Opinion
02-cv-6799 (jbw), 03-misc-0066(jbw)
October 31, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed on December 26, 2003. It was transferred from the Northern District of New York, Petitioner (sometimes referred to as defendant) claims:
The Trial Court, violated his Federal Rights by failure to order a second 730 Exam depriving him from due process at law and fair trial. Petitioner's repeated, irrational out-burst at trial, his delusional testimony, his obvious inability to comprehend the Court and his Attorney's explanations, his documented refusal to take his prescribed psychotropic Medication, and his diagnosis of paranoid schizophrenia showed that he did not understand the proceeding and could not assist in his own defense and then the prosecution argued in summation that petition obvious mental abnormality was further evidence of his guilt. U.S. Const. Amend VI, XIV; Const; Art, 1 Section 6.
The Trial Court prejudiced his Federal Right by failure to order to order a Psychological Exam, even before the sentence. The Supreme Court granted certiorari to resolve difficult questions of State Federal relations posed by rulings requiring a hearing to determine whether state prisoner had been denied due process by the state court's failure to conduct a hearing. The New York Statute may be construed to embrace a person who suffered irreversible cessation of the entire brain including the brain stem, and has pain, upon proved constitutional right abridgement by the Trial Court's failure to order Sua Sponte an examination. Const; U.S. Supreme Court, Constitutional Law, Pate Decision, VI and XIV Amendments . . . He apparently also contends; his punishment was cruel and unusual, the charge was improper, and the evidence was insufficient.
The evidence supports the following statements:
Petitioner's conviction arises from an incident on a Saturday afternoon on April 17, 1999. Petitioner flagged down a livery car and climbed into the back passenger seat along with a golf bag, requested that the driver take him to an unspecified location. He then brandished a sawed-off .22 caliber rifle, threatening to shoot the driver if he did not turn over his money and car keys. After pleading for his life and assuring compliance, the driver pulled over, parked the vehicle and fled, still clutching the car keys; he summoned help from a driver stopped in traffic behind him. Meanwhile, petitioner exited the livery car and began to walk away on foot with his bag, giving the driver the opportunity to radio his base regarding the events. Police arrived within minutes and petitioner was soon apprehended after being pointed out by the driver on the scene. The loaded rifle, along with other items, were recovered at the side of the road.
Petitioner took the stand, using a Spanish interpreter (although he sometimes spoke in English), He gave a long largely uninterrupted statement to the jury, (T4 at p. 473). He began as follows:
Good afternoon, ladies and gentlemen. My name is Tom Galandreo. I'm convicted of attempted robbery and possession of a weapon. [Court corrects petitioner in that he is the accused, not convicted]. I am accused. That is what I'm saying. I hope that none of you will take it personal, and I hope that you'll have some compassion with your decision. I am a hard-working guy, I have struggled to learn. Now I have learned. I do good work, construction and cars. I rebuild buildings and cars, I do science work against the sun, . . . I follow the traditions of my family and work in political things, My real name is J.M. Alvarez Taylor,
Petitioner then discussed the events of April 17th. He stated that on that day, he cashed his check at the bank, paid the rent, and gave the vest to the his girlfriend. (Petitioner: T4 at p. 474). Since he was without any money, he "had to go to someone to charge them for some money, because of the irresponsibility of the Police Department in New York, (sic)" (Petitioner: T4 at p. 474). Petitioner changed his mind "because not everyone in New York is the same" and, instead, "decided to go to the park to refresh [him] self a little and to dispose of the [fire] arm and not get [his] family in anymore problems. (T4 at p. 474).
Petitioner said that he was standing in front of the park on Cypress Street when Mr. Valdivia called him over to his livery car and asked him where he wanted to go. (Petitioner: T4 at pp. 474-475). Petitioner climbed into the car and told Valdivia that he wanted to go to Flushing Park, (Petitioner: T4 at p. 475), The two conversed for a while — Valdivia told him that he was from Nicaragua. Petitioner continued, "then I decided [that] because of all the problems that I had in my head, I decided to look for my wallet in my bag, in my pocket. But I didn't find my wallet in my pocket. So I decided to look in the golf bag. When 1 put my hands and I pulled part of the rifle came up. And any way. Then he parked his car and he got out, I got out also." (Petitioner: T4 at p. 475).
