Opinion
03-MISC-0066 (JBW), 01-CV-6911(JBW)
October 30, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. An evidentiary hearing was conducted on this matter, and no further hearing is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
The evidence supported the following statement of facts: In July of 1995, petitioner entered the automobile of Roxanne Thomas, a former girlfriend, to discuss the return of his personal belongings, Several months earlier, Thomas had asked Graham to leave the house the two cohabited. There was no romantic involvement between the two after that time. On this occasion, Thomas brought a friend, Nadine Ennis, to accompany her as she spoke with Graham.
While discussing the return of his belongings, Graham testified that he became enraged with Thomas and grabbed a knife he saw on the floor of the car. He then stabbed her repeatedly, Thomas made efforts to escape by crawling into the back seat and subsequently exiting the car. Petitioner pursued. He continued to stab her, In all, he inflicted nineteen wounds on the victim.
As a result, she died.
Trial witnesses Andre Watson and Edwin Lopez heard Thomas screaming for help and, observing her condition, tried to assist her. Watson saw petitioner stabbing Thomas after she fell to the ground. He pulled petitioner away from the victim. Lopez: saw the struggle and secured the knife.
Petitioner was arrested on the scene. He testified on his own behalf at trial. He was convicted of second-degree depraved indifference murder and sentenced to 25 years to life in prison.
The Appellate Division affirmed petitioner's conviction and sentence. It held that the trial court did not abuse its discretion in finding petitioner fit to stand trial based on his demeanor on the stand and the independent determination of two psychiatrists. People v. Graham, 708 N.Y.S.2d 336 (App.Div. 2000). The Appellate Division found petitioner's remaining contentions, including those involving ineffective assistance of counsel, to be without merit. Petitioner's application for leave to appeal to the New York State Court of Appeals was denied, People v. Graham, 738 N.E.2d 363 (N.Y. 2000).
Petitioner claims that; (1) he was denied the effective assistance of trial counsel, both in preparing a defense of extreme emotional disturbance and in petitioning for a second competency hearing at trial; (2) the trial court abused its discretion by failing to hold a competency hearing; and (3) the competency hearings held prior to trial were inadequate and inconclusive.
II. Law
A. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state 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 clearly 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, Torres v. Berbary, 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).
B. 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," Days v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
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 maybe 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).
C. 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.
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 men 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.
D. 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, VI, 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 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 maybe 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, No. 99-2261, 2003 U.S. App. LEXIS 2511, at *3 (2d Cir. Feb. 12, 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 on 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).
E. Determination of Competency
It is well-settled that the "criminal trial of an incompetent defendant violates due process," Medina v, California, 505 U.S. 437, 453 (1992). This "prohibition is fundamental to an adversary system of justice." Drope v. Missouri, 420 U.S. 162, 172(1975). In determining whether a criminal defendant is competent to stand trial the trial court must consider "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). The duty to protect a defendant from being tried while incompetent persists throughout trial, so "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 would render the accused unable to meet the standards of competence to stand trial." Drope, 420 U.S. at 181.
III. Analysis of Claims
A. Denial of Effective Assistance of Counsel
1. State Proceedings
Petitioner claims that counsel was ineffective in failing to employ a court-appointed psychiatrist and in failing to investigate petitioner's past history of mental illness. Given that the defense was intending to seek a charge of extreme emotional disturbance, examination of such a history was crucial. The only evidence offered at trial in support of this charge was the testimony of the defendant, The state record does not indicate whether counsel conducted the necessary background investigation to support this defense. Petitioner asserts that counsel's failure to do so resulted in no evidence being presented and the court's refusal to charge the jury that it could find the petitioner to have been emotionally disturbed at the time of the murder.
Counsel asserted at trial that he had employed a court-appointed psychiatrist to examine the petitioner, but had made a decision not to call him as a witness at trial, Trial Tr. 410-13. Strategic decisions by counsel are given great deference. Counsel, however, cannot rely on a decision made without the benefit of diligent investigation of available evidence and potential witnesses. If counsel had conducted no investigation as to the past and then-existing mental condition of defendant, counsel's failure to offer any evidence regarding extreme emotional disturbance could not be deemed trial strategy. See Pavel, 261 F.3d at 223.
Petitioner's state court appeal only included a claim that counsel was ineffective for failing to submit an order for a competency hearing. The State argues that his remaining ineffective assistance claim is therefore unexhausted. Petitioner's and respondent's state appellate briefs each addressed the issue of defense counsel's failure to call a psychiatrist as a witness. A claim need not be dismissed for failure to exhaust where the additional ground for an ineffective assistance claim might be seen as merely supplementing the claim already exhausted in state court, See Caballero, 42 F.3d at 741. The fact that there was argument from both petitioner and respondent at the state appellate level in the context of the competency hearing question suggests that the pro se claim for ineffective assistance of counsel at trial included a claim for ineffective assistance of counsel in trial preparation, specifically as it related to investigation of and preparation for an extreme emotional disturbance defense. This claim need not be dismissed for failure to exhaust.
2. Hearing in this court
Trial counsel appeared at an evidentiary hearing in this court, He testified to the preparations undertaken for trial. Included among these preparations was a review of psychiatric documents presented to counsel by petitioner and court-appointed psychiatrists, as well as consultations with a reputable psychiatrist employed by the defense.
