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October 16, 1992

SAMUEL BROWN, Petitioner, against JOHN DOE, Warden, Respondent.

The opinion of the court was delivered by: VINCENT L. BRODERICK



 This petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241 and 28 U.S.C. § 2254 on behalf of petitioner Samuel Brown, presents many arguments grouped into twenty-one (21) points, many of them overlapping, as grounds for requiring reversal of his state court conviction. I defer decision on the grounds discussed in part IV of this memorandum order, and conclude that none of petitioner's other claims has merit.

 Petitioner makes no claim of insufficiency of evidence or that the case against him was thin or, indeed, anything less than overwhelming. He argues, however, that his conviction should be vacated on the basis that no reasonable jury could have found guilt beyond a reasonable doubt. Point 18, Memorandum of Law on Behalf of Petitioner at 482-83. Petitioner grounds this argument on the following: 1) inconsistencies in eyewitness accounts - often a hallmark of truthful and nonrehearsed testimony; 2) press reports to the effect that the jury improperly shifted the burden to the defense; 3) unspecified omissions of pro-defense evidence in the prosecutor's summation; and 4) a request by one juror - unquoted and uncited - for more evidence prior to deliberations.

 Petitioner has exhausted his state remedies with respect to the grounds raised in this petition. These grounds were rejected in state court on the merits in careful and well-reasoned opinions, upon both direct appeal and post-conviction applications.

 The state courts found that petitioner was severely beaten prior to trial in the Rockland County Jail, resulting in a broken neck and that medical treatment other than painkilling medicines was delayed for more than a month, thus justifying removal of petitioner to another institution, but not affecting the validity of the conviction. People v. Brown, 125 Misc.2d 132, 479 N.Y.S.2d 113 (Westchester Co. 1984).

 Part II below discusses the procedural and factual background for this petition, part III discusses various of the contentions of petitioner related directly or indirectly to the conduct of the trial and part IV addresses the issue of the due process and Eighth Amendment constitutional violations to which petitioner was subjected prior to trial. *fn1" Those issues raised by petitioner which are not specifically discussed in this memorandum order do not entail federal constitutional violations which are factually or inherently legally prejudicial or inherently prejudicial under the circumstances of the case.


 On June 26, 1984 a New York Supreme Court jury convicted petitioner of three counts of felony murder, three counts of robbery in the first degree and other related lesser felonies. Petitioner was sentenced to 25 years to life on each of the three counts of murder, each sentence to run consecutively. Petitioner first appealed this judgment to the Appellate Division, Second Department, which affirmed the judgment of conviction. People v. Brown, 136 A.D.2d 1, 525 N.Y.S.2d 618 (2nd Dep't 1988). Petitioner sought further review of the decision by the New York State Court of Appeals, which was denied by order dated June 14, 1988, 72 N.Y.2d 857, 532 N.Y.S.2d 507, 528 N.E.2d 897. Petitioner also filed a petition for certiorari in the United States Supreme Court, which was denied on October 11, 1988, 488 U.S. 897, 102 L. Ed. 2d 229, 109 S. Ct. 240.

 In addition to his direct appeal, on March 18, 1985 petitioner filed a motion to vacate his conviction on the grounds of judicial bias, based upon the trial judge's campaign literature published after the judgment was entered. The motion was denied. Petitioner sought leave to appeal to both the Appellate Division and the Court of Appeals, which requests were denied, see 65 N.Y.2d 813, 482 N.E.2d 929 (1985). The United States Supreme Court denied certiorari on October 7, 1985, 474 U.S. 855.

 There is no petition pending in any other court, state or federal, as to the judgment under attack. All of the grounds upon which petitioner's claims are based have been raised unsuccessfully in the state trial and appellate courts, and in the United States Supreme Court.

 On October 20, 1981 a Brink's armored truck was robbed outside Nanuet National Bank at the Nanuet Mall in Rockland County. During the course of the robbery, two of the Brink's guards were shot, one of them fatally. The perpetrators fled the scene in a red van and a yellow Honda. The van was later exchanged for a U-Haul truck in the Korvettes shopping mall. A witness notified the police of the change in vehicles. The Rockland County Police were notified that the suspects were fleeing in a U-Haul and a yellow Honda.

 The U-Haul was stopped by several Nyack police officers as it attempted to enter the New York State Thruway. While the officers were speaking with one of the U-Haul's passengers, Kathy Boudin, the back of the truck opened and six persons emerged firing automatic weapons at the police officers. Two police officers were killed and a third was wounded. When the shooting ended, Kathy Boudin was in custody, while all others escaped the scene.