When petitioner looked around, he noticed that Valdivia was talking to "three guys that had been driving a red car" but "didn't give it any importance" and "continued walking," (Petitioner; T4 at p. 475), Valdivia began following him and telling him that he was going to call the police, (Petitioner: T4 at p. 475). Petitioner "decided to run," and noticed that the police were behind him. (Petitioner: T4 at 475). Petitioner put the golf bag down in front of a building and climbed up on a roof to run away, (Petitioner: T4 at p 475). He said that he ran "because [his] company was moving to Miami and [he] didn't want to miss out on the opportunities and then [he] ended up arrested," (Petitioner: T4 at p. 475).
Petitioner then said, "I wanted to tell you [the jury] something . . . about the discrimination and irresponsibility of the Police Department of the City of New York. . . . In 19921 received 25 stitches in my head. The police arrived, the ambulance arrived . . . They never arrested the one that had injured me. . . . In 1993 I was arrested because of domestic violence. I was sentenced to 90 days, and they left me for 11 months" (Petitioner; T4 at p. 476), Petitioner also related accounts of a former employer owning him money for painting two apartments, and how he had worked "security for a real estate, (sic)" (Petitioner: T4 at pp, 476-478). His girlfriend's house had burned down at some point and, as a result, petitioner was without a place to live, The "only thing [he] had was [his] pants and the golf bag and the rifle." (Petitioner; T4 at p. 478). He tried to get help from a friend, but the friend turned him down, so petitioner rented a room in a building where, in one week's time, four men died right in front of the building, (Petitioner; T4 at p. 479). As petitioner's "company was moving to Miami" he would soon "have a house and work in Miami," and, therefore, he had "no reason to go rob anybody — But to go throw away the rifle, yes, (sic)" (Petitioner: T4 at p. 479), Petitioner also told the jury that when he was arrested his arm was broken and that "there was an intent to kill [him] like a dog, and they pressure [his] mind" (sic)" (T4 at p. 479). Then petitioner stated,
I would like you to know one thing, I am not garbage. I'm not God either, I accept responsibility, I'm working to make an international plan to be able to bring free trade in American, to give support. 1 work for God. I have so many plans in this life because the work is not the way we think it is. I accept responsibility, They're confused with me, (sic) I'm not the bad one. I'm the good one. God has helped me because Mr. Murphy didn't fill out all his papers and I expect compassion from your decision. 1 have plans and collections and antiques in New York, and sending me to a psychiatric hospital I lost a fortune, (sic) It was to help in this world. There were books, movie and tapes. They wee going to be reproduced in the name of Flores Alvarez Taylor to help all who might need help in this life.
Yes, I never intended to rob Alberto Valdivia, but, Alberto Valdivia, he doesn't drive a Taxi, he drived (sic) an Expo car, a Lincoln, 90, brand new. He didn't decide to buy my golf bag when he called me, then why did he put it in his trunk? (sic) Why did he put it in the back seat? When he had a brand new car? I never intended to rob him, I hope that you won't hold it against me. . . . I wait on your decision.
(Petitioner: T4 at pp. 479-480).
On cross-examination, petitioner admitted that on that day he "had no money," but decided to get into the cab, anyway, (Petitioner; T4 at p. 481). He then stated that he did have money that day, but that upon searching the golf bag while he was in the cab he discovered that "[his] wallet was not there." (Petitioner; T4 at pp. 481-482), Petitioner testified that on April 17, 1999, he was wearing a brown leather jacket and had a golf bag which contained a rifle. (Petitioner: T4 at p. 483). Petitioner was not sure if the rifle was loaded and his intention was to throw the rifle away in the park. (Petitioner; T4 at p. 484). He said, "because of discrimination I was in possession of a weapon, but the weapon was used for security and then after so many problems I wanted to throw it away and now I'm arrested," (Petitioner: T4 at p. 48(5), Petitioner repeated that his name and the name of his "organization" was J.M, Alvarez Taylor, (Petitioner: T4 at p. 491). When asked about being interviewed by the Criminal Justice Agency, he responded, "I remember when they took me to a dark room and told me if I didn't say I was guilty of fifteen robberies that they were going to hit me and put electric things in my back." (Petitioner; T4 at p. 495). Petitioner concluded by saying that he never stuck a gun in Mr. Valdivia's ribs and that he wanted the People to produce medical records or a photograph of the injury that Valdivia would have sustained if he did stick a rifle in his ribs — (Petitioner; T4 at p. 509).
