Musciotto v. Nardelli

Filing 34

ORDER re 20 Motion to Dismiss. The Clerk of the Court is directed to close this file. Signed by Judge Kari A. Dooley on 10/10/2019. (Gould, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DAVID MUSCIOTTO,
Petitioner,
v.
ERIN NARDELLI,
Respondent.

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No. 3:19-CV-559 (KAD)

October 10, 2019

MEMORANDUM OF DECISION RE: MOTION TO DISMISS (DE#20)
Statement of the Case
On January 9, 2019, the Petitioner, David Musciotto, a prisoner currently
confined at the Northern State Prison in Newark, New Jersey, filed a Petition for Writ of
Habeas Corpus in the district of New Jersey pursuant to 28 U.S.C. § 2241 against the
Respondent, Erin Nardelli, for a violation of due process. Pet. (DE#1). Specifically, the
Petitioner claims that a detainer lodged against him by the State of Connecticut for a
probation violation charge prevents him from participating in early release or
rehabilitative programs available through the New Jersey Department of Corrections
(“NJDOC”). Id. at 6-7. For relief, he asks that this Court (1) provide him with “an
opportunity to address [the detainer] in a timely manner,” (2) “abate [the detainer] so
[that he] may partake of programming intended by the NJDOC for [his] rehabilitation or
transition back to society,” or (3) “dissolve the detainer.” Id. at 8. Because the Petitioner
challenges a detainer lodged by the State of Connecticut, the court (Hillman, U.S.D.J.)
sua sponte transferred the case to this court.1

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Understandably, the Petitioner named Erin Nardelli, the Administrator of the Southern State Correctional
Facility in Delmont, New Jersey, where the Petitioner was previously confined as the Respondent. Upon
transfer to this court, the State of Connecticut, became the true Respondent in this case. The Clerk is
therefore directed to terminate Erin Nardelli and list the State of Connecticut as the Respondent in this case.

In response to an order to show cause issued by this Court, the Respondent moved
to dismiss the petition on two grounds: (1) an arrest warrant for a violation of probation
charge does not trigger the protections of the Interstate Agreement on Detainers (“IAD”),
and (2) to the extent the Court interprets the Petitioner’s claim as a violation of his
constitutional right to a speedy trial, the Petitioner has failed to state such a claim. The
Petitioner filed an amended opposition2 to the Respondent’s motion on August 19, 2019
in which he clarifies that while he “is not concerned with speedy trial,” the unnecessary
delay caused by the detainer combined with state officials’ refusal to respond to his
letters requesting relief violate his right to due process. He also argues that the IAD
should be liberally interpreted to apply to all detainers, including those for violation of
probation charges. For the following reasons, the motion to dismiss is GRANTED.
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)).
“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

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The Petitioner filed an initial opposition on August 14, 2019. He later advised the Court by letter that he
intended to file a typed, amended opposition to the motion. The Court accepts the Petitioner’s typed,
amended opposition as the operative response.

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(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 F. App’x 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).
Procedural History
The Petitioner’s prosecution history is not in dispute. On July 1, 2015, the
Petitioner pleaded guilty in the Connecticut Superior Court to unlawful restraint in the
first degree3 and carrying a dangerous weapon.4 State v. Musciotto, No. A05D-CR140151059-S (Conn. Super. Ct. July 1, 2015). The state court imposed a total effective
sentence of five years of incarceration, execution suspended after eighteen months, and
three years of probation. Id. At the Petitioner’s request, supervision of his probationary
term was transferred to the State of New Jersey pursuant to Connecticut’s Interstate
Compact for Adult Offender Supervision.5 See Pet’r’s Attach. 2 (DE#1-3), 14; Pet’r’s
Attach. 3 (DE#21), 4.
On May 4, 2017, New Jersey authorities arrested the Petitioner and subsequently
charged him with manufacturing or distributing a controlled substance or intent to do so,

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Conn. Gen. Stat. § 53a-95.

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Conn. Gen. Stat. § 53-206.

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Conn. Gen. Stat. § 54-133.

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in violation of N.J. Stat. Ann. § 2C:35-5a(1). On March 23, 2018, the New Jersey
Superior Court sentenced him to five years of incarceration.
Connecticut authorities subsequently issued an arrest warrant charging the
Petitioner with violating his probation and lodged a detainer in the NJDOC facility where
he was confined. Pet’r’s Attach. 3 at 4. The Petitioner then wrote letters to both
Connecticut and New Jersey officials complaining that the detainer was preventing him
from receiving minimum security status and/or participating in rehabilitative programs
while serving his New Jersey sentence, to include the potential for early release to a
halfway house or rehabilitation facility. See Pet’r’s Attach. 2 at 1-17. Accordingly, he
sought immediate transfer to Connecticut under the IAD so he could address the violation
of probation charge. The New Jersey authorities denied his request on the ground that the
IAD does not apply to detainers based on violation of probation charges. Pet’r’s Attach.
2. at 3; Pet’r’s Attach. 3 at 5. They informed him that “[i]t is permissible, however, to
resolve this matter via [video conference], should the Court in Connecticut be amenable.”
Pet’r’s Attach. 3 at 5. On March 5, 2019, Connecticut authorities responded to the
Petitioner’s letters seeking relief, stating that they are unable to execute the arrest warrant
or take custody of him until he completes his sentence in New Jersey. Id. at 4. They also
informed him that they are “unable to conduct remote arraignments or hearings from out
of state facilities.” Id. The Petitioner remains incarcerated in New Jersey.
Discussion
The Petitioner purports to bring this petition under 28 U.S.C. § 2241. Section
2241 authorizes “[t]he Supreme Court, any justice thereof, the district courts and any
circuit judge” to grant writs of habeas corpus within their respective jurisdictions. 28

