Opinion
CIVIL ACTION NO. 99-5113
July 11, 2001
MEMORANDUM
Before the Court is Henry Attica's ("Attica") pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). Petitioner is a state prisoner currently incarcerated at the State Correction Institute in Chester, Pennsylvania. At the time the Petition was filed, he was incarcerated in Huntingdon, Pennsylvania.
On May 31, 1991, Petitioner was convicted of murder in the third degree and possession of an instrument of crime. Petitioner did not file a direct appeal of his conviction or sentence. On August 29, 1995, Petitioner filed a pro se motion for relief pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541, in the Court of Common Pleas for Philadelphia County. Petitioner's PCRA motion asserted the following claims: (1) Petitioner did not knowingly and intelligently waive his right to a jury trial or his right to file post-trial motions or a direct appeal due to his mental retardation, illiteracy, and ingestion of court-ordered anti-psychotic drugs; and (2) trial counsel was ineffective for failing to assert an insanity defense, independently investigate the charged offenses, file a direct appeal, preserve trial errors, or object to various allegedly irrelevant and prejudicial testimony. Counsel was appointed to represent Petitioner in the PCRA proceeding. On June 24, 1997, appointed counsel filed a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (1988), stating that Petitioner's claims lacked arguable merit. Based on the Finley letter, the Court of Common Pleas dismissed Petitioner's motion without a hearing.
On August 18, 1997, Petitioner appealed pro se the dismissal of his PCRA motion to the Pennsylvania Superior Court. In addition to asserting the claims previously raised before the Court of Common Pleas, Petitioner further argued that the trial court improperly required him to prove his incompetence to stand trial by clear and convincing evidence in violation of Cooper v. Oklahoma, 517 U.S. 348 (1996). The Pennsylvania Superior Court affirmed the dismissal of Petitioner's PCRA motion, addressing all the claims raised below as well as the Cooper claim. The Pennsylvania Supreme Court subsequently denied allocatur. Commonwealth v. Attica, No. 658 East. Dist. Docket 1998, 1999 WL 331700 (Pa. May 26, 1999).
Attica timely filed the instant Petition on October 18, 1999. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule of Civil Procedure 72.1, the Court referred the Petition to United States Magistrate Judge Jacob P. Hart for a report and recommendation ("Report"). On May 21, 2001, Magistrate Judge Hart filed a Report recommending denial of the Petition. Petitioner timely objected to the Report in its entirety. In accordance with 28 U.S.C. § 636(b), the Court will conduct a de novo determination of the Report.
Petitioner resubmitted portions of his brief filed with his original Petition addressing each of his claims. The Court interprets this submission to indicate a general objection to the entire Report.
Where a habeas petition has been referred to a magistrate judge for a Report and Recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. . . . [The Court] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b) (1993).
I. STANDARD OF REVIEW
The instant Amended Petition was filed pursuant to 28 U.S.C. § 2254 which allows federal courts to grant habeas corpus relief to prisoners "in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.A. § 2254(a) (West 2001). Since it was filed after April 24, 1996, the Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), P.L. 104-132, 110 Stat. 1214. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Section 2254(d)(1), as amended by AEDPA, provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C.A. § 2254(d)(1) (West 2001).
Under AEDPA, a state court's legal determinations may only be tested against "clearly established Federal law, as determined by the Supreme Court of the United States." See 28 U.S.C.A. § 2254(d)(1) (West 2001). This phrase refers to the "holdings, as opposed to the dicta" of the United States Supreme Court's decisions as of the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). Courts look to principles outlined in Teague v. Lane, 489 U.S. 288 (1989), to determine whether a rule of law is clearly established for habeas purposes. Williams, 529 U.S. at 379-80, 412. "[W]hatever would qualify as an old rule under [the Court's] Teague jurisprudence will constitute clearly established Federal law," except that the source of that clearly established law is restricted to the United States Supreme Court. Id. at 412.
