut Department of Correction ("the respondent").^[1] Pet., Doc. No. 1. In his petition, Marra challenges his 1988 state convictions for accessory to kidnapping, attempted kidnapping, conspiracy to commit kidnapping, arson, and larceny. Id. On November 7, 2018, the respondent moved to dismiss the petition as untimely and, alternatively, for failure to exhaust state court remedies. Mot. to Dismiss, Doc. No. 27; Mem. of Law in Supp. of Mot. to Dismiss ("Resp't Mem."), Doc. No. 27-1. In response, Marra filed a motion to withdraw his petition "without prejudice so that [he] can exhaust the claims that the [r]espondent alleges [he] did not fully exhaust[] in state court." Pet'r's Mot. to Withdraw Without Prejudice Pet'r's 2254 Pet. for Writ of Habeas Corpus ("Marra's Mot. to Withdraw"), Doc. No. 30. I ordered Marra to file a supplemental response to the Motion to Dismiss explaining why his petition should not be dismissed as time-barred. See Order, Doc. No. 30. Marra filed a supplemental response in which he argued: (1) his previous federal petition was dismissed without prejudice subject to refiling after proper exhaustion, and (2) he is entitled to equitable tolling. Pet'r's Suppl. Resp. to Resp't's Mot. to Dismiss ("Marra's Suppl. Resp."), Doc. No. 32. For the following reasons, the Motion to Dismiss is GRANTED and the Motion to Withdraw is DENIED.

         I. Standard of Review

         District courts review a motion to dismiss a petition for writ of habeas corpus 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 [me] to draw the reasonable inference that the [respondent is] liable for the misconduct alleged." Id.

         I must accept as true the factual allegations in the petition and draw all reasonable inferences in Marra's favor. Ashcroft, 556 U.S. at 678. This principle does not, however, apply to the legal conclusions that Marra draws in his 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, I am 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)).

         Because 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, apro 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, I may consider "statements or documents incorporated into the [petition] by reference . . . and documents possessed by or known to [Marra] and upon which [he] relied in bringing the [petition]." ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). I 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, 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).

         II. Facts and Procedural History

         On August 10, 1988, a jury convicted Marra in state court of accessory to kidnapping in the first degree, conspiracy to commit kidnapping in the first degree, two counts of attempted kidnapping in the first degree, arson in the second degree, and larceny in the second degree for his role in the disappearance of Richard Noel on January 23, 1984. Pet. at 1; Direct Appeal R., Resp't App. A, Doc. No. 27-3 at 24; State v. Marra, 215 Conn. 716, 718-19 (1990), Resp't App. D, Doc. No. 27-6. The state court sentenced him to sixty-five years of imprisonment. Pet. at 1; Marra, 215 Conn, at 719. As stated by the Connecticut Supreme Court, the jury reasonably could have found the following facts:

Sometime during 1981, [Marra] began selling stolen automobiles to J.W. Ownby, who lived in Kansas City, Missouri. [Marra]'s job was to deliver the stolen autos to New York City, where Ownby would pick them up and drive them back to Kansas City. In 1982, [Marra] introduced Noel, the victim, to Ownby. When Ownby became too ill, [Marra] hired Noel to drive stolen autos to Ownby in Kansas City.

Ownby and Noel proceeded to develop a friendly relationship. When Ownby and [Marra] argued over the manner in which Noel would be paid, Ownby opted to pay Noel himself, rather than honor [Marra]'s request that Ownby pay [Marra], and allow [Marra] to remit part of the payment to Noel. In the summer of 1983, Ownby began dealing directly with Noel. Shortly thereafter, Ownby terminated almost all of his dealings with [Marra], and began dealing primarily with Noel. [Marra] was "aggravated" with the situation, and his relationships with Ownby and Noel subsequently deteriorated.

In the meantime, the police had begun investigating auto theft in the Bridgeport area, and [Marra] became a subject of that investigation in April, 1983. The police informed [Marra] in October, 1983, that he was a subject of their investigation. During the remaining months of 1983, the police conducted continuous, visible surveillance operations outside [Marra] 's home so that [Marra] was made aware that the police were watching him. In November, 1983, Noel implicated [Marra] in statements to the police, and [Marra] later became aware of Noel's conversations with the police.