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U.S.C. § 2241(a). “The writ of habeas corpus shall not extend to a prisoner unless . . .
[h]e is in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3). This provision of § 2241 “generally permits federal prisoners to
challenge the execution of a sentence, including the computation of the sentence and
parole decisions, rather than the imposition of that sentence or the underlying federal
conviction . . .” Blanchard v. New York, No. 9:18-CV-0448 (GTS/CFH), 2018 WL
2324054, at *2 (N.D.N.Y. May 22, 2018) (citing Cook v. New York State Div. of Parole,
321 F.3d 274, 278 (2d Cir. 2003)); see also Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir.
2001). In this case, however, the Petitioner is a state prisoner, not a federal prisoner, and
he is challenging a detainer lodged by another state jurisdiction.
A prisoner’s challenge to a detainer is not a challenge to the validity or imposition
of a state court sentence insofar as it does not seek to change the fact or duration of a
sentence. Rather, it is more akin to a challenge to the execution of a sentence. See e.g.
Roberts v. Commonwealth of Pennsylvania Bd. of Probation & Parole, No. 09-0609
(RMB), 2009 WL 1351674, at *2 (D.N.J. May 12, 2009). And challenges to the
execution of a state sentence, of the type presented here, must be brought pursuant to 28
U.S.C. § 2254. Cook v. New York State Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003).
In Cook, the petitioner, a state prisoner, sought to avoid the prohibition against successive
habeas petitions by bringing his petition pursuant to § 2241 relying on cases in which
such petitions were permitted when brought by federal prisoners. The Court of Appeals
held that “because a federal prisoner cannot challenge the execution of his or her sentence
by a motion under [§] 2255, he or she must resort to a [§] 2241 petition to do so. A state
prisoner, such as Cook, by contrast, not only may but according to the terms of [§] 2254

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must, bring a challenge to the execution of his or her sentence … under [§] 2254.”
(emphasis original) Id. at 278; see also, In Re: Wright, 826 F.3d 774, 778 (4th Cir. 2016)
(“Almost every circuit has addressed some version of the broader question at play here –
that is, whether convicted state prisoners’ petitions challenging the execution of a
sentence are to be governed by § 2241 or § 2254. The majority view is that § 2241 habeas
petitions from convicted state prisoners challenging the execution of a sentence are
governed by § 2254”) (collecting cases). Therefore, although filed under § 2241, the
Court construes this Petition as one governed by § 2254. See Cook, 321 F.3d at 278 (“[I]f
an application that should be brought under 28 U.S.C. § 2254 is mislabeled as a petition
under [§] 2241, the district court must treat it as a [§] 2254 application instead.”); Manns
v. Martinez, No. 3:08-CV-752 (JCH), 2008 WL 5104809, at *1 (D. Conn. Dec. 1, 2008)
(construing federal prisoner’s petition challenging Connecticut state detainer under IAD
as filed under § 2254); Blanchard, 2018 WL 2324054, at *2 (Noting that a state court
prisoner challenging a detainer must proceed pursuant to § 2254).
Section 2254 mandates that district courts “entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a); Blanchard, 2018 WL 2324054, at *2. In
addition, a petition for writ of habeas corpus under § 2254 may not be granted “unless it
appears that the applicant has exhausted his state court remedies. 28 U.S.C. §
2254(b)(1)(A). In order to properly exhaust his state court remedies, the Petitioner must
present the factual and legal bases of his federal claims to the highest state court capable
of reviewing them and utilize all available means to secure appellate review of his claims.

