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April 5, 1977

UNITED STATES OF AMERICA ex rel. JOHN SUGGS, Petitioner, against J. EDWIN LaVALLEE, Superintendent, Clinton State Correctional Facility, Dannemora, New York, Respondent.

The opinion of the court was delivered by: DUFFY



 After a long and somewhat tortured history of judicial consideration, this habeas corpus proceeding has culminated in an evidentiary hearing on the issue of petitioner Suggs' competence at the time he entered guilty pleas to one count each of rape and robbery in state court. Both the circumstances of Suggs' incarceration and the procedural route taken by his petition are detailed in my opinions of February 25, 1975, 390 F. Supp. 383 (S.D.N.Y. 1975), September 3, 1975, 400 F. Supp. 1366 (S.D.N.Y. 1975), and November 16, 1976, 422 F. Supp. 1042 (S.D.N.Y. 1976), and in the opinion of the Court of Appeals of August 7, 1975, 523 F.2d 539 (2d Cir. 1975).

 Simply stated, Suggs was convicted and sentenced to concurrent five to fifteen year terms of imprisonment on the basis of guilty pleas entered before Justice Nunez of the State Supreme Court, New York County, on September 13, 1968. Immediately following the acceptance of the pleas, as a result of post-plea statements made by Suggs, Justice Nunez ordered Suggs to Bellevue Psychiatric Hospital for a psychiatric examination and report. This report, dated October 21, 1968, and prepared by Drs. Martin I. Lubin and Laszlo Kadar, diagnosed Suggs as a paranoid type schizophrenic, "in such a state of insanity as to be incapable of understanding the charge, proceedings or making his defense."

 On November 6, 1968, on the basis of this report, and with the consent of the parties, Justice Gold committed Suggs to Matteawan State Hospital for the Criminally Insane, where petitioner remained until he was declared competent on April 4, 1969. On June 6, 1969, sentence was imposed by Justice Schweitzer based solely on the petitioner's guilty plea of September 13, 1968.

 After Suggs attempted various unsuccessful challenges to his conviction through state appellate and post-conviction proceedings, I granted federal habeas corpus relief, directing that the guilty pleas be reopened or reaffirmed before sentence could be imposed. On the basis of the record before me, I determined that Suggs was incompetent at the time of his pleas, which condition rendered the pleas void; that any attempted ratification of the pleas at sentencing failed, and that no effective waiver of rights occurred at sentencing as a result of an inadequate inquiry into the voluntariness of the pleas under Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), decided four days before Suggs was sentenced.

 After the State respondent filed its notice of appeal from my order, two psychiatric reports dated July 23, 1968 and May 20, 1969 were discovered in the dead records file of the State Supreme Court's Psychiatric Clinic. These reports, prepared by Dr. Emanuel Messinger, stated that Suggs was not psychotic, thereby flatly contradicting the only psychiatric report theretofore in the record. In light of these eleventh hour reports, the Court of Appeals remanded the case for an evidentiary hearing, *fn1" / leaving the forum to my discretion. For the convenience of the Justices of the State Supreme Court, whose testimony was essential, I requested that the hearing be held in state court. However, for reasons detailed in my opinion of November 16, 1976, 422 F. Supp. 1042, the determination of Justice Melia, before whom testimony was taken, was set aside and a federal evidentiary hearing was ordered and subsequently held before me, on the issue of Suggs' competence at the time his guilty pleas were taken. This opinion constitutes my findings of fact and conclusions of law on the issue pursuant to Rule 52(a), F.R.Civ.P.

