23-6686 Carlyle Herring v. Angel Quiros, et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of June, two thousand twenty-four.

PRESENT: ALISON J. NATHAN, MARIA ARAÚJO KAHN, Circuit Judges, RICHARD K. EATON, Judge. * _____________________________________

Carlyle Herring,

Plaintiff-Appellant,

v. 23-6686

Angel Quiros, Connecticut

* Judge Richard K. Eaton, of the United States Court of International Trade, sitting by designation. Department of Corrections Commissioner (in an official capacity), Jennifer M. Zaccagnini, (in an official capacity), Charleton J. Giles, (in an official capacity), Rufaro Page, (in an official capacity), Joy Change, (in an official capacity), Stephen D. Dargan, (in an official capacity), Michael Pohl, (in an official capacity), Nancy Turner, (in an official capacity), Deborah Smith Palmieri, (in an official capacity),

Defendants-Appellees. _____________________________________

FOR PLAINTIFF-APPELLANT: LAWRENCE P. LABREW, Law Office of Lawrence LaBrew, New York, NY.

FOR DEFENDANTS-APPELLEES: LELAND JOHN MOORE (Stephen R. Strom, on the brief), Assistant Attorneys General, for William Tong, Attorney General of the State of Connecticut, Hartford, CT.

Appeal from a June 23, 2023 order 1 of the United States District Court for

the Southern District of New York (Cote, J.).

1 The district court docket shows no entry of a judgment.

2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.

Plaintiff-Appellant Carlyle Herring appeals from the district court’s order

dismissing his claims without prejudice to him seeking appropriate relief in

Connecticut. We assume the parties’ familiarity with the underlying facts and

the record of prior proceedings, to which we refer only as necessary to explain

our decision.

While serving his 25-year sentence for felony murder in Connecticut,

Herring was released on parole, only to abscond from the supervision of

Connecticut authorities. While his whereabouts were unknown to Connecticut

authorities, Herring was arrested on May 4, 2021, then arraigned on a felony

indictment in New York state court on May 5, 2021. The following day,

Connecticut authorities lodged a parole detainer with New York authorities to

inform them about Herring’s remaining Connecticut sentence.

On May 30, 2023, while incarcerated in New York, Herring sued various

3 Connecticut state officials 2 (collectively, Defendants) in the Southern District of

New York, seeking release from his parole in Connecticut. His complaint

alleges that Defendants violated his constitutional rights under

by continuing to deem him a Connecticut parolee beyond September 9, 2021—

the date he alleges that his Connecticut sentence expired. The district court

ordered Herring to show cause as to why his complaint should not be dismissed

on three grounds: (1) that his request for release from custody could not be

brought under

; (2) that even construing his complaint as a

habeas petition, he failed to exhaust his state court remedies; and (3) that any

request to remove his detainer should be filed in Connecticut. After Herring

reiterated that he sought relief from his parole in Connecticut, the district court

dismissed Herring’s complaint without prejudice to him seeking appropriate

relief in Connecticut. Herring appeals, challenging the district court’s dismissal

of his complaint.

2 Herring sued Connecticut Department of Corrections Commissioner Angel Quiros, Chairperson of the Connecticut Department of Pardons and Paroles (CDPP) Jennifer M. Zaccagnini, and CDPP Board Members Charleton J. Giles, Rufaro Page, Joy Change, Stephen D. Dargan, Michael Pohl, Nancy Turner, and Deborah Smith Palmieri.

4 We conclude that the district court properly dismissed Herring’s

complaint. Herring’s claims are cognizable only through federal habeas corpus

and cannot proceed under § 1983. Even construing his complaint as a habeas

petition, we must dismiss the petition for failure to exhaust all state court

remedies. Lastly, we agree with the district court that any future habeas

petition must be brought in Connecticut.

I. Federal Habeas Corpus

A claim must be brought in habeas when a state prisoner “seeks immediate

or speedier release from prison” or “when the relief he seeks would necessarily

imply the invalidity of his conviction or sentence.” Nance v. Ward,

(2022) (quotation marks omitted); see Preiser v. Rodriguez,

(1973). Where a “prisoner seeks an injunction affecting the fact or length of his

incarceration,” habeas is his “exclusive federal remedy.” Jenkins v. Haubert,

(2d Cir. 1999).

Herring’s claims must be brought in a habeas petition because he seeks

immediate release from the remainder of his Connecticut sentence. His

complaint alleges that imposing the remainder of his Connecticut sentence

5 against him violates his constitutional rights. As relief, he seeks (1) “injunctive

relief directing the Defendants to release [him] from parole” and (2) “a

declaratory judgment stating that [he] is entitled to be released from parole in

Connecticut.” App’x 7. Granting this requested relief would “necessarily

imply the invalidity” of his remaining Connecticut sentence. See Nance,

. Accordingly, his claims are cognizable only in federal habeas under

.

Herring, attempting to evade this conclusion, contends that he must be

permitted to bring his claims through § 1983 because he does not satisfy the

custody requirement for habeas. A habeas petitioner must be “’in custody’

under the conviction or sentence under attack at the time his petition is filed.”

