Opinion
No. CV-10-4054020
March 18, 2011
MEMORANDUM OF DECISION MOTION TO DISMISS MOTION FOR SUMMARY JUDGMENT
1. Procedural Background
On February 23, 2010, in Lawrence, Massachusetts, the petitioner pleaded guilty to assault and battery, indecent assault and battery, and attempt to commit a crime. He received a total effective sentence of eighteen months, execution suspended after six months, with 2 years probation. In April 2010 officials in the State of Massachusetts issued an arrest warrant after the petitioner allegedly violated the terms of his probation. On September 1, 2010, the petitioner was taken into custody pursuant to a warrant issued by the State of Massachusetts.
By writ of habeas corpus dated December 14, 2010, the petitioner, Almando Feliciano, challenged his confinement. In particular, the petitioner alleged:
[H]e has not been committed and is not detained by virtue of any judgment, decree, final order or process issued by a Court or a Judge of the United States . . . nor is he committed or detained by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction . . .
The petitioner further alleged that he is not a fugitive and further that there is no probable cause for his arrest.
On January 13, 2011, subsequent to filing his complaint, the petitioner filed a Motion to Dismiss wherein he again alleged that there was no probable cause to justify his arrest, there was insufficient information within which to bring the petitioner to trial and that the information failed to charge the petitioner with an offense. In particular, the petitioner argued, "A violation of probation is not a crime and therefore not an extraditable offense."
In response to the Motion to Dismiss, the Respondent Warden has filed a Motion for Summary Judgment. Therein the respondent warden alleges "the petitioner fails to raise any meritorious claims."
1. Legal Analysis a. Motion to Dismiss
The petitioner is confined by the State of Connecticut in accordance with a demand by the State of Massachusetts. He filed the instant Motion to Dismiss wherein he claimed this court lacks subject matter jurisdiction. In particular the defendant argued, "A violation of probation is not a crime and therefore not an extraditable offense."
"Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . ." (Internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 661, 717 A.2d 706 (1998). "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002).
"The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." Shay v. Rossi, 253 Conn. 134, 140, 749 A.2d 1147 (2000).
"A court does not truly lack subject matter jurisdiction if it has the competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action . . . [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted.) Conner v. Statewide Grievance Committee, 260 Conn. 435, 442-43, 797 A.2d 1081 (2002).
The petitioner's principal argument in support of his motion to dismiss is that the State of Massachusetts has not charged him with a crime. There is a narrow question before the court, that of subject matter jurisdiction, not the merits of the underlying claim. He ignores the plain meaning of the extradition statute which clearly states, "No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing . . . together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole." General Statutes § 54-159 (emphasis added). Violations of probation are considered crimes within the meaning of extradition statutes. See. e.g., Robinson v. Warden, 634 F.Sup.2d 116 (D.Me. 2009); Exparte Barry Lee Lekavich, 145 S.W.3d 699, 700 (2004); Betschart v. Spinden, 172 Or.App. 668, 670, 673, 20 P.3d 202 (2001); People v. Gerace, 231 A.D.2d 380, 383, 387, 661 N.Y.S.2d 403 (1997); In re Michael Moskaluk, 156 Vt. 294, 298 591 A.2d 95 (1991).
The petitioner ignores the fact that "[e]xtradition of fugitives is not a matter of comity among the States, but is the absolute right of the demanding State and the absolute obligation of the rendering or asylum State. People v. Gerace, 231 A.D.2d 380, 384-85, 661 N.Y.S.2d 403 (1997). This court has jurisdiction to render a judgment in this action.
The Motion to Dismiss is denied.
b. Motion for Summary Judgment
The respondent warden has filed a motion for summary judgment wherein he argued that the petitioner failed to raise any meritorious claims.
Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Connecticut Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact, a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984).
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). However, "the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Furthermore, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
To defeat a motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Company v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, that party must come forward with sufficient evidence to support a jury verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 263 (1986).
In the present case the petitioner cannot rely on speculation or conjecture. "To establish a genuine issue of material fact, the party opposing summary judgment must produce specific facts indicating that a genuine factual issue exists . . . If the evidence [produced by the nonmoving party] is merely colorable, or is not significantly probative summary judgment may be granted . . . The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Bullock v. City of New York et al., Docket Number 02 CIV 7698 (DC), District Court for the Southern District of New York. (March 12, 2004, Chin, J.) (internal citations omitted, internal quotations omitted).
The cause before the court is a habeas corpus action challenging the sufficiency of an extradition warrant. This court has a limited function. It can only decide whether the extradition documents on their face are in order; the petitioner has been charged with a crime in the demanding state; the petitioner is the person named in the request for extradition; and the petitioner is a fugitive. The petitioner must establish beyond a reasonable doubt that the extradition warrant is invalid. Michigan v. Doran, 439 U.S. 282, 288 (1978).
The petitioner has not provided any rebuttal to the respondent warden's affidavit in support of summary judgment. He has not provided any evidence indicating that a material fact is disputed. The petitioner failed to meet his substantial burden of proof.
The Motion for Summary Judgment is granted.
ORDER CT Page 7419
Subsequently, the accused's petition in HABEAS CORPUS was heard by the Court, Judge Julia DiCocco Dewey, in March 2011.
Which petition the Court denied.
Thereby the accused is discharged forthwith and ordered into the custody of Detective Jeff Correia of the Connecticut State Police.
To deliver the accused into the custody of the authorized agents of the Demanding State of Massachusetts.
This delivery shall be made as soon as possible.