To apply the AEDPA standards to pure questions of law or mixed questions of law and fact, federal habeas courts initially must determine whether the state court decision regarding each claim was contrary to clearly established Supreme Court precedent. Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000). A state court decision may be contrary to clearly established federal law as determined by the United States Supreme Court in two ways. See Williams, 529 U.S. at 405. First, a state court decision is contrary to Supreme Court precedent where the court applies a rule that contradicts the governing law set forth in United States Supreme Court cases. Id. Alternatively, a state court decision is contrary where the state court confronts facts that are materially indistinguishable from a relevant United States Supreme Court precedent and arrives at an opposite result. Id. at 406. If relevant United States Supreme Court precedent requires an outcome contrary to that reached by the state court, then the court may grant habeas relief at this juncture. Matteo v. Superintendent S.C.I. Albion, 171 F.3d 877, 890 (3d Cir. 1999).
If the state court decision is not contrary to precedent, the court must evaluate whether the state court decision was based on an unreasonable application of Supreme Court precedent. Id. A state court decision can involve an "unreasonable application" of Supreme Court precedent if the state court identifies the correct governing legal rule but unreasonably applies it to the facts of the particular state prisoner's case. Williams, 529 U.S. at 407. A state court determination also may be set aside under this standard if the court unreasonably refuses to extend the governing legal principle to a context in which the principle should control or unreasonably extends the principle to a new context where it should not apply. Ramdass v. Angelone, 530 U.S. 156, 166 (2000); Williams, 529 U.S. at 407.
To grant a habeas corpus writ under the unreasonable application prong, the federal court must determine that the state court's application of clearly established federal law was objectively unreasonable.Williams, 529 U.S. at 409; Werts, 228 F.3d at 197. A federal court cannot grant habeas corpus simply by concluding in its independent judgment that the state court applied clearly established federal law erroneously or incorrectly; mere disagreement with a state court's conclusions is insufficient to justify relief. Williams, 529 U.S. at 411; Matteo, 171 F.3d at 891. In determining whether the state court's application of the Supreme Court precedent is objectively reasonable, habeas courts may consider the decisions of inferior federal courts. Matteo, 171 F.3d at 890.
Section 2254 further mandates heightened deference to state court factual determinations by imposing a presumption of correctness. 28 U.S.C.A. § 2254(e)(1) (West 2001). The presumption of correctness is rebuttable only through clear and convincing evidence. Id. Clear and convincing evidence is evidence that is "so clear, direct, weighty and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." United States Fire Ins. Co. v. Royal Ins. Co., 759 F.2d 306, 309 (3d Cir. 1985).
The district court may only grant relief on a habeas claim involving state court factual findings where the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C.A. § 2254(d)(2) (West 2001); see Weaver v. Bowersox, 241 F.3d 1024, 1030 (8th Cir. 2001); Watson v. Artuz, No. 99Civ.1364(SAS), 1999 WL 1075973, at *3 (S.D.N.Y. Nov. 30, 1999) (listing cases). The district court must conclude that the state court's determination of the facts was objectively unreasonable in light of the evidence available to the state court. Weaver, 241 F.3d at 1030 (citing Williams, 529 U.S. at 409);Torres v. Prunty, 223 F.3d 1103, 1107-8 (9th Cir. 2000); see also Watson, 1999 WL 1075973, at *3. Mere disagreement with the state court's determination, or even erroneous factfinding, is insufficient to grant relief if the court acted reasonably. Weaver, 241 F.3d at 1030.
II. DISCUSSION
The instant Petition asserts three grounds for relief. Petitioner first claims that the Pennsylvania trial court unconstitutionally required him to prove his incompetency to stand trial by clear and convincing evidence. Petitioner next contends that he involuntarily waived his rights to a jury trial, to file post-verdict motions, and to file a direct appeal because he was taking court-ordered anti-psychotic medications. Petitioner further argues that his trial counsel provided ineffective assistance by failing to object to the court-ordered administration of anti-psychotic drugs and failing to investigate an insanity defense. The Court will address each claim in turn.
