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January 9, 1981

Henry G. HOORNWEG, Petitioner,
Harold J. SMITH, Superintendent, Respondent

The opinion of the court was delivered by: ELFVIN

Petitioner, currently incarcerated at Attica (N.Y.) Correctional Facility, seeks his release upon a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a plea of guilty to rape in the first degree before Judge George F. Roberts of the New York Supreme Court, County of New York, he was sentenced to an indeterminate prison term of five to fifteen years.

Petitioner asserts as the sole ground for relief *fn1" that his guilty plea was secured in violation of his constitutional right to due process of law. Specifically, he alleges that the trial court unconstitutionally accepted his guilty plea without the benefit of a competency determination.


 On August 20, 1974, prior to the challenged conviction in the instant case, petitioner was indicted for rape in the first degree and possession of a deadly weapon. Pursuant to Article 730 of New York's Criminal Procedure Law he was examined by two psychiatrists who concluded that he was competent to stand trial. He subsequently pleaded not guilty to the charges. Thereafter, but before he was convicted by his guilty plea to the 1974 indictment, he was indicted for similar crimes April 3, 1975 and September 22, 1975.

 On September 18, 1975 Judge Roberts ordered an Article 730 psychiatric evaluation of petitioner to determine his capacity to stand trial relative to the April 3, 1975 indictment. Such examination never took place. Instead, on October 3, 1975, petitioner pleaded guilty to the rape charge of August 1974 in satisfaction of all charges against him contained in the three indictments. Judge Roberts accepted his guilty plea and sentenced him to the aforesaid prison term.

 Petitioner's conviction was unanimously affirmed by the Appellate Division of the Supreme Court, First Department, January 10, 1978. Leave to appeal to the Court of Appeals was thereafter denied.


 Before reaching the substantive issues of this case, it must be determined whether petitioner has exhausted his state remedies pursuant to 28 U.S.C. §§ 2254(b) & (c). That a habeas corpus petitioner must first fairly present his federal constitutional claims to the state courts before he may receive federal relief is firmly settled law. Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971); Johnson v. Metz, 609 F.2d 1052, 1055 (2d Cir. 1979). Respondent contends that petitioner has inexcusably failed to satisfy his exhaustion obligation in that his failure to move the trial court to vacate his guilty plea deprived the New York appellate courts of jurisdiction over his competency/due process claim. Thus, he argues, this court is deprived of the power to review such claim.

 Under certain circumstances, unjustifiable failure to raise constitutional claims at trial may preclude a federal court's review of such claims. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). Such circumstances, however, do not exist in the matter at hand. Regardless of New York's procedural rules governing contemporaneous objections, no such objection is necessary to raise the issue of a defendant's competency on appeal. People v. Armlin, 37 N.Y.2d 167, 172, 371 N.Y.S.2d 691, 696, 332 N.E.2d 870 (1975). Furthermore, petitioner's claim of a deprivation of due process for failure to receive a competency determination was properly raised in federal constitutional terms on appeal. For these reasons, said issue is validly before this court for resolution.


 Petitioner's habeas corpus claim rests on the trial judge's failure to obtain an evaluation of his competency before accepting his guilty plea. He asserts that the court's decision to order a psychiatric examination pursuant to Article 730, which examination never took place, demonstrates the judge's doubts about petitioner's capacity to stand trial. Under these circumstances, he submits, his constitutional due process rights were violated inasmuch as he was entitled to "a full and impartial determination of his mental capacity" once the psychiatric examination was ordered. People v. Armlin, supra.

 It may well be true, as petitioner maintains, that New York law does not permit a trial judge to accept a defendant's guilty plea until a previously-ordered Article 730 competency determination has been furnished. People v. Armlin, supra. Noncompliance with state law, however, does not of itself sanction the conferral of the requested relief. A federal court, petitioned for habeas corpus relief, must look only to whether the actions complained of deprived the petitioner of his fundamental constitutional rights. Wright v. Smith, 569 F.2d 1188, 1191-92, 1192 n.7 (2d Cir. 1978); United States ex rel. Smith v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974); cert. denied, 423 U.S. 856, 96 S. Ct. 106, 46 L. Ed. 2d 81 (1975).

 The Constitution demands that before a guilty plea can be accepted, a trial judge must be fully satisfied that the plea is knowing and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). A plea cannot be knowing or voluntary unless the defendant is competent to understand the nature of the charge, his constitutional rights and the scope of the penalty provided by law. Boykin v. Alabama, id., at 243-44, 89 S. Ct. at 1712; Saddler v. United States, 531 F.2d 83, 85 (1976).

 Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966), established, and Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975), elaborated the due process safeguards with respect to a criminal defendant's competency to stand trial. Together, these cases hold that a trial court must inquire further into a defendant's competency when there is reasonable cause to believe that the defendant is incompetent. Drope v. Missouri, supra, at 174-75, 180, 95 S. Ct. at 905, 908; Riccardi v. United States, 428 F. Supp. 1059, 1063-64 n.4 (E.D.N.Y.), aff'd, 573 F.2d 1294 (2d Cir. 1977). Relevant factors which may raise such cause include ...

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