The opinion of the court was delivered by: McLAUGHLIN, District Judge.
Petitioner, pro se, seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254. For the reasons discussed below, the motion
On December 15, 1978, petitioner pled guilty in New York
Supreme Court, Queens County, to second degree murder.
N YPenal Law § 125.25 (McKinney 1987). Petitioner was
subsequently sentenced to serve a term of twenty years to life
imprisonment. The Appellate Division affirmed. People v.
Carter, 73 A.D.2d 953, 424 N.Y.S.2d 15 (2d Dep't), leave to
appeal denied, 49 N.Y.2d 892, 427 N.Y.S.2d 1029, 405 N.E.2d 239
(1980), cert. denied, 449 U.S. 861, 101 S.Ct. 164, 66 L.Ed.2d
Petitioner, having exhausted his available state remedies,
raises four grounds in support of his motion for federal habeas
corpus relief: (1) ineffective assistance of counsel; (2)
failure of the trial court to apprise petitioner of an
"intoxication defense" prior to accepting his guilty plea; (3)
the prosecutor's breach of the plea bargain in requesting the
maximum sentence; and (4) the plea was not voluntary.
I. Ineffective Assistance of Counsel
To successfully establish ineffective assistance of counsel,
petitioner must prove that (1) counsel's errors fall below an
objective standard of reasonableness, and (2) but for counsel's
errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,
2068, 80 L.Ed.2d 674 (1984).
Petitioner argues that his counsel, before both the trial
court and on appeal, failed to demonstrate petitioner's mental
incapacity to enter a voluntary guilty plea. In addition,
petitioner argues that counsel failed to raise the defense of
A. Mental Incapacity to Enter a Guilty Plea
The well established test for "determining the validity of a
guilty plea is `whether the plea represents a voluntary and
intelligent choice among the alternative courses of action open
to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56, 106
S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (quoting North Carolina
v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162
(1970)); see also Santobello v. New York, 404 U.S. 257, 261, 92
S.Ct. 495, 498, 30 L.Ed.2d 427 (1971).
If a defendant's mental capacity at the time of a plea is at
issue, obvious concerns arise over whether the plea is
voluntary and knowing. The question is whether or not a judge
should proceed, and "the test must be whether [the defendant
had] sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding [as well as
having had] a factual understanding of the proceedings against
him." Dusky v. United States, 362 U.S. 402, 403, 80 S.Ct. 788,
789, 4 L.Ed.2d 824 (1960); Matusiak v. Kelly, 786 F.2d 536, 543
(2d Cir.), cert. denied, 479 U.S. 805, 107 S.Ct. 248, 93
L.Ed.2d 172 (1986).*fn1 The record at hand does not establish
that petitioner lacked the ability to enter a knowing and
voluntary guilty plea or that he could not communicate with his
lawyer about the facts of his case.
Petitioner's claim of mental incapacity stems, literally,
from a shot to the head. Respondent's Brief at A21. During the
commission of the crime, petitioner received a gunshot wound.
Plea tr. Nov. 16 at 8. At petitioner's behest, the trial court
ordered a psychiatric examination to determine if the injury
had affected his competence to stand trial. The results of the
examination, conducted by two court-appointed psychiatrists,
concurred with the opinion of petitioner's own counsel; all
agreed that he was fit to stand trial. Motion tr. Sept. 29 at
Although it was determined that petitioner may have suffered
a possible loss of memory in certain "well defined areas," the
record clearly indicates that he had a superb recollection of
the circumstances surrounding his crime. Plea tr. Nov. 16 at
8-9. Petitioner's active participation in the plea bargaining
and aggressive questioning of ...