Opinion
01 Civ. 11284 (GBD) (GWG).
October 26, 2005
REPORT AND RECOMMENDATION
Israel Castrillo brings this petition for a writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254 challenging his conviction entered on May 21, 1996 in New York State Supreme Court, Bronx County for Robbery in the First Degree (New York Penal Law § 160.15(3)). Following his conviction, Castrillo was sentenced to an indeterminate term of 6 to 18 years and is currently incarcerated at the Arthur Kill Correctional Facility in Staten Island, New York. For the reasons stated below, Castrillo's petition should be denied.
I. BACKGROUND
A. Evidence Presented at Trial
Francisco Rosario had been working from 3:30 to 11:30 p.m. on December 5, 1994, on Sedgwick Avenue in the Bronx. (Rosario: Tr. 188-89). After finishing the work day, Rosario took the bus from Westchester Square to go to his apartment located at 2805 Dewey Avenue. (Rosario: Tr. 189-90). Rosario arrived at the bus stop close to his home around midnight. (Rosario: Tr. 189, 220-21). As Rosario approached the front of his building, he noticed a man following him wearing a black jacket, a hood, and dark pants. (Rosario: Tr. 190-91, 195, 215). The front of the building was lit thereby permitting Rosario to see the face of the man following him and identify him as Castrillo, whom he recognized from the neighborhood. (Rosario: Tr. 191, 195-96). On cross-examination, Rosario revealed that Castrillo had robbed him on a previous occasion and testified that his brother and Castrillo had had a dispute about that robbery. (Rosario: Tr. 211-12, 215-20; see also J. Rosario: Tr. 238-41, 243-45) (describing Jesus Rosario's dispute with Castrillo).
Rosario entered the lobby of his building and ran toward his apartment but slipped on the wet floor and fell to the ground. (Rosario: Tr. 191-92, 216, 222). Castrillo was right behind him when he fell, holding a yellow box cutter in his hand. (Rosario: Tr. 192-93). Rosario was able to get up, but as he was knocking on the door of his apartment to get his sister to let him in, Castrillo was "pointing at [Rosario] with the knife" and saying "give me the Walkman." (Rosario: Tr. 193; accord id. 196-97, 221-22). Rosario testified that Castrillo threatened him with the box cutter, waving it around in a "cutting motion." (Rosario: Tr. 196-97). The blade was exposed and Castrillo held it at the level of Rosario's throat. (Rosario: Tr. 208-09). Rosario gave Castrillo the Walkman he was carrying "[b]ecause [he] was frightened." (Rosario: Tr. 197). Once Rosario gave Castrillo his Walkman, Castrillo ran away. (Rosario: Tr. 202). Rosario's sister then opened the door and Rosario immediately called 911 to report the robbery. (Rosario: Tr. 202-03).
At 12:05 a.m., Sergeant Thomas Shanahan and his partner received a radio transmission reporting the robbery and providing a description of the assailant. (Shanahan: Tr. 136, 140, 151). As the officers were driving towards Rosario's apartment building, they saw a person matching the description walking down the street carrying a Walkman. (Shanahan: Tr. 140-41, 147). This person was Castrillo. (Shanahan: Tr. 141-42). The officers stopped him, patted him down him, and recovered the Walkman and a box cutter. (Shanahan: Tr. 147-50).
Two other officers who had also received a transmission about the robbery responded directly to Rosario's apartment. (Chiarello: Tr. 155-56). Rosario described Castrillo to the officers and went with them to drive around the neighborhood. (Chiarello: Tr. 156-59; Rosario: Tr. 204-05). As they were driving, the officers saw Castrillo with the other two police officers. (Chiarello: Tr. 160). Rosario identified the Walkman as his and recognized the box cutter as the same one that Castrillo had threatened him with. (Rosario: Tr. 206, 223-24). Castrillo was then placed under arrest. (Chiarello: Tr. 161).
Castrillo did not present any witnesses in his own behalf.
B. Verdict and Sentencing
The jury was presented with two charges: robbery in the first degree and, in the alternative, grand larceny in the fourth degree. (Tr. 335-39). It found Castrillo guilty of robbery in the first degree (Tr. 340), and he was subsequently sentenced to an indeterminate term of 6 to 18 years (S. 10-11).
C. Direct Appeal
In September 1998, Castrillo appealed his conviction to the Appellate Division, First Department raising the following issues: (1) the trial court erred in its rulings pursuant toPeople v. Sandoval, 34 N.Y.2d 371 (1974), see Brief for the Defendant-Appellant, dated Sept. 17, 1998 (reproduced as Ex. 1 to Affidavit in Opposition to Petition for Habeas Corpus, filed Feb. 22, 2005 (Docket #9) ("Nguyen Aff.")) ("Pet. App. Br."), at 6-12; (2) Castrillo received ineffective assistance of counsel through (a) counsel's eliciting the fact that Castrillo had previously robbed Rosario; (b) counsel's failure to address Castrillo's mental disability resulting from a recent head injury; and (c) counsel's abandonment of a claim pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), id. at 13-18; and (3) Castrillo's sentence was excessive, id. at 19-23.
The Appellate Division upheld Castrillo's conviction. People v. Castrillo, 260 A.D.2d 280 (1st Dep't 1999). On the first issue, the Appellate Division concluded that "[t]he court'sSandoval ruling balanced the appropriate factors and was a proper exercise of discretion, since the prior convictions were probative of defendant's credibility, as were his prior use of aliases and false dates of birth." Id. (citation omitted). With respect to the ineffective assistance of counsel claim, the court stated, "[o]n the existing record, which defendant has not sought to amplify by way of a CPL article 440 motion whereby matters of strategy could be explained, we conclude that defendant received meaningful representation." Id. (citations omitted). Finally, the court stated that it "perceive[d] no abuse of sentencing discretion." Id.
