Lora v. West

Filing 44

ORDER denying 41 Motion for Certificate of Appealability. Accordingly, Petitioner's motion for a certificate of appealability is denied, as is his application for an evidentiary hearing. Further, the Court certifies under 28 U.S.C. § 1 915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Finally, the Clerk of Court is directed to modify the docket to reflect Petitioner's current mailing address, since Petitioner is no longer represented by counsel. SO ORDERED. (Signed by Judge Katherine Polk Failla on 4/25/2019) Copies Mailed By Chambers. (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOSE LORA,
Petitioner,
04 Civ. 1902 (KPF)

-v.SUPERINTENDENT, SULLIVAN
CORRECTIONAL FACILITY,

ORDER

Respondent.
KATHERINE POLK FAILLA, District Judge 1:
This matter was originally assigned to former United States District
Judge Richard J. Holwell, and was recently reassigned to the undersigned.
Petitioner Jose Lora has requested that this Court issue a certificate of
appealability to permit him to appeal an order originally issued in September
2010. For the reasons set forth in this Order, Petitioner’s request is denied.
The Court’s decision is compelled by the procedural history of this case.
To begin, on March 10, 2004, Petitioner filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 (the “Petition”), challenging his convictions,
after two separate trials, of several counts of Murder in the Second Degree and
one count of Conspiracy in the Second Degree. (Dkt. #1). The matter was
referred to United States Magistrate Judge Gabriel W. Gorenstein for a report
and recommendation. (Dkt. #3). On February 17, 2005, Judge Gorenstein
issued a Report and Recommendation (the “2005 Report”) recommending that

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The Clerk of Court is directed to modify the caption as shown above, to reflect the
correctional facility to which Petitioner is currently assigned.

the Petition be denied in its entirety. (Dkt. #14). Lora v. West, No. 04 Civ.
1902 (RJH) (GWG), 2005 WL 372295 (S.D.N.Y. Feb. 17, 2005). Of potential
significance to the instant request, Judge Gorenstein specified the deadline
within which objections to the 2005 Report were to be filed in the body of the
Report, but neither side filed objections. (See Dkt. #14; see also Dkt. #18
(Order of June 20, 2005 adopting 2005 Report)). See Thomas v. Arn, 474 U.S.
140 (1985) (noting that a failure to file objections in a timely fashion operates
as a waiver of both the right to object and the right to appeal from a report and
recommendation); see also 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b). A
judgment dismissing the case was entered by the Clerk of Court on June 21,
2005. (Dkt. #19).
Four and one-half years later, on December 17, 2009, Petitioner filed a
motion under Federal Rule of Civil Procedure 60(b) to vacate the order denying
the Petition in order to permit him to object to the 2005 Report and to obtain a
certificate of appealability; alternatively, he sought an extension of his time to
appeal. (Dkt. #20-21). While the Petition had been filed with the assistance of
habeas counsel, the Rule 60(b) motion was filed pro se. Again, Judge Holwell
referred the matter to Judge Gorenstein for a report and recommendation. On
April 16, 2010, Judge Gorenstein issued a report and recommendation (the
“2010 Report”) recommending that the Rule 60(b) motion be denied. (Dkt.
#25). Lora v. West, No. 04 Civ. 1902 (RJH) (GWG), 2010 WL 1541339, at *1
(S.D.N.Y. Apr. 16, 2010). In broad summary, Petitioner argued that he was
entitled to a vacatur of the prior orders because his attorney had been
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“ineffective for failing to assert additional grounds for relief and for failing to file
objections to the Report and Recommendation and seek a certificate of
appealability.” Id. at *1. Judge Gorenstein concluded based on the record
before him that Petitioner may have been aware of the 2005 Report as far back
as March 2005, but was certainly aware of it no later than November 2006;
from this, Judge Gorenstein concluded that Petitioner’s Rule 60(b) motion had
not been brought within a reasonable time. Id. at *4; see generally Fed. R. Civ.
P. 60(c) (“A motion under Rule 60(b) must be made within a reasonable time —
and for reasons (1), (2), and (3) no more than a year after the entry of the
judgment or order or the date of the proceeding.”).
Petitioner timely objected to the 2010 Report. (Dkt. #26-27). Judge
Holwell considered his objections, but adopted the Report on September 16,
2010. (Dkt. #28). Lora v. West, No. 04 Civ. 1902 (RJH) (GWG), 2010 WL
3632506 (S.D.N.Y. Sept. 16, 2010). Three months later, Petitioner filed in this
Court a supplemental affirmation that was meant for Petitioner’s state-court
case. (Dkt. #33). The affirmation was returned to Petitioner by Judge Holwell.
Petitioner later filed a notice of appeal to the United States Court of Appeals for
the Second Circuit on January 21, 2011. (Dkt. #31). Petitioner also requested
leave from the District Court to proceed in forma pauperis (“IFP”) on appeal
(Dkt. #29), but Judge Holwell denied his request (Dkt. #30).
Petitioner then proceeded with the appeal, moving before the Second
Circuit for a certificate of appealability and permission to proceed IFP. See
Lora v. West, No. 11-0730-pr. While observing that the notice of appeal
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appeared to be untimely filed, the Second Circuit noted that Petitioner had filed
an undocketed motion for extension of time to file his notice of appeal in the
District Court; by Order dated April 27, 2011, it deferred consideration of the
motions Petitioner had filed with the Circuit, and directed the District Court to
consider the motion for an extension. (Dkt. #35). On June 22, 2011, Judge
Holwell denied Petitioner’s motion for an extension of time, finding that
Petitioner had been aware of the District Court’s September 16 Order no later
than December 15, 2010, more than a month before he filed his motion for an
extension. (Dkt. #38). By Order dated September 9, 2011, the Second Circuit
concluded that Petitioner’s notice of appeal had been untimely filed, and
dismissed the appeal for lack of jurisdiction. (Dkt. #39). After the record was
returned to the District Court on December 21, 2011, no activity was docketed
in the case for more than seven years.
On March 28, 2019, Petitioner filed a second notice of appeal from Judge
Holwell’s September 2010 decision. (Dkt. #40). Concurrent with that filing,
Petitioner filed a second application for a certificate of appealability that was
assigned to this Court. (Dkt. #41; see also Dkt. #42). Again, Petitioner focuses
on his prior counsel’s failure to file a notice of appeal on his behalf back in
2005, but this time he cites the recent Supreme Court decision in Garza v.
Idaho, 139 S. Ct. 738 (2019), which found that an attorney’s constitutionally
deficient failure to file a notice of appeal in a criminal case was presumptively

