United States District Court, E.D. New York
February 2, 2004.
CARLOS DIAZ, Petitioner against GLENN S. GOORD, Superintendent of Auburn State Correctional Facility, Respondent
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
MEMORANDUM, JUDGMENT & ORDER
The petition for a writ of habeas corpus is denied. Counsel for
petitioner was appointed in this court primarily to address the claim
that petitioner was not competent to stand trial. See order of August 27,
2003. A prior order had denied counsel. See order of October 19, 2001.
State trial counsel submitted an affirmation on October 26, 2003 in
support of the position that the petitioner was competent to stand trial
and did, in fact, receive effective assistance of counsel. The record
supports those conclusions.
Although a hearing was scheduled, upon reading all the papers, it is
apparent that no hearing on this matter is necessary. This memorandum
briefly addresses petitioner's claims.
During the pendency of these proceedings petitioner was apparently
awaiting deportation. See petitioner's letter filed February 14, 2001.
I. Facts and Procedural History
Petitioner was arrested after participating in the sale, on several
occasions, of a large
amount of cocaine and heroin to an undercover police officer. The
evidence of his guilt was overwhelming. It included the testimony of the
undercover officer and a series of inculpatory audiotaped conversations
among the officer, petitioner and his co-defendant.
Petitioner was convicted of two counts of first degree sale of a
controlled substance (cocaine); two counts of first degree possession of
a controlled substance (cocaine); one count of third degree sale of a
controlled substance (heroin); and one count of third degree possession
of a controlled substance (heroin). Because some of the sentences were to
run consecutively, petitioner's total sentence was 48-1/3 years to life
Petitioner appealed through counsel. He also was allowed to file a
supplemental pro se brief. His conviction was affirmed on appeal, but in
the interest of justice the Appellate Division ordered his terms of
imprisonment to run concurrently, yielding a total sentence of 20 years
to life in prison. Leave to appeal to the New York Court of Appeals was
He filed a pro se application for a writ of error coram nobis before
the Appellate Division. The motion was denied.
Petitioner filed two separate pro se motions to vacate judgment before
the trial court. The motions were denied. One motion was incorporated
into his direct appeal. In the other motion leave to appeal to the
Appellate Division was denied.
In his application for a writ of habeas corpus, petitioner claims:
Ground One: petitioner deprived of fair trial and
due process of law as petitioner was mentally
incompetent to stand trial. Petitioner suffers
from mental illness, a diagnosed paranoid
schizophrenic, and is delusional, both before and
at the time of
trial, therefore, incompetent to understand
the charges against him and/or to aid and assist
his counsel, or to participate in the proceedings
had against him, in violation of the Fifth and
Fourteenth Amendments to the United States
Constitution. Ground Two: The petitioner was
denied the effective assistance of counsel before,
during and after trial. Trial counsel failed to
make proper motions to bring about a competency
hearing, especially in light of petitioner's
psychiatric hospitalizations, where petitioner was
declared "unfit" by psychiatrists, to proceed, due
to a complete psychiatric "breakdown" prior to
Ground Three: The petitioner was denied the
effective assistance of counsel upon his direct
state appeal. The appellate counsel for the
defendant (petitioner), upon his direct appeal,
failed to properly raise the issue of competency;
ineffective trial counsel; to raise any question
based upon the federal constitution, at all; and
failed to competently advocate the petitioner's
primary appealable points, upon the direct state
appeal, thus denying petitioner effective
assistance of counsel and due process of law (U.S.
Const. 5, 6, & 14th Amend).
Ground Four: The petitioner was denied and
deprived of a fair trial, a public trial and due
process of law, by the improper closure of the
courtroom, during testimony by the People's
petitioner was denied due process of law, a
public trial, and a fair trial, when the trial
court improperly ordered closure of the courtroom
during testimony by the People's witnesses, in
violation of the petitioner United States
Constitutional rights (Fifth, Sixth and Fourteenth
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a federal court may grant a writ of habeas corpus to a state
prisoner on a claim that was "adjudicated on the merits" in state court
only if it concludes that the adjudication of the claim "(1) resulted in
a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a
procedural, resolution of a federal claim." Sellan v. Kuhlman,
1 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle,
196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a
federal habeas court may grant the writ if the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a question
of law or if the state court decides a case differently than this Court
has on a set of materially indistinguishable facts," Williams v,
Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and
writing for the majority in this part). Under the "unreasonable
application" clause, "a federal habeas court may grant the writ if the
identifies the correct governing legal principle from this Court's
decisions but unreasonably applies that principle to the facts of the
prisoner's case." Id. at 413. Under this standard, "a federal
habeas court may not issue the writ simply because that court concludes
in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable." Id. at 411.