Castrillo sought leave to appeal to the New York Court of Appeals. See Letter from Dolores Kanski to the Chief Judge of the New York State Court of Appeals, dated May 6, 1999 (reproduced as Ex. 3 to Nguyen Aff.). Castrillo's application for leave to appeal was denied on July 7, 1999. People v. Castrillo, 93 N.Y.2d 1001 (1999).
D. Castrillo's 440.10 Motion
Following the denial of his request for leave to appeal, Castrillo submitted a pro se motion to vacate his conviction pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10. See Motion to Vacate Judgment Pursuant to § 440.10 of the Criminal Procedure Law, dated Oct. 4, 1999 (reproduced as Ex. 4 to Nguyen Aff.) ("440.10 Motion"). In his 440.10 Motion, Castrillo claimed that he suffered from cognitive disabilities as a result of injuries sustained in a car accident in 1994, and that these disabilities prevented him from understanding the proceedings in his own case or establishing a relationship with his attorney.See Affidavit in Support of Motion to Vacate Judgment Pursuant to § 440.10 of the Criminal Procedure Law, dated Oct. 4, 1999 (annexed to 440.10 Motion), at 1, 3-5, 8. Castrillo claimed that his trial counsel, Jason Wohlford, provided ineffective assistance for failing to alert the trial court to his mental disabilities and for failing to request a competency examination pursuant to CPL § 730. Id. at 3-5, 8. He also stated that the trial court erred in failing to order a competency examinationsua sponte. Id. at 6-8. Castrillo also alleged in the 440.10 Motion that he had told his counsel that he would agree to a plea offer of one and one quarter to four years, but that the plea never took place. Id. at 4-5. In support of his motion, Castrillo submitted medical records relating to his injuries.See 440.10 Motion and annexed documents.
Castrillo's 440.10 Motion was denied on March 21, 2000. See Decision and Order, dated Mar. 21, 2000 (reproduced as Ex. 6 to Nguyen Aff.) ("440.10 Decision"). The court denied the motion in the first instance because Castrillo's claims "were either previously raised on appeal and decided, or . . . could have been raised on direct appeal" because they were within the defendant's knowledge at the time of trial. Id. at 2 (citing CPL § 440.10(2)(c)). The court also noted that the medical records that Castrillo annexed to his motion were not certified and did not relate to his medical condition during the two years before the trial or during the period of the trial. Id. at 2-3. Finally, the court noted that Castrillo did not attach an affidavit from his defense counsel and did not appear to have notified his attorney that he was seeking to vacate the judgment of conviction. Id. at 3.
Castrillo sought leave to appeal to the Appellate Division. See Letter from Israel Castrillo to the Clerk of the Court, Appellate Division, dated Apr. 19, 2000 (annexed as Ex. 7 to Nguyen Aff.). Castrillo's application for leave to appeal was denied. See Certificate Denying Leave, dated June 22, 2000 (reproduced as Ex. 8 to Nguyen Aff.) ("440.10 Denial of Leave to Appeal").
E. Habeas Petition
On December 10, 2001, Castrillo filed the instant petition for habeas corpus relief. See Application for Writ of Habeas Corpus, filed Dec. 10, 2001 (Docket #1) ("Petition"). In his petition, Castrillo raises the same three claims he initially raised on direct appeal. Id. at 3-4. Additionally, he claims that the trial judge should have recognized his mental deficits, and thus should have ordered an examination pursuant to CPL § 730. See id. at 7, 9, 15.
Although the Petition was not submitted with page numbers, the Court has numbered the pages and any citations herein to the Petition will refer to those pages by number.
On October 14, 2004, Judge Daniels referred to the case to the undersigned for Report and Recommendation. See Order of Reference (Docket #6). On October 20, 2004, the Court ordered the respondent to file its opposition to the petition, and the opposition papers were duly filed on February 22, 2005. See Nguyen Aff. The respondent subsequently submitted an amended response after receiving transcripts of the state court proceedings. See Amended Affidavit in Opposition to Petition for Habeas Corpus, filed May 26, 2005 (Docket #13) ("Nguyen Am. Aff."). Castrillo has not submitted a reply.
On June 24, 2005, the Court issued an order directing petitioner's trial counsel in state court, Jason Wohlford, to submit an affidavit by July 8, 2005, regarding Castrillo's claims of ineffective assistance of trial counsel. Wohlford timely submitted an affidavit. The June 24, 2005 Order permitted Castrillo to submit a response by July 22, 2005. Because it was not clear that the affidavit had been served on Castrillo, the Court issued another Order on September 14, 2005, allowing him until October 7, 2005, to submit a response. Castrillo never submitted any response, however.
II. APPLICABLE LEGAL PRINCIPLES
A. Law Governing Petitions for Habeas Corpus Under 28 U.S.C. § 2254
A petition for a writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(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. § 2254(d).
For a claim to be adjudicated "on the merits" within the meaning of 28 U.S.C. § 2254(d), it must "finally resolv[e] the parties' claims . . . with res judicata effect," and it must be "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (citation omitted). As long as "there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds," a state court decision will be considered to be "adjudicated on the merits" even if it fails to mention the federal claim and no relevant federal case law is cited. See Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001);accord Rosa v. McCray, 396 F.3d 210, 220 (2d Cir. 2005) ("This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether the court has alluded to federal law in its decision.").
