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Tony J. Clark v. Superintendent M. Bradt

January 5, 2012

TONY J. CLARK, PETITIONER,
v.
SUPERINTENDENT M. BRADT, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Tony J. Clark ("Clark" or "Petitioner") has filed this pro se 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his detention in Respondent's custody. Clark is incarcerated pursuant to a judgment entered on November 14, 2005, in New York State Supreme Court, Monroe County. Clark was convicted, following a jury trial, of first degree assault and second degree criminal possession of a weapon. Currently Clark is serving a determinate sentence of seventeen years.

II. Factual Background and Procedural History

The conviction here at issue stems from an incident in which Petitioner shot an acquaintance of his, Mitchell Madden ("Madden"), in the shoulder and abdomen with a .38-caliber handgun. Petitioner apparently was angry because Madden had told a mutual friend that Petitioner owed his cousin some money. After the shooting Petitioner fled to North Carolina to pursue a romantic interest. He was not apprehended until March 23, 2004, when he was arrested in North Carolina on an unrelated warrant for violating his federal probation. Because the sole claim raised in Clark's petition relates to the alleged violation of his Sixth Amendment right to a speedy trial, the Court confines its discussion of the background and procedural history to facts pertaining to the speedy trial claim.

On April 15, 2004, a felony complaint was filed in Rochester City Court against Petitioner, in connection with the Madden shooting. He was indicted on August 13, 2004 on charges of first degree assault and second degree criminal possession of a weapon.

On August 26, 2004, the date Petitioner was scheduled to be arraigned on the Monroe County charges, he was being held in a federal penitentiary in Lewisburg, Pennsylvania and did not appear. Over the course of the next several months, the prosecution served numerous body orders on the relevant federal officials, requesting Petitioner's appearance in New York. However, as of the November 23, 2004 adjourned hearing, the federal officials had not produced Petitioner.

The following day, November 24, 2004, the assistant district attorney for the Monroe County District Attorney's Office confirmed that the delay in Petitioner's transport was due to the federal penitentiary and, as a result, an additional 30 days were needed to produce Petitioner. The trial court adjourned the arraignment until January 6, 2005.

On January 6, 2005, Petitioner finally was produced. He was arraigned, and the prosecution announced their readiness for trial pursuant to New York Criminal Procedure Law ("C.P.L.") § 30.30. The trial court noted that the arraignment delay was not the fault of Petitioner, his attorney, or the prosecutor. Defense counsel agreed, stating that "[t]he error was in the federal marshals not cooperating with the Monroe County Sheriff's Department to get [Petitioner] up here any sooner than today." Transcript dated 1/06/05 at 9.

On April 30, 2005, after his suppression motion was unsuccessful, Petitioner moved pursuant to C.P.L. § 30.30 to dismiss the indictment on speedy trial grounds.*fn1 Petitioner argued that the prosecution should be charged with the period from the filing of the felony complaint through the date of Petitioner's arraignment. In opposition, the prosecution argued that it had exercised due diligence to bring Clark to court during that time period by properly filing writs of habeas corpus ad prosequendum.

During a May 4, 2005 court appearance, the trial judge, relying on People v. Smith, 138 A.D.2d 972 (N.Y. App. Div. 4th Dept. 1988), explained that the prosecutor must explain how its initial writ seeking to obtain custody of Petitioner "was followed up by contact with the penitentiary." Transcript dated 5/04/05 at 5-6. The trial judge, therefore, ordered transcripts of the preceding court appearances and gave the prosecution an opportunity to supply additional information. Id. at 6-7.

In response, the prosecution submitted affirmations by Assistant District Attorney Paul Irving ("Irving"), and Fred Shank ("Shank"), the employee of the District Attorney's Office responsible for delivery and filing of documents. Irving affirmed that, in addition to preparing the writs, he twice spoke to authorities at the federal prison where Clark was being held to discern whether Clark had been moved, in an attempt to learn why he was not being transported to Monroe County. Each time, Irving was informed that the Clark was still in custody at F.C.I. Lewisburg and that the federal authorities could not give a specific reason why he was not transported to Monroe County. Shank averred that he had served each of the writs upon the United States Marshal, filed duplicates with the Monroe County Clerk's Office, and forwarded certified copies to the Monroe County Sheriff's Office.

The trial judge subsequently denied Petitioner's motion to dismiss the indictment on speedy trial grounds. In its written Decision and Order, dated May 17, 2005, the court explained that the prosecution had complied with the proper procedures for securing the attendance of defendants incarcerated in other jurisdictions. Order dated 5/17/05 (citing C.P.L. § 580.30)). Consequently, the court found, the prosecution had "exercised due diligence in securing [Petitioner]'s attendance." Id. (citations omitted). The trial judge concluded that the prosecution was chargeable with the time period from April 15, 2004, to August 26, 2004 (the date the felony complaint was filed until the initial arraignment date), but not the period from August 26, 2004, to January 6, 2005 (the initial arraignment date until the date Petitioner was actually arraigned). Because the period of delay (which the trial judge found to be 162 days, but which Respondent points out is actually 133 days) was less than the allowable six months under C.P.L. § 30.30, Petitioner's motion was without merit.

On June 14, 2005, Petitioner proceeded to trial. The jury returned a verdict convicting Petitioner of the two counts charged in the indictment. On November 14, 2005, Petitioner was sentenced, as a second violent felony offender, to concurrent determinate prison terms of seventeen years for the assault count, and seven years for ...


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