A. Application of the Cooper Standard
Conviction of an accused person while he is legally incompetent violates due process, and state procedures must be adequate to prevent such a violation. Pate v. Robinson, 383 U.S. 375, 378 (1966) (citingBishop v. United States, 350 U.S. 961 (1956)). On September 18, 1990, after his arrest but prior to trial, Petitioner was found incompetent to stand trial. See N.T. 5/27/91 at 6-7. On May 27, 1991, Petitioner was tried after two psychiatrists found him competent to stand trial. See id. at 6-8, 14. At the time of Petitioner's trial, Pennsylvania law required a criminal defendant to establish his incompetency by clear and convincing evidence. See 50 Pa. Cons. Stat. Ann. § 7403 (West 1991). In 1996, however, the United States Supreme Court held that application of a clear and convincing evidence standard to incompetency determinations violates due process. Cooper v. Oklahoma, 517 U.S. 348, 369 (1996). Petitioner now seeks habeas corpus relief based on the trial court's application of the clear and convincing evidence standard. The Court rejects Petitioner's claim because the rule announced inCooper cannot be applied retroactively to Petitioner's case on collateral appeal.
This claim was exhausted before the state court. See Commonwealth v. Attica, No. 3926 Philadelphia 1997, at 4 (Pa.Super.Ct. Nov. 18, 1998).
Petitioner was convicted on May 31, 1991, and sentenced on December 12, 1991. Since Petitioner failed to file a direct appeal, his conviction became final on January 11, 1992, when the time for filing a direct appeal expired. See Kapral v. United States, 166 F.3d 565, 572 (3d Cir. 1999); Pa. R. App. P. 903(a). The Supreme Court's decision in Cooper was not issued until 1996, nearly four years after Petitioner's conviction became final. See Cooper, 517 U.S. at 348.
Even prior to the AEDPA amendments, habeas courts were not permitted to apply decisions announcing new rules of law that were issued after a petitioner's conviction became final unless the rule fell within certain exceptions established in Teague. Gilmore v. Taylor, 508 U.S. 333, 339-40 (1993); see also Teague, 489 U.S. at 311. AEDPA incorporated this restriction into the statute by requiring habeas courts to apply only `clearly established federal law.' See 28 U.S.C.A. § 2254(d)(1) (West 2001); Williams, 529 U.S. at 380 ("AEDPA codifies Teague to the extent that Teague requires federal habeas courts to deny relief that is contingent upon a rule of law not clearly established at the time the state conviction became final."). Since Cooper was issued after Petitioner's conviction became final, the Court must first determine if the decision represents a new rule. Flamer v. Delaware, 68 F.3d 710, 721 (3d Cir. 1995); see also Williams, 529 U.S. at 412. If it is a new rule, then the Court must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle. Flamer, 68 F.3d at 721 (citations omitted).
Teague defined a new rule as one that was "not dictated by precedent existing at the time the defendant's conviction became final." Wright v. West, 505 U.S. 277, 291 (1992). In other words, a new rule breaks new ground or imposes a new obligation on the states or federal government.Teague, 489 U.S. at 301. To determine if a rule is new, the court must survey the legal landscape as it existed at the time of the trial and "determine whether a state court considering [the petitioner's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." Flamer, 68 F.3d at 721 (citing Saffle v. Parks, 494 U.S. 484, 488 (1990) (citations omitted)).