 South Nyack Police Chief Alan Colsey took up chase after a Honda fitting the broadcasted description of one of the escape vehicles, which was travelling at a high rate of speed a short distance from the scene of the shooting. The Honda, unable to negotiate a turn, crashed into a concrete retaining wall. Three persons, including Judith Clark, David Gilbert and petitioner Samuel Brown, were taken into custody; from inside the vehicle more than $ 800,000 was recovered. *fn2"

 During the initial pretrial period ending in July, 1983 (approximately eight months before trial began in March, 1984) petitioner was represented by attorney Evelyn Williams. Over Ms. Williams' disapproval petitioner decided to talk with Federal Bureau of Investigation agents at Otisville about the robbery. Not wishing to represent a cooperating defendant who disregarded her advice, Ms. Williams sought to withdraw as petitioner's counsel in or around January 1983 but was not permitted to do so until other counsel was substituted in July, 1983.

 Robert N. Isseks was assigned to represent petitioner, and has represented him from July, 1983 until the present time. The change in attorneys resulted in delaying petitioner's trial and also in severing petitioner's trial from that of his codefendants other than Kathy Boudin, who was offered and accepted the option to be tried with petitioner. Mr. Isseks moved on September 9, 1983 for relief of various kinds including dismissal of the indictment based on brutality against the petitioner while incarcerated, which was denied.

 In 1982, petitioner and Ms. Boudin had moved for a change in venue, alleging that the prejudicial character and intensity of local publicity created an emotionally charged atmosphere rendering it impossible for the defendants to receive a fair trial in Rockland County. This motion was denied as premature. Prior to the commencement of the voir dire, petitioner renewed his application for a change of venue, and the place of trial was changed to Orange County. On the eve of trial, petitioner made another motion to change the venue to a larger metropolitan arena. The court denied the motion with leave to renew. After the initial screening of the veniremen, petitioner renewed the application for a change of venue. The motion was granted based on the totality of the circumstances including the nature and homogeneity of the community and the percentage of prospective jurors who expressed a firm opinion. The case was removed to Westchester County.

 During jury selection defense counsel questioned the petitioner's mental and physical capacity to stand trial. Petitioner said he was experiencing pain and was apprehensive about his confinement during the trial in the Rockland County Jail, where his initial injuries discussed above had been received.

 In March, 1984 the court ordered an examination of petitioner. Two psychiatrists performed the examination, Dr. Leslie Brooks and Dr. Edward Allen. They both agreed that petitioner should remain at the Westchester County Jail for a three week evaluation. In the meantime, jury selection continued. In April, 1984 a competency hearing was held. The court determined at the hearing that petitioner was capable of proceeding with the trial.

 Meanwhile codefendant Kathy Boudin had pleaded guilty to second degree murder and first degree robbery. Petitioner moved for a mistrial. Judge West questioned the members of the jury on their knowledge of Boudin's guilty plea and its effect upon their ability to render a fair and impartial verdict, and then denied the motion. The trial was completed, and the jury found petitioner guilty.

 On June 20, 1984 a post-trial hearing was held. There the court examined two issues: 1) whether the indictment should be dismissed because of the brutality petitioner suffered at the Rockland County Jail and 2) whether petitioner had been denied adequate legal representation prior to appointment of Mr. Isseks, even though Mr. Isseks came into the case approximately eight months prior to trial. *fn3"

 At that hearing, petitioner testified that during his first five days in the Rockland County Jail he was beaten three to six times a day by several corrections officers, that as result his neck was seriously injured and required surgery, and that he was denied medical treatment other than painkillers for 75 days.

 With respect to the ineffective assistance of counsel, petitioner stated that he had been approached by Federal agents at the Federal correctional facility at Otisville; Special Agent Kenneth Maxwell stated that the meetings were held at petitioner's request. Petitioner signed a waiver form at the time of each of several interviews with federal law enforcement officers. As a result of petitioner's decision to proceed with these interviews Ms. Williams sought to be relieved as counsel. The testimony obtained was placed into evidence by the prosecution.


 Right to Effective Assistance of Counsel

 Petitioner argues that the attorney initially representing him was not interested in representing his individual interests and represented him only to the extent that the representation advanced the revolutionary cause advocated by petitioner's co-defendants. He claims, in short, that his attorney had a prejudicial conflict of interest. As discussed below, counsel was changed long before trial. His new attorney, who still represents him, had sufficient opportunity to prepare for trial - adverse effects of the claimed conflict were obviated. *fn4"

 Petitioner alleges that state and federal officials used his sufferings from his injuries and assertedly distorted advice from counsel, to further attempt to segregate and isolate petitioner from his legal counsel. Petitioner contends that during this "vulnerable" period, the FBI agents engaged in a variety of unethical and unlawful conduct, holding up needed medical treatment to gain petitioner's cooperation, and branding him as a FBI informant effectively to arrest any further desire on the part of his revolutionary attorney to continue representation.

 In this regard, the primary thrust of petitioner's complaint appears to focus on asserted denial of effective counsel, not on any contention that the state court improperly admitted evidence of petitioner's statements to the FBI after holding a hearing on that subject at which the state court found petitioner initiated contacts with the FBI and formally waived counsel at each meeting with the agents.