Near the end of 1983, [Marra] asked Frank Spetrino to steal a van for him, specifically requesting a van with no windows. Spetrino then stole a blue van for [Marra] on December 21, 1983. On the same night, Spetrino called [Marra] to arrange for delivery of and payment for the van. Spetrino and [Marra] then went to James Kallman's apartment at Pallisade Avenue in Bridgeport. There, they met Kallman, Nicky Byers, Shawn Burns and Paul Lentine. [Marra] asked Spetrino to help him and the others force Noel into the van. [Marra] had previously offered to pay Byers several hundred dollars to hit Noel over the head with an axe handle and drag him into the van. Byers, Spetrino, Kallman, Burns and Lentine, carrying guns and other weapons, rode in the van to 141 French Street in Bridgeport, the location of Noel's apartment, while [Marra] followed in his own car. Spetrino noticed that the van contained a fifty gallon drum that had not been in the van at the time he had stolen it. The group parked outside Noel's apartment, near his car, and waited approximately one hour for him to appear. When Noel failed to appear, the group abandoned the plan and disbanded.

On or about the same day, all of these men went to Robin O'Neill's apartment on Charles Street in Bridgeport. They used the blue van for transportation, and carried guns and other weapons. Kallman, in accordance with a scheme concocted by [Marra], gave O'Neill cocaine and asked her to use the drugs to entice Noel out of the Shamrock Pub, a nearby nightclub. The plan, again engineered by [Marra], was to knock Noel out when he entered the apartment, drag him through the back door of the apartment and throw him into the van. [Marra] drove O'Neill to the Shamrock Pub, and when she returned alone, [Marra] sent Alex Palmieri into the pub to find Noel. Palmieri was also unsuccessful, and this plan was also abandoned. Later, on January 12, 1984, Burns burned the blue van.

Subsequently, [Marra] asked Spetrino to steal another van for him, and on January 21, 1984, Spetrino stole a van that was two-toned in color, white on the top and green or aqua on the bottom. That same evening, Spetrino parked the van, and called [Marra] to inform him of the van's location. The next day, Spetrino noticed that the van was gone. On January 22, 1984, Ownby called [Marra] from a hotel in Bridgeport, and asked [Marra] to pick him up and drive him to a motel in Fairfield. [Marra] picked up Ownby and a Hispanic man named Julio after 9 p.m., and drove them to a motel in Fairfield. During the drive, Ownby indicated to [Marra] that after that night, there would be no more problems with Noel.

Early the following morning, on January 23, 1984, Margaret Vias awoke at approximately 2 a.m. to the sound of a male voice, coming from outside, screaming: "No, no!" Vias lived on the second floor of the apartment building at 141 French Street, the same building where Noel lived. Looking out of her window, Vias observed two white men near the doors of the building, quickly carrying the limp body of another man by his arms and legs down the sidewalk towards a van parked in front of the building. The two men tossed the other man into the van, which Vias described as yellow, at least ten years old, with a sliding door on the passenger side. A third person, according to Vias, accompanied the two men. Later that morning, Vias went outside and observed a large puddle of blood near the door of the building, a clump of dark brown hair near the puddle, blood splattered from the puddle over to the place where the van had been parked, and a set of keys.

At approximately 3:00 a.m. on January 23, 1984, the same morning that Vias viewed the scene from her window, [Marra] received a call from Ownby, who requested that [Marra] pick him up, help him dispose of a van and drive him to the airport. [Marra] picked up Ownby and Julio, and drove them to a restaurant in Stratford. In the restaurant parking lot, [Marra] saw a green and white van, and asked Ownby whether Noel's body was in the van. Ownby replied: "We already took care of it." [Marra] then looked into the van, and observed a large quantity of blood on its floor, door and sides. Followed by Ownby and Julio in the van, [Marra] next drove to a factory on Lordship Boulevard in Stratford, stopping along the way to purchase a container full of gasoline. Ownby told [Marra] that the van had to be destroyed ...