The rule announced in Cooper was a new rule under Teague. The Supreme Court did not rely on precedent in reaching its decision. See Cooper, 517 U.S. at 355 (distinguishing the question addressed in Cooper from that dealt with in prior cases). Rather, the Court surveyed historical practice and examined competing relevant interests in reaching its ultimate conclusion. Id. at 365. At the time of Petitioner's trial, there was no caselaw either from the Supreme Court or lower federal courts indicating that application of a clear and convincing standard in competency determinations might be improper under the Constitution.Compare Sheley v. Singletary, 955 F.2d 1434, 1440 (11th Cir. 1992) (requiring proof of incompetency by clear and convincing evidence where a defendant seeks to obtain a habeas corpus hearing on competency at trial); Holmes v. King, 709 F.2d 965, 967 (5th Cir. 1983) (same). Because precedent did not dictate its result, the Cooper rule is a new rule underTeague. Accordingly, in order for Cooper to apply on collateral review, aTeague exception must apply.
The first exception permits the retroactive application of a new rule if the rule places a class of private conduct beyond the power of the State to proscribe, or addresses a substantive categorical guarantee accorded by the Constitution. Saffle, 494 U.S. at 494-95 (citing Teague, 489 U.S. at 311 and Penry v. Lynaugh, 492 U.S. 302, 329, 330 (1989)). An example would be a rule prohibiting a certain category of punishment for a class of defendants because of their status or offense. Id. This exception clearly does not apply to the Cooper rule.
The second exception is for "watershed rules of criminal procedure" that implicate the fundamental fairness and accuracy of the criminal proceeding. Saffle, 494 U.S. at 495 (citing Teague, 489 U.S. at 311). To fall within this exception, a new rule must meet two requirements: (1) infringement of the rule must "seriously diminish the likelihood of obtaining an accurate conviction"; and (2) the rule must "alter our understanding of the bedrock procedural elements" essential to the fairness of a proceeding. Tyler v. Cain, No. 00-5961, 2001 WL 720703, at *6 (U.S. June 28, 2001) (quoting Sawyer v. Smith, 497 U.S. 227, 242 (1990)). Petitioner argues that Cooper is a watershed rule because it relates to a structural right. As the Tyler court noted, however, "[t]he standard for determining whether an error is structural . . . is not coextensive with the second Teague exception, and a holding that a particular error is structural does not logically dictate the conclusion that the second Teague exception has been met." Tyler, 2001 WL 720703, at *6 n. 7.
Watershed rules are groundbreaking occurrences that effect a sweeping change on a large class of cases. See O'Dell v. Netherland, 521 U.S. 151, 167 (1997); Caspari v. Bohlen, 510 U.S. 383, 396 (1994); United States v. Mandanici, 205 F.3d 519, 528 (2d Cir. 2000). Indeed the United States Supreme Court has thus far identified only one watershed rule, that of the right to counsel in criminal proceedings. See O'Dell, 521 U.S. at 167. The Supreme Court repeatedly has declined to apply new constitutional standards retroactively to prior cases if the defendants in those cases had the benefit of preexisting standards protecting the same interests. See Levan v. United States, 128 F. Supp.2d 270, 278 (E.D.Pa. 2001) (surveying cases and holding that Apprendi v. New Jersey, 530 U.S. 466 (2000), is not a watershed rule under Teague). Prior toCooper, criminal defendants were protected by the general rule prohibiting the trial of incompetent individuals. See Pate, 383 U.S. at 378. Cooper merely altered the burden of proof required to prove incompetency. Such a change in burden of proof does not implicate fundamental fairness or relate to the accuracy of the conviction or sentence so as to constitute a watershed alteration. See Levan, 128 F. Supp.2d at 278 (citations omitted). Furthermore, the effect of theCooper rule is limited to a small class of cases in the four states that applied the clear and convincing standard, and in which the defendant can prove incompetence by a preponderance of the evidence but not by the higher clear and convincing evidence standard. For these reasons, Cooper does not have the characteristics of a `watershed rule' under Teague. Since Cooper is a new rule not made retroactive under Teague, it is not clearly established federal law against which the state court decisions in Petitioner's case may be tested. Petitioner, therefore, cannot seek habeas corpus relief based on Cooper.
