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Harry Marquez v. Kenneth S. Perlman

July 16, 2012

HARRY MARQUEZ, PETITIONER,
v.
KENNETH S. PERLMAN, RESPONDENT.



The opinion of the court was delivered by: Wood, U.S.D.J.:

Order

Appearing pro se, Harry Marquez has filed a motion for relief from judgment, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure ("Rule 60(b)"), and a motion to reopen the time to file an appeal, pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure ("Rule 4(a)(6)").*fn1

I.Background

On January 22, 2001, New York City police officers arrested Marquez after an undercover officer purchased two vials of cocaine from his co-defendant, Magdalia Dones; the police alleged that Marquez aided and abetted the transaction. After a jury trial, Marquez was convicted of a single count of Criminal Sale of a Controlled Substance in the Third Degree and sentenced to six to twelve years in New York State prison.

The Appellate Division affirmed the conviction, People v. Marquez, 751 N.Y.S. 2d 190 (N.Y. App. Div. 2002), and the New York State Court of Appeals denied leave to appeal, People v. Marquez, 790 N.E.2d 285 (N.Y. 2003).

Pursuant to 28 U.S.C. § 2254, Marquez timely filed a petition for a writ of habeas corpus in this Court attacking his conviction. (Dkt. No. 1.) While that petition was under review, Marquez informed this Court's Pro Se Office that he had been transferred to the Orleans Correctional Facility in anticipation of deportation, provided his address at the Orleans Correctional Facility, and asked the Court to also send a copy of further correspondence to Ramona Gonzalez at an address in Manhattan. (Dkt. No. 7.) On June 29, 2005, Immigration and Customs Enforcement ("ICE") officers deported Marquez to the Dominican Republic, and, Marquez alleges, threw away Marquez's documents, including his files from this case. Marquez did not provide the Court with his address in the Dominican Republic or any further contact information.

Marquez advances four grounds for relief in his petition: (1) that the prosecution failed to present legally sufficient evidence at trial; (2) that the trial court erred in permitting evidence at trial that a sum of money was found in Marquez's pocket after his arrest; (3) that the trial court erred in permitting an undercover police officer to testify as an expert regarding the functioning of drug operations; and (4) that Marquez's sentence was excessive. On May 4, 2006, Magistrate Judge Dolinger recommended that the Court deny Marquez's petition, because he found that sufficient evidence was introduced at trial to support the jury's "conclusion that Marquez participated in some manner in the sale of narcotics to the undercover officer" and because the remaining three grounds for relief were procedurally barred as Marquez had failed to present them to the New York Court of Appeals. (Dkt. No. 8 at 21.) On October 16, 2006, this Court reviewed the Report, dismissed the petition, and declined to grant a certificate of appealablity. (Dkt. No. 9.) The Clerk of the Court mailed a copy of the judgment and a notice of right to appeal to Marquez at Orleans Correctional Facility, but the mail was returned as undeliverable.

There is no record of whether or not the Clerk of the Court mailed a copy to Ms. Gonzalez at the address Marquez provided.

On February 3, 2007, New York City police officers arrested Marquez for a violation and ICE officers determined that Marquez had illegally reentered the United States. On June 18, 2009, Marquez pleaded guilty to illegal re-entry and, on September 29, 2009, he was sentenced to a term of imprisonment of 38 months.

On March 25, 2011, Marquez filed the current motion. Because Marquez has framed the motion as seeking relief from the judgment and also as a request to seek a certificate of appealability, the Court will consider Marquez's filing both as a motion for relief from the judgment, pursuant to Rule 60(b), and also as a motion to reopen the time to appeal, pursuant to Rule 4(a)(6).

II.Discussion

A. The Rule 60(b) Motion

Marquez states that "relief from that judgment should be granted for lack of notice due to the Immigration and Naturalization Service's expedited deportation and petitioner's ...


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