In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). Williams also held that habeas relief is available under the "unreasonable application" clause only "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable."Id. at 409.
In addition, a state court's determination of a factual issue is "presumed to be correct" and that presumption may be rebutted only "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Finally, under 28 U.S.C. § 2254(a), federal habeas review is available for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). To be entitled to habeas relief, a petitioner must demonstrate that the conviction resulted from a state court decision that violated federal law. See, e.g., id. at 68.
B. Law Governing Procedural Default
When a state court rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default normally constitutes an adequate and independent ground for the state court decision. See, e.g., Lambrix v. Singletary, 520 U.S. 518, 522-23 (1997); Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50 (1991). A "procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted); accord Coleman, 501 U.S. at 749-50; Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994),cert. denied, 514 U.S. 1054 (1995); see also Harris, 489 U.S. at 264 n. 10 ("[A]s long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent state ground doctrine "curtails reconsideration of the federal issue on federal habeas.").
C. Exhaustion
Before a federal court may consider the merits of a habeas claim, a petitioner is required to exhaust his available state court remedies. See 28 U.S.C. § 2254(b)(1) ("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 unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ."); accord Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc). To exhaust a habeas claim, a petitioner must present that claim to each available level of the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 29 (2004); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (a habeas petitioner must "invoke one complete round of the State's established appellate review process"). The petitioner must also have fairly presented the federal nature of his claim to the state courts. See Baldwin, 541 U.S. at 29; Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971);Daye, 696 F.2d at 191. The exhaustion requirement is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman, 501 U.S. at 731.
III. DISCUSSION
Each issue raised by Castrillo is discussed below.
A. Failure of the Trial Court to Order a Competency Examination
Castrillo states that a car accident on March 9, 1994 left him with, inter alia, brain damage, dementia, unspecified cognitive impairments, and headaches. Petition at 4-5, 13. He claims that his "actions during trial . . . and at sentencing should have alerted the court to the possibility that [he] was an incapacitated person." Id. at 7; accord id. at 9. While Castrillo has separately asserted that counsel was ineffective for failing to raise the issue of his competence to the trial court (an argument discussed below in the context of the ineffective assistance of counsel claim), he also argues that the trial court itself had a duty to ensure that he was competent to stand trial, and that its failure to raise this issue sua sponte was a violation of due process. Id. at 7, 9, 14-15.
1. Applicability of a Procedural Bar
Castrillo first raised the claim that the trial court should have inquired into his competence to stand trial in his 440.10 Motion, see 440.10 Motion at 7-9, but this argument was rejected as procedurally defaulted, see 440.10 Decision at 2, and the Appellate Division denied leave to appeal that decision without opinion, see 440.10 Denial of Leave to Appeal. The respondent argues that, because Castrillo's claim was procedurally defaulted, an independent and adequate state ground precludes habeas review and, in any event, the claim is without merit. Amended Memorandum of Law, dated May 2005 (annexed to Nguyen Am. Aff.) ("Resp. Am. Mem."), at 15-20.
In rejecting the claim, the trial court cited to CPL § 440.10(2)(c) which states in relevant part that a "court must deny a motion to vacate a judgment when . . . sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, [and] no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him."
As discussed above, the explicit invocation of a procedural bar normally forecloses habeas review, see, e.g., Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam) ("[F]ederal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground. . . ."), and courts have consistently held that claims subject to CPL § 440.10(2)(c) may not be reviewed by a habeas court, see McClaurin v. Walsh, 2005 WL 1337550, at *10 (S.D.N.Y. June 3, 2005); Sanchez v. Burge, 2005 WL 659195, at *6 (S.D.N.Y. Mar. 22, 2005). But relying in part on the fact that "New York courts could not constitutionally apply a procedural default rule to a possibly incompetent defendant," the Second Circuit has stated that "when the trial court neglects its duty to conduct a hearing on competence, the defendant's failure to object or to take an appeal on the issue will not bar collateral attack." Silverstein v. Henderson, 706 F.2d 361, 366-67 (2d Cir.) (citing Hayes v. United States, 468 F. Supp. 179, 184 (S.D. Tex. 1979)), cert. denied, 464 U.S. 864 (1983). Accordingly, "if the trial court has been alerted to the defendant's mental problems and fails to order a hearing on competence, the conviction will be set aside on collateral review, even though the defendant failed to challenge his competence at trial, failed to request a competency hearing, and failed to appeal the issue." Id. at 368 (citing People v. Freyre, 348 N.Y.S.2d 845 (Sup.Ct. 1973)). Thus, Castrillo's failure to raise the issue of competency on direct appeal will not bar habeas review. See Silverstein, 706 F.2d at 368. Consequently, we turn to the merits of Castrillo's claim.
