United States District Court, E.D. New York
June 28, 2005.
ROBERT VENETUCCI, Plaintiff,
DEPARTMENT OF STATE, Defendant.
The opinion of the court was delivered by: ALLYNE ROSS, District Judge
MEMORANDUM AND ORDER
Plaintiff Robert Venetucci, a federal inmate who was extradited
to, and convicted in, Italy and who subsequently agreed, as a
condition of his voluntary transfer to a United States prison,
that any legal proceeding challenging his conviction or sentence
had to be brought in Italy, brings this pro se action seeking
a declaratory judgment vacating his conviction and life sentence.
Although plaintiff has paid the filing fee, this action is
nonetheless dismissed for the reasons set forth below.
On September 27, 1983, an Italian judge issued a warrant for
plaintiff's arrest on charges of extortion and conspiracy to
commit extortion. See Matter of Sindona, 584 F.Supp. 1437,
1446, 1447 (E.D.N.Y. 1984). On May 3, 1984, Judge Glasser granted
Italy's request for extradition, finding, inter alia, that
the offenses with which plaintiff was charged were extraditable
and that the requirements of "double criminality" were satisfied.
Id. at 1452.
Shortly after plaintiff's extradition to Italy, the Italian
Government requested the consent of the United States, pursuant
to Article XVI(1)(c) of the 1983 Extradition Treaty between the
United States and Italy, to try plaintiff on the additional
charge of complicity in premeditated murder. Amended Complaint,
¶¶ 20, 22. The United States Government consented, and that
consent was communicated to the Italian Embassy by the United
States Department of State on January 2, 1985. Id., Ex. B. In 1986, plaintiff was convicted
in Italy of both murder and aggravated extortion and sentenced to
life imprisonment. See Ventucci v. LeBlanc, No. Civ. 03-944
ADM/AJB, 2003 WL 24013824, at *1 (D.Minn. Apr. 10, 2003).
In 1997, plaintiff requested a transfer to the United States.
Id. At a hearing held pursuant to 18 U.S.C. § 4108, plaintiff
verified his consent to the transfer and agreed, both orally and
in writing, that any legal proceedings challenging his conviction
or sentence had to be brought in Italy. Ventucci v. Reese,
46 Fed. Appx. 381, 382, 2002 WL 31016425, at *1 (8th Cir. 2002).
In March 1998, plaintiff was transferred to the United States,
and is currently incarcerated at the Federal Medical Center in
Plaintiff's Prior Petitions for a Writ of Habeas Corpus
Notwithstanding his agreement not to challenge his Italian
conviction and sentence in United States courts, plaintiff filed
at least three petitions for a writ of habeas corpus in the
United States District Court for the District of Minnesota
following his return to the United States. In October 1998,
plaintiff filed a petition pursuant to 28 U.S.C. § 2241,
asserting "that his sentence was illegal because the United
States had no right under the Constitution to detain him . . .
[and] that the transfer treaty between Italy and the United
States was `defective and illegal.'" Ventucci v. LeBlanc, 2003
WL 24013824, at *1. Magistrate Judge John Mason addressed that
petition on the merits and recommended that it be dismissed,
finding that plaintiff's "request to transfer to the United
States was made `knowingly and understandingly' and was `wholly
voluntary.'" Id. That recommendation was adopted by District
Judge Ann Montgomery and the petition was dismissed with
prejudice on August 17, 1999. Id.
In June 2001, plaintiff filed a second petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, raising issues which appear quite similar to
issues being raised herein. In that petition, plaintiff argued,
inter alia, "that the additional charge of complicity to
commit murder was presented against him in Italy in violation of
due process, the Ex Post Facto Clause and treaties between Italy
and the United States." Id. at *2. Magistrate Judge Mason again
recommended that the petition be dismissed, this time on the
ground that plaintiff had failed to make the showing necessary
for the court to consider a second and successive petition. Id.
Judge Montgomery again adopted the Magistrate Judge's Report and
Recommendation, and dismissed the petition with prejudice on
February 12, 2002. Id.
Plaintiff then appealed to the Eighth Circuit Court of Appeals,
which declined to reach the successiveness issue. Rather, the
Eighth Circuit addressed the merits of plaintiff's petition and
held that his challenge to his continued incarceration was
foreclosed by his agreement to challenge his conviction and
sentence only in Italy. See Venetucci v. Reese,
46 Fed. Appx. at 382, 2002 WL 31016425, at *1. Noting that such agreements were
consistent with federal law and rejecting plaintiff's claim that
his consent to transfer was not voluntary, the Eighth Circuit
concluded that "the record plainly demonstrates that the claim is
without merit." Id.
