Opinion
No. 02 Civ. 10211 (JFK).
November 1, 2006
DENNIS VETERE, Sullivan Correctional Facility, Fallsburg, NY, Petitioner, Pro Se.
ADA Eli R. Koppel, ROBERT M. MORGENTHAU, New York District Attorney, New York, NY, for Respondent.
OPINION and ORDER
Dennis Vetere ("Petitioner"), pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He stands convicted of attempted murder in the second degree and related crimes. For the reasons set forth below, the Court denies the petition.
I. BACKGROUND
A. Facts
On the night of December 24, 2000, at approximately 2:00 a.m., Petitioner returned to his home at 540 Main Street, apartment 730 on Roosevelt Island where he lived with his wife of several months, Ellen Vetere, and her two adult children, Melissa Rogers and Stephan Rogers. (Tr. 152.) Shortly after arriving, Petitioner began arguing with Melissa Rogers and her friend over the two using drugs in the apartment. (Tr. 121.) In the course of the argument, Petitioner threw a punch at Melissa Rogers but missed. (Tr. 122.) He then began throwing various items at her, including two porcelain teddy bears and a plastic planter with a plant in it. (Tr. 123-24.)
The transcript of the trial will be cited as "Tr. ___."
Ellen Vetere interjected herself at this point and was punched multiple times by Petitioner. (Tr. 189-90.) Stephan Rogers then began to fight with Petitioner, before leaving the apartment to seek help. (Tr. 154-56, 165.) Ellen Vetere claims that Petitioner retrieved a table knife and a fork from the kitchen and began to pursue Stephan Rogers. (Tr. 192.) She followed Petitioner into the hallway outside of her apartment where he confronted her and began punching and stabbing her in the head and neck. (Tr. 193.)
Stephan Rogers returned with a security guard who began to chase Petitioner, but stopped when he saw that Ellen Vetere was bleeding from the head. (Tr. 237.) Stephan called 911, and paramedics and police responded shortly thereafter. (Tr. 157.) Ellen Vetere was treated at a hospital for bruises and scrapes and received stitches/staples in two of the cuts on her head. (Tr. 262-63, 268.)
Mr. Vetere was arrested nearly ten months later and charged with one count of attempted murder in the second degree, one count of assault in the first degree, one count of attempted assault in the first degree, one count of assault in the second degree, two counts of attempted assault in the second degree, one count of assault in the third degree, and one count of criminal possession in the third degree.
B. Procedural History
Petitioner was tried in the Supreme Court of the State of New York, County of New York before the Honorable William Wetzel beginning on August 23, 1999. At the close of the Government's case, the trial judge asked whether Petitioner wished to testify. This exchange followed:
Petitioner: A few days ago, I thought I was going to a bail hearing, and instead I was going to a different hearing. I was going to a trial. And at that time, I was extremely tired and since that day I have not slept. I went to — I ended up going from the Beacon (sic) to a mental health clinic because of not sleeping and I'm under an enormous amount of strain and I need to sleep. I don't have a clear head right now. I am very, very tired, just very exhausted.
Court: So what is your request? Do you wish to testify?
Petitioner: Not today.
Court: Not today. And you're asking for an adjournment?
Petitioner: Yes.
(Tr. 295-96.) The judge said he recognized that trial was stressful for a defendant, "[b]ut as far as granting an adjournment for an unstated period while you rest up for your testimony is not something I will grant in the exercise of discretion." The judge then advised Petitioner to consult with his attorney before deciding whether he would testify:
Court: Okay. Now, speak to your attorney. We're ready to proceed. If you wish to testify, please indicate so.
Petitioner: Why can't I testify tomorrow?
Court: Because we're not adjourning this case. Once the trial starts, it continues. So that's my decision.
Now, Mr. Brackley, does your client intend to testify?
Petitioner: I'm not answering any questions.
Mr. Brackley: Judge, he's not answering any questions.
The judge then called the jury into the courtroom so that the Defense could rest its case. While the judge was instructing the jury, Petitioner made the following statement:
Petitioner: Hold it. I want to say something right now.