In order to grant the writ there must be "some increment of incorrectness
beyond error," although "the increment need not be great; otherwise,
habeas relief would be limited to state court decisions so far off the
mark as to suggest judicial incompetence." Francis S. v. Stone,
221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a
generalized standard that must be followed, as a bright-line rule
designed to effectuate such a standard in a particular context."
Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see
also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d
Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision
that relied on precedent from the court of appeals is remanded for
reconsideration in light of "the more general teachings" of Supreme Court
decisions). The Court of Appeals for the Second Circuit has also
indicated that habeas relief may be granted if a state court's decision
was contrary to or an unreasonable application of "a reasonable
extension" of Supreme Court jurisprudence. Berbary v. Torres,
No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003).
Determination of factual issues made by a state court "shall be presumed
to be correct," and the applicant "shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence."
28 U.S.C. § 2254(e)(1).
In the past, a state prisoner's federal habeas petition had to be
dismissed if the prisoner did not exhaust available state remedies as to
any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522
(1989). "This exhaustion requirement is . . . grounded in principles
of comity; in a federal system, the States should have the first
opportunity to address and correct alleged violations of [a] state
prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722,
731 (1991). The exhaustion requirement requires the petitioner to have
presented to the state court "both the factual and legal premises of the
claim he asserts in federal court." Daye v. Attorney General,
696 F.2d 186, 191 (2d Cir.1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion,
deny on the merits habeas petitions containing unexhausted
claims so-called "mixed petitions." See
28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the state."). In addition,
the state may waive the exhaustion requirement, but a "State shall not be
deemed to have waived the exhaustion requirement or be estopped from
reliance upon the requirement unless the State, through counsel, expressly
waives the requirement." Id. § 2254(b)(3); see also Ramos v.
Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y.
2000) (state's failure to raise exhaustion requirement does not waive the
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims
if those claims were defaulted in state court pursuant to an independent
and adequate state procedural rule,
"unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
If a state court holding contains a plain statement that a claim is
procedurally barred then the federal habeas court may not review it, even
if the state court also rejected the claim on the merits in the
alternative. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989)
("a state court need not fear reaching the merits of a federal claim in
an alternative holding" so long as it explicitly invokes a state
procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate
review" and then rules "in any event" on the merits, such a claim is not
preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir.
1996). When a state court "uses language such as `the defendant's
remaining contentions are either unpreserved for appellate review or
without merit,' the validity of the claim is preserved and is subject to
federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804,
810 (2d Cir. 2000). Where "a state court's ruling does not make clear
whether a claim was rejected for procedural or substantive reasons and
where the record does not otherwise preclude the possibility that the
claim was denied on procedural grounds, AEDPA deference is not given,
because we cannot say that the state court's decision was on the merits."
Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n.3
(2d Cir. July 11, 2003) (citing Miranda v. Bennett,
322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an
open question whether there are "situations in which, because of uncertainty
as to what the state courts have held, no procedural bar exists and yet
no AEDPA deference is required." Id.
V. Certificate of Appealability
A certificate of appealability may be granted with respect to any one
of petitioner's claims only if petitioner can make a substantial showing
of the denial of a constitutional right. Petitioner has a right to
seek a certification of appealability from the Court of Appeals for the
Second Circuit. See 28 U.S.C. § 2253; Miller-El v.
Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account
the rule of section 2253 © (3) of Title 28 of the United States Code
that a certification of appealability "shall indicate which specific
issue or issues satisfy the [substantial showing of the denial of a
constitutional right] required by paragraph (2)." See also Shabazz v.
Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July
This opinion complies with Miranda v. Bennett, 322 F.3d 171,
174-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil
Procedure. No other issue open to consideration by this court has merit.
See Sumner v. Mata, 449, 449 U.S. 539, 548 (1981) ("a court need
not elaborate or give reasons for rejecting claims which it regards as
frivolous or totally without merit").
VI. Analysis of Claims
Petitioner's claims are all without merit. The only one that warrants
discussion is that he was incompetent to stand trial and that his counsel
did not properly defend on this basis.
It is well-settled that the "criminal trial of an incompetent defendant
violates due process." Medina v. California, 505 U.S. 437, 453
(1992). This "prohibition is fundamental to an adversary system of
justice." Drope v. Missouri, 420 U.S. 162, 172 (1975). In
determining whether a criminal defendant is competent to stand trial, the
trial court must consider "whether
he 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 (1960). The duty
to protect a defendant from being tried while incompetent persists
throughout trial, so "even when a defendant is competent at the
commencement of his trial, a trial court must always be alert to
circumstances suggesting a change that would render the accused unable to
meet the standards of competence to stand trial." Drope, 420
U.S. at 181.
