Opinion
03 Civ. 4065 (RMB) (THK).
February 3, 2006
DECISION AND ORDER
I. Background
On June 4, 2003, Alexander Powell ("Petitioner" or "Powell") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition"), alleging that:
he was denied (1) due process and confrontation when the trial court refused to allow him to return to the courtroom for complainant's testimony and failed to establish communication between Petitioner and the courtroom, . . . (2) due process when the court refused to order a competency hearing, . . . and (3) due process and effective assistance of counsel because Petitioner was absent when his counsel, at sentencing, requested that Petitioner be kept in handcuffs because of his violent criminal past and mid-trial outburst in a courthouse interview room.
(Petition at 1-2 (internal citations and quotation marks omitted).)
On December 2, 1999, a jury found Petitioner guilty of one count each of first-degree burglary and first-degree robbery (of an 89 year old man) and criminal possession of a controlled substance in the seventh degree. (Trial Transcript, dated Dec. 2, 1999, at 346-48.) Petitioner, who is currently incarcerated at Sing Sing Correctional Facility, was sentenced to concurrent prison terms of twelve years for robbery and burglary and one year for possession of a controlled substance. (Report and Recommendation, dated August 5, 2005 ("Report"), at 1.)
The New York Supreme Court, Appellate Division, First Department affirmed Petitioner's conviction on April 30, 2002.See People v. Powell, 293 A.D.2d 423 (1st Dept. 2002). Leave to appeal was denied by the New York Court of Appeals on July 17, 2002. See People v. Powell, 98 N.Y.2d 700 (2002).
On August 5, 2005, United States Magistrate Judge Theodore H. Katz, to whom this matter had been referred, issued a thorough Report and Recommendation recommending that the Petition be dismissed with prejudice. (Report at 46-47.) Magistrate Judge Katz found that (i) "Petitioner continuously interrupted the [trial] proceedings until he was eventually removed from the courtroom," (id. at 19-20), (ii) "the Appellate Division's conclusions [which affirmed Petitioner's conviction and sentence] regarding Petitioner's entitlement to reclaim his right of presence [in the courtroom] were reasonable applications of federal law," (id. at 20), (iii) "the trial court's failure to order a competency hearing, sua sponte, was [not] an unreasonable application of clearly established federal law," (id. at 36), and (iv), with respect to Petitioner's sentence-related claims, "[t]he state court determination was not an unreasonable application of clearly established federal law. . . ." (Id. at 37).
By letter dated August 10, 2005, Petitioner submitted timely objections to the Report ("Petitioner's Objections"). By letter dated August 8, 2005, Respondent submitted a short response ("Respondent's Response") that did not address Petitioner's objections, but urged the Court to adopt the Report. (Respondent's Response at 1.)
For the reasons stated below, the Report is adopted in all respects.
II. Standard of Review
The Court "shall make a de novo determination of those portions of the [Magistrate Judge's] report or specified findings or recommendations to which an objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989);DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994). As to any portions of a report to which no objections have been made, the district judge may adopt all findings of a report that are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 149 (1985).
III. Analysis
The facts as set forth in the Report are incorporated herein by reference unless otherwise noted. The Court has conducted a de novo review of, among other things, the Petition, the Report, Petitioner's Objections, the Respondent's Response, the record, and applicable legal authorities, and concludes that the determinations and recommendations made by Magistrate Judge Katz are supported by the record and the law in all respects. See Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). Petitioner raises substantially the same arguments that were brought before Magistrate Judge Katz and does not provide a basis for departing from the Report's conclusions and recommendations.
As to any portion of the Report to which no objections have been made, the Court concludes that the Report is not clearly erroneous. See Pizarro, 776 F. Supp. at 817. Any of Plaintiff's Objections not specifically addressed in this Order have been considered de novo and rejected.
A. Right to be Present in the Courtroom
Petitioner argues, in substance, that the trial court erred in not articulating how or when Petitioner could return to the courtroom. (See Petitioner's Objections at 2 ("Petitioner was excluded from the courtroom without being given a realistic opportunity to exercise his independent right to return in time to confront his accuser.").)
Magistrate Judge Katz concluded that "it does not follow directly from the fact that a removed defendant may reclaim his right to be present, that the trial court must inform him of this option before he is removed." (Report at 25; see also id. at 23 (citing Scurr v. Moore, 647 F.2d 854, 858 (8th Cir. 1981)) 26.) Furthermore, "trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case." (Report at 21 (citing Illinois v. Allen, 397 U.S. 337, 343 (1978)).) And, Magistrate Judge Katz found that "it is unclear from the record that the judge even heard Petitioner's question ["What happens now?"]; defense counsel objected to Petitioner's removal, did not mention Petitioner's question or ask that the court advise Petitioner of his right to return, and after Petitioner had been removed, the trial continued." (Report at 24.)