After several meetings with petitioner, the defense psychiatrist indicated to defense counsel that he could not testify in favor of a defense of extreme emotional disturbance. Counsel testified that he obtained several extensions during the trial for additional meetings with his client and the psychiatrist, The psychiatrist attributed petitioner's erratic behavior to a history of alcoholism. He would not offer support for a claim of extreme emotional disturbance.
Alcoholism was not an adequate ground for a tactical approach different from that taken by defense counsel, Given defense counsel's full investigation, his election not to call a defense psychological witness can be considered a sound strategic decision, There is no evidence that counsel was ineffective in preparation. Failure to obtain all of petitioner's medical records had no effect on the adequacy of the defense psychiatrist's opinion or defense counsel's opinions.
This court's impression of petitioner at his hearing in this court was that he was competent to conduct the hearing.
This claim is without sufficient merit to warrant granting the writ.
B. Trial Competency
Petitioner claims that the trial court denied him due process of law by failing to order a competency hearing, A review of the psychiatric evaluations conducted prior to the trial and sentencing phases, as well as an examination of the record of petitioner's testimony, reveals no substantial evidence of incompetence. Under direct examination, petitioner testified clearly and coherently about the events surrounding the crime. Trial Tr. 352-59. On cross-examination, he was evasive and claimed a lack of memory surrounding details of the murder. Trial Tr. 359-393. Both psychiatrists examining him prior to trial, his lawyer and the judge believed him competent to stand trial.
The trial court ordered a supplemental evaluation prior to sentencing under Section 390 of New York Criminal Procedure Law. There is no indication in the record as to why this examination was ordered. Petitioner claims that court had concerns about his "demeanor," but the portion of the transcript he cites in support of this is a statement made by the Stale at sentencing. Sentencing Tr. 9-10. The Section 390 evaluation ordered prior to sentencing found defendant fit to proceed.
Petitioner claims that a supplemental Section 730 competency hearing should have been ordered at trial. No such hearing was called for by counsel, who was in a unique position to assess his client's competency. See Balfour v. Haws, 892 F.2d 556, 561 (7th Cir. 1989). Petitioner's fitness to proceed was not put into question at the time of trial The outcome of the Section 390 hearing following the guilt phase of trial confirmed the petitioner's competency.
As part of his application, petitioner has submitted a medical record summary dated June 16, 1996, listing significant psychiatric problems and high-dose medication regimen. This document post-dates both the trial and sentencing phases, It does not represent evidence the trial court had at its disposal in assessing competency, and is therefore irrelevant. When asked at the evidentiary hearing whether he was taking any psychotropic medications at the lime of trial, petitioner said that he could not recall.
Petitioner fails to support any claim of incompetence relating to the effect of psychotropic medications or the conditions for which they were prescribed.
The decision to order a competency hearing is within the discretion of the state trial judge, In order to find abuse of discretion in failing to order a competency hearing, a. reviewer must evaluate the record and evidence available to the trial judge. Where such a review reveals no evidence of incompetence, a finding of abuse of discretion is inappropriate. See Nicks v. United States, 955 F.2d 161, 168 (2d Cir. 1992).
Petitioner was examined prior to trial and sentencing. Defense counsel made no request for a further revaluation. Petitioner has offered no new evidence indicating that he was mentally incompetent at the time of his trial. The testimony and reaction of defendant at trial and sentencing flashed no warning signals. The trial court did not abuse its discretion, Petitioner was not denied due process of law.
The claim is without sufficient basis to warrant granting the writ.
C. Adequacy of Pretrial Competency Hearing
Petitioner claims that his pretrial competency hearing, conducted while he was in confinement within the Supreme Court building, was a violation of his constitutional right to a fair hearing determining competency prior to trial. He asserts that the examination was inadequate, both due to location and content.
Petitioner claims that Section 730 of New York Criminal Procedures Law requires that such examinations take place at a prisoner's place of confinement, and that this definition excludes the confinement area at the Supreme Court building. His citation to People v. McCabe, 449 N.Y.S.2d 245 (App.Div. 1982) is inappropriate. There, a defendant was interviewed in the office of the district attorney, which, unlike the place of petitioner's interview, was not neutral ground, Petitioner presents no reasonable constitutional argument that examining him in confinement within the courthouse, as opposed to conducting the examination at a penitentiary or other state facility, deprived him of a fair and impartial examination. Even accepting the questionable and unsupported premise that examining petitioner at the courthouse was a violation of some state procedural law, such a procedural violation would not implicate a constitutional due process right.
As to the content of the evaluations, petitioner claims that the interviews were inadequate, since the joint interview session was only 15 to 20 minutes in duration. Both interviewers found the defendant to be competent in understanding the charges against him, and in comprehending the nature of the proceeding and the various actors and their roles. The requirement for examinations conducted pursuant to Section 730 is that examinations be in keeping with psychiatric convention. Petitioner has not offered any explanation for, or evidence in support of, his contention that the examinations conducted prior to his trial did not meet this requirement. Petitioner was not denied an adequate competency hearing.
This claim is without sufficient merit to provide a basis for granting the writ.
IV. Certificate of Appealability
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253, Miller-El v. Cockrell, 123 S.Ct.1029 (2003). The court has taken into account the rule of Section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)," See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
V. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.
SO ORDERED.