Indictment. Pre-Trial Hearings
By indictment number 1097/99, petitioner was charged with two counts of Attempted Robbery in the First Degree, pursuant to P.L. § 110/160.15(3), one count of Criminal Possession of a Weapon in the Fourth Degree, pursuant to P.L. § 265.01(2), and one count of Failure to Obtain a Permit for Possession and Purchase of Rifles and Shotguns, pursuant to Administrative Code § 10-304. (Resp. Decl. Exh. B at p. 1; Exh. G at p. 1).
A combined Wade/Mapp hearing on October 19, 1999 was conducted to determine the admissibility of on-the-scene identifications of petitioner as the assailant, as well as the admissibility of evidence seized from petitioner at the time of his arrest including a loaded shotgun, (T1). The motion was denied in its entirety. (Resp, Decl., Exh. B at p. 4),
Competency Examinations
On December 14, 1999, the trial court ordered a competency examination, pursuant to Article 730 of the New York Criminal Procedure Law (C.P.L.), (Resp. Decl., Exh. B at p. 4). On December 17, 1999, Dr. Richard Weidenbacher reported that petitioner understood that a "judge presides over court impartially and the prosecution is done by the district attorney." He noted that petitioner "clearly understands the accusation against him" and has "directed counsel to negotiate a. plea" of two years' confinement. Petitioner was "confident he would be acquitted of Attempted Robbery by a jury" since "the other man panicked when he eyed the rifle." He acknowledged, however, that the rifle was around. Weidenbacher reported that petitioner had a "language problem or barrier" and suggested that petitioner "be provided with an interpreter during conference with counsel, and during court proceedings." Overall, Weidenbacher reported that petitioner "appear[ed] competent and seem[ed] indeed eager to proceed to court, albeit tense and covertly apprehensive," and that he was "fit to proceed" to trial. (Resp, Decl., Exh. B [Report of R, Weidenbacher]).
Five days later, on December 22, 1999, Dr. Ruth Finch examined petitioner and reported that petitioner knew that the judge's function "is to do justice" and that his lawyer would assist him in court, When asked, petitioner stated that Mr. Valdivia was against him, but when Dr. Finch explained that the District Attorney was against him, he stated that he understood, Petitioner acknowledged that carrying a gun without a license is unlawful, but maintained that he did not try to rob Valdivia, Dr. Finch also reported that during the interview petitioner made reference to "J.F.A.T.," which was "[his] seal," and told Finch not to try to "touch [his] dark side. . . . [and to] resolve things peacefully," He added, "Let's do things right because I can be bad, Now I am asking for help because I'm an innocent man." Petitioner also maintained that he was "not a crazy guy," but he stated that, "when I lose [the] trial I might kill myself." Overall, Finch reported that petitioner was "very easily irritable, having low frustration tolerance and poor impulse control" and she diagnosed petitioner as "R/O schizophrenia, paranoid type and personality disorder." Finch also noted that petitioner had been prescribed anti-psychotic mediation but refused to take it. In all, she, too, found petitioner to be "[f] it to proceed" to trial. (Resp. Decl., Exh. B at exhibit b [Report of Dr. Finch].
The result of the competency examinations by Finch and Weidenbacher was not disputed and a hearing was waived. (Resp. Decl., Exh. A at p. 5; Exh. B at p. 6). The court recommended that an interpreter be employed for petitioner's benefit during trial, (Resp. Decl., Exh. A atp. 5), Jury selection was scheduled to begin on February 1, 2000, (Resp. Decl., Exh. B at p. 6), Trial
Petitioner proceeded to trial as scheduled on February 1, 2000, (T2), Just prior to the commencement of voir dire, defense counsel indicated for the record that she had discussed with petitioner his right to be present at all bench conferences, which he could waive, and that he wished to be present during those discussions, (T2 at p. 6), Counsel then added, "I have explained to my client many times that he has a choice of either going to trial or taking a plea, I also explained to him that the plea offer by the D.A. is three and a half years. If he goes to trial and he wins, he's going home. If he goes to trial and loses, the likelihood is he's going to get more than three and a half years. I tried to explain that to him, I want it on the record that he understands very clearly at the end of the case whatever happens." (T2 at p. 7), Judge Rosengarten then asked petitioner, "Do you understand what your attorney just said?" to which petitioner responded, "Yes." (T2 at p. 7).
