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U.S.A. EX REL. COLE v. LAVALLEE

May 6, 1974

U.S.A. ex rel. Frank COLE, Petitioner,
v.
Warden LaVALLEE, Clinton Correctional Facility, Dannemora, N.Y., Respondent


Gurfein, District Judge.


The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge:

Frank Cole, presently incarcerated in Clinton Correctional Facility, Dannemora, New York, petitions for a writ of habeas corpus. A judgment was rendered against him in Supreme Court, Westchester County, convicting him of the crimes of Endangering the Welfare of a Child and Sodomy in the Second Degree. On September 22, 1972, he was sentenced to indeterminate terms of one year and seven years, respectively, the sentences to run concurrently.

 He appealed his conviction and it was affirmed without opinion, People v. Cole, 42 A.D. 2d 1051, 348 N.Y.S. 2d 539 (2d Dept. 1972); and leave to appeal to the Court of Appeals was denied.

 On June 25, 1973 I denied his petition for habeas corpus for failure to exhaust state remedies. 28 U.S.C. § 2254(b). He then tendered proof of his exhaustion of state remedies, including the denial of leave by the New York Court of Appeals referred to, and I directed the State Attorney General to file answering papers on the merits.

 Upon examination of relator's pro se briefs on appeal in the New York courts, it appears that he has raised substantially the same arguments in the state courts that he is raising here. Respondent Attorney General so concedes. Thus, it would appear that relator is properly before this Court, having exhausted his state remedies, both procedurally, Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); and with respect to the specific subject-matter raised in the state courts, Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971).

 Questions of Law Presented :

 
I. Was relator's automobile stopped without probable cause and was the search after arrest illegal?
 
II. Are the various perjuries purportedly committed by witnesses before the Grand Jury and at trial cognizable under habeas jurisdiction?
 
III. Was relator denied a speedy trial?
 
IV. Was relator denied effective assistance of counsel?

 Statement of Facts :

 Frank Cole is no stranger to either the state or federal courts of New York. His last brush with the law, commencing in 1956, led to a thirteen year incarceration in mental hospitals and prison before a writ of habeas corpus was sustained. United States ex rel. Cole v. Follette, 301 F. Supp. 1137 (S.D.N.Y. 1969), aff'd, 421 F.2d 952 (2 Cir. 1970). In that case, Cole had been accused of attempted sodomy, assault and criminal sexual practices upon an eleven-year old boy.

 After his release by the state, he was indicted and convicted for the crime here involved, sodomy in the second degree against a thirteen-year old boy.

 According to testimony at the trial, two detectives were sitting in an unmarked police car on an unrelated stake-out when they observed the defendant driving a car bearing Florida license plates to the top of a hill next to a Yonkers train station one evening in March, 1971. The detectives testified that the car proceeded down the street very slowly, weaving erratically, and returned in the direction whence it came. They observed ...


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