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Cook v. Burge

April 8, 2010

RONALD COOK, PETITIONER,
v.
JOHN BURGE, SUPERINTENDENT OF AUBURN CORRECTIONAL FACILITY, RESPONDENT.



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

ORDER

I. Introduction

Pro se petitioner Ronald Cook ("petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Supreme Court of three counts of Rape in the First Degree (N.Y. Penal Law ("P.L.") §§ 20.00, 130.35[1]); four counts of Sodomy in the First Degree (P.L. §§ 20.00, 130.50[1]); five counts of Sexual Abuse in the First Degree (P.L. §§ 20.00, 130.65[1]), and one count of Attempted Sodomy in the First Degree (P.L. §§ 20.00, 110.00, 130.50[1]). Following a jury trial before Justice Stephen Sirkin, petitioner's judgment of conviction was entered on December 22, 1998. He was subsequently sentenced to various consecutive and concurrent terms of imprisonment totaling 39 1/2 to 79 years.*fn1

II. Factual Background and Procedural History

Petitioner's convictions stem from an incident that occurred in July of 1998, wherein petitioner and six co-defendants tormented, raped, and sodomized two girls, ages thirteen and sixteen.*fn2 Part of the attack was videotaped by the perpetrators.

Through counsel, petitioner filed an appellate brief with the Appellate Division, Fourth Department, which unanimously affirmed the judgment of conviction. People v. Cook, 286 A.D.2d 917 (4th Dept.); lv. denied, 97 N.Y2d 680 (2001).

In 2003, petitioner moved to vacate his conviction pursuant to New York Crim. Proc. Law ("C.P.L.") § 440.10, alleging, inter alia, that he was denied effective assistance of trial counsel. See Respondent's Appendix ("Appx.") K. That motion was denied by the county court on procedural grounds and on the merits. See Decision and Order, No. 98-0517C, dated 2/10/2004; Appx. M. Leave to appeal that denial was denied by the Fourth Department on May 6, 2004. Appx. P.

Petitioner also sought a writ of error coram nobis*fn3 , which was denied on March 19, 2004. Cook, 5 A.D.3d 1132. Petitioner did not seek leave to appeal that denial.

On March 3, 2003, petitioner filed his first petition for habeas corpus (Dkt. #3) and thereafter submitted a motion to stay the proceedings to exhaust his remedies in state court (Dkt. # 7). This Court granted petitioner's motion to stay pending petitioner's exhaustion of his ineffective assistance of counsel claims (Dkt. #11).

During the stay in the habeas proceedings, petitioner submitted a second application for writ of error coram nobis, alleging that his appellate counsel was ineffective for failure to raise a meritorious issue on appeal because a conflict of interest existed. Appx. T. The Fourth Department denied the application. People v. Cook, 60 A.D.3d 1438 (4th Dept); lv. denied, 12 N.Y.3d 924 (2009). Petitioner filed a motion to amend his habeas petition (Dkt. #18), which was granted by this Court on October 2, 2009, and the stay of the proceedings was lifted (Dkt. #23).

Petitioner then filed his amended petition (Dkt. #24) on November 4, 2009, which is the operative petition for purposes of this proceeding. Therein, he raises the sole claim that his assigned counsel, who represented petitioner at trial and on direct appeal, was constitutionally ineffective due to a conflict of interest. See Amended Petition ("Am. Pet.") ¶ 12; Pet'r Mem. of Law (Dkt. #26). Petitioner's claim appears to be fully exhausted for purposes of habeas review. For the reasons that follow, I find that petitioner is not entitled to habeas relief, and the petition is dismissed.

III. Discussion

A. General Principles Applicable to Federal ...


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