Petitioner asked the court if he could "ask questions and give testimony about what is happening." (T2 at p. 12), Judge Rosengarten explained that his attorney represented him and that she would be directing the questions towards the jury panel, but that petitioner could give him attorney a list of proposed questions that he wanted him to ask, (T2 at p. 12). The judge also explained that petitioner had the right to testify but suggested that petitioner discuss this with his attorney before doing so. (T2 at p. 13), Petitioner stated that he had already talked to his attorney and that he "would like to ask the questions and would like to state whatever I can." (T2 at p. 13), The court explained to petitioner that he could not ask the questions directly, but that he could assist his attorney in her line of questioning, (T2 at p. 13). Petitioner said that he wanted the People to bring in photographs "of oars, because those cars are not taxis, and 1 want the testimony of whoever is accusing me. (sic)" (T2 at p. 13), The court explained that those accusing him would be in court to testify, (T2 at p. 13).
Petitioner mentioned that the police paperwork contained blanks and that the testimony of the police officer and the indictment were unsigned; petitioner again demanded photographs of "the cars." (T2 at pp, 14-15), The People told the court that they did not have photographs of any car. (T2 at p. 15), Petitioner also requested that he be supplied with the officer's "testimony when he went to make a police report at the precinct for a report to be filled out (sic)," and the court explained that the police officer would testify on the stand and that he could suggest questions for his attorney to ask when it was time, (T2 at p. 15). The trial court then reminded petitioner that if he had any other questions he could always ask the court, (T2 at p. 15), Petitioner replied, "That's fine." (T2 at pp. 15-16). The jurors were brought into the courtroom and jury selection began. (T2al p. 16).
The next day, immediately before opening statements and out of the presence of the jury, petitioner stated that he "wante[ed] to present these papers, these reports during the trial." (T3 at p. 251). The court said that his attorney would handle it, but petitioner insisted that the court permit him to present them to the jury. (T3 at p. 251), The court then explained that the judicial system in New York did not permit "dual representation" and he was "there to assist her (his attorney) and she [was] there to assist [him]." (T3 at p. 251). Petitioner then stated that "the complaint written out by the policeman [wa]s unsigned, so invalid (sic)." (T3 at p. 252). Defense counsel clarified that the complaint that petitioner was referring to was, in fact, filled out by the People and had nothing to do with the police officer, (T3 at p. 252), Without further explanation, petitioner stated that he wanted the People to bring the rifle, the golf bag and photographs of the car since, "they said [they] were stolen properly, from Alberto said that 1 robbed from that car and I w[ould] like to see photographs pertaining to that particular cat (sic)." (T3 at p. 252), The People stated that there were no photographs of the car, but they would certainly be bringing the golf bag and the rifle to the court. (T3 at p. 253). Petitioner then asked the court, "how is it that you're going to believe, sir, if it's just the word against me? . . . Why can't they actually bring a photograph of the vehicle where they said that all of this took place[?]" (T3 at p. 253). The court then explained the functions of the court and the jury, and stated that the jury would base their decision on evidence that was presented in court. (T3 at pp. 253-254). Petitioner said that if someone was accusing him of stealing "something for a car, from the inside of a car," then they should have to bring in a "piece of [that] car," (T3 at p. 254). The court explained that the People had the burden to prove the case beyond a reasonable doubt and instructed the court officer to bring the jury in. (T3 at pp. 254-255), Petitioner then told the court that "there's nothing that had been saying or shows anything against me (sic)," (T3 at p. 254), The court responded that it would look at each piece of evidence as it was offered to it, and the jury was brought in, (T3 at p. 254).
A good deal of further discussion of a like nature continued during the trial. (T4 at p. 423.)
