Orlando v. Nassau County D.A. Office

Filing 25

ORDER denying 21 Motion for Reconsideration. Consistent with the attached memorandum, petitioner's Rule 60(b) motion is denied. Ordered by Judge Edward R. Korman on 7/19/2020. (Roth, William)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Mark Orlando,
Petitioner,

MEMORANDUM & ORDER

– against –

11-cv-3992 (ERK)

Nassau D.A. Office
Respondent.

KORMAN, J.:
I assume familiarity with the relevant procedural history of this case. Specifically, on
February 12, 2019, the Second Circuit reversed a judgment which had denied the petition for a
writ of habeas corpus by Mark Orlando, and directed the issuance of “a writ of habeas corpus to
Orlando on the sixtieth calendar day after the issuance of our mandate unless the District Attorney
of Nassau County has, by that time, taken concrete and substantial steps to expeditiously retry
Orlando.” Orlando v. Nassau Cty. Dist. Attorney's Office, 915 F.3d 113, 130 (2d Cir. 2019).
On April 4, 2019, the Assistant District Attorney assigned to the case filed a letter outlining
the steps taken to retry petitioner. That same day, I found that they constituted “concrete and
substantial steps,” as required by the Second Circuit. On November 13, 2019, petitioner’s habeas
counsel filed a motion for reconsideration pursuant to Rule 60(b) on the grounds that it had been
nine months since the Court of Appeals issued its mandate, discovery was stalled, and a new trial
date was not yet set. The Assistant District Attorney responded on November 19, 2019, and
petitioner’s counsel replied on December 2.
I deny petitioner’s Rule 60(b) motion. The transcript of several proceedings before the New
York Supreme Court Justice assigned to the case indicates that it is being treated by the judge and
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the District Attorney as if the judgment of conviction had been vacated, and the case is being
treated no differently than if the judgment of conviction had been reversed on direct appeal and a
new trial ordered. Indeed, the defendant was represented throughout the proceedings in state court
by newly assigned counsel. Under these circumstances, any complaints about the nature of the
discovery and the pace of proceedings should be made to the New York Supreme Court Justice
presiding over the case. There is no reason—nor does it seem appropriate—to interject myself in
managing the pace of discovery or trial. Indeed, the boilerplate order that I issue when I grant a
petition for a writ of habeas corpus simply provides that, “[r]espondent is directed to release
petitioner from the custody resulting from the judgment of conviction . . . The custodial status of
petitioner after the judgment here becomes final is to be determined by the New York courts in
accordance with the rules applicable to the detention of those awaiting retrial after the conviction
has been reversed on appeal. Rodriguez v. Heath, 138 F. Supp. 3d 237, 264 (E.D.N.Y. 2015), aff'd,
648 F. App’x 136 (2d Cir. 2016). Such an order was not issued in this case because of the
procedural posture. Nevertheless, as indicated above, the proceedings in the state court are moving
forward as if an order were issued.

CONCLUSION
Petitioner’s Rule 60(b) motion for reconsideration is denied.

SO ORDERED.

DRAFT

Brooklyn, New York
July 19, 2020

Edward R. Korman
United States District Judge

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