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Cooke v. Graham

September 28, 2009

CARL COOKE, PRO SE, PETITIONER,
v.
HAROLD GRAHAM, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge

MEMORANDUM & ORDER

Pro se petitioner Carl Cooke is currently serving a 25-year prison sentence following his conviction in New York State Supreme Court, Queens County, ("Queens County Supreme Court") for Assault in the First Degree (N.Y. Penal Law § 120.10[1]) and Criminal Possession of a Weapon in the Fourth Degree (N.Y. Penal Law § 265.01[2]). Pursuant to 28 U.S.C. § 2254, he challenges the convictions by contending that: (1) he was deprived of his Speedy Trial rights under New York Criminal Procedure Law § 30.30 ("§ 30.30"); (2) he received ineffective assistance of counsel during the § 30.30 proceedings; (3) he received a cruel and unusual sentence as a result of ineffective assistance of counsel and due process violations; and (4) the state court failed to properly review his collateral motions. For the reasons set forth below, the petition is denied.

I. Background

a. The Stabbing, Arrest, and Indictment

On December 4, 1998, petitioner, who at the time was homeless, stayed at the St. Andrew's Church in Queens ("St. Andrew's"), which offered overnight shelter for the homeless.

(Trial Transcript ("Tr.") at 590-93.) The next morning, as petitioner was getting ready to leave, he realized that he was missing his can of Lysol, which contained fifty dollars in the cap. (Tr. at 810-12.) Petitioner accused Gary Belfast, another homeless man who had stayed at St. Andrew's, of stealing the can of Lysol. (Tr. at 591, 593.) Petitioner told Belfast to empty his bags, and Belfast complied. (Tr. at 594, 633.) This confrontation escalated into a fight, which Larry James, another homeless man, broke up. (Tr. 174, 228, 276-78, 595-96, 633, 959, 961-62, 998.) After James broke up the fight, the homeless men left the church to board a bus to Grand Central Neighborhood, a daytime facility for homeless men. By the time Belfast stepped out of St. Andrews, all of the homeless men at St. Andrew's had already boarded the bus except for Belfast, James, Patrick Dasilva, and petitioner. (Tr. at 279.) The prosecution and petitioner offered different accounts of what occurred next.

According to the prosecution, Belfast had left St. Andrew's after the initial altercation with petitioner, expecting that he and petitioner would continue their fight outside. (Tr. at 634, 691.) Once outside, petitioner approached Belfast appearing as if he was about to throw a punch, but instead pulled out a knife and stabbed Belfast underneath his left arm. (Tr. at 653-555, 965, 987.) DaSilva, who was nearby, heard Belfast say "he stabbed me." (Tr. at 281, 314.) After the stabbing, Belfast tried to flee, but petitioner pursued him with the knife. (Tr. at 967-68, 1003.) At that point, James came to Belfast's defense, telling petitioner to leave Belfast alone or else petitioner would have to fight James. (Tr. at 967-69.) As a result, petitioner retreated and tried to board the bus taking the homeless men back to Grand Central Neighborhood. (Tr. at 607, 969.) James then flagged down a cab, which took Belfast to Flushing Hospital. (Tr. at 74-76, 83-85, 612.)

Petitioner denies ever carrying a knife or stabbing Belfast. (Tr. at 820-21.) According to petitioner, as he was heading to the bus, he heard Belfast and James telling the bus driver that they were going to "fuck [petitioner] up." (Tr. at 817.) As petitioner approached the bus, the driver closed the bus door before he could board. (Tr. at 818.) Belfast and James, who were nearby, then attacked petitioner. Belfast grabbed petitioner while James tried to stab him with a knife. (Id.) Before James could stab him, petitioner broke free of Belfast, ran back to St. Andrew's, and called the police. (Tr. at 818-20.)

At trial, Robert Jones, the driver of the bus, testified that he heard a commotion while he was waiting for the homeless men to board the bus. (Tr. at 95-97.) Immediately after the commotion, petitioner tried to board the bus while holding a bloody ten-to-twelve-inch butcher knife with a black handle. (Tr. at 96-97, 104.) Seeing this, Jones immediately yelled for someone to call the police. (Tr. at 98.) He then shut the bus door before petitioner could board and drove away. (Id.)

While petitioner was trying to board the bus, DaSilva told Maria Quintanal, a volunteer at St. Andrew's, to call the police because Belfast had been stabbed, and she did. (Tr. at 282, 316.) That same day, Police Officer James Delargy responded to the call from St. Andrew's. There, he spoke with Quintanal and then arrested petitioner and brought him to Flushing Hospital, where Belfast identified petitioner as his assailant. (Tr. at 376-78, 393-96, 614.)

Petitioner was arraigned on a felony complaint in the Queens County Criminal Court. At the arraignment, petitioner waived his right to a speedy trial and continued to waive the right until January 25, 1999, when he was released because the prosecution had been unable to locate Belfast to testify before the Grand Jury. On April 12, 1999, after several adjournments, the prosecution moved to dismiss the case because it had still been unable to locate Belfast. The court granted the motion without prejudice. In early July 1999, Belfast contacted the Queens District Attorney's Office after discovering that petitioner had not been incarcerated for stabbing him. Having located Belfast, the prosecution presented its case to the Grand Jury, and, on July 13, 1999, the Grand Jury indicted petitioner for Attempted Murder in the Second Degree, Assault in the First Degree, and Criminal Possession of a Weapon in the Fourth Degree. On July 27, 1999, petitioner was arraigned on these charges.

b. § 30.30 Hearing

On May 10, 2000, petitioner moved to dismiss his indictment pursuant to § 30.30, arguing that the prosecution had exceeded the statutory six-month period to bring the case to trial. Specifically, petitioner contended, inter alia, that the period between January 25, 1999 and July 12, 1999 should be charged to the prosecution. According to petitioner, the prosecution did not diligently attempt to locate Belfast during that period, and therefore, that 78-day delay was not excusable or justified. The prosecution countered that the delay should be excused because it was caused, in part, by the injuries that petitioner inflicted on Belfast, which prohibited him from testifying. The prosecution further claimed that, after Belfast recovered, the prosecution was unable to locate him, despite its diligent efforts, because he was homeless and not residing within the New York City Shelter System.

On July 13, 2000, the Queens County Supreme Court began a § 30.30 hearing. On July 24, 2000, the second day of the hearing, the parties entered into a stipulation in which the prosecution would be charged with more than 90 days but less than 180 days. (Stipulation Proceedings ("SP") at 10-11.) To make sure that petitioner understood the stipulation, the court asked petitioner:

So that there's no issue, the parties have agreed as follows: they agree that the hearing be waived and that the parties stipulate that the chargeable time as of right now exceeds ninety days, but is less than 180 days and that the defendant being incarcerated is therefore to be released pursuant to 30.30 2(a). If there are future delays, the defendant will have the right to move for another 30.30. Do you understand everything? (SP at 10.) Petitioner answered: "I understand everything you said." (SP at 11.) Petitioner then assured the court that he agreed to the stipulation "freely and . . . [had not] been coerced by anybody." (Id.) As a result of this stipulation, petitioner was released that same day. (SP at 14.) On July 28, 2000, in accordance with the stipulation that less than 180 chargeable days had transpired, the court dismissed petitioner's motion to dismiss the indictment on the ground that he was denied his right to a speedy trial.

c. The Trial, Petitioner's Motion under ยง 330.30 of the New York Criminal Procedure Law , Petitioner's Renewed ...


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