2. Merits of the Claim
The Supreme Court has held that "the criminal trial of an incompetent defendant violates due process." Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (citing cases); accord Drope v. Missouri, 420 U.S. 162, 171-73 (1975); Pate v. Robinson, 383 U.S. 375, 378 (1966); Harris v. Kuhlmann, 346 F.3d 330, 349 (2d Cir. 2003). New York's criminal procedure law mandates that the "court wherein the criminal action is pending must issue an order of examination when it is of the opinion that the defendant may be an incapacitated person." CPL § 730.30. The court may then order a hearing if the psychiatric reports conclude that the defendant is incapacitated, if the psychiatric reports are not unanimous, or if either the court or the attorneys are not satisfied with a finding that the defendant is competent to stand trial. Id. Although the procedure used to determine competency in New York is somewhat different from the procedure followed in the federal court system — which does not require a psychiatric examination prior to a hearing, see 18 U.S.C. § 4241; Medina v. McGinnis, 2004 WL 2088578, at *11 n. 28 (S.D.N.Y. Sept. 20, 2004) (Report and Recommendation),adopted by, Order, filed Oct. 29, 2004 (Docket #17 in 04 Civ. 2515) — the New York procedures have been deemed to "provide the same procedural protections required under Supreme Court law," Galandreo v. Perlman, 2003 WL 23198790, at *17 (E.D.N.Y. Oct. 31, 2003) (citing Silverstein, 706 F.2d at 367),aff'd, 115 Fed. Appx. 514 (2d Cir. 2004). These protections require the court to inquire into the defendant's competency only if "there is 'reasonable ground' for believing that the defendant may be incompetent to stand trial." Silverstein, 706 F.2d at 369 (citing United States ex rel. Roth v. Zelker, 455 F.2d 1105, 1108 (2d Cir. 1972)); accord Kemp v. Conway, 2005 WL 107096, at *3 (S.D.N.Y. Jan. 14, 2005) (Report and Recommendation), adopted by, Order, filed Mar. 7, 1005 (Docket #19 in 03 Civ. 5439). Where no reasonable basis exists to question the defendant's competency, the court is not obligated to hold a competency hearing. See United States v. Nichols, 56 F.3d 403, 414 (2d Cir. 1995) ("[T]he Due Process Clause [does not] require a hearing in every instance; a hearing is required only if the court has 'reasonable cause' to believe that the defendant has a mental defect rendering him incompetent.") (citations omitted).
A defendant's competency is determined based on whether "he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam) (quotation marks omitted); accord United States v. Morrison, 153 F.3d 34, 46 (2d Cir. 1998). There are "no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed,"Drope, 420 U.S. at 180, but a court may consider factors such as the defendant's behavior and demeanor at trial, medical opinions submitted to the court, and the opinion of the defendant's attorney. Johnson v. Keane, 974 F. Supp. 225, 231 (S.D.N.Y. 1997) (citing Drope, 420 U.S. at 177 n. 13, 180); accord Kemp, 2005 WL 107096, at *3.
A defendant's odd or even bizarre behavior will not trigger a trial court's duty to order a competency examination or hearing as long as it does not indicate that the defendant is unable to understand the proceedings or communicate with defense counsel.See Kemp, 2005 WL 107096, at *4 n. 9 (defendant's "odd" demeanor during trial, including glaring and making faces, did not create reasonable grounds for the court to order a competency examination where defense counsel and judge determined at the outset that an examination was not necessary and defense counsel explicitly based his opinion on the defendant's ability to understand the proceedings against him); Galandreo, 2003 WL 23198790, at *19-*20 (trial court not required to order a competency hearing where prior examination by two psychiatrists found that petitioner's psychological disorders did not render him incompetent to stand trial, and petitioner's bizarre behavior and speech "were not so disruptive, outrageous or incoherent" as to require the court to order a competency exam). The fact that a defendant's medical records reflect that he may have suffered from a mental illness or mental disability also does not oblige a court to order a competency hearing or examination unless the medical records reflect a condition that affects the defendant's competency at the time of trial or there is other evidence of incompetence. See Medina, 2004 WL 2088578, at *15-*19 (defendant's due process rights not violated by the trial court's failure to order a competency exam where the defense attorney — believing that his client was capable of standing trial in spite of a history of psychological problems — did not request a competency examination and the trial court had no other evidence suggesting that the defendant was incompetent); Lopez v. Walker, 239 F. Supp. 2d 368, 374-75 (S.D.N.Y. 2003) (evidence of defendant's prior suicide attempts, hospitalization, and use of psychiatric medication did not obligate the court to further inquire into defendant's competence where defendant appeared to be coherent and rational and defense counsel did not express any concern about his competence).
The showing that must be made to demonstrate that a trial court has improperly failed to request a competency exam or conduct a hearing is illustrated by Harris, 346 F.3d at 349. In Harris, the habeas petitioner had a limited intellectual capacity prior to trial, was shot in the head three months prior to trial while attempting to escape from custody, and was taking medication for his head injury. Id. at 334-35. The Second Circuit denied habeas relief because there was no documentation describing the effects of the head injury, the trial court accepted a doctor's conclusion that the defendant was of "low-normal" intelligence, and because the trial judge — who observed the defendant confer with his attorney during the trial and also questioned him himself — did not accept defense counsel's protestations that the defendant was not competent to continue with the trial. Id. at 352-56. In addition, although defense counsel complained that the defendant was uncommunicative at a Sandoval hearing, he did not renew a motion for a competency hearing. Id. at 356.
By contrast, where habeas petitioners have successfully challenged their convictions based on an inadequate competency determination, the petitioners have shown that the trial court had medical reports containing evidence of the incompetency at the time of trial and that the behavior of the defendant should have alerted the court to the issue of competence. For example, in Silverstein, 706 F.2d at 369, the Second Circuit concluded that the trial court's decision to ignore the reports of two psychiatrists who found the defendant to be incompetent, accepting instead a report from a third psychiatrist — who found the defendant competent based on a fifteen minute interview — violated the defendant's due process rights. The Second Circuit concluded that the fact that two psychiatrists found the petitioner to be incompetent gave reasonable grounds to doubt his competency, especially in light of the fact that the trial court had a pre-sentence report which listed his history of institutionalization and contained earlier diagnoses that he was mentally retarded and possibly schizophrenic. Id.
