Hamilton v. Hood
| Decision Date | 29 October 1992 |
| Docket Number | No. 89 Civ. 5308 (JES).,89 Civ. 5308 (JES). |
| Citation | 806 F. Supp. 429 |
| Parties | Patrick HAMILTON, Petitioner, v. David HOOD, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Patrick Hamilton, pro se.
David Huey, Asst. Dist. Atty., Goshen, N.Y., for respondent.
The above-captioned petition for a writ of habeas corpus having come before the Court, and the Court having referred the matter to United States Magistrate Judge Sharon E. Grubin for report and recommendation regarding the petition, and the Magistrate Judge having issued a report recommending that the writ be denied and the petition dismissed, and the Court having considered the report and having reviewed all materials submitted, it is
ORDERED that the report of the Magistrate Judge is adopted in its entirety, and it is further
ORDERED that petition for a writ of habeas corpus shall be and hereby is dismissed, and it is further
ORDERED that the Clerk of the Court be directed to close the above-captioned action.
Petitioner Patrick Hamilton pro se seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his judgment of conviction in the County Court of Orange County on April 30, 1984, after a trial by jury, of two counts each of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. See N.Y. Penal Law §§ 220.16(1), 220.39(1), 220.03 (McKinney 1989). For the reasons set forth below, I recommend the petition be denied.
The conviction was based in significant part on the testimony of a confidential informant who was wearing a transmittal device when he purchased drugs from Hamilton in Hamilton's home and on tape recordings of the conversations thus made. Hamilton was sentenced to concurrent indeterminate prison terms of 5 to 15 years. On appeal to the New York State Supreme Court, Appellate Division, Second Department, Hamilton claimed that (1) he was denied a fair trial by the denial of his motion to allow the jury to view the premises; (2) he was denied a fair trial by the introduction of "inflammatory evidence" concerning his son; (3) improper evidence was introduced at sentencing; and (4) his sentence was excessive. In a memorandum decision on August 5, 1985, the Appellate Division affirmed the judgment, finding all claims without merit. People v. Hamilton, 112 A.D.2d 951, 492 N.Y.S.2d 632, 633 (2d Dep't). On December 15, 1987, the New York Court of Appeals dismissed as untimely Hamilton's motion for an extension of time in which to apply for permission to appeal. People v. Hamilton, 70 N.Y.2d 890, 524 N.Y.S.2d 427, 519 N.E.2d 338.1
Hamilton has also filed numerous post-conviction petitions and motions in the New York state courts. Those relevant for purposes of the instant petition are the following:
(a) Sometime after November 3, 1986, Hamilton moved pursuant to N.Y.Crim. Proc.Law § 440.10(1) to have his judgment vacated, raising the following claims: (1) the informant's testimony and the tape recordings that were made by means of his transmittal device were the fruits of an illegal search; (2) his indictment was defective; (3) the temporary assignment to the Orange County Court of the Family Court judge who presided at his trial was defective, and the trial court therefore lacked jurisdiction to render its judgment; and (4) both his trial counsel and his appellate counsel rendered him ineffective assistance. See Affirmation in Opposition of Barbara J. Strauss, Esq., sworn to Dec. 10, 1987, ¶ 10 (Ex. 5 to Pet.). In a decision and order on May 12, 1987, Judge Thomas J. Byrne of the Orange County Court denied the application:
People v. Hamilton, Decision and Order (Ex. 8 to Pet.). On May 2, 1988, Justice Joseph J. Kunzeman denied Hamilton's motion for leave to appeal this order to the Appellate Division, Second Department. People v. Hamilton, Decision & Order On Motion (Ex. 16 to Pet.).
