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THOMAS v. SENKOWSKI

July 7, 1997

JOHN THOMAS, Petitioner, against DANIEL SENKOWSKI, Superintendent, Respondent.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 Petitioner John Thomas, who is presently incarcerated at Clinton Correctional Facility in Dannemora, New York, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 3, 1990, the petitioner pleaded guilty in New York State Supreme Court, New York County (Rothwax, H.) to one count of murder in the second degree. On October 24, 1990, the petitioner was sentenced to a period of imprisonment of eighteen years to life. On January 6, 1994, the Appellate Division, First Department, unanimously affirmed the conviction, see People v. Thomas, 200 A.D.2d 374, 608 N.Y.S.2d 71 (1st Dep't 1994), and on May 5, 1994, the New York Court of Appeals denied leave to appeal, see People v. Thomas, 83 N.Y.2d 915, 614 N.Y.S.2d 397 (1994). On June 12, 1995, the Supreme Court, New York County denied the petitioner's motion to vacate his conviction pursuant to N.Y. C.P.L. 440.10, and on September 15, 1995, the Appellate Division, First Department denied leave to appeal.

 The petitioner presents two grounds in support of his petition for habeas corpus. First, the petitioner argues that his plea of guilty was not knowing, willing, and intelligent because he was a schizophrenic and under the influence of heavy anti-psychotic drugs. Second, the petitioner contends that his sentence was excessive under the circumstances of his condition at the time of the plea and sentence. For the reasons explained below, the petition is denied.

 I.

 The record submitted in connection with the present application, including the record on appeal submitted in connection with the petitioner's direct appeal to the Appellate Division and the petitioner's collateral attack on his conviction in the Supreme Court, New York County, discloses the following facts. On June 4, 1990, the petitioner shot and killed Bernard Watkins with a .357 Magnum outside a bank in Manhattan. (Tr. of Sentencing (Resp't Ex. D) at 3-4.) The police apprehended the petitioner with the gun and Mr. Watkins' money shortly thereafter. The petitioner was charged in an Indictment with two counts of murder in the second degree, one count of robbery in the first degree, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. (Resp't Ex. A.)

 On August 8, 1990, the petitioner was admitted to the Bellevue Forensic Psychiatry Service for an evaluation of his competence to stand trial pursuant to N.Y. C.P.L. § 730. (Resp't Ex. B.) Both doctors who examined the petitioner reported that he suffered from schizophrenia and had been treated with antipsychotic medications, but that his condition had not affected his ability to understand the charges against him or his ability to assist his counsel prepare for his defense. Both doctors concluded that the petitioner was fit to proceed.

 On October 3, 1990, the petitioner withdrew his plea of not guilty and entered a plea of guilty to murder in the second degree. At his sentencing proceeding on October 24, 1990, the petitioner informed the trial court that he wished to withdraw his plea of guilty because he was under medication at the time he entered his guilty plea. (Tr. of Sentencing (Resp't Ex. D) at 6-7.) The trial court denied his motion to withdraw the plea, finding that the petitioner had known that he was pleading guilty to murder and that the petitioner had made a subsequent statement to the Probation Department in which he admitted to murdering Mr. Watkins and stealing his money. (Tr. of Sentencing (Resp't Ex. D) at 7-8.) The trial court then sentenced the petitioner to eighteen years to life as it had agreed to do during the plea allocation. (Tr. of Sentencing (Resp't Ex. D) at 8.)

 II.

 Before obtaining relief under 28 U.S.C. § 2254, a petitioner must exhaust his available state remedies. See 28 U.S.C. § 2254(b)(1); see also Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Blissett v. Lefevre, 924 F.2d 434, 438 (2d Cir.), cert. denied, 502 U.S. 852, 116 L. Ed. 2d 123, 112 S. Ct. 158 (1991). In this case, the petitioner has exhausted his state court remedies because he presented in the state courts all the claims he now raises. The Appellate Division's affirmance of the conviction, the Court of Appeals' denial of leave to appeal the conviction, and the Appellate Division's denial of leave to appeal the denial of the petitioner's motion to vacate his conviction satisfy the exhaustion requirement. See Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Williams v. Smith, 591 F.2d 169, 171 (2d Cir.), cert. denied, 442 U.S. 920, 61 L. Ed. 2d 289, 99 S. Ct. 2845 (1979). The state does not contend that the petitioner has failed to exhaust his state court remedies.

 In addition, a petitioner must allege that he is in state custody in violation of the Constitution or a federal law or treaty as a prerequisite to relief under § 2254. See 28 U.S.C. § 2254(a). Each of the petitioner's claims alleges a constitutional violation, although the respondent argues that each claim is without merit.

 III.

 The petitioner argues in his first claim that his guilty plea was not knowing, intelligent, and voluntary because he was a schizophrenic and under the influence of heavy anti- psychotic drugs. The petitioner contends that, at the time of his sentencing, the trial court should have allowed him to withdraw his guilty plea or, at the very least, should have held an evidentiary hearing.

 The Due Process Clause of the Fourteenth Amendment requires that a plea of guilty must be knowingly and voluntarily entered. See Boykin v. Alabama, 395 U.S. 238, 242-43 & n.5, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969); Meachem v. Keane, 899 F. Supp. 1130, 1139 (S.D.N.Y. 1995). "For the plea to be voluntary, 'it is axiomatic' that the defendant must at least be competent to proceed." Matusiak v. Kelly, 786 F.2d 536, 543 (2d Cir.) (quoting United States v. Masthers, 176 U.S. App. D.C. 242, 539 F.2d 721, 725 (D.C. Cir. 1976)), cert. dismissed, 479 U.S. 805 (1986). The test for competency is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960); see also Cooper v. Oklahoma, 134 L. Ed. 2d 498, 116 S. Ct. 1373, 1377 (1996). A state court's determination regarding a defendant's competency is a factual issue that is entitled to a presumption of correctness on habeas review. See 28 U.S.C. ...


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