Similarly, in Johnson, the district court granted a habeas petition because, while the reports of two psychiatrists concluded that the defendant was competent, one noted that he suffered from "a chronic history of psychiatric illness which could deteriorate at any time." 974 F. Supp. at 227, 232 (internal citation and quotation marks omitted). In addition, defense counsel requested a competency hearing eight times, noting twice at trial that his client was "speaking irrationally" and was unable to follow the proceedings, id. at 231-32, a psychiatrist found the defendant "delusional," id. at 228, 232, and the defendant engaged in irrational behavior during trial, such as wearing the same shirt to trial that he wore on the day of his arrest, id. at 232.
In the instant case, even assuming that Castrillo suffered mental impairments as a result of his car accident that continued to affect him at the time of the trial, he has not presented any evidence establishing that the trial court had reasonable grounds to believe that he was entitled to a competency hearing.
We first note that Castrillo's attorney was fully aware of Castrillo's car accident and head injury. See Affirmation, dated July 1, 2005 ("Wohlford Aff."), ¶ 4 (Docket # 16). Castrillo also told his attorney that he had some mental disabilities, and was suffering from headaches and stress. Id. ¶ 5. Despite any difficulties that the head injury may have caused, the attorney was able to communicate with Castrillo about the case, and Castrillo was able to assist in his own defense. Id. ¶ 3. Castrillo also did not engage in any bizarre behavior or appear delusional. Id. ¶ 6. Thus, defense counsel never requested a psychiatric examination. Id. ¶¶ 4, 6. The fact that Castrillo's attorney — the person who observed him the most closely and spoke with him most frequently — never suggested that his client was incompetent strongly suggests that Castrillo was not incompetent. See United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986) (the "failure by trial counsel to indicate the presence of such difficulties provides substantial evidence of the defendant's competence"), cert. denied, 479 U.S. 1036 (1987); accord United States v. Quintieri, 306 F.3d 1217, 1233 (2d Cir. 2002), cert. denied, 539 U.S. 902 (2003); Medina, 2004 WL 2088578, at *14.
Because several paragraphs in Wohlford's affidavit are numbered incorrectly, we refer to paragraphs by the numbers that would have been used had the paragraphs been numbered in sequential order.
Castrillo's medical records were never even presented to the trial court and thus could not have alerted the court to any need for a hearing. Notably, the records do not appear to cast doubt on his competence given that, as the trial court found, the records do not relate to any treatment Castrillo was receiving at the time of trial or during the time period immediately prior thereto. See 440.10 Motion (annexing medical records); 440.10 Decision at 2-3.
The record reflects only one occasion in which the trial court had any indication that Castrillo might have had any mental deficits. After explaining that he had been in a coma following a car accident, Castrillo stated:
. . . I'm having terrible, terrible mental difficulties, you know, which more or less being attacking at the point [sic], you know, when I go to sleep and wake up. I got a great disability.
So, more or less, I would like you, as the Judge that I'm being referred to, to more or less, if you may, if you call my accident attorney to verify what I just explained to you that. I have a terrible mental disability. I've been in a coma. At times I don't even remember my name. . . .
(Tr. 181). When asked by the court what he wanted to do, Castrillo stated that he wanted the court "to verify this information that I'm disabled at this point. For tomorrow, yeah, that right now I'm having difficulty with my head. I have a bad headache." (Tr. 181-82). The court responded, "Well, we'll see if we can't end a little early tonight so you can get some better sleep this evening." (Tr. 182).
This colloquy is hardly sufficient to trigger the trial court's duty to conduct a competency hearing or examination. Indeed, it appears that the trial judge, who had the opportunity to observe Castrillo during the entire trial, did not find any reason to interpret his statement as anything more than a plea to take a break from the proceedings for the day. Even if the statement could be read to suggest that Castrillo was unable to follow the proceedings, we would defer to the trial court's implicit finding that Castrillo only needed rest. See Harris, 346 F.3d at 354 (deferring to trial court's interpretation of the defendant's strange responses to the court's questions as an attempt to exaggerate his mental difficulties as the trial court was in the best position to evaluate the defendant's demeanor); see also Vamos, 797 F.2d at 1150 ("[D]eference is owed to the [trial] court's determinations [about a defendant's competence] based on observation of the defendant during the proceedings.") (citations omitted). For the same reason, we must reject Castrillo's suggestion that the court should have known that he was mentally impaired because he was "gazing off into space" during the trial.See Petition at 7.
In sum, the trial court's failure to order a competency exam did not violate Castrillo's due process rights.
B. The Sandoval Claim
New York law permits the court to determine in advance of trial the extent to which a prosecutor may impeach a defendant through admission of evidence of the defendant's prior crimes or other bad acts. See People v. Sandoval, 34 N.Y.2d 371 (1974). Because Castrillo had a history of arrests and misdemeanor convictions, the trial judge held a Sandoval hearing prior to trial to decide which crimes could be admitted to impeach him should he testify. (See Tr. 2-21). The prosecutor sought to introduce evidence of Castrillo's three prior misdemeanor convictions involving charges of assault, resisting arrest, attempted grand larceny, and criminal possession of stolen property, among other charges. (Tr. 3-7, 13-19). The prosecutor also asked to be allowed to introduce evidence of Castrillo's use of numerous social security numbers and aliases and his record of bench warrants. (Tr. 7, 10-11). The court ruled that the prosecutor could inquire into the details of Castrillo's arrests in 1987, 1990, 1993, and 1994, as well as evidence of his use of aliases and social security numbers, but could not inquire into the details of his conviction in 1985 for larceny or any of his bench warrants. (Tr. 11-12, 19-21).