At trial the defendant was identified by the victim and two policemen and the gun and golf bag were introduced, The gun was found to be operable.
Sentencing
At sentencing, which occurred on February 22, 2000, petitioner repeated that he wanted "pictures of the robbery" and witnesses who had seen him actually walking when he got out of Mr. Valdivia's car. (T4 at p. 4), Petitioner also wanted to know if the court had any witnesses to prove that he walked, (T5 at p. 4). The court explained that the jury had already found him guilty based on the evidence and witnesses that the People had presented, (T5 at p. 4). Petitioner said that he was "not a thief" and "not a killer." (T5 at p. 6). He continued, "You have nothing against me. Just because somebody says I intended to rob him, how am I going to intend to rob somebody? Because if I want money I could sell it. If I want money I could ask for money." (T5 at p. 6). Petitioner men alleged that the judge and the District Attorney had made a deal to convict him, and he referred to the jury as "home jurors." (T4 at p. 7).
The court sentenced petitioner to an aggregated determinate term of eight years, to be followed by a statutory period of supervision, (TS at pp. 9-10).
Direct Appeal
Petitioner filed his brief in the Appellate Division in December, 2001, raising one issue:
Were petitioner's "rights to due process and a fair trial violated by the court's failure to order a mental competency examination, where [petitioner's] repeated, irrational outbursts at trial, his delusional testimony, his obvious inability to comprehend the court's and his attorney's explanations, his documented refusal to take his prescribed psychotropic mediation and his diagnosis of paranoid schizophrenia showed that he did not understand the proceedings and could not assist in his own defense; and where the prosecutor exploited [petitioner's] mental disability to elicit self-incriminating testimony and the argued in summation that [petitioner's] obvious mental abnormality was further evidence of his guilt U.S. Const, Amend. VI, XIV; N.Y. Const. Art. 1, § 6,
(Resp, Decl., Exh. A at p. ii). By order dated April 29, 2002, the Appellate Division affirmed petitioner's convictions. The court noted that "two psychiatrists examined [petitioner] prior to trial and determined that he was competent to stand trial. Nothing occurred during the trial to suggest that his condition had deteriorated and he was no longer competent. Although [petitioner] made some peculiar statements during trial, he exhibited an understanding of the proceedings throughout and actively participated in his defense, Accordingly the court properly exercised its discretion in not directing an additional CL 730.30 examination of [petitioner] on its own motion," People v. Galandreo, 292 A.D.2d 756, 741 N.Y.S.2d 439 (2d Dept. 2002) (Resp. Decl. Exh. C).
By letter dated May 13, 2002, petitioner requested leave to appeal to the Court of Appeal, The Court of Appeals denied leave by order dated July 12, 2002, (Resp. Decl., Exhs D, E F).
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a slate prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim" Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied dearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable," Id. at 411, In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence," Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context," Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker; No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Berbary v. Torres, No, 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003), Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S. C, § 2244(d)(1), This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," Id. § 2244(d)(1)(A), A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinaey v. Artuz, No, 01-2739, 2003 U.S. App, LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R, 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion," Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000), "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground," Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 2S U.S.C, § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations, Adeline v. Stinson, 206 F.3d 249, 253 (2d Civ. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar," (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000), "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998), But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States., 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition," 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000), Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No, 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations,Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This 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 v. Thompson, 501 U.S. 722, 731 (1991), The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court," Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en bane).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions," See 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."), In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement," Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at * 10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice," Coleman, 501 U.S. at 750, In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state case law indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest,Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)). If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits," Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required," Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence, Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful," Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances),
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense," U.S. Const, amend, VL This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result," Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth. Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome," Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697, In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland., 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable., and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome," Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91, Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691, Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same), The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised 011 appellate counsel's deficient performance must be exhausted, See Word v. Lord No, 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel, See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Headerson, 13 F.3d 528, 533 (2d Cir. 1994), Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991), Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict,'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997), To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) (Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) (Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.M.Y. 2003) (perjured testimony); Martinet v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) (Rosario claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-*16 (E.D.N.Y. June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op. at 6-13 (2d Cir. Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y, June 12 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);
XII. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No, 01-2694, 2003 U.S. App, LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of Claims
Respondent does not contest timeliness and exhaustion. The sole serious question is whether the trial court should have, sua sponte, ordered anew competency hearing based on petitioner's conduct at trial. All other claims are frivolous.