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prejudicial, regardless of the petitioner’s execution of plea agreements that
contained appellate waivers. 2
Courts may issue a certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253; see also Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007)
(discussing the standard for issuing a certificate of appealability). The Garza
case on which Petitioner relies does not aid his cause, and certainly does not
demonstrate the denial of a constitutional right. That case arose in the context
of criminal proceedings, where the Sixth Amendment guarantees defendants
the effective assistance of counsel. See Garza, 139 S. Ct. at 743 (“Under
[Strickland v. Washington, 466 U.S. 668 (1984)], a defendant who claims
ineffective assistance of counsel must prove (1) ‘that counsel’s representation
fell below an objective standard of reasonableness,’ 466 U.S. at 687-688, 104
S. Ct. 2052, and (2) that any such deficiency was ‘prejudicial to the defense.’”);
see also U.S. Const. Amend. VI (“In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury of the state
and district wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and to have the

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Petitioner also alleges other failures by counsel in connection with his habeas petition,
including a “fail[ure] to investigate recantation testimony, which was perjured testimony
from a list of witnesses who petitioner’s sister gave to him.” (Dkt. #42 at 1).

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assistance of counsel for his defense.”). 3 However, the law is clear that the
Sixth Amendment right to the effective assistance of counsel does not extend to
habeas proceedings, and by extension, does not extend to cover Petitioner’s
counsel’s claimed failures to object to, or to file a notice of appeal from the
District Court’s adoption of, the 2005 Report. See generally McCleskey v. Zant,
499 U.S. 467, 495 (1991); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
The Court pauses to note that even if such a right to the effective
assistance of counsel in habeas proceedings existed, it was Petitioner who
waited three years before filing a pro se application to reopen the matter in
2009, and it was Petitioner who failed to file a timely appeal from the District
Court’s September 2011 decision. And that was nearly eight years ago. Put
simply, Garza does not provide a basis for Petitioner to challenge the conduct
of his habeas counsel in 2005, nor does it provide a basis for a certificate of
appealability in 2019. Accordingly, Petitioner’s motion for a certificate of
appealability is denied, as is his application for an evidentiary hearing.
Further, the Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from
this Order would not be taken in good faith, and therefore in forma pauperis
status is denied for the purpose of an appeal. See Coppedge v. United States,
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Indeed, the significance of the Garza decision was not the recognition of a presumption
of prejudice in certain situations where counsel failed to file notices of appeal, but its
extension of this presumption to cases involving appellate waivers. In a prior
decision — issued years before the events at issue in this case — the Supreme Court
held that “when counsel’s constitutionally deficient performance deprives a defendant of
an appeal that he otherwise would have taken, the defendant has made out a
successful ineffective assistance of counsel claim entitling him to an appeal.” Roe v.
Flores-Ortega, 528 U.S. 470, 484 (2000). Notably, Flores-Ortega also arose in the
context of a criminal proceeding, and also sourced its holding to the Sixth Amendment
guarantee of the effective assistance of counsel in criminal proceedings.

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369 U.S. 438, 444-45 (1962). Finally, the Clerk of Court is directed to modify
the docket to reflect Petitioner’s current mailing address, since Petitioner is no
longer represented by counsel.
SO ORDERED.
Dated: April 25, 2019
New York, New York
KATHERINE POLK FAILLA
United States District Judge

Sent by First Class Mail to:
Jose Lora
96-A-0846
Sullivan Correctional Facility
P.O. Box 116
Fallsburg, New York 12733-0116

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