On January 29, 2003 less than four months after the Eighth
Circuit dismissed his second habeas petition plaintiff filed a
third action, asserting that his consent to the transfer had not
been made knowingly. Although plaintiff argued that "his claims
[were] separate and independent from habeas corpus," Magistrate
Judge Arthur J. Boylan rejected this argument, stating that in
order to obtain relief, plaintiff "must petition for a writ of
habeas corpus." Ventucci v. LeBlanc, 2003 WL 24013824, at
*4-*5. Magistrate Judge Boylan analyzed the submission under both
the "second and successive" restriction of the Anti-Terrorism and Effective Death Penalty Act of 1996 (the "AEDPA") and the common
law abuse of writ principles and recommended that the petition be
dismissed with prejudice. Magistrate Judge Boylan's Report and
Recommendation was adopted by Judge Montgomery, who noted that,
regardless of whether plaintiff's submission was reviewed "as a §
2241 petition, or . . . a § 3244 All Writs Act petition," the
issues plaintiff sought to raise had "been previously considered
and rejected by both the District Court and the Eighth Circuit
Court of Appeals." Ventucci v. LeBlanc, No. Civ. 03-944
ADM/AJB, 2003 WL 21057066, at *2 (D.Minn. May 9, 2003).
Plaintiff's Complaint and Amended Complaint
In April 2005, plaintiff commenced this action, alleging that
defendant Department of State violated various sections of Title
18 of the United States Code, two extradition treaties between
the United States and Italy and plaintiff's Constitutional rights
by communicating the United States Government's consent to have
Italy try plaintiff on the murder charge. Plaintiff's complaint
contended that the consent to "try" plaintiff was "not consent to
. . . punishment or detention," Complaint, ¶ 15 (emphasis
omitted); that the 1983 Extradition Treaty was inapplicable
because the murder allegedly occurred prior to its enactment and
that the use of this treaty was not only "prejudicial to
[p]laintiff" but violated "the Ex Post Facto Clause," id. at ¶¶
17-18, 24; that defendant's "consent" was unauthorized because no
judicial officer had certified that plaintiff was extraditable
for the murder charge, id. at ¶¶ 21-23; that Italy subsequently
added further charges (such as participation in aggravated
private violence) on which plaintiff was never extradited and to
which defendant never consented, id. at ¶ 25 and that,
"[a]bsent the unlawful Additional Charge and Further Charges,
Plaintiff's term of imprisonment would have [already]
ended. . . ." Id. at ¶ 27. The only relief plaintiff sought
was an order declaring "the detention, conviction and punishment for the
Additional Crimes and Further Crimes . . . void ab initio." Id.
at p. 4.
Plaintiff's complaint made no mention of the lengthy procedural
history of his case. Moreover, although plaintiff provided an
address at the Federal Medical Center in Rochester, Minnesota,
plaintiff did not make any allegations concerning the place of
his incarceration. Plaintiff, who certified that he had served
the Department of State at a Washington, D.C., address, also did
not explain why he was bringing this action in this district.
In late May 2005, plaintiff filed an amended complaint, which
requested the same relief and contained most of the same factual
allegations as the original complaint. However, the amended
complaint added two new arguments: (1) that his prosecution on
the murder charges was prohibited by the five-year statute of
limitations set forth in 18 U.S.C. § 3282, Amended Complaint, ¶¶
24-26, and (2) that Judge Glasser had applied "New York State law
instead of Federal law" in determining that the requirements of
"double criminality" were satisfied. Id. at ¶ 10.
The amended complaint also included several new jurisdictional
allegations. First, the amended complaint expressly alleged that
plaintiff was "serving . . . his sentence at the Federal Medical
Center, Rochester, Minnesota." Id. at ¶ 2. Second, the amended
complaint attempted to explain why this action was being brought
in this district, asserting that, "Filing in this District is
consistent with Supreme Court precedent and the law of the Second
Circuit." Id. at ¶ 3. The amended complaint did not cite to any
Second Circuit cases, but quoted a 1925 Supreme Court case for
the proposition that habeas corpus relief was not available in
extradition proceedings, except "to inquire whether the
magistrate had jurisdiction, whether the offense charged is
within the [extradition] treaty and . . . whether there was any evidence
warranting the finding that there was a reasonable ground to
believe the accused guilty." Id. (quoting Fernandez v.