In the Second Circuit, competency is defined as "sufficient present
ability to consult with counsel to a reasonable degree of rational
understanding of the proceedings. United States v. Morrison,
153 F.3d 34, 39-40, 46-47 (2d Cir. 1998) (citing, Dusky v. United
States, 362 U.S. 402 (1960)).
Failure of a trial court to provide an adequate competency hearing when
one is required is a denial of due process and violates the defendant's
Sixth Amendment right to a fair trial. See, Drope v. Missouri,
420 U.S. 162, 178-82 (1975) (due process was violated because trial court
failed to make further inquiry into defendant's competency and failed to
give adequate weight to defendant's suicide attempt and pretrial showing
of irrational behavior); Pate v. Robinson, 383 U.S. 375, 385-86
(1966) (due process was violated because trial court failed to conduct
competency hearing in light of defendant's suicide attempt and previous
confinement as a psychopath).
A competency hearing is required when there is sufficient doubt about a
defendant's competency to lead a reasonable jurist to decide that signs
of incompetency warrant a judicial inquiry to satisfy the court on the
issue. Drope v. Missouri, 480 U.S. 162, 180; Pate v,
383 U.S. 375, 385. The finder of fact should consider "evidence of
defendant's irrational behavior, his demeanor at trial, and any prior
medical opinion." Drope v. Missouri, 420 U.S. at 180. Under the
New York Criminal Procedure Law, a Court must issue an order of
examination when it is of the opinion that the defendant may be an
incapacitated person. N.Y. Criminal Procedure Law ("CPL") § 730.30(1).
An "incapacitated person" is defined as "a defendant who as a result of
mental disease or defect lacks capacity to understand the proceedings
against him or to assist in his own defense." CPL § 730.10(1).
Petitioner had been diagnosed as being a paranoid schizophrenic.
See Report of November 17, 1996; Report of Mid-Hudson
Psychiatric Center of January 26, 1995. The trial court ordered petitioner
was examined, pursuant to the authority granted under CPL 730.10, on two
occasions after trial; on at least one occasion he was found incompetent
to be sentenced. Ultimately, he was found competent to proceed to
sentencing. See reports of March 11, 1994 and November 30, 1994.
The report of November 24, 1994 states:
This 24 year old, Hispanic male was admitted to
KPPC on 11/1/94 from Riverhead Jail for CPL 730
Examination. He was hospitalized at KPPC
previously from 6/30/94 to 7/17/94 for psychiatric
treatment. The reason for admission was that he
became overtly psychotic when he learned that he
might receive a stiff jail sentence for his
criminal act. Reportedly, patient had been
incarcerated in jail for drug charges which
patient denied stating that he was arrested under
mistaken identity. As a confirmed cocaine abuser,
after treatment and medication he was diagnosed as
fit to proceed with sentencing.
Report of Mid-Hudson Psychiatric Center of January 26, 1995.
At sentencing, after he was found competent to proceed, petitioner's
(replacing the original trial counsel) made a record at sentencing
regarding: 1) petitioner's failure to participate in his defense in any
way (Sentencing Transcript "ST" 6); 2) the assertion that petitioner's
first trial counsel had difficulty communicating with him (ST 6); 3) the
defendant, as discovered after the conviction, was suffering from a
mental disorder or disease (ST 6); 4) the fact of petitioner being found
incompetent after his conviction and prior to his sentence (ST 6); and 5)
the fact of petitioner's treatment in July and August 1993 for paranoid
schizophrenia in the Dominican Republic (ST 7). New trial counsel made
the following argument:
If in fact this defendant was suffering from that
disease during the course of this trial and
perhaps even prior to the start of the trial to
the extent that he didn't understand the
proceedings, didn't understand the nature of the
offer made to him, the time period that he would
be incarcerated if he pled guilty, then it would
be a real miscarriage of justice to have someone
like this sentenced to perhaps as much as
forty-five or fifty years to life by virtue of
these convictions . . .
New trial counsel apparently believed that petitioner was not competent
during the trial. Having placed his concerns on the record, counsel could
have asked the court to direct a competency hearing pursuant to CPL §
730.30. Arguably, the failure of new or original counsel to make such a
request, after making this record, fell below any objective standard of
reasonableness and had a direct prejudicial impact on the result of the
proceedings. See, Strickland v. Washington, 466 U.S. 668.
The state trial court could at any time have ordered another competency
examination sua sponte. In Drope, the court observed:
Although we do not, of course, suggest that courts
must accept without question a lawyer's
representations regarding the
competence of his client, see United
States ex rel. Rizzi v. Follette,
367 F.2d 559, 561 (2d Cir. 1966), an expressed doubt in
that regard by one with "the closest contact with
the defendant, Pate v. Robinson,
383 U.S. 375, 391 (1966) (Harlan, J., dissenting), is
unquestionably a factor which should be
Drope v. Missouri, 420 U.S. at 177, n. 13.
