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TELESCO v. SCULLY

July 1, 1982

Leonard TELESCO, Petitioner,
v.
Charles SCULLY and the Attorney General of the State of New York, Respondents



The opinion of the court was delivered by: SOFAER

In 1974, petitioner was convicted of murder and possession of a weapon at a jury trial in the Supreme Court, Westchester County, presided over by Justice Beisheim. He was sentenced to imprisonment for twenty-five years to life. He now seeks a writ of habeas corpus on three grounds: mental incompetence during the trial due to the ingestion of valium; unconstitutionality of the charge on intent; and ineffective assistance of counsel, on the sole ground that his challenge to the charge was not asserted on appeal.

The mental-incompetence and jury-charge grounds were first asserted in May 1980 on a motion to vacate before Justice Beisheim, six years after the sentencing. The State opposed the motion to vacate both on procedural grounds and on the merits. See Opposition to Writ, Ex. B, at 2-3. The State noted that petitioner's mental state was in fact discussed, a continuance was denied, but no claim of drug-induced incompetence was made. As for the instruction, the State noted that an exception was taken to the charge on intent, but the issue was not preserved on appeal.

 Justice Beisheim rejected petitioner's mental-incompetence claim not only on the merits but also on the procedural ground that the claim had been forfeited by failure to raise it on appeal. Affidavit in Opposition, Ex. E, at 3-4. The claim is therefore waived on habeas review unless petitioner can show actual prejudice from and cause for the procedural default. Forman v. Smith, 633 F.2d 634, 636 n.5, 640 (2d Cir. 1980). The actual-prejudice prong of this test need not be addressed because petitioner has shown no cause for his failure to raise his mental-incompetence claim on appeal.

 The only cause petitioner alleges is that the claim was based on facts outside the record, so that it could not be raised on appeal. But the issue was raised on the record at trial, and the trial judge's finding of competence was made on the record. See Trial Tr. 149-55, 178-80. In any event, nothing in petitioner's legal papers, here or in the state proceedings, supports the argument that the issue could not have been raised on direct appeal. See, e.g., People v. Frisbie, 65 A.D.2d 954, 410 N.Y.S.2d 481 (4th Dep't 1978) (on direct appeal, case remanded for hearing on claims with support only outside record). Not only is petitioner's one allegation of cause inadequate but there appears to be no other cause for the default: the facts were in petitioner's knowledge, and his request for an adjournment shows that he well knew that his mental state was a proper subject to raise. Moreover, in such circumstances as this case presents, reviewing the alleged error requires inquiry into facts (regarding the petitioner's mental state at trial) almost impossible to ascertain six or eight years after trial; contemporaneous review is therefore especially important, and the cause standard for overlooking a procedural default must be high. Cf. Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 1570-73, 71 L. Ed. 2d 783 (1982) (discussing importance of contemporaneous challenges to trial). In sum, there being no adequate cause for his default, petitioner is barred from raising his mental-incompetence claim here.

 Justice Beisheim rejected petitioner's challenge to the intent charge on the merits. He held that the charge was sufficiently qualified to avoid prejudice and that a New York Court of Appeals decision implied that Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), on which petitioner's challenge to the charge is based, should not be applied retroactively to any cases not already on appeal when Sandstrom was decided. Contrary to the State's contention, Justice Beisheim did not rely on petitioner's failure to raise this claim on appeal. He reached only the merits, saying nothing about the alleged procedural default, possibly because Sandstrom was not decided until four years after the appeal was concluded.

 Petitioner sought to appeal the denial of his motion to vacate. For the first time, he asserted that his attorney had been ineffective by failing to raise the Sandstrom issue on direct appeal; petitioner did not then, or at any other time, raise any ineffective assistance claim based on failure to raise the mental-incompetence issue on appeal. The State relied on both procedural and substantive grounds in opposing the application. On September 18, 1980, leave to appeal was denied in an order that failed to state any ground. Affidavit in Opposition, Ex. H.

 The courts of New York have not relied on the failure of petitioner to raise the Sandstrom issue on appeal. Justice Beisheim reached and decided the merits of the claim, so it is properly before this Court. See, e.g., Mitchell v. Smith, 633 F.2d 1009 (2d Cir. 1980); Washington v. Harris, 650 F.2d 447 (2d Cir. 1981). The portion of the charge alleged to run afoul of Sandstrom reads as follows:

 
Further, I charge you that a man is deemed to intend the natural consequences of his act and unless the act was done under circumstances or conditions which preclude the existence of such intent, you have a right to find from the results produced an intent to effect that result.

 Trial Tr. 1150. Petitioner's challenge to this instruction is meritless.

 Sandstrom v. Montana, supra, invalidated a jury instruction that " "(t)he law presumes that a person intends the ordinary consequences of his voluntary acts,' " where intent was an element of the crime charged. 442 U.S. at 515, 99 S. Ct. at 2454. Because the charge was given without qualification, said the Court, it left the jury to think it had no choice but to draw the inference from act to intent. Thus, it unconstitutionally shifted the burden of proof on an essential element of the crime charged.

 The Second Circuit and the New York Court of Appeals have upheld facially similar but significantly different charges against Sandstrom challenges. Washington v. Harris, 650 F.2d 447 (2d Cir. 1981), following People v. Getch, 50 N.Y.2d 456, 429 N.Y.S.2d 579, 407 N.E.2d 425 (1980), upheld a charge on murder in which the jury was told:

 
On the question of intent, you may infer that a person intends that which is the natural and necessary and probable consequences of the acts performed by him and unless the act was done under circumstances to preclude the existence of such intent, you have a right to find from the results produced an intention to effect it.

 The Second Circuit held that this charge, unlike that in Sandstrom, did not shift the burden on intent to the defendant, because it told the jury that it had a choice whether or not to draw an inference from act to intent. The Court specifically noted that this charge told the jury only that it "may infer" intent and did not say that the law "presumes" intent; the Court also noted that the language "unless the act was done under circumstances to preclude the existence of such an intent" helped rid the charge of any arguable burden-shifting implication. 650 F.2d at 453. The New York Court of Appeals relied on the same arguments in approving a similar charge in People v. Getch, supra. More recently, in Mancuso v. Harris, 677 F.2d 206 (2d Cir. 1982), the Second Circuit approved the following charge:

 
Everyone is presumed to intend the natural consequences of his act and unless the act is done under circumstances or conditions that might preclude the existence of such an intent, you, the jury, have to find, have the right to find ...

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