Court: Sit down. Sit down.
Petitioner: They sabotaged this case.
Court: I'm going to ask —
Petitioner: They sabotaged this case.
Court: I'm going to ask the jury to be taken out.
Petitioner: Take me the hell out of here right now. Right now. They sabotaged this case. I said I was tired and I wanted to rest.
(Tr. 299.)
Judge Wetzel chastised the Petitioner for his outburst, calling it "well thought out," and accusing the Petitioner of being "disingenuous." (Tr. 300.) The judge then warned Petitioner that he could forfeit his right to be present at his trial if he misbehaved again. When the judge asked Petitioner whether he wanted to be present during the remainder of the trial, Petitioner raised another topic entirely:
Court: You tell me, sir, whether you want to still be here and be present for the continuation of your trial.
Petitioner: I'm asking for other witnesses to be called into this courtroom. This is what I'm asking my attorney to do. I want this on the record.
Court: You're asking for what?
Petitioner: Other witnesses.
Court: I'm asking you a question. Do you wish to be present at this time or do you want to be removed from the courtroom?
(Tr. 301.)
After defense counsel was given half-an-hour to confer with Petitioner, counsel explained that his client had "wanted certain witnesses called and certain evidence produced . . . [in the belief] that such witnesses would have exonerated him or provided exculpatory information." (Tr. 306-07.) In regard to these witnesses and evidence, defense counsel stated that Petitioner's previous lawyers "had extensively investigated those aspects as to what can and what cannot be brought in" and that "[i]t was the decision during this trial to do that this way." (Tr. 306-07.)
Defense counsel also stated that Petitioner claimed to be "mentally unable to finish this trial because of his condition." (Tr. 307.) Petitioner was allowed to elaborate:
Petitioner: Sir, I need some help right now. I need help.
. . . .
Court: You need help?
Petitioner: Yes.
Court: What do you mean when you say you "need help"?
Petitioner: I need help because I'm having a nervous breakdown. I'm having a nervous breakdown. I'm having a nervous breakdown.
Court: All right. We're ready to proceed.
(Tr. 307-08.)
Following summations, the jury convicted Petitioner of second-degree attempted murder, first- and second-degree assault, two counts of attempted second-degree assault, and third-degree weapon possession, but acquitted him of attempted third-degree assault.
At Petitioner's sentencing on September 24, 1999, his defense counsel again raised the issue of Petitioner's competence, claiming that he was in possession of a "Parole Department paper" that indicated Petitioner had a "history of psychiatric illnesses." (Sent. Tr. 21.) Nonetheless, the judge sentenced Petitioner, a second-time violent offender, to an aggregate, determinate prison term of twenty-five and one-half years.
This document has not been produced to the Court.
On direct appeal to the Appellate Division, First Department, Petitioner, in a brief filed by his attorney, claimed that the trial court deprived him of the right to due process, the right to testify, the right to effective counsel, and the right to represent himself pro se. The First Department unanimously rejected these claims and affirmed the petitioner's conviction. People v. Vetere, 731 N.Y.S.2d 163 (App.Div. 2001). Specifically, the court found that the trial judge properly exercised his discretion in denying Petitioner's request for an adjournment. Id. at 164. The court ruled that the trial judge was not obliged to direct a competency examination because there were no "reasonable grounds" to believe that Petitioner was incapacitated. Id. The court also found that Petitioner was not denied his right to testify given that the judge repeatedly asked Petitioner if he was ready to take the stand. Id. Finally, the court found that Petitioner received "meaningful representation" and never requested substitution of counsel or permission to represent himself. Id. Leave to appeal this ruling was denied. People v. Vetere, 765 N.E.2d 314 (N.Y. 2002).
Petitioner also appealed his sentence as excessive. This claim is not reasserted in the instant petition and, as such, is not discussed.