In contrast several new rules held not to constitute watershed developments include: a defendant's right not to have a jury consider certain invalid aggravating circumstances, Lambrix v. Singletary, 520 U.S. 518, 539-540 (1997); a defendant's right to inform a sentencing jury that he is ineligible for parole under certain circumstances,O'Dell, 521 U.S. at 167 (1997); and the failure to instruct a jury that it could not convict a defendant if it found a mitigating mental state,Gilmore, 58 U.S. at 345-46.
Even if Cooper were retroactively applied to Petitioner's case, he would still not be entitled to relief because the state court's adjudication of his Cooper claim satisfied the § 2254(d) standards. The Pennsylvania Superior Court reviewed the transcript of Petitioner's competency hearing and held that the trial court's finding of competence to stand trial was proper even under a preponderance standard. Attica, No. 3926 Philadelphia 1997, at 7-8 (finding that Petitioner "failed to meet his burden of proving his incompetence by any standard, including a preponderance of the evidence" (emphasis in original)). Since Cooper required use of a preponderance of the evidence standard, the state court's ruling that Petitioner failed to sustain his burden under a preponderance standard would not be contrary to or an objectively unreasonable application of Cooper.
The state court based its determination on evidence in the transcript that two independent psychiatrists found Petitioner competent to stand trial, that Petitioner presented no evidence of incompetence outside of cross-examination of the psychiatrist whom the court appointed to examine Petitioner, and that the trial court questioned the psychiatrist extensively on the standard for determining competence and ensured that the psychiatrist had read the reports of the prior experts. Id. Because all of these factual determinations are supported by the record, the Court cannot say that they are unreasonable in light of the evidence presented at the state proceeding. For these reasons, Petitioner is not entitled to habeas relief on this claim.
Petitioner's argument that no deference should be given to the Superior Court's factual determinations because the trial court failed to make any oral or written findings of fact or conclusions of law related to his competence, and defense counsel had no opportunity to present evidence, and the court expert failed to submit a written report in violation of state law is misplaced and without merit. Violations of state procedural law are not cognizable on habeas corpus. Johnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997). The Court further notes that defense counsel cross-examined the court psychiatrist, engaged in oral argument before the court on the competency issue, and stated on the record following the cross-examination that he was prepared to proceed with jury trial waiver colloquy. (N.T. 5/27/91 at 12, 14). At no time did defense counsel ever seek to present further evidence. Most importantly, the Superior Court's inference that the trial court found Petitioner competent to stand trial is objectively reasonable since the record indicates that the trial court proceeded with Petitioner's trial immediately after concluding his competency hearing.
B. Ineffective Assistance for Failure to Object to Medication
Petitioner next argues that his trial counsel was ineffective for failing to object to the court-ordered administration of medication. Petitioner first raised this argument before the Pennsylvania Superior Court on PCRA review. The Superior Court addressed the issue, but summarily found Petitioner's claim meritless. The court failed to provide any specific reasons for rejection of Petitioner's claim, but merely referenced the extensive colloquies conducted by the trial court when Petitioner waived his rights to a jury trial and appellate review, the testimony of an evaluating psychiatrist indicating that Petitioner understood the rights being waived. None of these observations have any bearing on the propriety of trial counsel's failure to object to the administration of medicine. Since the state court effectively failed to address the merits of Petitioner's claim, the Court will conduct a plenary determination. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
The standard for determining ineffective assistance of counsel was clearly established in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Williams v. Taylor, 529 U.S. 362, 391 (2000). Strickland requires proof that counsel's performance was deficient and the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To establish ineffectiveness, a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. This requires a showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Id. at 687. To establish prejudice, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Petitioner's claim fails because the record lacks any indication that he ever requested that counsel object to the administration of the medication. Petitioner does not assert that he ever asked his counsel to have the medication terminated. Furthermore, the record indicates that Petitioner cooperated with his medication program and wanted to proceed to trial. On May 16, 1991, Petitioner's treating physician reported to the court that:
I saw Mr. Attica regularly as an outpatient and he appeared to be cooperative and in control and eager to go to trial. He has been taking his medication on a regular basis and says that it is doing well for him and that he is virtually free of any auditory hallucinations. . . . He now tells me that he definitely does want to go to trial and that he will keep himself as calm and in control as he possibly can, and that he feels he has the ability to go through the trial situation.
