Torres v. Ercole
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
MEMORANDUM & ORDER
-againstROBERT ERCOLE, Superintendent of the
Upstate Correctional Facility,
Jose A. Torres, pro se
Green Haven Correctional Facility
Stormville, NY 12582
Edward A. Bannan, Esq.
Suffolk County District Attorney’s Office
200 Center Drive
Riverhead, NY 11901
SEYBERT, District Judge:
Kathleen Tomlinson’s Report and Recommendation (“R&R”), issued
ADOPTS this R&R in part.
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
eighteen years to life for the Sale Charge and five years to
life for the Possession Charge plus five years of post-release
That same day, Petitioner filed a notice of appeal
from the judgment and sentence to the Appellate Division, Second
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.
hearing on the issue, on November 9, 2005, the County Court
concurrent determinate prison terms of eighteen years for the
Sale Charge and eight years for the Possession Charge plus five
Petitioner filed a notice of appeal from this re-sentence to the
On December 19, 2006, the Second Department issued an
order on both pending appeals.
The court found that:
re-sentence was excessive and (2) the legal sufficiency of his
review and the claim was otherwise without merit.
Torres, 35 A.D.3d 769, 770, 826 N.Y.S.2d 899, 889-900 (2d Dep’t
The court did not specifically discuss the Possession
Charge but nonetheless affirmed the judgment in its entirety.
The court also reduced Petitioner’s sentence on the Sale
Charge to a determinate term of twelve years.
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).
assistance of counsel:
(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.
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
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).
Petitioner filed the instant Petition for a writ of
habeas corpus under 28 U.S.C. § 2254 on January 28, 2008.
Petition was submitted on the standard form provided by the Pro
In the section of the form asking Petitioner to list
every ground on which he challenges his conviction, Petitioner
(1) “Appellant’s conviction of [the Sale Count] must
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
possession of the drugs” (Pet. at 7).
In the section of the
“dismissal of indictment based on speedy trial grounds
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:
Available at http://www.nyed.uscourts.gov/pub/docs/courtforms/
Violation of N.Y. CRIM. PROC. LAW 30.30, however, was not
included in his list of “grounds” allegedly entitling him to
Possession Charges are procedurally barred, and (2) even if the
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.
In reviewing an R&R, a district court “may accept,
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.”
Urena v. New York, 160 F. Supp. 2d
Tomlinson’s R&R; therefore the Court reviews it for clear error.
grounds for relief:
(1) that there was a violation of N.Y. CRIM.
Possession Charge beyond a reasonable doubt.
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.
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
Id. at 68 (citations omitted); see also 28 U.S.C. §
Accordingly, Petitioner’s claim that he was denied his
N.Y. CRIM. PROC. LAW
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,
The Court notes that Respondent also failed to address this
claim in his response to the Court’s Order to Show Cause.
No. 06-CV-5672, 2009 WL 750227, at *6 n.6 (E.D.N.Y. Mar. 19,
Judge Tomlinson’s R&R
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
In the context of federal habeas petitions brought by
state court that a claim was procedurally barred by state law
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
Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996)
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.
(internal quotation marks and citations omitted).
this barrier to federal review, a state prisoner must “show
cause for the default and prejudice attributable thereto, or
result in a fundamental miscarriage of justice.”
U.S. at 262 (internal quotation marks and citations omitted).
Here, Judge Tomlinson found that Petitioner’s claims
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
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
Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (finding an adequate and
independent state procedural bar where Appellate Division held
attempted to show cause for the defaults or prejudice, nor has
he attempted to show that failure to review the claims would
result in a fundamental miscarriage of justice.
the Court adopts this portion of Judge Tomlinson’s R&R.
The Court does not, on the other hand, agree that
There is no procedural bar unless the last state court rendering
a judgment in the case clearly and expressly held that it based
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.
conviction on the Possession Charge without discussing it at
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.
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.
Sufficiency of the Evidence and Certificate of
Tomlinson’s R&R discussing the merits of Petitioner’s Possession
Charge claim and whether to issue a Certificate of Appealability
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.
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.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
13 , 2012
Central Islip, NY
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?