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July 1, 1997

TREVIS JOHNSON, Petitioner, against JOHN KEANE, Superintendent of Sing Sing Correctional Facility, Respondent.

The opinion of the court was delivered by: PRESKA

 LORETTA A. PRESKA, United States District Judge:

 Petitioner Trevis Johnson ("Johnson") petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Magistrate Judge Peck filed a Report and Recommendation recommending that Johnson's habeas corpus petition be granted. After reviewing the report de novo, pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1)(c), I adopt the Report and Recommendation in its entirety and grant the petition.


 The Evidence at Trial as to the Robberies

 On February 20, 1990, Johnson, wielding a knife, (Tr. 50-54), *fn1" approached Ramesh Dwivedi in the Times Square subway station and asked for a dollar. (Tr. 48-51, 55.) Dwivedi was too slow in producing the money, so Johnson reached into Dwivedi's wallet and removed $ 240. (Tr. 50, 55.) Six days later, on February 26, Dwivedi saw Johnson being arrested in the same station (Tr. 59, 61-63), and reported to the police that Johnson was the man who had robbed him. (Tr. 63-64.)

 Johnson's second victim was Vijaypraksh Hasare. Hasare testified that on February 26, 1990, Johnson approached him and demanded a dollar. (Tr. 24-25, 27-29.) Johnson did not succeed in obtaining any money, however, because other people came down the ramp where the two were standing. (Tr. 24-26, 30, 39-40.) Johnson attempted to escape, but was apprehended by the police, (Tr. 32-33, 42), after Hasare reported the incident. (Tr. 30-32.)

 At trial, defense counsel argued that the Hasare incident was merely an "aggressive panhandle," (Tr. 167-68), and that Dwivedi misidentified Johnson as his assailant. (Tr. 169-70.) On October 19, 1990, a New York Supreme Court jury found Johnson guilty of robbery in the first degree and attempted robbery in the first degree. (Tr. 237-38.) The trial court sentenced Johnson as a predicate offender to concurrent terms of 12 1/2 to 25 years and one and a half to three years imprisonment. (Sentencing Tr., 1/14/91, at 7-8; see also Petition PP 2-3.)

 Mental Incompetence Hearings and Motions

 In June, 1990, Johnson was examined by two psychiatrists to determine his competency to stand trial, pursuant to New York Criminal Procedure Law § 730. (Petition Ex. B: 7/11/90 Examination Reports of Dr. Melvin Weiderlight and Dr. P. Kennedy Walsh.) While both doctors agreed that Johnson appeared competent, Dr. Walsh warned that Johnson "has a chronic history of psychiatric illness which could deteriorate at any time." (Petition Ex. B: Walsh Report at 3.)

 On August 6, 1990, Johnson's counsel moved to have Johnson re-examined (Petition Ex. A: 8/6/90 Hearing Tr. at 3), despite Johnson's vehement protests that no examination was necessary. (Id.) The court did not rule on the motion, but held a conference two days later, on August 8. At that conference, Johnson's new counsel, Robin Frankel, opined that Johnson was competent to stand trial. (Petition Ex. A: 8/8/90 Hearing Tr. at 3-4.) She did note that she would like to meet with an outside expert and perhaps have her client re-examined, but then commented that such a re-examination would not be necessary for the purposes of CPL § 730. (Id. at 4.) Trial was scheduled for September 11, 1990 (Id. at 5), but the case was adjourned until October after being transferred to Justice Clifford Scott. (Petition Ex. A: 9/25/90 Hearing Tr. at 1-3.)

 Johnson's counsel came to believe that Johnson was no longer able to assist in his defense, and on October 16, 1990, requested a further CPL 730 examination. (Petition Ex. A: 10/16/90 Hearing Tr. at 84-85.) Legal Aid's mental hygiene unit, which had met with Johnson, agreed with counsel's assessment. (Id. at 84.) Counsel also pointed out that Johnson had refused to be examined by Dr. Goldstein, a psychiatrist retained by the defense. (Id.) The trial court denied the request for the CPL 730 examination, stating that Johnson had already been found competent the previous June. (Id. at 85.) The court set trial for the following day. (Id.)

 Defense counsel again requested a CPL examination on October 17, 1990, stating that Johnson "lacked the ability to cooperate with counsel" and "has been found unfit in the past" because of his tendency to "shut down" when questioned by counsel. (Petition Ex. A: 10/17/90 Hearing Tr. at 2.) The court did not allow defense counsel an opportunity to explain Johnson's history of psychiatric hospitalization, and refused to comply with counsel's request that the court question Johnson to evaluate his competency. (Id. at 3-4.) Johnson's August 6 claim that he was competent apparently was used by the court to justify the denial of defense counsel's request. (Id. at 5.) The court stated, however, that its ruling would not change, even if Johnson were to consent to an examination. (Id.) Evidently, the trial court was unaware of its power to order a re-examination once the defendant has been found competent. *fn2"

 Defense counsel informed the court on October 18, 1990, that Johnson intended to wear to trial the black striped shirt which was identified by the witnesses and police officers as belonging to the perpetrator. (Petition Ex. A: 10/18/90 Hearing Tr. at 2-3.) Johnson realized that wearing the shirt would likely result in a conviction. (Id. at 3.) Defense counsel tried to persuade the court that this demonstrated Johnson's inability to assist in his own defense; however, the court again refused to hold an examination, and brought the jury in. (Id.)

 On October 19, 1990, at the close of the People's case, defense counsel stated, outside the presence of the jury, that Johnson "cannot assist me in his defense. He is speaking irrationally about having me obtain the folder for his mental psychiatric record. He does not understand what is going on. . . . He is not responsive in any rational way." (Tr. 136-67.) The court did not respond beyond stating "All right, noted." (Tr. 137.)

 Dr. Goldstein examined Johnson on October 22, 1990. He found Johnson to be "delusional," and was prepared to testify as to his findings. (Tr. 138-39.) The report, which was not reviewed by the court, stated that Johnson was not fit to stand trial. (Petition Ex. C: 10/29/90 Report of Dr. Robert L. Goldstein, at 5.) The report noted Johnson's "longstanding history of psychiatric illness dating back to adolescence," id. at 2, and that Johnson was convinced that the complaining witnesses, who are Indian, were conspiring with Indian psychiatrists against whom Johnson allegedly has a malpractice case. (Id. at 3; see also Tr. 140.) Dr. Goldstein concluded that Johnson's

communications with his attorney reflect these paranoid delusional ideas and interfere with any rational or effective collaboration with counsel in the preparation or implementation of a defense. He is unable to consider his alternatives or options in a rational light or to make ...

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