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August 7, 1997

ANDRES RODRIGUEZ, Petitioner, against ROBERT HANSLMAIER, Superintendent, Respondent.

The opinion of the court was delivered by: PECK

 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable John E. Sprizzo, United States District Judge:

 Andres Rodriguez petitions for a writ of habeas corpus on the sole ground that he received ineffective assistance of appellate counsel, specifically, that on direct appeal appellate counsel failed to challenge Rodriguez's guilty plea, instead pursuing only a "frivolous" excessive sentence argument. (Petition, dated December 8, 1995, P 12.)

 For the reasons set forth below, I recommend that Rodriguez's petition be denied.


 Rodriguez's Guilty Plea

 On January 7, 1988, Rodriguez -- represented by counsel, Joseph Monica -- pled guilty to manslaughter. (Gov't Appendix ["App."] Ex. B: 1/7/88 Plea Tr. at 3.) Rodriguez stated that he had discussed his plea with his attorney, and that he understood that by pleading guilty he was forfeiting his right to a trial and forfeiting other constitutional rights. Rodriguez testified that no threats or promises were made to induce his plea, except the Court's promise of a seven to twenty-one year sentence. (Id. at 3-5.) Rodriguez then allocuted to shooting and killing Edward Idala (spelled Ayala in some court documents) on July 25, 1987. (Id. at 7-9.)

 Rodriguez's Motion to Withdraw His Guilty Plea

 On January 22, 1988, Rodriguez moved pro se for reassignment of counsel, on the ground that before his guilty plea, his counsel (Monica) had not met with him and investigated his case. (See Gov't App. Ex. C: Rodriguez's Motion for Reassignment of Trial Counsel; Gov't Br. at 2.) Six days later, Rodriguez appeared for sentencing and moved pro se to withdraw his guilty plea on the grounds that he had not realized the full consequences of his plea and that he had pleaded guilty based on pressure from his attorney. (See Gov't Br. at 2; Gov't App. Ex. D: Rodriguez's Motion to Withdraw Guilty Plea.) The court granted Rodriguez's motion for reassignment of counsel, assigned Joseph A. Phillips to represent Rodriguez, and scheduled a hearing to determine whether Rodriguez's plea was knowingly and voluntarily entered, and whether he had received effective assistance of counsel. (See Gov't Br. at 2-3.)

 The hearing was held on nine separate days between November 17, 1988 and June 20, 1989. (See Gov't Br. at 3; Gov't App. Ex. I: 3/16/90 Opinion of Justice Crane.) Rodriguez, Monica (his counsel at the January 7, 1988 plea proceeding), and three experts testified about Rodriguez's mental capacity to enter a knowing and voluntary guilty plea. (See Gov't Br. at 8; Gov't App. Ex. I at p. 2.)

 Rodriguez testified at the hearing that he did not kill anyone, that Monica asked other inmates to convince Rodriguez to plead guilty, and that fellow inmates told him to "take the 7 to 21." (See Gov't App. Ex. F: Brief in Support of Petitioner's Motion to Withdraw Guilty Plea at 16.) Rodriguez testified that Monica told him to plead guilty to avoid a 25-year sentence if found guilty. (Id. at 17-18.)

 Dr. Robert Berger, Deputy Director of the Forensic Psychiatry Service at Bellevue Hospital, testified on Rodriguez's behalf. (Id. at 20.) Dr. Berger felt that Rodriguez's cleft palate and eye and head scars could be indicative of brain damage. (Id.) Dr. Berger testified that Rodriguez "'was suffering from certain cognitive and intellectual impairment, and also emotional disabilities which had affected his ability to enter a plea at that time.'" (Id. at 21.) Dr. Berger opined that Rodriguez's impairments "required frequent repetition of questions, and a structuring and redirecting his attention toward the question in order to obtain a responsive reply." (Id. at 22.) However, Dr. Berger also testified that the fact that Rodriguez was mildly mentally retarded would not preclude a voluntary and knowing guilty plea. (Id. at 26-28.) Dr. Berger testified that "at the time of the plea [Rodriguez] understood that he was pleading guilty to having killed another individual, knew the evidence against him, understood the plea bargain . . . [but] at the time of the plea his will was overborne to some extent, the degree of which he could not state." (Gov't App. Ex. G: Gov't Mem. In Opposition to Motion to Withdraw Guilty Plea at 6.)

