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D'Antuono v. Conway

November 9, 2009

FRANK D'ANTUONO, PETITIONER,
v.
JAMES CONWAY, SUPERINTENDENT OF ATTICA CORRECTIONAL FACILITY RESPONDENT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

ORDER

I. Introduction

Pro se petitioner Frank D'Antuono ("Petitioner") has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered March 28, 2000 in New York State, County Court, Niagara County, convicting him, after a jury trial, of Robbery in the First Degree (New York Penal Law § 160.15 [4]), and two counts of Escape in the First Degree (Penal Law § 205.15 [2]).

For the reasons stated below, the petition is denied.

II. Factual Background and Procedural History

On September 12, 1992, at approximately 1:45 a.m., Petitioner, along with an unidentified man, stole approximately $860.00 from Howard Johnson's Motor Lodge in Niagara Falls, New York by holding two hotel employees at gunpoint and threatening to shoot them if they resisted. (Trial Transcript [TT.] 49-58, 360.)*fn1

At approximately 4:00 p.m. that same day, a housekeeper at the Holiday Inn Hotel in Niagara Falls found two loaded handguns in an open duffel bag in room 715, which was registered to Petitioner under a false name. (TT. 88-94, 105, 112.) The manager of the Holiday Inn was informed that Petitioner had telephoned the desk earlier to say that he would pay later in the day for an additional night, but that nobody had come back to pay for the room. (TT. 104, 126.) The manager determined that the rental period had expired, secured the room with the deadbolt key, and called the police. (TT. 114.) When the police arrived, the manager granted them access to room 715 and the police conducted a warrantless search. (TT. 116.) The police left the Holiday Inn and asked the manager to notify them if Petitioner returned to pay for the room. (TT. 119.) Shortly thereafter, Petitioner returned and inquired about continuing to rent room 715. (T. 119-20.) The manager called the police and Petitioner was taken into custody. (TT. 120-21.)

On September 14, 1992, after being arrested on the Robbery charge, Petitioner escaped from custody while being fingerprinted at the Niagara Falls Police Department and was quickly captured. (TT. 20-21.)

On October 24, 1992, Petitioner escaped from the Niagara County Sheriff's Department and was never apprehended in New York. (TT. 21-22.)

On January 22, 1993, Petitioner was apprehended in Virginia on unrelated criminal charges to which he pleaded guilty and was incarcerated. (People v. D'Antuono, No. 92-286 (Cty. Ct., Niagara County, Dec. 31, 1998) (Decision and Order denying Petitioner's motion to dismiss on speedy trial grounds pursuant to N.Y.C.P.L. § 30.30).) On June 16, 1995, the Circuit Court for the County of Augusta, State of Virginia, ordered that Petitioner be transferred to New York for trial on the outstanding charges at issue herein. (Id.)

On September 13, 1995, the trial court denied Petitioner's request to proceed pro se. (People v. D'Antuono, No. 92-286 (Cty. Ct., Niagara County, January 19, 2001 (Decision and Order).)

On October 26, 1995, a Mapp hearing*fn2 was held and the trial court denied Petitioner's motion to suppress the physical evidence seized during a warrantless search of Petitioner's hotel room. (Suppression Hearing Transcript [S.H.] 96-101.)

On November 1, 1995, following a jury trial, Petitioner was convicted, and appealed his conviction to the New York State Supreme Court, Appellate Division, Fourth Department.*fn3 One of the grounds raised on appeal was that the trial court denied his motion to dismiss the indictment pursuant to § 30.30 without conducting a hearing. On December 31, 1997, the Appellate Division reserved decision on the appeal and remitted the matter to the trial court for a hearing to resolve factual issues raised in the § 30.30 motion. People v. D'Antuono, 245 A.D.2d 1108 (4th Dep't 1997).

On October 30, 1998, a § 30.30 hearing was conducted in which Petitioner argued that his right to a speedy trial was violated because the People had not made diligent and reasonable efforts to extradite him from Virginia while he was incarcerated there on other criminal charges. (See § 30.30 Hearing Transcript 13-14.) Following the hearing, the trial court again denied Petitioner's § 30.30 motion. The trial court found that authorities in New York, upon learning that Petitioner was incarcerated in Virginia, lodged at least three detainers and made requests for temporary custody with the Virginia Department of Corrections.

(People v. D'Antuono, 92-286 (Cty. Ct., Niagara County, December 31, 1998 (Decision and Order).) Further, the trial court found that Petitioner "refused to make himself available for transport to New York voluntarily" by refusing to sign the necessary forms and "pursued all legal means to thwart the efforts of New York authorities to return [Petitioner] to this state." Id.

The transcript of the § 30.30 hearing was forwarded to the Appellate Division, which, upon resubmission, affirmed the trial court's holding on Petitioner's motion to dismiss pursuant to § 30.30, but reversed the judgment of conviction and ordered a new trial on the ground that the trial court "improperly denied [Petitioner] his ...


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