(Resp. Ex. C at 2.) Absent some indication that Petitioner did not wish to consent to medication, trial counsel was not required to object to the medication.
C. Involuntary Administration of Anti-psychotic Drugs and Waivers of Jury Trial and Post-Verdict Motions
Petitioner next contends that the court-ordered administration of anti-psychotic drugs violated his rights under the Sixth and Fourteenth Amendments, citing Washington v. Harper, 494 U.S. 210 (1990) and Riggins v. Nevada, 504 U.S. 127 (1992), and rendered his waiver of a jury trial and withdrawal of post-trial motions involuntary. Petitioner raises his argument regarding Harper and Riggins in the context of arguing the unconstitutionality of the Pennsylvania statute permitting involuntary treatment of persons found incompetent to stand trial. (See Br. in Support of Petition at 20-23.) The state courts never addressed this issue of the constitutionality of the involuntary treatment. The state court, however, determined that Petitioner knowingly waived his rights and hence counsel was not ineffective for permitting the waiver.
Harper held that the Due Process Clause permits the state to involuntarily treat a convicted prisoner who has a serious mental illness with anti-psychotic drugs if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest. Harper, 494 U.S. at 227. In Riggins, the Supreme Court extended Harper to pretrial detainees holding that the state may only administer anti-psychotic drugs to a criminal defendant pending trial over the defendant's objection upon proof that either "medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of the defendant's own safety or the safety of others," or that the state could not obtain an adjudication of the defendant's guilt or innocence by using less intrusive means. Id. at 136. Riggins was not decided until May 18, 1992, several months after Petitioner's conviction became final. BecauseRiggins is a new rule as defined by Teague, it cannot be applied retroactively on collateral appeal unless it falls within a Teague exception. See Flowers v. Walter, 235 F.3d 1096, 1106 (9th Cir. 2001). Although the United States Supreme Court has not addressed the issue, one circuit court of appeals has held that Riggins qualifies for retroactivity under Teague as a `watershed rule.' See id. at 1107-8. Assuming without deciding that Riggins may be retroactively applied, Petitioner's claim is nonetheless without merit.
The Court need not address the issue of the constitutionality of the Pennsylvania statute because Harper and Riggins are inapplicable to Petitioner's case. As noted above, Petitioner cannot establish that the administration of medication was involuntary. See Resp. Ex. C at 2. Even if it were involuntary, the record contains ample evidence indicating that medication was medically appropriate and essential to obtaining an adjudication of Petitioner's guilt or innocence. See Resp. Ex. C. at 2-3; N.T. 5/27/91 at 3-12.
The Court further concludes that the state court's determination that Petitioner voluntarily waived his rights to a jury trial and file post-verdict motions was not contrary to or an unreasonable determination of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence. Criminal defendants have the constitutional right to a jury trial in serious cases. See Duncan v. Louisiana, 391 U.S. 145, 150, 162 (1968). The right to a jury trial, however, may be knowingly and voluntarily waived. See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); see also Johnson v. Zerbst, 304 U.S. 458, 464 (1938). The inquiry into whether a waiver is effected knowingly and voluntarily has two distinct dimensions. Moran v. Burbine, 475 U.S. 412, 421 (1986) (citing Edwards v. Arizona, 451 U.S. 477, 482 (1981) and Brewer v. Williams, 430 U.S. 387, 404 (1977)). First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Burbine, 475 U.S. at 421. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Id. The determination of whether there has been an intelligent waiver of a constitutional right depends upon the facts and circumstances surrounding the particular case, including the background, experience, and conduct of the accused. Johnson, 304 U.S. at 464. These principles were clearly established at the time of Petitioner's trial and final conviction.