Castrillo agues that the trial court erred in permitting the prosecutor to introduce evidence of his criminal history because it failed to balance the prejudice to Castrillo against the probative value of the evidence. Petition at 7. The respondent argues that Castrillo's claim is unexhausted because he failed to present the constitutional nature of his claim on appeal. Resp. Am. Mem. at 4. We need not decide whether Castrillo properly exhausted this claim as it may properly be denied on the merits. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
Case law is clear that where, as here, the habeas petitioner did not testify at trial, he is barred from challenging the trial court's ruling regarding impeachment evidence. See, e.g., Luce v. United States, 469 U.S. 38, 43 (1984) ("[T]o raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify."); Shannon v. Senkowski, 2000 WL 1683448, at *6 (S.D.N.Y. Nov. 9, 2000) ("Second Circuit law has created a bright-line rule . . . barring habeas relief for allegedly erroneous Sandoval rulings in instances where a defendant elects not testify."); McEachin v. Ross, 951 F. Supp. 478, 481 (S.D.N.Y. 1997) ("[A] habeas petitioner's failure to testify at trial is 'fatal to any claims arising out of a Sandoval type ruling' [because] absent such testimony, a court has no 'adequate non-speculative basis upon which to assess the merits of that claim.'") (quoting Peterson v. LeFevre, 753 F. Supp. 518, 521 (S.D.N.Y. 1991)). Accordingly, this claim for relief must fail.
C. Ineffective Assistance of Counsel
Castrillo next argues that his counsel's performance was constitutionally deficient. Petition at 8-10. He asserts that his attorney: (1) continued with the trial although Castrillo indicated that he wanted to accept the prosecutor's offer of a plea deal, id. at 8; (2) raised but abandoned a challenge underBatson v. Kentucky, 476 U.S. 79 (1985), id. at 10; and (3) failed to notice that Castrillo suffered from a mental disease or defect that kept him from understanding the proceedings and did not request a CPL § 730 exam, id. at 8-9.
Castrillo does not now allege that his counsel improperly alluded to Rosario's claim that he had been previously robbed by Castrillo, although he had initially raised this claim on direct appeal. See Pet. App. Br. at 14-15.
The Sixth Amendment guarantees not merely the right to counsel, but the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984) ("'[T]he right to counsel is the right to the effective assistance of counsel.'") (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970)). As the Supreme Court explained in Strickland, there are "two components" to making an ineffective assistance of counsel claim. First, the defendant must show that his counsel's performance "fell below an objective standard of reasonableness."Id. at 687-88. Next, the defendant must show that he was prejudiced by the deficient performance of counsel. Id. at 687. This second prong "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Id.
In reviewing an ineffective assistance of counsel claim, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689. Furthermore, where, as here, a petitioner is challenging his attorney's strategic decisions, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
The Appellate Division reviewed Castrillo's claim on the merits and determined that Castrillo "received meaningful representation" based on the available record. Castrillo, 260 A.D.2d at 280. The question for this Court, therefore, is not whether the Appellate Division incorrectly applied Strickland to the facts of Castrillo's case, but only whether the state court applied Strickland "in an objectively unreasonable manner." Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam); accord Eze v. Senkowski, 321 F.3d 110, 124-25 (2d Cir. 2003).
Each of Castrillo's claims will be addressed in turn.
1. Plea Offer
In his Petition, Castrillo contends that counsel failed to communicate his acceptance of a plea deal to the prosecutor and the judge. Specifically, he states:
Petitioner['s] counsel, when petitioner appeared in Court on the last day before trial, told petitioner that [t]he District Attorney was offering a sentence of one and one quarter to four years in consideration of a plea of guilty and went on to tell petitioner, "You better take it. It's their last offer." Petitioner agreed to the plea. After the agreement was reached, petitioner['s] counsel and the District Attorney approached the bench and spoke with the Judge Stadtmauer.
Thereafter, a date was set for petitioner to return to the court; a date petitioner thought was for sentencting [sic]. Upon petitioner['s] return to the Court, he found that he was not there to accept a sentence of one and one quarter to four years in consideration of his plea of guilty, but instead [was] there to being [sic] picking a jury for trial.
Petition at 8.
The respondent argues that this claim is unexhausted. Resp. Am. Mem. at 14-15. It is not necessary to reach this argument as we may deny it on the merits. See 28 U.S.C. § 2254(b)(2). We note, however, that respondent is incorrect in stating that "petitioner did not make [the] assertion [regarding the plea offer] in state court." Resp. Am. Mem. at 14-15. In fact, Castrillo raised it in his 440 Motion in virtually the identical language used in his Petition. See 440.10 Motion at 4-5.
