Torres v. Ercole

Filing 14

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION adopting in part 11 Report and Recommendation. For the foregoing reasons, Judge Tomlinson's R&R is ADOPTED in part, and Petitioner's request for a writ of habeas corpus under 28 U.S.C. § 2254 is DENIED. The Court will not issue a Certificate of Appealability. The Clerk of the Court is directed to mark this matter closed and to mail a copy of this Memorandum and Order to the pro se Petitioner. So Ordered by Judge Joanna Seybert on 3/13/12. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JOSE TORRES,
Petitioner,

MEMORANDUM & ORDER
08-CV-0414(JS)(AKT)

-againstROBERT ERCOLE, Superintendent of the
Upstate Correctional Facility,
Respondent.
---------------------------------------X
APPEARANCES
For Petitioner:
Jose A. Torres, pro se
04-A-2512
Green Haven Correctional Facility
Stormville, NY 12582
For Respondent:

Edward A. Bannan, Esq.
Suffolk County District Attorney’s Office
200 Center Drive
Riverhead, NY 11901

SEYBERT, District Judge:
Pending

before

the

Court

is

Magistrate

Judge

A.

Kathleen Tomlinson’s Report and Recommendation (“R&R”), issued
on

January

26,

2012.

For

the

following

reasons,

the

Court

ADOPTS this R&R in part.
BACKGROUND
Following a jury trial in the County Court, Suffolk
County, Petitioner was convicted of: (1) Criminal Sale of a
Controlled Substance in the First Degree (the “Sale Charge”) and
(2) Criminal Possession of a Controlled Substance in the Second
Degree (the “Possession Charge”).

On April 27, 2004, Petitioner

was

sentenced

to

concurrent

indeterminate

prison

terms

of

eighteen years to life for the Sale Charge and five years to
life for the Possession Charge plus five years of post-release
supervision.

That same day, Petitioner filed a notice of appeal

from the judgment and sentence to the Appellate Division, Second
Department.
On August 2, 2005, while his appeal to the Second
Department was pending, Petitioner filed a motion to be resentenced.

While this motion was pending, Petitioner became

eligible to be re-sentenced under N.Y. PENAL LAW 70.71 and the
2005 expansion of the Drug Law Reform Act of 2004.

After a

hearing on the issue, on November 9, 2005, the County Court
vacated

Petitioner’s

sentence,

and

re-sentenced

him

to

concurrent determinate prison terms of eighteen years for the
Sale Charge and eight years for the Possession Charge plus five
years

of

post-release

supervision.

On

November

18,

2005,

Petitioner filed a notice of appeal from this re-sentence to the
Second Department.
On December 19, 2006, the Second Department issued an
order on both pending appeals.

The court found that:

(1) the

re-sentence was excessive and (2) the legal sufficiency of his
conviction

on

the

Sale

Charge

was

unpreserved

for

review and the claim was otherwise without merit.

appellate
People v.

Torres, 35 A.D.3d 769, 770, 826 N.Y.S.2d 899, 889-900 (2d Dep’t
2

2006).

The court did not specifically discuss the Possession

Charge but nonetheless affirmed the judgment in its entirety.
Id.

The court also reduced Petitioner’s sentence on the Sale

Charge to a determinate term of twelve years.

Id.

Petitioner’s

application for leave to appeal to the Court of Appeals was
denied on March 29, 2007.

People v. Torres, 8 N.Y.3d 927, 834

N.Y.S.2d 518 (2007).
Petitioner
PROC.

Law

conviction

§

440.10
on

the

then

collaterally

for

an

grounds

assistance of counsel:

moved

under

order

vacating

the

that

he

N.Y.

denied

was

CRIM.

judgment

of

effective

(1) because his trial counsel failed to

challenge the legal sufficiency of the evidence; and (2) because
trial counsel failed to move to dismiss the indictment pursuant
to the speedy trial act, N.Y. CRIM. PROC. Law § 30.30.

The County

Court denied this motion on March 28, 2008, holding that: (1)
the trial counsel’s failure to challenge the legal sufficiency
of the evidence did not prejudice Petitioner because the Second
Department found that the evidence was legally sufficient to
establish

his

guilt

beyond

a

reasonable

doubt

and

(2)

the

ineffective assistance claim based on counsel’s failure to move
to dismiss on speedy trial grounds was procedurally barred as it
should have been raised on direct appeal.

People v. Torres, No.

2185A-2003 (Cnty. Ct. Suffolk Cnty. Mar. 28, 2008).

3

Petitioner filed the instant Petition for a writ of
habeas corpus under 28 U.S.C. § 2254 on January 28, 2008.