Petitioner's original counsel during trial in an affirmation dated
September 26, 2003, declared that he never had any difficulty in
communicating with petitioner before or during the trial and that
petitioner appeared to understand what was occurring. He declared:
I am well aware of the provisions of Criminal
Procedure Laws Section 730, etc. and if the
slightest inkling of any mental problem had
surfaced during my representation of Mr. Diaz, I
would have taken the appropriate steps to request
a 730 exam and/or use Mental Disease or Defect as
a defense to the offenses in chief. This just
Griffin Affidavit, pp 2-3.
Counsel assigned by this court made the strongest case possible in
support of petitioner's claim that he was not competent to stand trial,
or at least that state trial and appellate counsel should have tried more
effectively to obtain a hearing in state court on the issue. The argument
is not persuasive.
The transcript of a tape recording of the petitioner in the complex and
extended course of commission of the crime and the testimony at trial
shows petitioner to have been a highly competent drug dealer. T 27-28,
107-109, 115, 129-130, 137, 147, 161-163, 164, 166-167, 176-180, 201,
203, 210-211, 224, 227-230, 436-437. He was able to relate competently
with his associates and the police undercover.
The medical information suggests a malingerer disappointed because he
was facing an
enormous sentence as a result of his own drug addiction and
extensive operations as a drug dealer. Nothing in the record of trial or
in petitioner's original state trial attorney's representation shows a
deviation from "normal" behavior that would suggest incompetence to his
attorney or to the court.
Based upon the record, it was not a sign of incompetence of the
original trial attorney or of appellate counsel to have avoided an
incompetency approach to the case. That attorney did a credible job in
The respondent argues that the petitioner is barred by the doctrine, of
procedural default. See Wainwright v. Sykes, 433 U.S. 72, 97 So.
Ct. 233, 53 L.Ed.2d 594 (1977), reh. den.
434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 594 (1977); Engle v. Isaac,
456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The lack of merit makes
it unnecessary to decide this issue. For the same reason any argument of
lack of exhaustion need not be considered.
Since the claim of lack of competence of the petitioner and the related
claims of inadequacy of trial and appellate counsel and/or failure of the
trial judge to order a hearing all lack merit, the decision to dismiss is
placed on lack of merit of all these claims. Original and new state trial
counsel acted professionally. Appellate counsel acted properly and
obtained a substantial reduction of sentence. The trial judge prior to
sentence had no reason to act sua sponte to order a competency
There are four requirements that must be met before the trial court may
close the courtroom to members of the public: (1) the party seeking to
close the courtroom must advance
an overriding interest that is likely to be prejudiced; (2) the
closure must be no broader than necessary to protect that interest; (3)
the court must consider reasonable alternatives to courtroom closure; and
(4) the court must make findings adequate to support the closure. See
Waller v. Georgia, 467 U.S. 39, 48 (1984); Ayala v.
Speckard, 131 F.3d 62, 69 (2d Cir. 1997) (en banc).
In the case of an undercover officer, it is sufficient that the state
establish an overriding interest in maintaining the continued
effectiveness of the officer, which would be seriously prejudiced by
requiring the officer to testify in an open courtroom. In this
circumstance, having already considered closure only during the
undercover's testimony as an alternative to complete closure, the court
is not required to consider, sua sponte, further alternatives to closure,
such as permitting the officer to testify from behind a screen.
Here, in accordance with People v. Hinton, 31 N.Y.2d 71
(1972), cert. denied, 410 U.S. 911 (1973), the trial court
conducted a hearing to determine the necessity of closing the courtroom
to the public. The undercover detective in question testified that he was
actively engaged in undercover work and had eight pending active narcotic
investigations (T.87). He also declared that he feared for his safety and
that of his fellow officers, and was concerned with the integrity of his
ongoing investigations (T.88). Furthermore, he pointed out that some of
these pending investigations are located in Lindenhurst, where Diaz and
his co-defendant were arrested (T.89).
There was a sufficient showing of the need to close the courtroom
during the testimony of the undercover detective. His work as an
undercover officer in the area where Diaz was arrested, when combined
with the fact that the trial was being conducted in one of the courtrooms
in Suffolk County which specializes in narcotics cases, created the
probability that his identity
would be compromised. He testified that the consequences would not
be limited to failed investigations, but that his and his team's safety
would be in jeopardy. The risk was even greater in light of his testimony
that there were defendant's in the area where his team was operating who
had already committed crimes but had not yet been arrested (T.89).
The partial closure of the courtroom was appropriate. This claim lacks
No other claim is more than frivolous. VII. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of
petitioner's claims, petitioner having made no substantial showing of the
denial of a constitutional right. Petitioner may seek a certificate from
the Court of Appeals for the Second Circuit.
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