Magistrate Judge Katz also correctly determined that Petitioner need not have been "returned to the courtroom merely upon counsel's request or even Petitioner's own promise to adjust his behavior." (Report at 27 (citing US v. Munn, 507 F.2d 563, 568 (10th Cir. 1974).) Rather, "the balancing of a defendant's confrontation right with the proper administration of justice is a task uniquely suited to the trial judge. Sufficient discretion must be granted to meet the circumstances of each case." (Report at 27 (citing Scurr, 647 F.2d at 858).)
B. Competency to Stand Trial
Petitioner also objects to Magistrate Judge Katz's finding that "there was no doubt regarding competency and no need for the court to make an inquiry." (Petitioner's Objections at 3.) Petitioner contends that his statements to the trial judge, "I can't take it," "I cannot take this mentally," "I'm asking for help," and "I need help" "bear all the markings of a temporary panic attack." (Id.; see Trial Transcript, dated Nov. 30, 1999 ("Tr."), at 2-17.)
Magistrate Judge Katz concluded that "[b]ased upon the trial court's first-hand observation of Petitioner and its reasonable conclusion that he was feigning mental illness, this Court cannot conclude that the trial court's failure to order a competency hearing, sua sponte, was an unreasonable application of clearly established federal law." (Report at 36.) Magistrate Judge Katz offers an accurate and appropriate summary of the facts that "provided a reasonable basis for the court to conclude that Petitioner was competent, and that he understood the legal process well enough to formulate a plan designed to disrupt and delay the trial, perhaps with the hope of a mistrial." (Id. at 35-36.)
C. Sentencing
Petitioner argues that (i) his right to be present at a pre-sentencing conference was violated "when defense counsel made highly inflammatory allegations about petitioner to the sentencing court before petitioner was brought into the courtroom," (Petition at 39), and (ii) that his counsel should have attempted to minimize his criminal history; failed to advocate for a favorable interpretation of his character; and prejudiced the court by presenting Petitioner in a negative light prior to sentencing. (Report at 36-46.)
Prior to the sentencing hearing, defense counsel engaged in a brief colloquy with Judge Leibovitz before Petitioner was brought into the courtroom. (Sentencing Transcript, dated Dec. 15, 1999 ("S. Tr."), at 2-3.) Defense counsel requested, "for [his] personal safety, if not for the safety of other persons in the courtroom, that [Petitioner] remain handcuffed throughout the calendar call." (Id. at 3.) Magistrate Judge Katz properly found that, "[b]ecause the short colloquy prior to sentencing was administrative in nature and there is no indication that the matters discussed had any affect on Petitioner's sentence, Petitioner's due process rights were not violated when he was not present." (Report at 40; see U.S. v. Gagnon, 470 U.S. 522, 527 (1985) ("the encounter between the judge, the juror, and Gagnon's lawyer was a short interlude in a complex trial; the conference was not the sort of event which every defendant had a right personally to attend under the Fifth Amendment.").)
Magistrate Judge Katz also found correctly that Petitioner's ineffective assistance of counsel claims did not meet the two prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), i.e., "Petitioner's attorney provided reasonable and effective assistance at all phases of the trial, including sentencing," (Report at 43), and "there is not a `reasonable probability' that had counsel pursued the strategies Petitioner advances, the `result of the [sentencing] would have been different'." (Id. at 45 (citing Strickland, 466 U.S. at 694).) Magistrate Judge Katz determined that "counsel [may have] wished to avoid further reminding the court of Petitioner's past criminal conduct." (Report at 45.) "[T]hat counsel did not repeat the contents of the letters in his argument is irrelevant to his effectiveness, and falls squarely within his strategic discretion." (Id.) Magistrate Judge Katz also determined that "[t]he sentencing court made no reference to Petitioner's [disruptive] behavior. . . . Instead, it made clear that the sentence it imposed was based on Petitioner's prior felony convictions and the violent nature of the crime for which Petitioner was convicted." (Id. at 46; S. Tr. at 18 ("[t]he court's consideration on this case is that [Petitioner has] two prior felonies within the past ten years. . . . In the present case, the proof was that [Petitioner] violently attacked an 89-year-old man inside his home. . . .").)
D. Certificate of Appealability
Because Petitioner has not made a "substantial showing of the denial of a constitutional right," the Court will not grant a certificate of appealability. 28 U.S.C. § 2253(c)(2); see Lucidore v. NY State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000).
V. Conclusion and Order
For the foregoing reasons, the Petition is dismissed. The clerk of the Court is respectfully requested to close this case.