Maleng v. Cook,

, 490–91 (1989); see

(a). This matters

to Herring’s ability to bring his § 1983 claims, he argues, because we have

indicated that a plaintiff who cannot satisfy the custody requirement “has no

remedy in habeas corpus” and must “be permitted to pursue his § 1983 claim[.]”

Leather v. Eyck,

(2d Cir. 1999); see Jenkins,

(“[S]ome

federal remedy—either habeas corpus or § 1983—must be available.”).

6 The custody requirement is not restricted to physical confinement and is

satisfied when a state prisoner is on parole. See Jones v. Cunningham,

(1963). Herring insists that he does not satisfy the custody requirement

for a habeas attack against his Connecticut sentence because (1) he was detained

in connection with his subsequent New York state conviction, not his

Connecticut conviction, when he filed this complaint and (2) he had finished

serving his Connecticut sentence when he filed his complaint. We reject both

arguments.

First, Herring satisfies the custody requirement because he was subject to

a detainer lodged by Connecticut authorities when he filed his complaint.

Given this parole detainer, Herring “will not be placed at liberty” upon his

release from custody in New York but will instead “be delivered into the custody

of the appropriate” Connecticut authorities. See U.S. ex rel. Meadows v. State of

N.Y.,

(2d Cir. 1970). That is sufficient to satisfy the custody

requirement for a habeas attack against his Connecticut sentence.

Second, Herring’s assertion that he has completed his Connecticut

sentence is conclusory and contradicted by his own submissions. A petitioner

7 is no longer “’in custody’ under a conviction after the sentence imposed for it has

fully expired.” Maleng,

. Herring’s allegation that he has

finished serving his sentence is conclusory and relies solely on his initial

maximum release date of September 9, 2021, calculated based on the 25-year

sentence he received. But a maximum release date does not mean that the

sentence expires that day, particularly because the sentence could be tolled

beyond the maximum release date. Indeed, authenticated prison records

submitted by Herring show that he absconded from Connecticut parole, during

which his sentence is tolled in accordance with Connecticut law. See

(“[T]he time between the escape of any prisoner and his

recommitment shall not be computed as part of his term of imprisonment.”); cf.

Parham v. Warden, Bridgeport Corr. Ctr.,

(Conn. 1976). Based

on these records, Herring has over 500 days remaining on his Connecticut

sentence. Although Herring insists that the tolling of his sentence stopped once

Connecticut became aware that he was arrested, Herring directs us to no

authority supporting that conclusory argument. Therefore, his sentence has not

fully expired and he satisfies the custody requirement for habeas.

8 Accordingly, we agree with the district court that Herring’s claims must

be brought in habeas and cannot proceed under § 1983.

II. Exhaustion of State Court Remedies

Even construing Herring’s complaint as a habeas petition, it must be

dismissed because he has not exhausted his state court remedies. A petitioner

seeking habeas relief from his state court sentence must first exhaust all state

court remedies. See

(b). Herring does not even attempt to

argue that he exhausted his federal constitutional claims by bringing them in

Connecticut state court. See Ramirez v. Att'y Gen. of State of N.Y.,

(2d Cir. 2001). He contends only that “there is not an exhaustion requirement”

to bring a § 1983 claim. Appellant’s Br. at 16. But because we conclude that his

claims cannot proceed under § 1983, we reject this argument.

Accordingly, even construing Herring’s complaint as a federal habeas

petition, the district court correctly dismissed the complaint for his failure to

exhaust all state court remedies.

III. Venue

Lastly, we agree with the district court that any future habeas petition

9 raising these claims against Herring’s Connecticut sentence must be brought in

Connecticut.

We have explained that the “factors to be considered in determining

whether venue is proper in a habeas suit include: (1) ‘where all of the material

events took place’; (2) where ‘the records and witnesses pertinent to petitioner's

claim are likely to be found’; and (3) the convenience of the forum for both the

respondent and the petitioner.” Henderson v. I.N.S.,

, 128 n.25 (2d

Cir. 1998) (quoting Braden v. 30th Judicial Circuit Court of Ky.,

, 493–94

(1973)); see also

.

Applying these traditional venue factors, we conclude that Connecticut

would be the proper venue. None of the events material to Herring’s claims

occurred in New York. Connecticut’s authorities issued the parole detainer

from Connecticut, where Herring was serving his parole and where he

absconded from supervision. The records and witnesses pertinent to Herring’s

petition—such as a Connecticut DOC records specialist who could testify to the

procedures for calculating Herring’s challenged sentence—would be found in

Connecticut, not New York. For this same reason, New York would not be a

10 convenient forum for both parties. Permitting the petition to proceed in New

York would “serve no useful purpose,” as New York “is presumably indifferent

to the resolution of the prisoner’s attack on the detainer.” Braden,

; Meadows,

(holding that a New York district court is “[t]he

court best situated to grant” habeas relief to a petitioner detained in Georgia but

challenging a “parole detainer lodged against him by the state of New York”).

For the reasons above, we affirm the district court’s dismissal of Herring’s

complaint without prejudice to him seeking appropriate relief in Connecticut.

* * *

We have considered Herring’s remaining arguments on appeal and find

them to be without merit. Accordingly, we AFFIRM the order of the district

court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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