The

Petition was submitted on the standard form provided by the Pro
Se Office.1

In the section of the form asking Petitioner to list

every ground on which he challenges his conviction, Petitioner
lists two:
be

(1) “Appellant’s conviction of [the Sale Count] must

dismissed

since

the

[P]eople

failed

to

produce

legally

sufficient evidence to rebut that [Petitioner] was acting solely
as an agent of the buyer” (Pet. at 6) and (2) “[b]ecause the
evidence did not establish that [Petitioner] had authority or
any control whatsoever over either the cocaine or the seller, it
was

insufficient

to

establish

that

[he]

possession of the drugs” (Pet. at 7).
form

asking

Petitioner

to

specify

was

in

constructive

In the section of the

the

relief

he

seeks,

he

states:

“dismissal of indictment based on speedy trial grounds

30.30.”

(Pet. 15.)2
On April 28, 2009, the Petition was referred to Judge

Tomlinson for an R&R.

On January 26, 2012, Judge Tomlinson

issued an R&R recommending that the Petition be denied because:
(1)

Petitioner’s

claims

arising

out

of

both

the

Sale

and

1

Available at http://www.nyed.uscourts.gov/pub/docs/courtforms/
PRO%20SE%202254.pdf.
2

Violation of N.Y. CRIM. PROC. LAW 30.30, however, was not
included in his list of “grounds” allegedly entitling him to
relief.
4

Possession Charges are procedurally barred, and (2) even if the
claims

are

not

procedurally

barred,

they

are

without

merit.

Judge Tomlinson also recommended that the Court not issue a
Certificate of Appealability.

Judge Tomlinson ordered counsel

for Respondent to serve a copy of the R&R on Petitioner, which
he did on February 9, 2012.
No

party

has

objected

to

any

portion

of

Judge

Tomlinson’s R&R.
DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations
§ 636(b)(1)(C).

in

made

whole

by

the

or

in

part,

magistrate

the

findings

judge.”

28

and

U.S.C.

If no timely objections have been made, the

“court need only satisfy itself that there is no clear error on
the face of the record.”
606,

609-10

citation

(S.D.N.Y.

omitted).

Urena v. New York, 160 F. Supp. 2d

2001)

Here,

(internal

no

party

quotation

has

marks

objected

to

and
Judge

Tomlinson’s R&R; therefore the Court reviews it for clear error.
The

Court

construes

the

Petition

as

raising

three

grounds for relief:

(1) that there was a violation of N.Y. CRIM.

PROC.

(2)

LAW

evidence
beyond

a

§
to

30.30;

establish

reasonable

insufficient

evidence

that

there

Petitioner’s
doubt;
to

and

legally

guilt

(3)

establish
5

was

that

on

the

there

Petitioner’s

insufficient
Sale
was
guilt

Charge
legally
on

the

Possession Charge beyond a reasonable doubt.

Judge Tomlinson’s

R&R did not address Petitioner’s argument under N.Y. CRIM. PROC.
LAW § 30.30;3 therefore, the Court must address this claim de novo
before reviewing the R&R for clear error.
I.

Violation of § 30.30
The Supreme Court has “stated many times that ‘federal

habeas corpus relief does not lie for errors of state law.’”
Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 116 L. Ed.
2d 385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110
S. Ct. 3092, 111 L. Ed. 2d 606 (1990)).

Rather, in analyzing a

petition for a writ of habeas corpus under 28 U.S.C. § 2254, “a
federal

court

violated

the

is

limited

Constitution,

to

deciding

laws,

or

whether

treaties

a
of

conviction
the

United

States.”

Id. at 68 (citations omitted); see also 28 U.S.C. §

2254(a).

Accordingly, Petitioner’s claim that he was denied his

statutory

rights

under

N.Y. CRIM. PROC. LAW

§

30.30

does

not

entitle him to federal habeas relief and must be dismissed.
See, e.g., Cummings v. Burge, 581 F. Supp. 2d 436, 445 (W.D.N.Y.
2008) (“To the extent that [the petitioner] alleges a denial of
his statutory rights under [N.Y. CRIM. PROC. LAW] § 30.30, that
claim is not cognizable on habeas review.”); Kevilly v. Connell,

3

The Court notes that Respondent also failed to address this
claim in his response to the Court’s Order to Show Cause.
6

No. 06-CV-5672, 2009 WL 750227, at *6 n.6 (E.D.N.Y. Mar. 19,
2009) (same).4
II.

