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PALMIERI v. UNITED STATES

June 12, 1968

Matthew PALMIERI, Petitioner,
v.
UNITED STATES of America, Respondent



The opinion of the court was delivered by: HERLANDS

HERLANDS, District Judge:

 Petitioner, Matthew Palmieri, moves pursuant to 28 U.S.C. § 2255 *fn1" to vacate the judgment of conviction and sentence imposed upon him on February 13, 1962 for violating the federal narcotics laws.

 He also moves to disqualify the Court from deciding this § 2255 application on the grounds that "the Judge is biased or prejudiced against me and further that I will definitely call Judge Herlands as a witness to appear and testify in my behalf at the proposed forthcoming hearing. * * *" (Affidavit of Matthew Palmieri, sworn to February 13, 1968, p. 2.)

 In addition, petitioner seeks discovery and inspection of the pre-sentence report. For the reasons hereinafter set forth petitioner's motions are denied in all respects.

 Petitioner and nineteen others were charged in a thirty-count indictment, filed May 22, 1961 (61 Cr. 527), with violations of the federal narcotics laws. Palmieri was named as a defendant in the first count, the conspiracy count, and the fifth Count, a substantive count.

 After a two-month trial, he was convicted by a jury on December 27, 1961. He was sentenced by this Court on February 13, 1962 for a term of twenty years' imprisonment. The conviction was affirmed by the United States Court of Appeals for the Second Circuit on November 8, 1962; and the Supreme Court denied certiorari on April 1, 1963. United States v. Agueci, 310 F.2d 817 (2d Cir. 1962), cert. denied sub nom. Guippone v. United States, 372 U.S. 959, 83 S. Ct. 1013, 10 L. Ed. 2d 11 (1963).

 I

 Petitioner seeks to overturn his conviction on the ground that he was incompetent at the time of trial and, therefore, could not rationally consult with counsel and understand the proceedings. He asserts that he had a long history of drug addiction prior to trial, for which he was committed to the United States Public Health Service Hospital in Lexington, Kentucky, in 1945 and that, during trial, he was intermittently "sleepy", "drowsy", "on the nod", "lethargic" and "stuporous" as a result of taking dolophine pills and sniffing heroin. In petitioner's opinion, his conduct during trial was such that it must have been noticeable to anyone present in the Court.

 Petitioner's contention that he was mentally incompetent at the time of trial is not supported by any factual and corroborative material. None of petitioner's assertions is substantiated either by competent psychiatric analysis or by any affidavit of his attorney or a psychiatrist. Conclusory allegations - unsupported by evidentiary facts - that petitioner was a narcotics addict and, therefore, mentally incompetent to stand trial are plainly insufficient to require a § 2255 hearing. Wheeler v. United States, 340 F.2d 119, 121 (8th Cir. 1965); Burrow v. United States, 301 F.2d 442, 443 (8th Cir.), cert. denied, 371 U.S. 894, 83 S. Ct. 193, 9 L. Ed. 2d 126 (1962); Mirra v. United States, 255 F. Supp. 570, 582 (S.D.N.Y.1966), aff'd, 379 F.2d 782 (2d Cir. 1967); United States v. Molino, 240 F. Supp. 332 (S.D.N.Y.1965); Trimmings v. United States, 67 Civ. 3608 (S.D.N.Y. April 8, 1968) (not officially reported).

 The Court has thoroughly examined and reviewed the extensive trial record in this case. In addition, the Court was able to observe carefully the petitioner during a lengthy trial. No mention was made at trial that petitioner was suffering from any mental difficulty. Nothing occurred at trial that casts any bona fide doubts on petitioner's competency to stand trial. Heard v. United States, 263 F. Supp. 613, 617-618 (D.D.C.1967); Howell v. United States, 282 F. Supp. 246, 248-250 (N.D.Ill. 1968).

 At the time of sentence, petitioner stated for the first time that he was "going crazy" during the trial. (Trial Record, p. 7498). The Court, relying on the pre-sentence report, made the following statement:

 
"THE COURT: Now, according to the information available to me he [petitioner] was committed on November 3, 1944, to serve a term of two years and six months on the last narcotics case, and he was sent to Lexington because he gave a history of opium smoking. However, it is believed that the defendant [petitioner] told his story in order to do his time at Lexington rather than at Milan, Michigan, and the prison authorities stated that each time he had been at the Federal house of detention nothing has been found to indicate that he is or has been a user of narcotics, * * *." (Trial Record, pp. 7497-7498.)

 Petitioner's unsubstantiated selfserving declaration does not mandate that the Court hold a hearing on his competency, particularly in view of the evidence to the contrary. Heard v. United States, supra. What Judge MacMahon said in a somewhat different though analogous factual context is apposite:

 
"Bare allegations that for a period of time preceding the chair-throwing incident, petitioner felt annoyed, tense, irritated, needled and quarrelsome, and that he suffered from constant headaches and nervous tension are patently insufficient to require a hearing concerning petitioner's mental competency to stand trial. Indeed we would be seriously concerned about petitioner's mental competency if, confronted by a probable twenty ...

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