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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


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 Page 2 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 in prison.

  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 denied.

  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 Page 3 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 trial.


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 witnesses. The Page 4 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 Amendments).


  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 state court Page 5 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). Page 6

 III. Exhaustion

  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 issue).

 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, Page 7 "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. Page 8

 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 18, 2003).

  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 Page 9 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, Robinson, Page 10 383 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 new counsel Page 11 (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 . . .
ST 7.

  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 Page 12 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 considered.

  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 never occurred.
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 Page 13 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 representing petitioner.

  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 hearing.


  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 Page 14 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 Page 15 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 merit.


  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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