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January 13, 1975

UNITED STATES ex rel. Harold KONIGSBERG, Petitioner,
Leon J. VINCENT, Superintendent of Green Haven Correctional Facility, Respondent

Tyler, District Judge.

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

Petitioner, Harold Konigsberg, is presently serving a sentence at Green Haven Correctional Facility, Stormville, New York. After a trial by jury in the Supreme Court of New York, New York County, (Gellinoff, J.), he was convicted on April 10, 1967 of conspiracy to commit extortion and four substantive counts of extortion. A multiple offender, he was given concurrent sentences of twenty to thirty years on each extortion count and a sentence of ten to fourteen years on the conspiracy count, the last to be served consecutively to the extortion sentences.

 Petitioner's conviction was affirmed without opinion by the First Department of the Appellate Division of New York, People v. Konigsberg, 34 A.D.2d 616, 309 N.Y.S.2d 993 (1970). His appeal to the New York Court of Appeals was dismissed on February 1, 1971 for failure to prosecute. Petitioner applied for certiorari and was denied on October 12, 1971 (404 U.S. 836, 92 S. Ct. 123, 30 L. Ed. 2d 68). His subsequent motion to reinstate his appeal to the New York Court of Appeals was denied by that court on January 12, 1972.

 In this court, petitioner applied for a writ of habeas corpus, contending that his conviction is invalid for a number of reasons, including excessive prejudicial publicity, a prejudiced trial judge, and an incompetent waiver of his constitutional right to counsel. His petition was referred to United States Magistrate Sol Schreiber pursuant to 28 U.S.C. § 636(b)(3). On October 4, 1973, Magistrate Schreiber submitted his report, finding petitioner's contentions without merit and recommending that the petition be denied without a hearing. In a memorandum dated October 30, 1973, this court approved that report and denied the petition with one exception -- the issue of petitioner's competency to waive counsel. An evidentiary hearing on that question was held on April 1 and 2, 1974, at which hearing Mr. Justice Gellinoff testified, as did several psychiatrists who had examined petitioner.


 Petitioner is a novice neither to judicial proceedings nor to psychiatric examinations. On October 13, 1950, he was convicted of robbery in the County Court of Hudson County, New Jersey. In 1954, he was adjudicated insane by a Superior Court judge in Trenton, New Jersey. Following petitioner's arrest in this case on October 23, 1963, the late Robert Shaw, United States District Judge, District of New Jersey, remanded him to federal custody to commence service of a ten year federal sentence which had been imposed on July 16, 1963 for possession of stolen goods. Petitioner was indicted by a New York County grand jury in this case on December 10, 1963.

 On November 19, 1964, petitioner was committed by order of the Supreme Court of New York, New York County (Schweitzer, J.), for an examination of his competency to stand trial, pursuant to then New York Code of Criminal Procedure, § 658. The issue according to that section was whether ". . . such defendant is in such state of idiocy, imbecility, or insanity that he is incapable of understanding the charge, indictment or proceedings or of making his defense." *fn1" Found competent by the examining psychiatrists Lachman and Cassity, petitioner moved to controvert their report on January 18, 1965. Accordingly, the court commenced an evidentiary hearing, at the conclusion of which, on April 27, 1965, Mr. Justice Gellinoff found petitioner capable of understanding the charges and proceedings and of making his defense, and confirmed the psychiatric report.

 On September 4, 1965, while serving the sentence imposed by Judge Shaw, petitioner was admitted to the Medical Center for Federal Prisoners in Springfield, Missouri. Here he was treated and examined regularly. A formal staff report of January 10, 1966 recommended that petitioner be certified psychotic, but noted that his behavior was changing with therapy, so that ". . . any decision related to future competency to stand trial would have to be reserved in the light of future examinations." In the staff examination of May 27, 1966, Dr. Settle, a special psychiatric consultant, noted that though the patient remained mentally ill,

"[at] times he shrewdly perceived his environment and surroundings in order to obtain satisfaction of momentary needs. He seemed to be able to shrewdly assess the reactions of various individuals and at times use his symptoms for secondary gains when these seemed to his advantage."

 In August, 1966, Dr. Alderete noted that although the Springfield staff believed petitioner still incompetent to stand trial, ". . . this is really a legal question for the court to decide."

 On October 28, 1966, petitioner made a motion to stay trial and have himself return to a federal hospital and/or to have a state hearing held on his competency to stand trial. He was then committed to Kings County Hospital, where he was examined on November 4, 1966 by two state psychiatrists, Drs. Bromberg and Jimenez, who found petitioner competent to stand trial. After a second competency hearing was held, Mr. Justice Gellinoff, on December 2, 1966, also found petitioner competent to stand trial.

 Petitioner's trial began on December 7, 1966. On January 3, 1967, after some twelve days of trial, petitioner announced that

"[the] defendant, Harold Konigsberg, as of now, has representation of -- Harold Konigsberg will be represented by counsel, himself and Judge Roy Bean will from hereafter take care of all matters, talk to all witnesses, ...

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