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
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