An attorney's failure to communicate a plea offer to his or her client or advise the client about the merits and risks of accepting or rejecting an offer may constitute ineffective assistance of counsel. See, e.g., Pham v. United States, 317 F.3d 178, 182-83 (2d Cir. 2003); Purdy v. United States, 208 F.3d 41, 44-45 (2d Cir. 2000); Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999); Jamison v. Senkowski, 2001 WL 246397, at *4-*5 (S.D.N.Y. Mar. 13, 2001). Failing to communicate a client's acceptance of a plea offer also "present[s] a serious ineffective assistance question." United States v. Gonzalez-Vazquez, 219 F.3d 37, 41 (1st Cir. 2000) (citing Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996)).
Here, Castrillo has presented no evidence in support of his claim beyond the bare allegations contained in his 440 Motion and his habeas petition. Nor does it appear that he ever requested a hearing on this issue. In light of the lack of evidence, this Court ordered Castrillo's trial counsel, Wohlford, to submit an affidavit addressing Castrillo's claims. See Order, filed June 27, 2005 (Docket #14); see also Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998) (per curiam) ("[A] district court facing the question of constitutional ineffectiveness of counsel should, except in highly unusual circumstances, offer the assertedly ineffective attorney an opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or briefs.").
Wohlford duly submitted an affidavit to the Court. See Wohlford Aff. In his affidavit, Wohlford directly contradicts Castrillo's version of the facts, stating:
I do recall negotiating a plea bargain for Mr. Castrillo prior to the case going to trial. I informed him of the plea bargain and tried to persuade him to take it. I was unsuccessful in my persuasion. Judge Stadtmauer also spoke to the defendant about the offer. Mr. Castrillo decided to reject the plea offer and the case proceeded to trial.Id. ¶ 7. Castrillo was granted an opportunity to respond to Wohlford's affidavit but has failed to submit any response.
Both Castrillo and his counsel agree that a plea bargain was offered. They disagree solely on the question of whether Castrillo agreed to take the offer. Where, as here, a habeas court is faced with self-serving allegations that are contradicted by a credible affirmation by a trial attorney, it may choose to credit the attorney and dismiss the ineffective assistance of counsel claim without further hearings.See, e.g., Green v. Portuondo, 2003 WL 23199872, at *14 (E.D.N.Y. Oct. 27, 2003) (rejecting petitioner's allegation that an attorney failed to advise him of the consequences of rejecting plea offer as not credible and unsupported by any affidavit from his trial attorney in support of the claim); Davila-Bajana v. United States, 2002 WL 2022646, at *4 (E.D.N.Y. June 26, 2002) (rejecting petitioner's claim that attorney ignored request to file a notice of appeal where defense attorney's affidavit contradicted petitioner's claim); Davison v. United States, 2001 WL 883122, at *7-*8 (S.D.N.Y. Aug. 3, 2001) (blanket assertions that trial counsel deprived petitioner of the right to testify rejected in absence of objective evidence to support the claim or discredit trial counsel's sworn statement that he explained the right to testify); see also Chang v. United States, 250 F.3d 79, 81-82, 85 (2d Cir. 2001) (affirming dismissal of ineffective assistance of counsel claim in § 2255 petition where "the record was supplemented by a detailed affidavit from trial counsel credibly describing the circumstances concerning appellant's failure to testify");McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998) (affidavit from petitioner's trial counsel — which was supported by the record at trial — was sufficient to discredit petitioner's allegation that counsel failed to inform him of the right to appeal).
Here, there are sound reasons to reject Castrillo's assertions apart from their self-serving nature. First, Castrillo himself concedes that his attorney urged him to accept the offer. See Petition at 8. Thus, it simply makes no sense that Wohlford would have chosen to take the case to trial if Castrillo had actually told him that he was agreeing to a plea bargain. Second, there is no record — or even an assertion in Castrillo's submissions — that Castrillo at any time informed the trial judge that he wished to take a plea offer. The start of trial would have been an obvious time to make such an assertion, yet Castrillo said nothing at that time. Notably, Castrillo expressed himself at least one other time directly to the judge on the record. (See Tr. 181-82). Third, Wohlford specifically stated at the sentencing hearing as follows:
The Court's been reminded by the District Attorney that [Castrillo] did turn down certain plea offers and that's true, but my client should not be overly punished or severely punished merely because he exercised his right, his Constitutional right, to be tried in front of a jury of his peers. . . .
(S. 9). Following Wohlford's presentation at the sentencing hearing, the trial judge asked Castrillo "would you like to make a statement, sir?" and Castrillo responded "No." (S. 10). It strains credulity to believe that Castrillo would let pass his attorney's assertion that he turned down a plea offer without correcting it had the attorney misstated the facts. Finally, Castrillo has not even availed himself of the opportunity to rebut the assertions of fact made by Wohlford in his affirmation submitted to this Court, including the assertion that the trial judge discussed with Castrillo his decision to reject the offer.
Accordingly, there is no need for live testimony on this question. Because there is no support for Castrillo's assertion that he communicated to his attorney that he wished to take the plea offer, his ineffective assistance claim on this ground must fail.
2. Batson Claim
Castrillo's Batson claim is premised on his incorrect reading of the record. Castrillo argues that the prosecutor was improperly challenging white jurors. Petition at 10. In fact, it was the prosecutor who complained that Castrillo's attorney was challenging white jurors. (Tr. 103-04). Thus, his attorney did not improperly fail to pursue a Batson claim.
3. Failure to Raise Castrillo's Incompetency
Castrillo asserts that his trial counsel should have alerted the court to the fact that he suffered from a mental disease or defect and ordered a CPL § 730 exam. See Petition at 7, 9. Castrillo claims that it was "self-evident" that he suffered from a mental disease or defect, and that his "actions during trial . . . and at sentencing" should have indicated that he was incapacitated. Id. at 7. He also notes that he told his attorney that he had severe headaches and was unable to concentrate. Id. at 7, 9. Despite his complaints, however, Castrillo was merely "allowed to sit . . . gazing off into space or holding his hands while trying not to think about the pain."Id. at 7.