Petitioner next moved for an order vacating his conviction pursuant to CPL 440.10 on the ground that his trial counsel was ineffective. The trial judge agreed with the First Department's finding that Petitioner had received "meaningful representation" and denied the motion in its entirety without a hearing. Petitioner subsequently sought leave to appeal this decision pursuant to CPL 460.15, but leave was denied. People v. Vetere, 2003 N.Y. App. Div. LEXIS 11027 (App.Div. 2003).
In the instant petition, Petitioner raises four grounds for relief. First, Petitioner claims that the trial court deprived him of his constitutional right to due process when it failed to determine whether he was competent to stand trial after he stated that he was suffering a nervous breakdown and had been transferred to a mental health facility. Second, Petitioner claims he was deprived of his constitutional right to testify on his own behalf. Third, Petitioner claims the trial court violated his right to counsel by ignoring "serious conflicts" between Petitioner and his court-appointed attorney. Fourth, Petitioner claims that the trial court denied him his right to represent himself pro se.
II. DISCUSSION
A. Standard of Review
A federal court conducting habeas review is limited to determining whether a petitioner's custody is in violation of federal law. See 28 U.S.C. § 2254(a). Federal habeas corpus relief does not lie for errors of state law. See Estelle v. McGuire, 502 U.S. 62, 67 (1991). The writ of habeas corpus is an "extraordinary remedy," Brecht v. Abrahamson, 507 U.S. 619, 633 (1993), and "federal courts are not forums in which to relitigate state trials," Barefoot v. Estelle, 463 U.S. 880, 887 (1983).
As the Supreme Court has stated, "it hardly bears repeating that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment."Brecht, 507 U.S. at 634 (citation and internal quotation marks omitted). Direct review is the principal avenue for challenging a conviction, see id. at 633, and "when the process of direct review . . . comes to an end, a presumption of finality and legality attaches to the conviction and sentence." Barefoot, 463 U.S. at 887.
In conducting its review of Petitioner's claims, the Court follows the Second Circuit's direction to construe pro se pleadings liberally, so as to raise their strongest arguments.See Williams v. Edwards, 195 F.3d 95, 96 (2d Cir. 1999).
B. Analysis of Petitioner's Claims
1. Petitioner's Competence to Stand Trial
A defendant is competent to stand trial if he has "sufficient present ability to consult with his lawyer with a reasonable degree of understanding" and "has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402 (1960); accord Drope v. Missouri, 420 U.S. 162, 171 (1975) ("[A] person whose mental condition is such that 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 may not be subjected to a trial."); Pate v. Robinson, 383 U.S. 375, 378 (1966) (holding that "the conviction of an accused person while he is legally incompetent violates due process").
Trial courts have an obligation to examine a defendant's competence sua sponte "whenever there is sufficient reason to doubt the defendant's competence." See Brown v. Warden, 682 F.2d 348, 353 (2d Cir. 1982) (citing Pate, 383 U.S. at 385). This obligation exists throughout the trial. See Drope, 420 U.S. at 181 ("Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that may render the accused unable to meet the standards of competence to stand trial.").
While there is no fixed test for determining when a trial court must examine a defendant's competence, the Supreme Court has stated that "evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial" are all relevant factors. Id. at 180. In reviewing a trial court's decision not to examine a defendant's competence, courts in the Second Circuit consider "only the evidence before the court at the time its decision was made." Nicks v. United States, 955, F.2d 161, 168 (2d Cir. 1992).
Petitioner argues that his claims that he had been in a "mental health clinic," (Tr. 296), "need[ed] help," and was having a "nervous breakdown," (Tr. 307), required the trial court to examine whether he was competent to stand trial. The Court finds no reason to dispute the findings of the trial judge and the New York State Appellate Division, First Department that there were no "reasonable grounds" to examine Petitioner's competence. See Vetere, 731 N.Y.S.2d at 164.
There is no evidence in the record to support Petitioner's claim to having been in a "mental health clinic." At sentencing, Petitioner's counsel claimed to be in possession of a "Parole Department paper" that indicated that Petitioner had a "history of psychiatric illnesses." (Sent. Tr. 21.) However, this evidence was not "before the court at the time its decision was made."Nicks, 955, F.2d at 168. Furthermore, this alleged "Parole Department paper" has never been produced so far as the Court can determine.
