United States District Court, D. Connecticut
THOMAS E. MARRA, JR., Petitioner,
ROLLIN COOK, et al., Respondents.
RULING ON MOTION TO DISMISS
R. Underhill United States District Judge
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"). 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
Standard of Review
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
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)).
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).
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).
Facts and Procedural History
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
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