A.
Prior to trial, petitioner was examined by two court appointed psychiatrists and was found to be competent to stand trial by both reviewing doctors. Petitioner contends, however, that the trial court should have ordered, sua sponte, a third competency examination of petitioner at some point doling trial based upon petitioner's "irrational behavior" and "abnormal demeanor," which he contends created a "reasonable ground to believe that [petitioner] might he incapacitated." (Resp. Decl., Exh. A at p. 25). As a basis for his claim, petitioner cites to the testimony of Officer Richards at trial, who stated that it "didn't make sense" for petitioner to be attempting to flee the scene of the crime on foot while carrying a golf bag. (Resp, Decl., Exh. A at p. 25; see Richards: T4 at p. 456). He also notes that Dr. Finch's psychiatric evaluation of petitioner, conducted prior to trial, contained statements made by petitioner that were "grandiose" and "incoherent." Furthermore, Dr. Finch diagnosed petitioner as a paranoid schizophrenic and noted that while he had been prescribed the anti-psychotic medication Haldol, petitioner refused to take it, (Resp, Decl., Exh. A at pp. 25-26), Petitioner was competent to stand trial, arguing that the doctors asked "leading questions" and had limited time with petitioner. (Resp. Decl., Exh. A at p. 26). All of the evidence, petitioner contends, should have led the court to question petitioner's competency where he later spoke bizarrely at trial about doing "science work for the sun," creating "an international plan to be able to bring free trade in America" and belonging to an organization called "J.M. Alvarez Taylor." (Resp, Decl., Exh. A at p. 28). This abnormal behavior, according to petitioner, should have "plainly showed that he was unable to comprehend the role of his lawyer and of the court," (Resp. Decl., Exh. A. at p. 27).
In reviewing this issue on appeal, the Appellate Division cited to the Supreme Court cases, Pate v. Robinson, 383 US. 375, 86 S.Ct. 836 (1966) and Dusky v. US, 362 U.S. 402, 80 S.Ct. 788 (1960) and the New York cases that follow them, and found that under the standards of these cases, the trial court had not abused its discretion in failing to order another competency examination sua sponte. The court noted that "two psychiatrists examined [petitioner] prior to trial and determined that he was competent to stand trial, [and that] [n]othing occurred during the trial to suggest that his condition had deteriorated and he was no longer competent," The court acknowledged that petitioner "made some peculiar statements during trial;" nevertheless, it found that petitioner had "exhibited an understanding of the proceedings throughout and actively participated in his defense," People v. Galandreo, 292 A.D.2d 756, 741 N.Y.S.2d 439 (2d Dept. 2002) (Resp. Decl., Exh. C).
The Supreme Court has recognized that it is a violation of due process to convict a person while he is legally incompetent. Se, e.g., Pate, 383 U.S. at 378, 385, 86 S. Ct, 838-839, 842. A defendant is incompetent to proceed if "he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense." Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896 (1975). Where the evidence "raise[s] a sufficient doubt as to a defendant's competence to stand trial, the failure to the trial court to conduct a competency hearing sua sponte violates due process." Nicks v. U.S., 955 F.2d 151, 168 (2d Cir. 1992) (citing Pate, 383 U.S. at 385, 86 S.Ct. at 842). This test ensures that the petitioner possesses the capacity to understand the proceedings and to assist his or her counsel Gondinez v. Moran, 509 U.S. 389, 402, 113 S.Ct. 2680, 2688 (1993). As noted by the Court of Appeals for the Second Circuit, New York provides the same procedural protections required under Supreme Court law, Silverstein v. Henderson, 706 F.2d 361, 367 (2d Cir. 1983); see also People v. Francabandera, 33 N.Y.2d 429, 436 (1974), quoting Dusky v. U.S., 362 U.S. 402 (1960); C.P.L. § 730.10(1) (an incapacitated person lacks capacity to understand the proceedings against him or to assist in his own defense,)
Essential procedural protections do not include an absolute right to a medical competency evaluation if the court is satisfied from the available information that there is no proper basis for questioning the defendant's sanity. The court must order a hearing only when there is a "bona fide doubt" about the defendant's competency. Pate, 383 U.S. at 385, 86 S.Ct. 842). See Silverstein, 706 F.2d at 369 (must be "`reasonable ground' for believing that the defendant may be incompetent to stand trial") (quoting U.S. ex rel. Roth v. Zelker, 455 F.2d 1105, 1108 (2d Cir.), cert. denied, 408 U.S. 927, 92 S.Ct. 2523 (1972)); accordPeople v. Armlin, 37 N.Y.2d 167, 171 (1975); see also Acosta v. Turner, 666 F.2d 949, 954 (5th Cir. 1982) (requiring "bona fide doubt" as to competency). There are "no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed." Drops, 420 US. at 180, 95 S, Ct at 908; see People v. Russell, 74 N.Y.2d 901, 902 (1989) (competence must be determined on case by case basis).