As for Petitioner's purported "nervous breakdown" and demands for "help," the Court defers to Judge Wetzler's determination that neither required further examination of Petitioner's competency. The trial judge was best able to evaluate Petitioner's behavior and demeanor.
Only moments before Petitioner's alleged nervous breakdown, the judge called Petitioner's disruptive behavior "well thought out" and "disingenuous." The judge apparently considered Petitioner's subsequent request for "help" to be a continuation of Petitioner's "disingenuous" delay tactics. Considering that Petitioner showed no other signs of incompetence, actively and intelligently took part in his defense, and never raised the issue until the close of the government's case, the Court does not find error with the judge's decision not to examine Petitioner further.
For example, Petitioner filed a pro se application for bail on April 16, 1999 as well as a pro se motion for discovery on April 17, 1999.
2. Petitioner's Right to Testify
It is well-settled that a defendant in a criminal case has the right to testify on his own behalf. See Rock v. Arkansas, 483 U.S. 44, 49 (1987); Nix v. Whiteside, 475 U.S. 157, 164 (1986);Brown v. Artuz, 124 F.3d 73, 76 (2d Cir. 1997); United States v. Bifield, 702 F.2d 342, 349 (2d Cir. 1982). This right is not without limitations. "The right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process [so long as such restrictions are not] arbitrary or disproportionate to the purposes they are designed to serve." Rock 483 U.S. at 55-56.
The Supreme Court has held that trial judges must be accorded "great latitude" in scheduling trials. Morris v. Slappy, 461 U.S. 1, 11 (1983) ("[B]road discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates [a defendant's constitutional rights]." (internal quotation marks and citation omitted)); accord Ungar v. Sarafite, 376 U.S. 575, 589-90 (1964); see also Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006) (discussing trial judges' "largely unfettered discretion" in granting and denying continuances); Jones v. Conway, No. 03 Civ. 3312, 2006 U.S. Dist. LEXIS 55277, at **41-42 (S.D.N.Y. Aug. 1, 2006) (rejecting the claim that the trial court violated defendant's constitutional rights when it refused to grant more than a thirty-minute adjournment to allow counsel to advise defendant of the consequences of testifying). Trial judges also have "considerable discretion in ensuring that the trial is conducted in a fair, efficient, and orderly manner."Jones, 2006 U.S. Dist. LEXIS 55277, at *41 (citing Taylor v. Illinois, 484 U.S. 400, 414-15 (1988)).
Petitioner claims that the trial court deprived him of his right to testify when it denied his request for an adjournment. The Court finds no reason to dispute the "presumption of finality and legality," Barefoot, 463 U.S. at 887, attached to the New York State Appellate Division, First Department's finding that the trial judge did not deprive Petitioner of his right to testify. The judge repeatedly asked Petitioner whether he wanted to testify, signaling that the court was prepared to hear him. (Tr. 297.) Further, Judge Wetzler was within his discretion when he denied Petitioner's request for an adjournment because Petitioner was "very exhausted." (Tr. 296.) This decision was not an arbitrary one, but rather was calculated to run the trial in a "fair, efficient, and orderly manner." Jones, 2006 U.S. Dist. LEXIS 55277, at *41. This is not grounds for relief.
