United States District Court, S.D. New York
OPINION AND ORDER
EDGARDO RAMOS, U.S.D.J.
Polanco ("Polanco" or "Petitioner")
brought a pro se petition ("the Petition")
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his conviction in New York State Supreme Court,
New York County on one count of first-degree possession, two
counts of second-degree and fourth-degree conspiracy, and two
counts of second-degree criminal possession of a forged
instrument. On November 3, 2017, Magistrate Judge Parker
issued a Report and Recommendation ("R&R"),
recommending that the Petition be granted in part and that
all counts for which Petitioner was convicted be vacated
except for his conviction for second-degree conspiracy. Doc.
42. For the reasons stated herein, the Court ADOPTS the
R&R and directs the entry of judgment as recommended.
April 30, 2001, Petitioner was arrested by the Special
Narcotics Prosecutor of New York and charged with conspiracy
in the second degree and criminal possession of a controlled
substance in the first degree. R&R at 3. Petitioner was
accused of running a drug trafficking scheme with his brother
between May and November 2000 in which they possessed and
distributed hundreds of kilos of cocaine. Id. at
3-4. Petitioner was first tried for these crimes in March
2003; however, that trial ended in a hung jury. Id.
at 4. In September 2003, the prosecutor informed the state
court that he would present evidence to a grand jury to
obtain a superseding indictment. Id. The ensuing
indictment included the two original counts as well as one
count of fourth-degree conspiracy, two counts of first-degree
criminal sale of a controlled substance, one additional count
of first-degree criminal possession of a controlled
substance, two counts of second-degree criminal possession of
a forged instrument, and one count of first-degree criminal
sale and possession of marijuana. Id. Petitioner
proceeded to trial and was found guilty on five counts on
December 1, 2004. Id. at 5.
October 15, 2009, Petitioner moved pro se to vacate
his conviction pursuant to New York Criminal Procedure Law
§ 440.10. Id. at 18. He argued that his counsel
was ineffective for stipulating to the weight and nature of
the narcotics recovered in the case. Id. On January
19, 2010, the Supreme Court denied the motion because
Petitioner failed to attach an affidavit from his attorney
explaining why the attorney chose to stipulate to the lab
report. Id. Petitioner sought leave to appeal, and
on May 10, 2010, the Appellate Division, First Department
("First Department") denied Petitioner's
Petitioner filed a renewed motion to vacate in the Supreme
Court on March 15, 2010, arguing that he tried to contact his
attorney but did not receive a response. He added additional
grounds for his motion to vacate, including that his attorney
was ineffective for failing to move to dismiss the
superseding indictment on statutory double jeopardy grounds.
Id. On February 11, 2011, the Supreme Court found
that Petitioner's attorney acted reasonably in
stipulating to the nature and weight of the drugs recovered.
Id. at 19. That court did not, however, address
Petitioner's arguments regarding double jeopardy.
Id. On March 11, 2011, Petitioner sought leave to
appeal, which the First Department denied on August 11, 2011.
Petitioner later moved for reconsideration, which the First
Department denied in an order entered on April 17, 2012.
February 12, 2013, Petitioner, now represented by counsel,
filed a direct appeal of his conviction in the First
Department. Id. at 20; see also State Court
Record at SR0401-72 (Doc. 13-6). Petitioner also filed a
supplemental brief pro se in which he made
additional arguments, including that his trial attorney was
ineffective for failing to move to dismiss the superseding
indictment. R&R at 20. On October 2, 2014, the First
Department denied Petitioner's appeal and affirmed the
conviction. Id. at 21. The First Department found
that Petitioner's ineffective assistance of counsel claim
was "unreviewable" because it involved matters not
fully explained in the record and alternatively found that
Petitioner "received effective assistance."
Id. at 22. Petitioner moved for leave to appeal to
the New York Court of Appeals on October 27, 2014. On
February 3, 2015, that motion was denied. Id.
September 2015, Petitioner filed a second motion to vacate in
the trial court. Id. at 23. On February 15, 2017,
the Supreme Court denied Petitioner's motion, finding
that double jeopardy concerns were not implicated because
Petitioner's first trial ended in a mistrial.
Id. at 23-24.
Petitioner's second motion to vacate was pending,
Petitioner filed his Petition in this Court on May 9,
2016. Doc. 2. The Court referred the case to
Magistrate Judge Parker on November 11, 2016. On November 3,
2017, Judge Parker issued the R&R, recommending that the
Petition be granted as to all counts of Petitioner's
conviction, save for the count of second degree criminal
conspiracy. Doc. 42. Specifically, Judge Parker determined
that under New York's double jeopardy statute, the
prosecutor was prohibited from bringing new charges in the
superseding indictment he filed subsequent to the mistrial,
and that Petitioner's attorney was ineffective because he
failed to move to dismiss the superseding indictment.
Id. at 30-33. In a letter to the court on November
9, 2017, Petitioner's counsel explained that neither
party had any objections to the R&R and urged the Court
on behalf of both parties to adopt the R&R "as soon
as possible" given the probability that Petitioner is
entitled to immediate release because he has already
potentially served the entire sentence imposed on the sole
surviving count of conviction. Doc. 44.
STANDARD OF REVIEW
district court reviewing a magistrate judge's report and
recommendation "may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(1). Parties
may raise written objections to the report and recommendation
"[w]ithin fourteen days after being served with a
copy." Id.; see also Fed. R. Civ. P. 72(b)(2).
A district court reviews de novo those portions of
the report and recommendation to which timely and specific
objections are made. 28 U.S.C. § 636(b)(1)(C); see
also United States v. Male Juvenile (95 Cr 1074), 121
F.3d 34, 38 (2d Cir. 1997). The district court may adopt
those parts of the report and recommendation to which no
party has timely objected, provided no clear error is
apparent from the face of the record. Lewis v. Zon,
573 F.Supp.2d 804, 811 (S.D.N.Y. 2008).
party has objected to the R&R.; indeed the parties have
advised the Court that they consent to Judge Parker's
findings. The Court has reviewed Judge Parker's thorough
and well-reasoned report and finds no error, clear or
otherwise. It is therefore ORDERED that: (1) the R&R is
ADOPTED in its entirety; (2) the Petition is GRANTED in part
and DENIED in part; (3) Petitioner's convictions for
first-degree possession, fourth-degree conspiracy, and two
counts of second-degree criminal possession of a forged