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See Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir. 2005). Failure to exhaust state court
remedies may be excused only if “there is no opportunity to obtain redress in state court
or if the corrective process is so clearly deficient to render futile any effort to obtain
relief.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam).
Here, the Petitioner has not exhausted his state court remedies. Although he
wrote letters to the State’s Attorney, his probation officer, and the state court where his
probation violation charge is pending, he has not challenged the detainer through a
cognizable state court proceeding such as a petition for writ of habeas corpus or writ of
mandamus. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489-90 (1973)
(state prisoner must exhaust all available state remedies before filing habeas petition
attacking state detainer); Miller v. State, No. 557570, Purtill, J.T.R., 2001 WL 951301, at
*1 (Conn. Super. Ct. July 20, 2001) (petitioner sought state writ of mandamus to release
him from custody for violation of IAD). Indeed, Courts in this Circuit have dismissed §
2254 petitions challenging state detainers for failure to exhaust state court remedies. See
Blanchard, 2018 WL 2324054, at *5; Manns, 2008 WL 5104809, at *2.
The court would normally dismiss a petition without prejudice to refiling upon
proper exhaustion without addressing the merits of the claim(s) asserted therein. But
here, as shown below, the Petitioner asserts a claim under the IAD that the United States
Supreme Court has considered and rejected. Thus, the court addresses the merits of that
claim.
The IAD, 18 U.S.C.A. App. 2, “is a compact among 48 states, the District of
Columbia, and the Federal Government that prescribes procedures for a participating
state to gain custody of a prisoner incarcerated in another jurisdiction in order to try him

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on criminal charges.” United States v. Collins, 863 F. Supp. 102, 104 (E.D.N.Y. 1994).
It “is designed to encourage ‘the expeditious and orderly disposition of charges
outstanding against a prisoner and determination of the proper status of any and all
detainers[6] based on untried indictments, informations, or complaints.’” Id. (quoting
United States v. Cephas, 937 F.2d 816, 818 (2d Cir. 1991)); see also Carchman v. Nash,
473 U.S. 716, 720 (1985). Thus, the purpose of the IAD is “to limit the potentially
adverse effect upon a prisoner’s treatment and rehabilitation that may be posed by the
pendency against him of a detainer based upon an untried charge.” Collins, 863 F. Supp.
at 104 (citing 18 U.S.C.A. App. 2, § 2, Art. I).
Article III of the IAD establishes the procedure by which a prisoner incarcerated
in one state (the sending state) may demand the speedy disposition of “any untried
indictment, information or complaint on the basis of which a detainer has been lodged
against the prisoner” by another state (the receiving state). Carchman, 473 U.S. at 720.
In accordance with Article III, the warden of the facility where the prisoner is confined
must inform the prisoner that a detainer has been lodged and that the prisoner may
request a final disposition of the indictment, information, or complaint upon which it is
based. Id. at 721. If the prisoner requests such a final disposition, the warden must
forward it to the receiving state along with a certificate explaining the prisoner’s terms of
confinement. Id. The receiving state must then bring the prisoner to trial within 180
days, absent a showing of good cause, or, alternatively, dismiss the indictment,
information, or complaint with prejudice. Id.

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“A detainer is a request filed by a criminal justice agency with the institution either to hold the prisoner
for the agency or to notify the agency when release of the prisoner is imminent.” Carchman v. Nash, 473
U.S. 716, 719 (1985).

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As noted, and unlike Blanchard and Manns, which both involved challenges to a
detainer under the IAD based on unresolved criminal charges, the detainer in this case is
based on a violation of probation charge. In Carchman, the United States Supreme Court
expressly held that the phrase “untried indictment, information or complaint” in Article
III of the IAD refers to pending criminal charges, not a probation violation charge. 473
U.S. at 725. The probation violation charge is generally based on the criminal offense of
which the prisoner has already been convicted and is serving his sentence in the sending
state. Id. Thus, the Court held that the protections established by Article III of the IAD
do not apply to probation violation detainers. Id. at 734. Based on this well-established
precedent, the Petitioner cannot obtain any relief from this court regarding the detainer
under the terms or protections of the IAD.7
Based on the foregoing, in addition to failing to exhaust his state court remedies,
the Petitioner has failed to state a plausible claim for relief regarding the failure of state
authorities to bring him to Connecticut pursuant to the IAD. The Petition is therefore
DISMISSED with prejudice as to the claims asserted under the IAD and DISMISSED
without prejudice to refiling if the Petitioner exhausts his state court remedies related to
any other federal constitutional or statutory claims not addressed herein. The Petitioner
may file a motion to reopen the case and file an amended Petition after proper
exhaustion of these claim(s) in state court. The Clerk of the Court is directed to close

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The Petitioner does not dispute that the procedures outlined in Article III do not apply to probation
violation detainers. He, nevertheless, contends that there may be other provisions of the IAD which afford
him protections in this situation. He is mistaken. The Supreme Court’s conclusion in Carchman was not
solely based on the language of Article III. See Carchman, 473 U.S. at 724-25. The Court also examined
other provisions of the IAD and statements from its drafters which evince an intent for the use of the word
“charges” to apply only to criminal charges, not those pertaining to parole or probation violations. See id.
at 725-29.

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this file. Because the Petitioner has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability will not issue. See 28 U.S.C. §
2253(c)(2).
SO ORDERED.
Dated this 10th day of October 2019 at Bridgeport, Connecticut.

______/S/__________________
Kari A. Dooley
United States District Judge

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