3. Petitioner's Right to Effective Counsel
Petitioner claims that the trial court deprived him of his right to effective counsel because it ignored "serious conflicts" between Petitioner and his court-appointed attorney. (Pet. Writ Habeas Corpus.) The Supreme Court has held that the Sixth Amendment provides criminal defendants with the right to effective counsel. See Mickens v. Taylor, 535 U.S. 162, 166 (2002); United States v. Cronic, 466 U.S. 648, 658 (1984). According to the Supreme Court, "[t]he 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 their Answer Opposing Petition for a Writ of Habeas Corpus, the People construe Petitioner's claim as alleging that Petitioner was deprived of effective counsel because his court-appointed attorney had a conflict of interest. (Answer Opp'n Pet. Writ Habeas Corpus 33-34.) Given that Petitioner had no co-defendants, and that his court-appointed counsel did not represent or have any connection with any other party in this matter, such a conflict of interest seems highly unlikely. Cf. Mickens, 535 U.S. 162 (examining propriety of joint representation of multiple defendants); Cuyler v. Sullivan, 446 U.S. 335 (1980) (same); Wood v. Georgia, 450 U.S. 261 (1981) (examining propriety of attorney's being paid by employer to represent employee). As such, the Court construes this claim as asserting the same arguments that Petitioner's then-counsel made on appeal at the state level: Petitioner was denied his right to effective counsel because the trial court ignored the alleged breakdown in communication between Petitioner and his court-appointed counsel.
The Supreme Court uses a two part test to determine whether the benchmark has been met: The petitioner must prove that (1) his counsel's performance was deficient and (2) that the deficiency prejudiced the defense. Strickland, 466 U.S. at 687. According to the Second Circuit, "[t]he Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard."Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
The Second Circuit has recognized that a breakdown of communications between a defendant and his or her attorney may, in some cases, interfere with effective assistance of counsel.See, e.g., United States v. Simeonov, 252 F.3d 238, 241 (2d Cir. 2001) (discussing "the danger of a communication breakdown" in regard to the right to effective counsel); McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981) (noting that a "complete breakdown of communication" would justify substitution of counsel). But see Ljubas v. United States, No. 86 Civ. 4410, 1987 U.S. Dist. LEXIS 10464, at *20 (S.D.N.Y. Nov. 10, 1987) (denying habeas relief where petitioner claimed a breakdown in communication with his attorney who had told him to "shut up" and "be quiet").
Courts in the Second Circuit do not consider "strategic disagreement alone" to constitute a sufficient breakdown in communication to render counsel ineffective. Monegro v. Greiner, No. 03 Civ. 2735, 2004 U.S. Dist. LEXIS 1184, at **11-12 (S.D.N.Y. Jan. 27, 2004) (citing McKee v. Harris, 649 F.2d 927, 932 (2d Cir. 1981)).
Petitioner claims that the trial court ignored "serious conflicts" Petitioner had with his attorney in that Petitioner wanted "other witnesses" called to testify. (Tr. 301.) Strategic disagreement of this kind does not rise to the level of a communication breakdown that would render counsel ineffective.See Strickland, 466 U.S. at 690 (holding that a defense counsel's decision not to call certain witnesses was "virtually unchallengeable"). In fact, both the trial judge and the New York State Appellate Division, First Department found that, in spite of this strategic disagreement, Petitioner received "meaningful representation." Vetere, 731 N.Y.S.2d at 164. The Court can find no reason to disagree with the state courts' findings.
4. Petitioner's Right to Proceed Pro Se
The Supreme Court has held that the right to counsel found under the Sixth Amendment implies a "correlative right to dispense with a lawyer's help" and proceed pro se. Adams v. United States, 317 U.S. 269, 279 (1942); accord Faretta v. California, 422 U.S. 806, 814 (1975). A defendant may proceedpro se if he or she "knowingly, voluntarily, and unequivocally" waives his or her right to appointed counsel.Johnstone v. Kelly, 808 F.2d 214, 216 (2d Cir. 1986); accord Faretta, 422 U.S. at 835-36 (allowing defendant to represent himself where he "clearly and unequivocally" waived his right to counsel).
In the instant case, Petitioner never unequivocally waived his right to counsel, nor did he expressly request to represent himself. Petitioner would have the Court interpret his request that "other witnesses . . . be called into this courtroom" as a request that he be allowed to represent himself and a waiver of his right to counsel. (Tr. 301.) This statement falls well short of the "clear and unequivocal" standard required. As such, no relief is warranted on this claim.
III. CONCLUSION
This petition for a writ of habeas corpus is denied. The Clerk of the Court is directed to close this case and remove it from the Court's active docket.
SO ORDERED.