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HAMILTON v. HOOD

May 19, 1992

PATRICK HAMILTON, Petitioner,
v.
DAVID HOOD, Respondent.



The opinion of the court was delivered by: SHARON E. GRUBIN

 SHARON E. GRUBIN, United States Magistrate Judge:

 Petitioner Patrick Hamilton pro se seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his judgment of conviction in the County Court of Orange County on April 30, 1984, after a trial by jury, of two counts each of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. See N.Y. Penal Law §§ 220.16(1), 220.39(1), 220.03 (McKinney 1989). For the reasons set forth below, I recommend the petition be denied.

 BACKGROUND

 The conviction was based in significant part on the testimony of a confidential informant who was wearing a transmittal device when he purchased drugs from Hamilton in Hamilton's home and on tape recordings of the conversations thus made. Hamilton was sentenced to concurrent indeterminate prison terms of 5 to 15 years. On appeal to the New York State Supreme Court, Appellate Division, Second Department, Hamilton claimed that (1) he was denied a fair trial by the denial of his motion to allow the jury to view the premises; (2) he was denied a fair trial by the introduction of "inflammatory evidence" concerning his son; (3) improper evidence was introduced at sentencing; and (4) his sentence was excessive. In a memorandum decision on August 5, 1985, the Appellate Division affirmed the judgment, finding all claims without merit. People v. Hamilton, 112 A.D.2d 951, 492 N.Y.S.2d 632, 633 (2d Dep't). On December 15, 1987, the New York Court of Appeals dismissed as untimely Hamilton's motion for an extension of time in which to apply for permission to appeal. People v. Hamilton, 70 N.Y.2d 890, 524 N.Y.S.2d 427, 519 N.E.2d 338. *fn1"

 Hamilton has also filed numerous post-conviction petitions and motions in the New York state courts. Those relevant for purposes of the instant petition are the following:

 (a) Sometime after November 3, 1986, Hamilton moved pursuant to N.Y. Crim. Proc. Law § 440.10(1) to have his judgment vacated, raising the following claims: (1) the informant's testimony and the tape recordings that were made by means of his transmittal device were the fruits of an illegal search; (2) his indictment was defective; (3) the temporary assignment to the Orange County Court of the Family Court judge who presided at his trial was defective, and the trial court therefore lacked jurisdiction to render its judgment; and (4) both his trial counsel and his appellate counsel rendered him ineffective assistance. See Affirmation in Opposition of Barbara J. Strauss, Esq., sworn to Dec. 10, 1987, P 10 (Ex. 5 to Pet.). In a decision and order on May 12, 1987, Judge Thomas J. Byrne of the Orange County Court denied the application:

 The law requires that matters be raised on a post conviction proceeding that either could not have been raised or were unavailable at the time the judgment appeal was considered. The only issue raised by defendant that could not have been raised on appeal is ineffective assistance of his Appellate counsel. In his argument, he fails to submit facts that warrant this Court in granting any relief.

 Defendant's application is denied without a hearing.

 People v. Hamilton, Decision and Order (Ex. 8 to Pet.). On May 2, 1988, Justice Joseph J. Kunzeman denied Hamilton's motion for leave to appeal this order to the Appellate Division, Second Department. People v. Hamilton, Decision & Order On Motion (Ex. 16 to Pet.).

 (b) In conjunction with his motion for leave to appeal, Hamilton also moved in the Appellate Division, Second Department, for a writ of coram nobis, on the grounds of ineffective assistance of appellate counsel. That motion was denied on October 4, 1988. Justice Charles B. Lawrence explained:

 A review of the record on appeal and the brief submitted on defendant's direct appeal to this court demonstrates that defendant's appellate counsel capably presented numerous nonfrivolous issues for this court's consideration. On this application, defendant has only identified frivolous issues which appellate counsel did not address in the brief submitted on defendant's direct appeal to this court. The defendant's appellate counsel clearly satisfied the constitutional standard of effective assistance of appellate counsel set forth by the United States Supreme Court in Jones v. Barnes (463 U.S. 745, 77 L. Ed. 2d 987, 103 S. Ct. 3308 ). Accordingly, defendant's motion must be denied.

 People v. Hamilton, Order (copy as printed in N.Y.L.J., Oct. 14, 1988, attached as Ex. 17 to Pet.).

 (c) In 1987, Hamilton applied for a writ of habeas corpus to the New York State Supreme Court, St. Lawrence County. On August 26, 1987, Justice Michael W. Duskas denied the application. With respect to the only claim identified in the decision, *fn2" that it was improper for a Family Court judge to have presided at his trial, Justice Duskas stated:


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