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August 27, 1971

Raymond MIRANDA, Petitioner,
UNITED STATES of America, Respondent

Wyatt, District Judge.

The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is the decision, after a hearing, of a motion by Miranda to vacate and set aside a sentence imposed on him on September 26, 1968. 28 U.S.C. § 2255. The sentence was imposed after a plea of guilty to a one count indictment charging movant and Antonio Rivera with the receipt, concealment, etc. of some 64 grams of heroin. The sentence was imprisonment for 6 years.

 The ground for this motion is that Miranda was mentally incompetent at the time of plea and sentence and was under "heavy narcotic medication".

 Miranda is proceeding in forma pauperis. 28 U.S.C. § 1915(a).

 A hearing was required because the earlier denial of the motion without a hearing (325 F. Supp. 217) was reversed by the Court of Appeals on February 5, 1971 (Lumbard, Moore and Smith, C.JJ.). 437 F.2d 1255

 The motion is again denied. The claims made are false and the movant, under oath, wholly unworthy of belief.

 Miranda is a parasite with a long and vicious criminal record. In this proceeding he has wasted the time and energy of many persons and has caused public funds in a substantial amount to be squandered. This depressing example suggests that the procedure permitting free and easy collateral attack on criminal convictions is in urgent need of reform. One possibility is an amendment to the statute (28 U.S.C. § 2255) in respect of the necessity for hearings on such motions as this. Another possibility is to require a movant such as Miranda to supplement "his constitutional plea with a colorable claim of innocence". Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970). It may be noted that Miranda has never claimed to be innocent of the offense to which he pleaded guilty. Indeed, he could not do so because he and Rivera were arrested while in the act of making a sale of the heroin in hand to an undercover agent. Miranda admitted his guilt at the time of his plea and later to the probation officer; in his testimony at the hearing he again specifically admitted his guilt, confessing that he had asked Rivera for "heroin" (SM 47) which in fact was procured by Rivera for the sale; Miranda more than once recognized that he was in fact guilty (SM 48, 243). Rivera was tried by me without a jury and was convicted; the evidence fully established the guilt of Miranda as well.

 After the earlier denial of the present motion, Miranda filed a notice of appeal which was submitted to me for decision, whether to certify that the appeal was not taken in good faith. 28 U.S.C. § 1915(a); F.R.A.P. 24(a). This presented a close question. On the one hand, the records in my view showed conclusively that Miranda was entitled to no relief and that no more time, effort and money should be wasted in further considering his frivolous claims. On the other hand, it had become the rule in the Tenth Circuit that a hearing is required whenever there is a claim of mental incompetency at time of plea or sentence. Butler v. United States, 361 F.2d 869 (10th Cir. 1966). I decided not to obstruct the appeal by making the certificate; it was my hope, not realized in the event, that our Court of Appeals would adopt a rule for this Circuit that no hearing need be held where the records clearly refute the claim of incompetence made by movant.

 While the reversing opinion of the Court of Appeals recognizes that the broad claim for movant was mental incompetence, the specific fact issue directed to be determined was whether Miranda was under the influence of narcotics when he pleaded guilty. The opinion states (437 F.2d at 1259):

"* * * we are not convinced that it is possible to negate the claim of heavy sedation at the time of plea on the record available to the court on the motion."

 The opinion indicates that the Court of Appeals accepted the claim of Miranda as to his suicide attempts: "He had twice attempted suicide while in withdrawal" (437 F.2d at 1258). As later shown herein, the so-called suicide attempts were not real but faked. Moreover, the further evidence confirms the conclusion from the records that neither at time of plea nor at sentence was Miranda under any "narcotic sedation", heavy or otherwise.

 After the reversal by the Court of Appeals, arrangements were made for the required hearing. Counsel who had represented Miranda by appointment in the Court of Appeals kindly consented to represent him in this Court.

 By order filed March 29, 1971, and on application of counsel for movant, preparation of a stenographic transcript at government expense was authorized. 28 U.S.C. § 753(f).

 By order filed April 14, 1971, counsel for Miranda was authorized (under 18 U.S.C. § 3006A) to obtain the services of Dr. Stanley L. Portnow of Bellevue Hospital for a psychiatric examination of Miranda.

 Hearings were held on March 24, April 16, 22 and 23 and May 5, 14 and 18, 1971.

 Miranda himself testified at length and also called to testify three of his sisters, Dr. Portnow (a psychiatrist), and Dr. Frantz (a psychiatrist who was employed in August 1968 at the New York City Correctional Institution for Men on Rikers Island ("Rikers", for convenience)).

 The government called Dr. Sherman (a physician at Rikers in August 1968), Ricks (a deputy United States Marshal for the Eastern District of New York), Pallatroni (a special agent of the Bureau of Narcotics and Dangerous Drugs), Demos (the probation officer who prepared the presentence report on Miranda), Judge Moldow (who as a lawyer represented Miranda at plea and sentence), and Leisure (who as an Assistant United States Attorney prosecuted Miranda).

 The Court called as witnesses Caldwood, Edwards, and Walls (correction officers at Rikers in August 1968); and Reed, Mills, and Richardson (nurses at Rikers in 1968).

 Extensive medical records and other documents were received in evidence.

 The findings which follow are based on the testimony and on the documentary evidence. Wherever the testimony of Miranda differs in any respect from other evidence, I have rejected the testimony of Miranda as a fabrication designed simply to manipulate the judicial process to secure his liberty so as to be able to resume his career in crime. The rejection of Miranda's testimony is based, among other things, on observation of him and his demeanor while testifying.

 All the evidence from state institutions for the period prior to 1968 shows Miranda to have been competent. A psychiatric report of January 5, 1962 from Green Haven Prison states that he was "most cooperative -- was in excellent contact * * * there was no evidence of a psychotic nature. He was in good contact, spontaneous, and showed no outstanding difficulties" (Ex. 4). It was noted that he used drugs. A psychiatric report of December 23, 1964 from Sing Sing Prison states (Ex. 4):

"No history of injuries or diseases that may have led up to brain damage. Nevertheless his abortive pugilistic career must be considered as having been specifically hazardous in this respect * * *. Without mental disorder. Psychopathic personality, anti-social. Aggressive features. Drug user. Average intelligence."

 Miranda and Rivera were arrested in the early hours of Tuesday, February 27, 1968, by federal narcotics officers (including agent Pallatroni) after they had arranged a sale for $700 of about 64 grams of heroin to undercover agents. They were caught red-handed and the heroin itself was seized; Miranda had solicited Rivera to produce and sell the heroin.

 At 8:25 in the morning of February 27, Miranda was admitted to Federal Detention Headquarters in West Street, classified as a drug addict, and given treatment (1/4 grain of morphine sulphate) either to help him during the withdrawal period or to treat his addiction. According to the medical records, Miranda stated that he had last taken heroin on Monday, February 26.

 The opinion of the Court of Appeals states that while in federal custody Miranda suffered "severe narcotic withdrawal" (437 F.2d at 1256). Doubtless every addict, when deprived of his drug, suffers from withdrawal sickness but I am unable to find any evidence that the withdrawal of Miranda on and after February 27 was "severe". It is said that withdrawal is "much less severe" where, as in the case of Miranda, he is "withdrawn or detoxified * * * under the medical method commonly used today" (Public Health Service, Narcotic Drug Addiction, Mental Health Monograph 2, pp. 3-4).

 At 12:45 in the afternoon of February 27, Miranda was brought before the Commissioner. Agent Pallatroni had sworn to a complaint charging a violation of 21 U.S.C. §§ 173, 174. Bail was fixed at $10,000 and, no bail being posted, Miranda was remanded.

 For the fifteen years before this arrest, Miranda had been many times in and out of New York prisons. Among other things, he had broken into a tavern to steal money; he had pushed, kicked and beaten a man to death, for which he was charged with homicide, later reduced to assault in the second degree; he had held up a radio shop for which he was convicted of assault and robbery; he had been convicted of possession of heroin. In light of this record, the bail fixed was by no means excessive.

 There is no history of any mental illness of Miranda. He was never in a mental institution. In fact, his present motion avers that he "became incompetent" after he was confined in West Street on February 27, 1968.

 At West Street, Miranda was given a quarter grain of morphine sulphate in the evening of February 27, the same dose was given in the morning and evening of February 28 and 29 and in the evening of March 1. The medical records from West Street show conclusively that after the evening dose on March 1, no other narcotic drugs were given to Miranda. There is no notation that he was in pain or having any difficulty whatever.

 There are records that at 6 a.m. on Monday, March 4, Miranda "tried to hang himself" by using a bedsheet. It was not necessary to call a doctor; an ambulance attendant and others saw him but found "no serious damage". He required no treatment nor medication. Specifically, there is nothing to support a suggestion that oxygen was administered to revive him. No one noted any indication that his mind was affected.

 On the same day, March 4, Miranda was released from the "denarcotization unit" and placed with the general prison population.

 No evidence was produced as to the hanging incident at West Street except for the records themselves. Miranda himself claimed to have no recollection of the incident (SM 23) and gave no evidence about it.

 I can only conclude that whatever Miranda did on this occasion was not with a design to take his life, but to call attention to himself, undoubtedly in the hope that the morphine sulphate doses, stopped on March 1, would be resumed. Medical experts, experienced with addict prisoners, testified that they often make fake attempts to injure themselves "so they can be given more potent medication" (SM 182, see also SM 149). The incident at West Street was a faked suicide attempt and in any event is no evidence of any mental defect of Miranda.

 The grand jury returned a one count indictment against Miranda and Rivera on March 4, 1968. This charged that they received, etc., 64 grams of heroin (21 U.S.C. §§ 173, 174).

 On March 6, Miranda was in open court before Judge Weinfeld who assigned Bernard Moldow, Esq., of the Legal Aid Society to represent Miranda. Judge Moldow is now a judge of the New York City Criminal Court but at that time he had been defending criminal cases for the Legal Aid Society for over 20 years and had defended upwards of 20,000 cases (of which from a quarter to a third involved narcotics offenses). He was well known as an able and experienced advocate, one quickly able to detect signs of mental incompetence, of drug use, or of drug influence.

 Mr. Moldow on that day interviewed Miranda, who admitted the offense and gave the details. Miranda said he arranged for the sale of heroin, got the heroin from Rivera, and got into a car to deliver it when he was arrested; Rivera was waiting for the money when he was arrested by other agents. Mr. Moldow testified (SM 15) that he had no trouble in communicating with Miranda or getting responses from him. Moldow advised him what the mandatory penalty was and made ...

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