Judge Tomlinson’s R&R
Judge

Tomlinson’s

recommendations:

(1)

that

R&R
the

makes

Petition

the
be

following

denied

because

Petitioner’s claims are procedurally barred, (2) that, in the
alternative, the Petition be denied because Petitioner’s claims
are without merit, and (3) that a Certificate of Appealability
not be issued.

The Court reviews these recommendations for

clear error.
A.

Procedural Default
In the context of federal habeas petitions brought by

state

prisoners,

an

independent

and

adequate

finding

by

the

state court that a claim was procedurally barred by state law
prevents
court.

subsequent

habeas

review

of

that

claim

in

federal

See Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct 1038,

103 L. Ed. 2d 308 (1989).

In addition, federal habeas review is

foreclosed where a state court has relied on an independent and
adequate state procedural ground, “even where the state court
has also ruled in the alternative on the merits of the federal
claim.”

Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996)

4

To the extent that Petitioner is asserting a violation of the
Sixth Amendment’s right to a “speedy trial,” the claim is
procedurally barred as Petitioner failed to raise this claim on
direct appeal. See Cummings, 581 F. Supp. 2d at 445-46.
7

(internal quotation marks and citations omitted).

To overcome

this barrier to federal review, a state prisoner must “show
cause for the default and prejudice attributable thereto, or
demonstrate

that

failure

to

consider

the

federal

result in a fundamental miscarriage of justice.”

claim

will

Harris, 489

U.S. at 262 (internal quotation marks and citations omitted).
Here, Judge Tomlinson found that Petitioner’s claims
relating

to

both

the

procedurally barred.

Sale

Charge

and

Possession

Charge

are

The Court agrees that Petitioner's claim

relating to the Sale Charge is barred:

On direct appeal, the

Second Department explicitly held that “[Petitioner]’s challenge
to the legal sufficiency of his conviction of the criminal sale
of a controlled substance in the first degree is unpreserved for
appellate review.”

Torres, 35 A.D.3d at 770, 826 N.Y.S.2d at

899 (citations omitted).

The fact that the Second Department

went on to rule on the merits of the claim “[i]n any event” does
not

change

procedural

the
rule

fact

that

bars

an

this

adequate

claim.

and

independent

Id.;

see

state

Velasquez

v.

Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (finding an adequate and
independent state procedural bar where Appellate Division held
that

federal

finding

them

claims

were

to

without

be

unpreserved
merit).

while,
And

“in

any

Petitioner

event,”
has

not

attempted to show cause for the defaults or prejudice, nor has
he attempted to show that failure to review the claims would
8

result in a fundamental miscarriage of justice.

Accordingly,

the Court adopts this portion of Judge Tomlinson’s R&R.
The Court does not, on the other hand, agree that
Petitioner’s
conviction

challenge

on

the

to

the

Possession

legal

Charge

is

sufficiency

of

procedurally

his

barred.

There is no procedural bar unless the last state court rendering
a judgment in the case clearly and expressly held that it based
its

judgment

on

a

state

procedural

bar.

See

Coleman

v.

Thompson, 501 U.S. 722, 733-34, 111 S. Ct. 2546, 115 L. Ed. 2d
640 (1991) (citation omitted); Harris, 489 U.S. at 262.
the

Second

Department’s

decision

affirmed

the

Here,

judgment

of

conviction on the Possession Charge without discussing it at
all.

Accordingly,

the

Court

finds

that

Petitioner’s

claim

challenging the sufficiency of his conviction on the Possession
Charge is not procedurally barred, and the Court declines to
adopt this portion of Judge Tomlinson’s R&R.

Nevertheless, for

the reasons discussed in the portion of the R&R addressing the
merits of Petitioner’s Possession Charge claim, Petitioner is
not entitled to habeas relief.
B.

Sufficiency of the Evidence and Certificate of
Appealability
The

Court

has

reviewed

the

remainder

of

Judge

Tomlinson’s R&R discussing the merits of Petitioner’s Possession
Charge claim and whether to issue a Certificate of Appealability

9

and finds it to be correct, comprehensive, well-reasoned and
free of any clear error.

Accordingly, the Court ADOPTS these

portions of the R&R.
CONCLUSION
For the foregoing reasons, Judge Tomlinson’s R&R is
ADOPTED in part, and Petitioner’s request for a writ of habeas
corpus under 28 U.S.C. § 2254 is DENIED.
issue a Certificate of Appealability.

The Court will not

The Clerk of the Court is

directed to mark this matter closed and to mail a copy of this
Memorandum and Order to the pro se Petitioner.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
13 , 2012
Central Islip, NY

10