In contrast, there is no constitutional right to appellate review.Martinez v. Court of Appeal of California, 528 U.S. 152, 149-150 (2000). Rather the right to appellate review is created purely by statute. Id. Where a state grants the right to appellate review, however, the procedures used in the appeal must comport with constitutional precepts.Evitts v. Lucey, 469 U.S. 387, 393 (1985).
The state court, although failing to cite to the federal legal standard, determined that the medications improved Petitioner's cognitive and emotional condition, and that Petitioner understood the nature of the rights being waived and the consequences of waiver based on the court's extensive waiver colloquy. The state court's findings are supported by the record. See N.T. 5/27/91 at 3-12, 15-51; N.T. 10/3/91 at 1-10. Given the fact-driven inquiry required by Johnson and its progeny and the record support for the court's findings, the Court cannot conclude that these determinations were contrary to or unreasonable applications of clearly established law, or were based on unreasonable determinations of facts. Having determined that the underlying claim was without merit, the state court was entitled to deny the claim for ineffective assistance of counsel. See Werts, 228 F.3d at 203.
D. Ineffective Assistance of Counsel for Failure to Pursue Insanity Defense
Lastly, Petitioner asserts that his trial counsel was ineffective for failing to pursue an insanity defense. The state court concluded trial counsel actually investigated defenses based on Petitioner's mental state at the time of the offense but that an insanity defense was not available in Petitioner's case, and thus trial counsel could not be ineffective for failing to raise a meritless defense. Petitioner argues that the court's finding that trial counsel investigated an insanity defense is not supported by the record since no hearing was held and the evidence presented at trial reflected reliance on a diminished capacity defense. The Court, however, cannot conclude that the state court's findings were unreasonable in light of the record.
Petitioner's psychiatric expert testified that he evaluated Petitioner to determine generally his mental state at the time of the killing, not simply to determine if a diminished capacity defense was feasible. N.T. 5/30/91 at 258-59. The record further supports the state court's finding that results of the expert's evaluation would not support an insanity defense under the applicable law which requires proof that a defect of reason or disease of the mind caused the defendant to either not know the nature and quality of the act, or not know the act was wrong. See 18 Pa. Cons. Stat. Ann. § 314(d) (West 1991). The expert's testimony indicated only that Petitioner's mental illness and infirmities would cause him to act on impulse based on a distorted perception of reality, not that Petitioner did not know the nature of his action or that the act was wrong. N.T. 5/30/91 at 225, 240, 253-55. Given the record support for its findings, the state court's ultimate rejection of Petitioner's claim was not contrary to or an unreasonable application of Strickland.
III. CONCLUSION
Following a de novo review of the Petition and Report, the Court adopts the Magistrate's Report to the extent that it is consistent with this Memorandum, and denies the Petition. An appropriate Order follows.
ORDER
AND NOW, this day of July, 2001, upon careful and independent consideration of the Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. No. 1) and Respondent's Answer and Memorandum of Law to Petition for Writ of Habeas Corpus (Doc. No. 15), and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart (Doc. No. 18), and consideration of Petitioner's objections to the Report and Recommendation (Doc. No. 19), and for the reasons set forth in the accompanying memorandum, IT IS HEREBY ORDERED that:
1. Petitioner's objections are OVERRULED;
2. The Report and Recommendation of Judge Jacob P. Hart is APPROVED and ADOPTED to the extent that it is consistent with the accompanying memorandum;
3. The Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 is DENIED;
4. Since the Petitioner has failed make a substantial showing of the denial of a constitutional right, the Court declines to issue a certificate of appealability under 28 U.S.C. § 2253(c)(2); and
5. The Clerk shall CLOSE this case statistically.
BY THE COURT: