Medina, Kaufman and Timbers, Circuit Judges. Irving R. Kaufman, Circuit Judge (dissenting).
The essential issue raised on this appeal is whether petitioner, presently incarcerated at Attica State Prison, was denied his Sixth Amendment right to the effective assistance of counsel*fn1 at his trial for first degree murder in the New York Supreme Court, New York County, in 1963; more specifically, whether his counsel, under all the circumstances, failed to make an adequate investigation to determine whether there was a basis upon which to interpose a defense that petitioner was legally insane at the time of the commission of the crime. After a four day evidentiary hearing in the Southern District of New York, before Charles M. Metzner, District Judge, on petitioner's fifth petition in the federal courts*fn2 for a writ of habeas corpus, Judge Metzner filed a reasoned opinion denying the petition. For the reasons stated below, we agree with Judge Metzner's conclusions in all respects, including his holding that petitioner was not denied his constitutional right to the effective assistance of counsel. We affirm.
At the first phase of petitioner's state court trial before Justice Thomas Dickens, which resulted in a jury verdict on October 16, 1963 of first degree murder, there was eye witness testimony that, on April 18, 1963, petitioner, using a loaded.32 caliber revolver he had brought to an apartment located at 2216 Eighth Avenue, Manhattan, shot one Jacqueline Bonds in the public hallway, after which she ran into a bedroom where he shot her again. She staggered into the living room where she collapsed and died. Three bullet wounds were found in her body. There also was evidence that about six weeks before the shooting, when Jacqueline in the presence of her mother told petitioner that she was not going to go with him any more, petitioner pointed his finger at Jacqueline and said, "I'll get you!"*fn3
At the second phase of petitioner's murder trial, the purpose of which was to determine whether a sentence of death or life imprisonment should be imposed, there was evidence that petitioner had been indicted on April 5, 1963 by a grand jury in Brooklyn for certain crimes which he was charged with having committed on March 14, 1963 involving one Clementine Benifield, namely, attempted first degree rape, second degree assault and second degree burglary. In connection with the grand jury's continuing investigation of that case, the assistant district attorney, at the request of petitioner who claimed he had been with Jacqueline Bonds at the time of the alleged crimes committed on March 14, had subpoenaed Jacqueline to appear before the grand jury as an alibi witness on April 18, 1963. She did not appear pursuant to the subpoena and never did testify before the grand jury. Petitioner, however, was at the grand jury on April 18. The upshot of the second phase of petitioner's murder trial was that, when the jury was unable to reach an agreement, Justice Dickens on November 20, 1963 imposed the mandatory sentence of life imprisonment.*fn4
The petition for a writ of habeas corpus from the denial of which the instant appeal arises was filed in the Southern District of New York on December 26, 1968. Judge Metzner in an opinion and order of April 28, 1969 initially denied the petition without a hearing on the ground that, of the four claims presented, petitioner had failed to exhaust state remedies with respect to his claim of legal insanity at the time of commission of the crime and at the time of trial; and this unexhausted claim was related to two of the exhausted claims, namely, ineffective assistance of counsel and threats by the prosecutor. See United States ex rel. Annunziato v. Deegan, 440 F.2d 304, 305 n. 1 (2 Cir. 1971); United States ex rel. Levy v. McMann, 394 F.2d 402 (2 Cir. 1968); United States ex rel. Sniffen v. Follette, 393 F.2d 726 (2 Cir. 1968). Accordingly, Judge Metzner denied the petition "without prejudice to a renewal after exhaustion of state remedies on the claim of insanity."
Our Court, on August 12, 1969, granted petitioner's motion for a certificate of probable cause, remanded the case to the district court for a hearing on the merits of petitioner's unresolved claims and suggested that the district court assign counsel to petitioner. Judge Metzner did appoint counsel to represent petitioner and also appointed a pyschiatrist to examine petitioner and to testify at the hearing. Both have served without compensation. A four day evidentiary hearing was held. All of petitioner's claims were considered. On June 28, 1971, Judge Metzner filed his opinion denying the petition. The instant appeal followed.
Against this background of proceedings involving petitioner in the state and federal courts during the past nine years, we turn directly to the one question raised on this appeal which merits discussion: Did the alleged failure of petitioner's state court appointed counsel to make an adequate investigation to determine whether there was a basis upon which to interpose a defense that petitioner was legally insane at the time of the commission of the crime, under all the circumstances, amount to a failure of constitutional magnitude, i. e. was petitioner denied his constitutional right to the effective assistance of counsel?
First, we shall briefly summarize the facts relevant to this issue.
Petitioner was represented throughout his state court trial by two court appointed attorneys: Otto F. Fusco, Esq. and Herman Postel, Esq. (both of whom testified at the habeas corpus hearing in the district court). Postel was appointed on May 7, 1963, at about the time the indictment was returned, and served continuously throughout proceedings in the trial court. Fusco was appointed on September 11, 1963, one week before the trial began, and served throughout the trial.*fn5
Relations between petitioner and his counsel involved an almost total refusal on the part of petitioner to cooperate with -- indeed even to communicate with -- his counsel. This was true of the 4 1/2 month pre-trial period as well as the 2 month period over which both phases of the trial extended. Judge Metzner found, based on substantial evidence, that "all petitioner ever would say was that 'he didn't do it.'"*fn6 Counsel enlisted the help of petitioner's mother and a neighbor who was a goddaughter of petitioner's mother, both of whom attended the trial. At counsel's request, these two ladies conferred with petitioner, urging him to open up and talk with his lawyers. He refused.
This difficulty encountered by counsel in trying to communicate with their client led to two separate court ordered psychiatric examinations of petitioner at the request of his counsel.*fn7
In August 1963, petitioner's court appointed counsel (Attorney Postel) moved to have petitioner committed to Bellevue for a mental examination to determine whether he was competent to stand trial. Counsel stated in his application that "[Petitioner] has exhibited no willingness to either cooperate or to help in the preparation of his defense." The court granted the motion and ordered that petitioner be transferred to Bellevue where he remained for 6 weeks. In due course a report by three Bellevue psychiatrists was rendered to the court and counsel. It concluded that petitioner was without pyschosis, although he was possessed of "schizoid personality with sociopathic features". It also concluded that petitioner was competent to stand trial.
During the course of the trial itself, Attorney Fusco informed the court of his inability to communicate with his client and requested the court to appoint an independent psychiatrist to examine petitioner, again to determine his competence to stand trial.*fn8 The court made the appointment. Petitioner again was examined on October 11, 1963 by another psychiatrist who reported to the court and counsel that "[Petitioner] is not incapable of making his defense should he choose to communicate with those responsible for it."
We mention the psychiatric examinations of August and October 1963 not in connection with the issue of whether petitioner was competent to stand trial. Clearly they established that he was competent in that respect. But that is not the issue to which this opinion is addressed.*fn9 We refer to these psychiatric examinations of which petitioner's counsel were aware for their bearing upon the central fact upon which petitioner's claim of ineffective assistance of counsel turns, namely, the psychiatric examination of petitioner at Bellevue in April 1962, one year before the instant offense -- a pyschiatric examination of which petitioner's counsel were not aware during their representation of ...