Phillips, 268 U.S. 311, 312 (1925)). The amended complaint then
The Amended Complaint raises none of the issues
listed in such opinion, therefore habeas corpus in
Plaintiff's district of incarceration is not
available to resolve the issues herein.
Id. As in the original complaint, the amended complaint did not
mention the three unsuccessful petitions for writs of habeas
corpus that plaintiff had already filed by that juncture.
When a plaintiff is proceeding pro se, the complaint must
be read liberally and interpreted as raising the strongest
argument it suggests. See McEachin v. McGuinnis,
357 F.3d 197, 200 (2d Cir. 2004); Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994). If a liberal reading of the complaint "gives any
indication that a valid claim might be stated," the court must
grant leave to amend the complaint. See Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000) (citing Gomez v. USAA Fed. Sav.
Bank, 171 F.3d 794, 795 (2d Cir. 1999)).
If it is apparent that an action is frivolous, however, a court
may sua sponte dismiss a pro se complaint even if the
plaintiff has paid the filing fee to initiate the action.
Fitzgerald v. First East Seventh Street Tenants Corp.,
221 F.3d 362, 363-64 (2d Cir. 2000). An action is frivolous as a matter of
law when, inter alia, it is "based on an indisputably
meritless legal theory" that is, when it "lacks an arguable
basis in law . . ., or [when] a dispositive defense clearly
exists on the face of the complaint." Livingston v. Adirondack
Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal
quotations and citations omitted). Thus, if it appears from the
complaint that the court lacks subject matter jurisdiction, the
fact that the plaintiff "pa[id] the required fee does not
insulate the complaint from sua sponte dismissal for lack of
subject matter jurisdiction." Jones v. Langston, No.
04-CV-6082T (FE), 2004 WL 1083242, at *2 (W.D.N.Y. May 5, 2004). Moreover, courts have an independent obligation to examine the
basis of their jurisdiction, see FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 231 (1990), and must dismiss a case
whenever it appears that the court lacks subject matter
jurisdiction. Fed.R.Civ.P. 12(h)(3).
In this case, it is apparent from the complaint that this Court
lacks subject matter jurisdiction. Plaintiff has taken great
pains to present this a declaratory judgment action, but the
relief plaintiff seeks the vacating of his conviction and his
immediate release from custody falls "squarely within [the]
traditional scope of habeas corpus." Preiser v. Rodriguez,
411 U.S. 475, 487 (1973). Ordinarily, "[t]he existence of another
adequate remedy does not preclude a judgment for declaratory
relief in cases where it is appropriate." Fed.R.Civ.P. 57.
However, when the alternative remedy was expressly created by
statute to provide the relief sought, a declaratory judgment
should not be granted. See Perez v. Ledesma, 401 U.S. 82, 123
(1971) (Brennan, J., concurring and dissenting on other grounds);
see also Katzenbach v. McClung, 379 U.S. 294, 296 (1964)
(declaratory relief "should not be granted where a special
statutory proceeding has been provided").
The habeas provisions in 28 U.S.C. §§ 2241 and 2255 set forth
special statutory proceedings which enable a person in federal
custody to launch a collateral attack on his or her conviction,
sentence and incarceration. Therefore, it is well settled that
"declaratory relief will not be used to attack a criminal
conviction if the writ of habeas corpus or a motion to vacate
under [28 U.S.C. § 2255] is available." Wright & Miller, Fed.
Practice and Procedure, § 2758 (1998). This rule, like case law
prohibiting a state prisoner from using an action pursuant to
42 U.S.C. § 1983 to challenge "the fact or duration of his
confinement," see Wilkinson v. Dotson, ___ U.S. ___,
125 S.Ct. 1242, 1245 (2005) (citing Preiser, 411 U.S. at 489), is
necessary to prevent prisoners from circumventing the elaborate
procedural requirements that apply to habeas cases. This rule has been applied in situations similar to this case
in this and other Circuits. For example, in LoBue v.