The trial court must carefully weigh and balance all of the facts before it in the particular case in deciding whether there is "sufficient doubt of [a defendant's] competence to stand trial to require further inquiry on the question." Drope, 420 U.S. at 180, 95 S, Ct. at 908. Evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but even one of these factors standing alone may, in some circumstances, be sufficient." Id. In "doubtful" cases, the exercise of the trial court's power of observation often proves the most accurate method of ascertaining the truth about a petitioner's fitness. Maggio v. Fulford, 462 U.S. 111, 118, 103 S.Ct. 2261, 2264 (1983) (quoting U.S. v. Oregon Medical Society, 343 U.S. 326, 339, 72 S.Ct. 690, 698 (1952), A trial court's assessment of a petitioner's competency is "essentially a factual determination." Demosthenes v. Baal, 495 U.S. 731, 737, 110 S.Ct. 2223, 2226 (1990) ( per curium), that requires the court to carefully evaluate and balance a variety of factors and circumstances.
In the instant case, the trial court ordered a competency examination by two qualified psychiatrists approximately forty-five days before the commencement of trial. Both psychiatrists concluded that petitioner was competent to stand trial, The reports indicated that petitioner understood that a judge presides over the court impartially and that the prosecution is by the People, Petitioner indicated that the judge's job is to do justice and that his attorney would help him in court. Petitioner told Dr. Weidenbacher that he would take a plea of two years confinement or else he wanted to go to trial, and what he knew that a trial would entail "risk." Petitioner told Dr. Finch, "I'm demanding justice because I'm innocent and I told my lawyer that I want to go to trial." He maintained his innocence when speaking to both doctors., claiming that Mr. Valdivia "panicked" when he saw that petitioner had a rifle. Dr. Weidenbacher reported that petitioner knew that it was illegal to carry a gun without a license, but he told Finch that he did not know if this action was illegal. Id.
Dr. Weidenbacher concluded that petitioner appeared "competent and seems indeed eager to proceed to curt albeit tense and covertly apprehensive." He diagnosed petitioner as having an "adjustment disorder, unspecified, with anxiety and frustration and possible learning disorder, and possible personality disorder," and conceded that petitioner was "fit to proceed" to trial, though he would benefit from the use of a Spanish interpreter. Dr. Finch concluded, that petitioner "seemed to be very easily irritable having low frustration tolerance and poor impulse control," and she diagnosed petitioner as "R/O schizophrenia, paranoid type and personality disorder," Nevertheless, Finch found petitioner" fit to proceed" to trial. These independent findings of fitness to proceed, made within one and one-half months before the trial, are strong factors that weighed in favor of a finding of the state of petitioner's competence later on throughout the trial.
Petitioner, however, maintains that although he had been found fit to proceed, which he contends was an erroneous finding, the trial court should have, sua sponte, ordered another competency examination upon observing petitioner's demeanor during trial because of the way in which petitioner acted, giving the trial court grounds to believe that he was no longer fit to proceed.
