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March 19, 1971

David George DuBOIS, Petitioner,
Vincent R. MANCUSI, Warden of Attica State Prison, Attica, New York, Respondent

Curtin, District Judge.

The opinion of the court was delivered by: CURTIN

CURTIN, District Judge.

Petitioner, a state prisoner confined to Attica Correctional Facility, applies to this court for the issuance of a writ of habeas corpus. By order, the transcript of petitioner's plea, sentence, and the record of prior petitions made to the state court were submitted. After examination of these materials, the court assigned Charles F. Crimi to represent the petitioner and held a hearing.

 After the hearing, the court ordered and received the record of petitioner's observation and treatment at Willard State Hospital, Rochester State Hospital, Attica Prison, Elmira Reformatory, and the report of Dr. Robert H. Duncan dated May 24, 1967. By stipulation, these records are admitted into evidence.

 Petitioner alleges that his plea to assault, second degree, made on October 4, 1967, was taken in violation of his constitutional rights. On July 7, 1967, the Monroe County grand jury indicted him in a two-count indictment, one count alleging assault in the first degree, and the other assault in the second degree. At the time of his arraignment on July 11, 1967, counsel was assigned to represent him.

 The incident that gave rise to this indictment occurred on May 23, 1967. On that day, petitioner had a stormy argument with his girlfriend, a married woman for whom he worked from time to time as a babysitter. He threatened her with a knife because she called the police. Upon their arrival, they found him hiding behind a china cabinet with the knife in his hand. After arrest, he was treated for superficial lacerations which he received when he refused to submit peacefully.

 An immediate psychiatric examination held on May 24, 1967 revealed the following:

"Examination showed some disorganization of thought, paranoid ideation and preoccupation. He was delusional and had a fixed idea that he should kill the persons with whom he had recently resided."

 Upon the examining doctor's recommendation, on May 24, 1967 the court committed him to Rochester State Hospital for further study. Upon admission, he gave contradictory statements saying that he was going to kill his girlfriend, and then he would laugh and say that he did not mean it. Petitioner told the examiner that for about the past year he had overindulged in alcohol on occasion, and had used heroin and marihuana.

 In psychological evaluation, he obtained a score of I.Q. 79, borderline mental defective range of intelligence. This confirmed prior tests made in September, 1966. The examiner found that his response to questions was generally adequate although, on occasion, his poor judgment bordered on the bizarre. The examiner noted:

"While he is capable of good reality testing and typically structures his world on a simple but sound level, he demonstrates breakthroughs of abberant thinking with phobic and morbid content."

 On June 26, 1967, at the time of discharge, the doctor found that he was "capable of understanding the nature of the charge against him, of assisting in his defense, and of standing trial."

 Following his discharge, he was indicted on July 7, 1967 for assaults, first and second.

 The defense counsel assigned to him on July 11, 1967 had limited experience only. He had been admitted on June 28, 1967, only a few weeks before, had participated in the defense of three misdemeanors, but had no prior felony experience.

 Petitioner and his counsel conferred about five times during the summer. His attorney explained the meaning of assault, first and second, to him, and the differences between them. He interviewed the arresting officers and made a motion for a bill of particulars, which was answered in August. After that, except for a brief meeting, counsel and petitioner did not confer again until October 4, 1967, the day set for trial.

 At the hearing in this proceeding, defense counsel testified that the petitioner told him that he committed the acts alleged in the indictment, that the petitioner told him he had been taking pills and wanted treatment, and wanted a doctor to check him before trial. He knew that the petitioner was examined in June at the Rochester State Hospital and, on a prior occasion, had been adjudicated a youthful offender. Defense counsel testified that there was some doubt in his mind about the mental capacity of the petitioner. However, no further application was made for examination.

 Petitioner's history of involvment with the law -- drug taking, emotional and psychiatric disturbance, attempted suicide, and confinement -- extended back to a time when he was seven years of age. In 1957, after being adjudged a juvenile delinquent, he was placed on indefinite probation. Following that, he was a continuous behavioral problem. He was expelled from school in 1959 and referred to the Wayne County Mental Health Clinic. He was charged with petit thefts again and again. During his childhood years, his home environment was deplorable. After observation at the Willard State Hospital in 1961, the diagnosis upon discharge was "Primary Behavior Disorders, Conduct Disturbance." In 1962, he was committed to the New York State School of Industry. Following this, he was returned to Willard State Hospital and, upon discharge, the diagnosis was the same as that in 1961.

 Upon his admission to the Rochester State Hospital in September, 1966, the admission note said that he had been arrested about twenty times for assaults, burglaries, and thefts. He claimed that he had attempted suicide a number of times. He stated that he was married and had a daughter who was three years old but, on other occasions, he told the examiner he was single. He gave a history of occasional overindulgence in alcohol and the use of marihuana and heroin. He told the doctor that he had been in Elmira for one year, then at Woodbourne and Napanoch, where he was discharged in April, 1966. On October 12, 1966, he was discharged from the Rochester State Hospital as a "psychopathic personality, with pathologic emotionality." However, three days later, on October 15, he returned voluntarily claiming that he was depressed and was thinking about suicide. He was discharged on October 26, 1966 and again admitted a few days later, on October 28, 1966 voluntarily. He was discharged on November 2, 1966 "without psychosis."

 On February 11, 1967, he was again admitted after attempting suicide by taking an overdose of pills. He said that he wanted to die because his girlfriend told him she did not love him any more. At the time of his discharge on March 22, 1967, he was diagnosed to be "without mental disorders psychopathic personality." At the time of the plea, defense counsel was not familiar at all with this prior history.

 On October 4, 1967, petitioner and defense counsel expected to go to trial. When they appeared in court at 10:00 A.M., the judge ordered the jury selection to begin at 2:00 P.M. During the morning, defense counsel conferred with the Assistant District Attorney who offered to permit the petitioner to plead to assault, second degree. The District Attorney had informed defense counsel that the examining psychiatrist reported that petitioner was mentally competent. Since defense counsel believed that the government had a substantial case, he recommended this plea to his ...

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