Christopher, 82 F.3d 1081 (D.C. Cir. 1996), the Court of Appeals
for the District of Columbia Circuit held that a district court
in that Circuit lacked subject matter jurisdiction over a
declaratory judgment action in which federal detainees in
Illinois, facing extradition to Canada, sought to challenge the
constitutionality of the federal extradition statutes. The
Government challenged the suit on grounds of comity, asserting
that the plaintiffs had already filed a habeas petition raising
the same issues in the Northern District of Illinois. The Circuit
Court rejected that argument, stating:
[C]omity is not really the issue; the key to
plaintiffs' inability to pursue a suit here is
jurisdictional, and it rests merely on the
availability not the actual seeking of habeas
Id. at 1082. The Circuit Court reasoned that because the
plaintiffs could challenge the constitutionality of the
extradition statute though a petition for a writ of corpus in the
Northern District of Illinois, "the District of Columbia district
court . . . lacked subject matter jurisdiction to hear [the
plaintiffs'] declaratory judgment action." Id.
In this Circuit, several district courts have relied on the
same rationale, albeit in cases that are not as similar to the
instant case as LoBue. In Goodwin v. Hammock, 502 F.Supp. 756
(S.D.N.Y. 1981), for example, the Southern District held that a
prisoner whose release from, and participation in programs at,
the federal penitentiary in Marion, Illinois, was affected by a
detainer warrant filed by the New York State Division of Parole
could not seek a declaratory judgment entitling him to an
immediate hearing to determine the validity of that warrant. The
Court ruled that the plaintiff could have challenged the detainer
upon a writ of habeas corpus under 28 U.S.C. § 2254, and that
declaratory relief was unavailable because "[a] declaratory
judgment may not be used as a vehicle for circumventing the
prerequisites for issuance of a writ of habeas corpus." Id. at
759. Similarly, in Clausell v. Turner, 295 F.Supp. 533
(S.D.N.Y. 1969), and Mowers v. United States Attorney General,
297 F.Supp. 535 (S.D.N.Y. 1969), the Southern District held that
federal prisoners could not challenge their criminal convictions
in actions pursuant to the Declaratory Judgment Act,
28 U.S.C. § 2201 et seq.
Plaintiff seeks to avoid the application of this rule to this
case by contending that "habeas corpus in Plaintiff's district of
incarceration is not available to resolve the issues" raised in
this action. Amended Complaint, ¶ 3. This claim is belied by the
procedural history of the case, any mention of which is
conspicuously absent from plaintiff's pleadings. As chronicled in
detail above, plaintiff has already filed three separate habeas
petitions in the United States District Court for the District of
Minnesota. The first petition was denied on the merits and
dismissed by the District Court. Ventucci v. LeBlanc, 2003 WL
24013824. The second petition, which raised issues very similar
to some of the issues being raised herein, was denied on the
merits and dismissed by the Eighth Circuit Court of Appeals.
Ventucci v. Reese, 46 Fed. Appx. 381, 2002 WL 31016425. The
third petition was denied on procedural grounds, since the issues
plaintiff sought to raise had "been previously considered and
rejected by both the District Court and the Eighth Circuit Court
of Appeals." Ventucci v. LeBlanc, 2003 WL 21057066, at *2 . In
light of this history, it may well be true that habeas corpus is
no longer available to plaintiff, but only because any future
petition, like the one in Ventucci v. LeBlanc, 2003 WL
21057066, would be procedurally barred as "second and successive"
or as an abuse of the writ.
While this Court recognizes that pro se complaints must be
construed liberally, see McEachin, 357 F.3d at 200; Burgos,
14 F.3d at 790, it declines to construe plaintiff's pleadings as
a petition for a writ of habeas corpus and to transfer the case
in the interest of justice. See Liriano v. United States,
95 F.3d 119, 123 (2d Cir. 1996). In light of the procedural history
of this case, it would be utterly futile to do so.
For the reasons set forth above, this action is dismissed
because this Court lacks subject matter jurisdiction. See
LoBue, 82 F.3d 1081; Fed.R.Civ.P. 12(h)(3). Moreover, this
action is frivolous. See Fitzgerald, 221 F.3d at 363-64.
SO ORDERED. Pursuant to the Memorandum and Order issued _______________ by
the Honorable Allyne R. Ross, United States District Judge,
dismissing this action, it is
ORDERED, ADJUDGED AND DECREED: That the above-entitled civil
action is hereby dismissed because this Court lacks subject
matter jurisdiction, see Fed.R.Civ.P. 12(h)(3), and because
this action is frivolous. See Fitzgerald, 221 F.3d at 363-64.
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