 Dr. Richard Schuster, another expert in the field of psychology, also testified on Rodriguez's behalf. (Gov't App. Ex. F at 28.) Dr. Schuster also felt that Rodriguez's "eye and forehead deformity as well as his cleft palate" could possibly indicate "head trauma as well as possibilities of congenital difficulties in early childhood." (Id. at 28-29.) Dr. Schuster testified that he gave Rodriguez psychological tests and found that "he tends to get confused very rapidly" in "situations that demand independent decision-making." ( Id. at 32.) Dr. Schuster "stated that [Rodriguez] would look to counsel for advice in making a choice about entering a plea and that that was a natural thing to do." (Gov't App. Ex. G at 7.) Dr. Schuster testified that "the fact that someone is mildly mentally retarded would not preclude the knowing entry of a voluntary guilty plea." (Gov't App. Ex. F at 34.) Dr. Schuster, however, "could not render an opinion with a reasonable degree of clinical certainty as to whether [Rodriguez] was capable of entering a knowing and voluntary plea on the date of his plea in this case because, '[he] didn't do that type of investigation with him.'" (Gov't App. Ex. H: Gov't Reply Mem. at 14.)

 Hillel Bodek, a clinical social worker (but not a medical doctor), testified for the government, over defense objections. (See Gov't App. Ex. G at 4, 8.) Bodek found that "although suffering from developmental disabilities, [Rodriguez] was not mentally retarded or significantly brain damaged, was malingering and had the capacity to enter a knowing a voluntary plea." (Id. at 4-5.) Bodek administered a battery of tests, and concluded that Rodriguez "was not particularly suggestible, to the contrary tending to be oppositional and passive-aggressive in his behavior and not able to be maneuvered into saying something he didn't want to say." (Id. at 9.) Bodek also found that Rodriguez understood the evidence against him and "pleaded guilty because of the plea offer to a lesser included offense." (Id.)

 The State Trial Court's Denial of Rodriguez's Motion to Withdraw His Plea

 After reviewing Rodriguez's counsel's lengthy written submission (Gov't Aff. Ex. F), Justice Crane affirmed his denial of Rodriguez's motion to withdraw his guilty plea, in a written opinion issued on March 16, 1990. (See Gov't App. Ex. I: 3/16/90 Crane Opinion.) In his opinion, Justice Crane noted that the allegations that trial counsel had provided ineffective representation not only lacked merit, but rested on a faulty premise. (Id. at 13.) Rodriguez had alleged that Monica was ineffective for failing to view the videotaped statement, for failing to discern Rodriguez's mental problems, and for failing to "look into these problems in order, perhaps, to find a mitigating defense or, more severe, an incompetency to proceed." (Id. at 12-13.) Justice Crane found that Rodriguez's mental condition was not "anything approaching [legal] unfitness . . . [nor] of a nature to suspect that defendant could present a defense of not responsible by reason of mental disease or defect . . . [and] there was no reason for prior counsel to doubt defendant's fitness." (Id. at 13.) The judge also found Rodriguez's criticism of Monica for not previously viewing the videotape to be "nonsense," as Monica had a transcript and had succeeded in securing a hearing to suppress the tape, where he would have had the opportunity to view it. (Id. at 13-14.)

 Justice Crane found Bodek's testimony to be "head-and-shoulders above the defense experts." (Id. at 5.) He noted that Bodek had studied Rodriguez "over a six month period entailing in excess of 70 hours." (Id. at 5.) Unlike the defense experts, Bodek "was familiar with the plea minutes and the relevant case law" and "legal standards." (Id. at 5-6.) Justice Crane found that Dr. Berger "lacked the thoroughness and accuracy necessary to assist the court," especially since Dr. Berger was "not conversant with the legal standards relevant to assessing the capability of a defendant to enter a knowing and voluntary plea." (Id. at 3.) Justice Crane found that Rodriguez's other expert witness, Dr. Schuster, actually "supported the conclusion that [Rodriguez] understood the concept of a trial and that, even if [Rodriguez] relied on the advice of others, ...

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