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Cook v. Hunt

December 1, 2009

NATHANIEL COOK, PETITIONER,
v.
CARL HUNT, RESPONDENT.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

On March 24, 2006, Nathaniel Cook ("Petitioner" or "Cook") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he received an "illegal and unauthorized sentence." Petitioner argues that he was denied equal protection and due process of law" because the trial court imposed multiple punishments for a single act. For the reasons set forth below, Cook's petition for a writ of habeas corpus is denied in its entirety.

BACKGROUND

On March 1, 2002, Suffolk County Police Officers James Zappulla and James Stapleton ordered Petitioner to pull over after they observed Petitioner driving westbound in an eastbound lane.

A pursuit ensued after Petitioner failed to obey the officers' commands, and ended when Petitioner hit his vehicle into Officer Zappulla's car. Petitioner then exited his vehicle and fled on foot; the officers chased Petitioner and ultimately subdued him, but only after incurring injuries. Officer Zappulla suffered a torn rotator cuff and Officer Singleton incurred a severed tendon in his hand when Petitioner bit him.

Petitioner was charged with two counts of Assault in the Second Degree, Criminal Mischief in the Third Degree, Driving while Intoxicated, Reckless Driving, and various other Vehicle and Traffic violations. Petitioner plead guilty to two counts of Attempted Assault in the Second Degree and Driving While Intoxicated as a Misdemeanor.

On December 3, 2002, Petitioner was sentenced to two consecutive terms of two to four years on both counts of Attempted Assault in the Second Degree and one year on the misdemeanor Driving While Intoxicated to run concurrently with the assault counts. Petitioner did not appeal.

On June 23, 2004, Petitioner filed a motion pursuant to New York Criminal Procedure Law §440.20 to set aside his sentence. The Suffolk County Court denied Petitioner's application, and on January 18, 2005, the Appellate Division, Second Department, denied Petitioner's application for leave to appeal. Petitioner sought leave to appeal from the New York Court of Appeals, and on February 22, 2005, the Court of Appeals denied Petitioner's application. On March 24, 2006, Petitioner filed the instant petition for a writ of habeas corpus.

DISCUSSION

I. Petitioner's Writ is Untimely

The one year statute of limitations under the AEDPA applies to all state convictions that became final after April 24, 1996. See 28 U.S.C. § 2244(d)(1); Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed. 2d 48 (1997).

The AEDPA limitations period runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...


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