Arguably the record demonstrates that the behavior petitioner exhibited at trial evinced his understanding of the proceedings, even though it was at times bizarre, for instance., when defense counsel placed on the record that she wanted to make sure that petitioner understood the risk of going to trial and rejecting the plea offer, petitioner apparently responded to the court's query as to whether he understood this — "Year." (T2 at p. 7). Petitioner then asked the judge if he could "ask questions and give testimony about what is happening," (T2 at p. 12, see p. 13). He also demanded that the people produce evidence, such as the golf bag, the rifle and photographs of Mr. Valdivia's car. (T2 at p. 13, and see T3 at p. 252). He fully examined the police paperwork and noticed that some of the reports contained blanks and that one of the reports was unsigned, (T2 at pp. 14-15).
Two days after Officer Murphy finished testifying, petitioner asked if he could question Murphy, (T4 at p. 423), He argued that invalidity of the police paperwork containing blanks, and analogized that when a check is unsigned — it is not valid, and that an employment form left incomplete does not get one a job, (T4 at pp. 430-431).
The record reflects that petitioner contributed to his own defense, For example, petitioner insisted that his counsel ask Police Officer Murphy why he did not fill in certain portions of the police paperwork, and counsel did so. (T4 at pp. 424, 430). Petitioner highlighted inconsistencies in the testimony after the trial judge denied defense counsel's motion to dismiss. (T4 at p. 467). Petitioner noted that during opening statements the People said that he ran from the cab, but, on direct examination, Mr. Valdivia said that he saw the petitioner get out of the car and walk up the street. He also noted that Police Officer Murphy testified that the rifle contained fifteen rounds and Detective Vega said that the rifle contained substantially less than fifteen rounds. He also pointed out the discrepancy in the police report regarding the occurrence time and arrest time, (T4 at 467).
When petitioner testified on his own behalf, he answered questions that were directed towards him and he related his version of events to the jury. His defense was somewhat coherent in that he maintained that he was on his way to Flushing Park to dispose of a rifle, and that the livery driver Mr. Valdivia, simply overreacted when he caught sight of the gun. (T4 at pp. 474-475). He explained that he ran from the police because he had other plans and did not want to get arrested. (T4 at p. 475), He consistently denied wanting to rob Valdivia, and explained that he had "no reason to go rob anybody." (T4 at p. 479). Although petitioner made some statements that strayed from the matter at hand, his behavior and speech were not so disruptive, outrageous or incoherent as to require a finding that the previous fitness findings were undermined. Given petitioner's participation in the trial proceedings, his statements did not necessarily raise a "bona fide doubt" that he did not understand what was going on around him.
Petitioner was present at all stages of the proceedings. The court had ample opportunities to observe him and his demeanor during the pre-trial, trial, and sentencing proceedings. Throughout the proceedings, petitioner demonstrated that he was aware of the proceedings and capable of assisting in his own defense. When he testified on his own behalf, he was able to acknowledge that he was the "accused" and he asked the jury for "compassion with [its] decision," (T4 at pp. 473-474), Given the trial judge's extensive opportunity to observe petitioner, the record of petitioner's statements during trial, and the findings of Drs. Weidenbacher and Finch that petitioner was fit to proceed to trial despite his paranoid schizophrenia and personality disorder, the Appellate Division reasonably concluded that petitioner's behavior did not warrant an additional psychiatric evaluation.
This claim does not warrant granting the writ.
B.
Petitioner claims in ground three that his punishment is "cruel and unusual," To the extent that this may be interpreted as suggesting that petitioner's lawful sentence violates the Eighth Amendment's ban on cruel and unusual treatment, the argument is unavailing. This claim is, unexhausted. Because it is without merit, this Court can reach the merits to deny it, pursuant to 28 U.S.C. § 2254(b)(2).
Legislatures have broad discretion. That discretion of legislature and court was not abused in this case. This court recognizes that a large portion of the imprisoned have severe mental problems.
C.
Petitioner's claim that he is being wrongfully detained because he is actually innocent is not a ground for habeas corpus relief. Pursuant to the Supreme court's decision in Herrara v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 860 (1993), claims of actual innocence, even when based on newly discovered evidence, do not state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. U.S. v. Quinones, 313 F.3d 49, 67 (2d Cir. 2002).
This claim is frivolous,
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
A certificate of appealability is granted with respect to the competency of petitioner to be tried.
SO ORDERED.