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Jose Torres v. Robert Ercole

March 13, 2012

JOSE TORRES, PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDENT OF THE UPSTATE CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM & ORDER

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 re-sentenced. 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 appellate review and the claim was otherwise without merit. People v. Torres, 35 A.D.3d 769, 770, 826 N.Y.S.2d 899, 889-900 (2d Dep't 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 then collaterally moved under N.Y. CRIM. PROC. Law § 440.10 for an order vacating the judgment of conviction on the grounds that he was denied effective 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. 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).

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.*fn1 In the section of the form asking Petitioner to list every ground on which he challenges his conviction, Petitioner lists two: (1) "Appellant's conviction of [the Sale Count] must be 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] was in constructive possession of the drugs" (Pet. at 7). In the section of the form asking Petitioner to specify the relief he seeks, he states: "dismissal of indictment based on speedy trial grounds 30.30." (Pet. 15.)*fn2

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 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, in whole or in part, the findings and recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(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." Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (internal quotation marks and citation omitted). Here, no party has objected to 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. LAW ยง 30.30; (2) that there was legally insufficient evidence to establish Petitioner's guilt on the Sale Charge beyond a reasonable doubt; and (3) that there was legally insufficient evidence to establish Petitioner's guilt on the Possession Charge beyond a reasonable doubt. Judge Tomlinson's R&R did not address Petitioner's argument under N.Y. CRIM. ...


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