 Petitioner's claim of inadequacy of counsel in connection with the FBI interviews is internally inconsistent since the legal advice he received from an attorney who abhorred cooperating defendants would have been not to cooperate, rather than propelling petitioner toward talking with FBI agents.

 Petitioner admitted at a public hearing on January 6, 1983 in Rockland County Supreme Court that he had contacted federal authorities on his own initiative to offer to testify before a federal Grand Jury, and he also acknowledged that no bargain was struck or promised by the federal authorities to gain his cooperation. (Tr. Jan. 6, 1983 at 11-12). Petitioner expressly waived his right to counsel each time he was interviewed by FBI agents (Tr. May 1, 1984 at 18-21).

 It would be impermissible to allow a criminal defendant who consciously chooses to disregard legal advice to be able to turn around and successfully claim that this decision by the defendant himself destroyed the adequacy of legal representation, justifying release from imprisonment after a verdict of guilty.

 Moreover, any disadvantage suffered by disagreements between petitioner and his initial counsel came to an end in July, 1983, long before trial began in March 1984. New counsel had ample opportunity to make any requests or objections necessary to correct any prior prejudicial events. Only if the state court's rulings on petitioner's requests for relief based on alleged prior inadequate representation or other events violated the federal Constitution could federal habeas corpus relief be justified. I decline to assume, in the absence of evidence to that effect, that delay between the crime in 1981 and trial in 1984 (occasioned in part by successful defense efforts to obtain changes of venue) caused inability of petitioner to recall events or obtain needed evidence. Certainly such a delay, absent other factors, would not constitute a federal constitutional violation which would justify petitioner's release.

 In view of adequate trial representation and opportunity to move to correct any prejudice from previous occurrences, petitioner's Sixth Amendment claim cannot be an independent basis of relief upon the present petition.

 Aside from the above analysis which assumes that petitioner's initial counsel was inadequate, claims of ineffective assistance of counsel are governed by the two prong test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Petitioner must demonstrate that his counsel's performance was deficient and that the errors made were not in the realm of reasonableness. Id. at 687-88. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and that counsel made "all [the] significant decisions in the exercise of reasonable professional judgment." Id. 694.

 Petitioner must also prove that there was a reasonable probability that "but for counsel's unprofessional error, the result of the proceeding would have different." Id. at 694.

 For petitioner to talk with federal agents while in custody may or may not have been in his interest. If his right to counsel had been violated by the interrogation, Sixth Amendment relief might be justified. Here, however, petitioner's counsel, rather than seeking a court order to bar further interrogation, registered disapproval to petitioner of his decision to talk with the agents - thus confirming the reliability of the formal waivers executed by petitioner in connection with his interviews by the FBI.

 Assuming arguendo that petitioner's Sixth Amendment right had attached, the state court reasonably found that petitioner initiated contacts with the FBI agents and that there was a valid waiver on each occasion petitioner spoke with the federal agents. People v. Brown, 136 A.D.2d 1, 11, 525 N.Y.S.2d 618 (2d Dept.), review denied 72 N.Y.2d 857, 532 N.Y.S.2d 507, 528 N.E.2d 897, cert. denied 488 U.S. 897, 102 L. Ed. 2d 229, 109 S. Ct. 240 (1988).

 Ability to Stand Trial

 Petitioner alleges that the trial court improperly drew a distinction between incompetency caused by a "mental disease or defect" and incompetency caused by "physical pain".

 No federal violation appears to exist with respect to this issue. A full competency hearing was held at a time when petitioner had counsel not claimed to have been inadequate, resulting in reasonable factual findings, upheld on appeal; the appellate court specifically noted that "the trial court did consider the defendant's contention that . . . pain . . . caused him to be unable to assist in his defense, and dealt with the issue satisfactorily by informing the defendant that if there came a time when he considered himself unable to continue, a recess would be taken." People v. Brown, 136 A.D.2d at 12 supra; see Tr. April 25, 1984 at 82.

 Petitioner alleges that the trial court's continuation of his trial while he was under psychological evaluation violated his due process rights. Petitioner supports this contention through the following statement by examining psychiatrists as of March 23, 1984, quoted in the state's Memorandum of law at 83:

 Although Petitioner was getting along well with his lawyer [and] understands the nature of the charges against him and the court procedure, . . . he does not appear to have sufficient ability to consult with his lawyer because of his severe depression and his extreme preoccupation with his jailers . . . He may not be able to cooperate with his defense at all times.

 As a result of this finding, a request by the psychiatrists was granted for a three week period of intense observation. During the observation period the initial pre-evidentiary and pre-opening phase of the criminal proceeding continued, involving jury selection and pretrial judicial hearings. Petitioner contends that this continuation violated his due process rights.

 No finding of incompetency or inability to assist counsel was ever made; the psychiatrists only requested an additional observation period which was granted, thus creating a risk to the state that if an adverse finding had been made, a mistrial might have been necessary and, indeed, double jeopardy problems created. The final favorable judgment on competency was made at the end of April (Tr. April 25, 30). No authority ...

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