(b) In conjunction with his motion for leave to appeal, Hamilton also moved in the Appellate Division, Second Department, for a writ of coram nobis, on the grounds of ineffective assistance of appellate counsel. That motion was denied on October 4, 1988. Justice Charles B. Lawrence explained:
A review of the record on appeal and the brief submitted on defendant's direct appeal to this court demonstrates that defendant's appellate counsel capably presented numerous nonfrivolous issues for this court's consideration. On this application, defendant has only identified frivolous issues which appellate counsel did not address in the brief submitted on defendant's direct appeal to this court. The defendant's appellate counsel clearly satisfied the constitutional standard of effective assistance of appellate counsel set forth by the United States Supreme Court in Jones v. Barnes (463 U.S. 745 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)). Accordingly, defendant's motion must be denied.
People v. Hamilton, Order (copy as printed in N.Y.L.J., Oct. 14, 1988, attached as Ex. 17 to Pet.).
(c) In 1987, Hamilton applied for a writ of habeas corpus to the New York State Supreme Court, St. Lawrence County. On August 26, 1987, Justice Michael W. Duskas denied the application. With respect to the only claim identified in the decision,2 that it was improper for a Family Court judge to have presided at his trial, Justice Duskas stated:
Without considering the merits of petitioner's contentions, it has previously been established that the official acts of a de facto judge are valid and binding on the public and interested third parties, including a petitioner, and the issues of the propriety of that judge's appointment cannot be raised collaterally by means of a habeas corpus proceeding.
Hamilton v. O'Keefe, Decision & Order (Ex. 12 to Pet.). Hamilton apparently did not seek leave to appeal this decision.
(d) Sometime in late 1988, after the Appellate Division denied his application for a writ of coram nobis, Hamilton filed with that court yet another petition for a writ of habeas corpus. He claimed therein, again, that the Family Court judge had lacked jurisdiction, that the evidence of the informant was improperly admitted, that both his trial counsel and appellate counsel had conflicts of interest, and he raised additional claims that are not relevant herein. The petition was denied on March 20, 1989. After briefly recounting the history of the case on direct appeal and pointing out that, "by the petitioner's admission, four prior applications for a writ of habeas corpus have been dismissed," the Appellate Division held, in relevant part:
A writ of habeas corpus cannot be utilized to review either claimed errors already passed upon in a prior appeal or issues which could have been raised on appeal but were not (People ex rel. Douglas v. Vincent, 67 A.D.2d 587 416 N.Y.S.2d 307, aff'd 50 N.Y.2d 901 431 N.Y.S.2d 518, 409 N.E.2d 990). Nor may habeas corpus be utilized as a vehicle by which to redress the petitioner's alleged deprivation of effective appellate counsel.
* * *
In the instant petition, Hamilton challenges his conviction on the following four sets of grounds:
(1) The temporary assignment to the Orange County Court of the Family Court judge who presided at his trial was defective under Morgenthau v. Cooke, 56 N.Y.2d 24, 451 N.Y.S.2d 17, 436 N.E.2d 467 (1982), and the trial court therefore lacked jurisdiction to render its judgment, in violation of the New York and United States Constitutions.
(2) His sentencing was improper because (a) the Family Court judge lacked jurisdiction and (b) the sentence was excessive.3
(3) He was denied effective assistance of trial counsel because trial counsel did not file an "omnibus motion" or any pretrial motion to suppress the tape recordings of petitioner's conversations with the informant. He proffers as a reason for this failure of representation a conflict of interest, claiming that trial counsel was "working part time with the district attorney's office."
(4) He was denied effective assistance of appellate counsel because appellate counsel did not raise on appeal (a) that the trial court had no jurisdiction, (b) that the informant's evidence was illegal because obtained without a warrant, and (c) that trial counsel had rendered ineffective assistance by failing to move to suppress the informant's evidence. As he claims with respect to trial counsel, he proffers a conflict of interest on the part of his appellate counsel as explanation for why appellate counsel acted in this allegedly deficient manner, alleging that counsel colluded with the chief assistant district attorney because they had been former co-workers and maintained a friendship.
Grounds (1), (2)(a) and (3)
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