United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Timothy S. Hillman UNITED STATES DISTRICT JUDGE
Fusco, who is confined at FMC Devens brings this petition for
a writ of habeas corpus under 28 U.S.C. § 2241 in which
he challenges the execution of his 25-year sentence. He also
seeks declaratory judgment under 28 U.S.C. §§
2201-2202, concerning the alleged violation of his rights
under the Extradition Treaty between the United States and
Italy and the United States Constitution. For the reasons set
forth below, the petition for writ of habeas corpus is denied
and this action is dismissed.
extradition from Italy and a jury trial, Emilio Fusco was
convicted of a racketeering [“RICO”] conspiracy
in violation of 18 U.S.C. §1962(d), an extortion
conspiracy in violation of 18 U.S.C. §1951, and
interstate travel in aid of racketeering in violation of 18
U.S.C. §1952. United States v. Nigro, et al.,
09-CR-1239-PKC-9 (S.D.N.Y. Oct. 11, 2012). Petitioner was
sentenced to 300 months imprisonment. Id.
Fusco's conviction and sentence were affirmed on direct
appeal. United States v. Fusco, No. 12-4224-cr, 560
F.App'x 43 (2d Cir.), cert. denied, 135 S.Ct.
730, 190 L.Ed.2d 443 (2014).
October 31, 2016, Fusco filed the instant petition for writ
of habeas corpus. See Dkt. No. 1. With his petition,
Fusco filed nine (9) exhibits. Id. He paid the $5.00
filing fee. See Dkt. No. 3. In his petition, Fusco
states that he “is not seeking the review of his
Criminal Case.” Id. at p. 16. Rather, he
contends that the “execution” of his 25-year
sentence violates both the extradition treaty and the United
States Constitution. Id. Fusco seeks declaratory
relief pursuant to 28 U.S.C. §§ 2201, 2202.
alleges that as early as 2000, he had been arrested for
alleged participation in the “Genovese Crime
Family.” Id. at p. 3. In 2003, Fusco pled
guilty in the District of Massachusetts to a racketeering
conspiracy in violation of 18 U.S.C. § 1962(d) and a
conspiracy to launder money in violation of 18 U.S.C. §
1956(h) and was sentenced to 33 months imprisonment to be
followed by three years of probation. United States v.
Fusco, 00-CR-30036-MAP (D. Mass. Sept. 25, 2003). Fusco
contends that the sentencing judge made a finding that
“there is no evidence in the record of any violence by
Mr. Fusco or any explicit threats of violence ever
communicated to any victim.” Id. at p. 4.
serving his sentence, Fusco travelled to Italy. Id.
In 2010, a grand jury in the Southern District of New York
returned an indictment charging Fusco with racketeering
conspiracy. Id. The United States sought his
extradition from Italy while Fusco was in Italy attending his
sister's birthday party. Id. at p. 5.
instant petition, Fusco contends that the United States, in
seeking his extradition from Italy, agreed to afford Fusco
the right to be found guilty pursuant to a standard of
“beyond a reasonable doubt.” Id. Fusco
alleges that, after consulting with his Italian attorneys, he
agreed to the extradition, in part, because the parties
agreed that he would not be prosecuted under any standard
other than the Sixth Amendment standard of beyond a
reasonable doubt. Id. at p. 11. Fusco complains that
after his extradition, he was denied bond, in part, because
of the New York judge's predisposition as to Fusco's
participation in the murders of Bruno and Westerman.
Id. at p. 7.
the presentence report recommended a term of 41 to 51 months
incarceration, the sentencing judge in the Southern District
of New York departed from the sentencing guidelines and
imposed a 300 month sentence. Id. at p. 8. Fusco
complains that the sentencing judge found, by a preponderance
of the evidence, that Fusco participated in conspiracies to
murder Adolfo Bruno and Gary Westerman despite the fact that
he was acquitted by the jury of a substantive RICO charge
finding that the Government had not proven Fusco's guilt
with respect to the predicate acts of murder and conspiracy
to murder Bruno and Westerman or extortion and conspiracy to
extort. See United States v. Fusco, No. 12-4224-cr,
560 F.App'x 43, 45 (2d Cir. 2014).
STANDARD OF REVIEW
habeas provision found in 28 U.S.C. § 2241
“establishes a mechanism for a federal inmate who is
“in custody” to challenge the execution of
(rather than the imposition of) his or her sentence.”
Francis v. Maloney, 798 F.3d 33, 36 (1st Cir. 2015).
As a general matter, a Section 2241 habeas petition
“generally challenges the execution of a
federal prisoner's sentence, including such matters as
the administration of parole, computation of a prisoner's
sentence by prison officials, prison disciplinary actions,
prison transfers, type of detention and prison
conditions.” Thornton v. Sabol, 620 F.Supp.2d
203, 206 (D.Mass.2009) (quoting Jiminian v. Nash,
245 F.3d 144, 146 (2d Cir. 2001) (emphasis in original).
contrast, the court in which a federal defendant was
convicted and sentenced has exclusive jurisdiction over
post-conviction proceedings challenging the validity of the
conviction or sentence, pursuant to 28 U.S.C. § 2255.
Section 2255(e), known as the “savings clause, ”
preserves a limited role for the court in the district of a
federal inmate's incarceration to exercise jurisdiction,
under 28 U.S.C. § 2241, to consider a challenge to the
validity of an inmate's detention. See United States
v. Barrett, 178 F.3d 34, 49 (1st Cir. 1999).
2255(e) states that “[a]n application for a writ of
habeas corpus in behalf of a prisoner who is authorized to
apply for relief by motion pursuant to [§ 2255], shall
not be entertained ... unless it ... appears that the remedy
by motion [under § 2255] is inadequate or
ineffective to test the legality of his detention.
Id. (emphasis added). The First Circuit has stated
that courts must scrutinize “imaginatively captioned
petitions” to determine whether they are § 2255
motions in disguise. Trenkler v. United States, 536