counsel's cross-examination strategy absent grave error falling
below the required professional standard. Petitioner does not
even identify specific documents that would have improved the
cross-examination. Without any evidence of relevant documents
or what other evidence further investigation would have uncovered,
petitioner has failed to demonstrate that his attorney performed
below the professional standard.
Petitioner has also failed to demonstrate actual prejudice. To
do so, petitioner must establish that "there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland,
466 U.S. at 694. Given the overwhelming evidence of petitioner's
guilt, he has failed to make this showing. Accordingly, because
the state court judgment denying petitioner's claim of
ineffective assistance of counsel was not an unreasonable
application of federal law, this claim is dismissed.
6. Jury Selection
Petitioner properly exhausted his claim that he was denied due
process as a result of his incompetent mental state during the
voir dire stage of his trial. Thus, the issue is properly before
this Court. A defendant's right to be present at trial includes
defendant's presence "at critical steps in the criminal
proceedings against him `including the impaneling of the jury.'"
United States v. Hernandez, 873 F.2d 516, 518 (2d Cir. 1989)
(quoting United States v. Gordon, 829 F.2d 119, 123 (D.C. Cir.
1987)). While petitioner was present during jury selection, he
claims that he lacked the competence to understand the
proceedings. New York characterizes an incompetent defendant as
one who "as a result of mental disease or defect lacks capacity
to understand the proceedings against him or to assist in his own
defense." N.Y. Penal Law § 730.10(1). The standard for
assessing a defendant's competency under New York law is similar
to that used in federal law: "`[W]hether 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 proceeding
against him.'" Johnson v. Keane, 974 F. Supp. 225, 230 (S.D.N.Y.
1997) (quoting Dusky v. United States, 362 U.S. 402 (1960)).
The trial court has a duty to hold a hearing to evaluate a
defendant's competence even where the defendant has not requested
a hearing. See id. (citing Silverstein v. Henderson, 706 F.2d 361
(2d Cir. 1983)). Thus, in circumstances where a trial court has
reason to believe that a defendant is unable to understand the
proceedings, the court must order a hearing. See id. Courts
should consider several factors in determining whether a hearing
is necessary including "any evidence of the defendant's
irrational behavior, the defendant's demeanor at trial, medical
opinions, and the opinion of defense counsel." Id. at 231.
Here, the trial judge, who knew petitioner was taking
anti-depressant medication, asked petitioner whether he was
"clear-headed" at the commencement of voir dire. See 1/3/94 Tr. at 2.
Petitioner responded that he felt all right. See id. at 3. The
following day, at the request of defense counsel, the court
terminated the voir dire prematurely when petitioner acted in an
agitated manner in front of potential jurors. See id. at 138.
When proceedings resumed, the judge inquired whether petitioner
had received his medication and whether petitioner was in a
better state of mind. See id. at 163. In addition, the judge
stated that there was no indication that petitioner was unable to
understand or participate in jury selection. See id. at 165.
Indeed, when asked whether petitioner was "alert, comprehensive,
and able to proceed intelligently, knowingly and willingly and
able to participate in the selection of the jury", defense
counsel replied that he was. Id. This record demonstrates
that the trial court acted properly in proceeding with jury
selection because there was no indication that petitioner was
Petitioner asserts that the trial court denied him due process
when it failed to ask petitioner directly whether he was able to
understand the proceedings. However, a state court's
determination of competency to stand trial falls in the category
of rulings entitled to a presumption of correctness on habeas
review. See 28 U.S.C. § 2254(e); Thompson v. Keohane, 516
U.S. at 111. For a petitioner to overcome this presumption, he
must prove by "clear and convincing evidence" that the record
does not support the trial court's finding. 28 U.S.C. § 2254
(e); see also Senna v. Patrissi, 5 F.3d 18, 20 (2d Cir.
1993). Petitioner fails to demonstrate any evidence to support
his claim. The mere fact that the trial court inquired of defense
counsel rather than petitioner is not enough to satisfy
petitioner's burden of proof. To the contrary, the record shows
that the trial court made appropriate inquiries of defense
counsel and employed its own observations to determine
petitioner's competency, as Johnson requires. In light of
petitioner's failure to demonstrate by clear and convincing
evidence that the trial court's findings were erroneous, those
findings are presumed to be correct. Consequently, petitioner
fails to establish a due process violation that merits habeas
For the forgoing reasons, petitioner's motion for a writ of
habeas corpus is denied. Because petitioner has failed to make a
substantial showing that he was denied a constitutional right, a
certificate of appealability will not issue from this Court. See
28 U.S.C. § 2253(c)(2); see also Lucidore v. New York State
Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (holding that
substantial showing exists where (i) the issues involved in the
case are debatable among jurists of reason or (ii) a court could
resolve the issues in a different manner or (iii) the questions
are adequate to deserve encouragement to proceed further); Clark
v. Garvin, 99 Civ. 9075, 2000 WL 890272, at *6 (S.D.N.Y. June 30,
2000). The Clerk of Court is instructed to close this case.