 My consideration of the weight to be accorded the Messinger reports in determining Suggs' competency on September 13, 1968, the day of his guilty pleas, begins with the circumstances surrounding their preparation. On July 15, 1968, after petitioner had been arrested and was being held in custody, the Probation Department in the Youthful Offender Part of the State Supreme Court, New York County, requested that Court's Psychiatric Clinic to conduct a preliminary examination of Suggs. Apparently, this was done as part of a routine pre-pleading investigation of defendants such as Suggs, then 17 years old, to determine whether youthful offender treatment would be appropriate. *fn2" / It was pursuant to this request that Dr. Emanuel Messinger, the psychiatrist-in-charge, examined petitioner and prepared the written report of July 23, 1968, stating that petitioner was "without psychosis" and describing Suggs' personality classification "as that of the Pathologic Personality Group, Emotionally Unstable Type, with depressive and paranoid trends." The report also quoted from the following notation, among others, of Dr. Suessmilch, the psychologist who tested Suggs:

 Although this defendant refused to cooperate on most of the Rorschack, such projective material as we have does not suggest a true thinking disorder, nor a psychosis. He impresses us as wilful, defensive, hostile, negativistic, paranoid and antisocial. We would classify him as a narcissistic behavior disorder of extreme degree. A poor prognosis is quite likely.

 The usual procedure at that time was for copies of such psychiatric reports to be sent to the Probation Department and to the court. However, the plea minutes indicate that when Justice Nunez inquired whether Suggs had undergone a psychiatric examination, the court clerk replied that there was no record indicating so. *fn3"

 It is clear that, despite Suggs' assertion at the plea hearing that he was examined "right downstairs," Justice Nunez was unaware of the Messinger report. *fn4" / Donald Tucker, petitioner's assigned counsel, was likewise uninformed of the examination and report. Even though the testimony indicated that copies of such reports were not usually sent to defense counsel, John Collins, the Assistant District Attorney handling Suggs' pleas, testified before Justice Melia that consent of the defendant and counsel would have to be obtained before such an examination could proceed. Nothing in the record indicates that this procedure was followed.

 Mr. Tucker further testified that had he been aware of the fact that there had been such an examination, notwithstanding Dr. Messinger's determination, he would have asked for a further examination of petitioner, even if Justice Nunez had not done so. Mr. Tucker had no personal recollection of petitioner, but he testified before me that if he had interviewed a defendant and felt that he was "not in some way psychiatrically competent," he would put a notation in his file and request a psychiatric examination. The file is devoid of any such indication; *fn5" / to the contrary, the file contained a statement signed by petitioner, written in Mr. Tucker's handwriting except for signature, admitting petitioner's guilt. Mr. Tucker testified that this was done because Suggs was "adamant about taking the plea, wanted to take the plea, demanded to take the plea," and Mr. Tucker wanted to protect himself.

 Although neither Mr. Tucker, nor Mr. Collins, who, it must be noted, saw petitioner only on the occasion of the plea hearing, noted anything unusual about petitioner's behavior, the contrary was true of Justice Nunez. Justice Nunez testified by stipulation that had he been aware of the Messinger report of July 23, 1968, he still might have ordered the Bellevue examination since "[the] defendant's answers were unusual. The Messinger report was only a preliminary report... [It] said that the defendant was without psychosis and did not speak to the issue of whether he was competent to be tried." Indeed, Justice Nunez ordered the Bellevue examination not just in aid of sentencing but "for all purposes, including a determination of whether defendant was competent to be tried." Justice Nunez was the only witness who had an independent recollection of Suggs. He recalled the plea "because of the unexpected answer the defendant gave to his question following the plea."

 An examination of the plea minutes reveals that Suggs' responses to post-plea questions posed by Justice Nunez were indeed unusual. Justice Nunez previously had asked Suggs if he was sorry for his acts, and Suggs replied that he was not. After the pleas were taken, Justice Nunez again referred to Suggs' lack of remorse, to which Suggs gave the most unusual reply that he had tried being sorry once and had lost a finger as a result.

 The Court: You are not sorry at all that you did any of these things, Mr. Suggs?

 The Defendant: Nothing to be sorry about.

 The Court: What?

 The Defendant: There is nothing to be sorry about.

 The Court: Nothing to be sorry about? Well, what in your opinion would be something to be sorry about? If you did what? If what happened?

 The Defendant: If I did something and I did it there is nothing to be sorry about after I do it.

 The Court: No matter what you do?

 The Defendant: No matter ...

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