In his appellate brief, Castrillo also argues that his attorney failed to convey his disabilities to the jury and did not utilize information concerning Castrillo's impairment during sentencing. See Pet. App. Br. at 16-17. These claims are not raised in the Petition, however.
As discussed in Section III.A.2 above, Castrillo's former trial counsel affirms that he did not believe Castrillo suffered from a mental disease or defect at any time before or during the trial. Wohlford Aff. ¶ 3. He states that he was able to communicate with Castrillo about his case and "discuss legal matters thoroughly," noting in particular how Castrillo provided him with information about previous encounters with Rosario which he used as part of his defense strategy. Id. Wohlford observes that, although he was aware of Castrillo's prior head injury and was told by Castrillo that he was suffering from some mental disabilities and headaches, Castrillo never mentioned that he wished to speak to a psychiatrist, his behavior was not "bizarre," and Castrillo did not appear to be delusional. Id. ¶¶ 4-5. Finally, Wohlford states that, although he has had clients examined pursuant to CPL § 730 in the past, Castrillo did not appear to require such an exam. Id. ¶ 6. These assertions are corroborated by his statements at sentencing acknowledging Castrillo's mental health problems but stating that they did not rise to the level of "mental disease" or "mental defense," and that Castrillo "always clearly understood this process." (S. 8-9).
Given the lack of evidence showing that Castrillo suffered from any significant mental disability, Wohlford did not provide ineffective assistance to Castrillo by choosing not to request a competency exam. Castrillo's conclusory assertions that it was "self-evident" that he had a mental disease or defect or that "his actions during trial . . . should have alerted the court to the possibility that [he] was an incapacitated person," Petition at 7, are simply insufficient to support his claim that counsel should have acted differently with respect to his incapacity. Notably, the only documentary evidence regarding Castrillo's condition were medical reports from an accident that occurred more than a year prior to the events in question. Even assuming, as Castrillo alleges, that Wohlford saw these medical reports, we cannot conclude that it was objectively unreasonable for counsel not to request a competence exam in light of his experience interacting with Castrillo, an interaction that led him to conclude that Castrillo was able to follow the proceedings and participate in his own case. See, e.g., United States v. Diaz, 176 F.3d 52, 113 (2d Cir.) (no violation of Strickland where attorney did not present evidence that a client had been diagnosed as incompetent where other evidence suggested that client was feigning incompetence), cert. denied, 528 U.S. 875 (1999); Powell v. United States, 2000 WL 1047810, at *5-*6 n. 6 (W.D.N.Y. July 26, 2000) (counsel's awareness that defendant may have had some mental deficiency but failed to raise an insanity defense insufficient to find Strickland violation). Thus, Wohlford did not act ineffectively by failing to pursue the matter further.
D. Excessive Sentence
Castrillo argues that his sentence is excessive and should be reduced in the interests of justice. Petition at 11-12. Because Castrillo failed to raise this claim in federal constitutional terms, in his appellate brief, see Pet. App. Br. at 19-23, it is arguably unexhausted. See, e.g., White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam) (claim that sentence was unconstitutional was not exhausted because petitioner did not claim that sentence implicated constitutional concerns in state courts); Medina v. Greene, 2004 WL 2809196, at *4 (S.D.N.Y. Dec. 7, 2004) (appeal in the "interests of justice" does not present the claim in constitutional terms); Parsons v. Walsh, 2003 WL 21143074, at *8 (E.D.N.Y. May 12, 2003) (focus only on state law in brief and absence of facts "within the mainstream of constitutional litigation" failed to alert state courts to constitutional nature of claim).
In any event, the claim is easily dealt with on the merits. Because a habeas court must grant considerable deference to legislatively mandated terms of imprisonment, successful challenges to sentences are "exceedingly rare." Hutto v. Davis, 454 U.S. 370, 374 (1982) (per curiam) (citation omitted); see also Solem v. Helm, 463 U.S. 277, 290 (1983) ("Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals."). Indeed, the Second Circuit has broadly stated that "[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law."White, 969 F.2d at 1383 (citation omitted). Castrillo was convicted of Robbery in the First Degree. At the time of his offense, Castrillo faced a minimum sentence of 5 years and a maximum sentence of 25 years. New York Penal Law §§ 70.02(3)(a), 70.02(4)). Castrillo was sentenced to a term of only 6 to 18 years, (S. 10-11), well within the range prescribed by New York law.
Castrillo's sentence also comports with the requirements of the Eighth Amendment, which prohibits sentences that are "disproportionate to the crime committed" regardless of whether they are within the limits permitted by state law. Solem, 463 U.S. at 284. While the Supreme Court has outlined factors that may be considered in deciding whether a penalty is grossly disproportionate to the offense, this is not one of the "rare" cases where the "reviewing court . . . [is] required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate." Id. at 290 n. 16. It is sufficient to state that a sentence of 6 to 18 years is not constitutionally disproportionate for a conviction for two counts of robbery during which a weapon was used.
Conclusion
For the foregoing reasons, Castrillo's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections.See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. George B. Daniels, 40 Centre Street, New York, New York 10007, and to the undersigned at the same address. Any request for an extension of time to file objections must be directed to Judge Daniels. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).