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United States District Court, S.D. New York

April 23, 2004.


The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge


Michael Davis, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for Attempted Arson in the First Degree following his guilty plea in New York State Supreme Court, Bronx County. Mr. Davis now contends that: (1) hesuffers from a mental illness that (a) rendered him in competent to stand trial and (b) precludes him being found criminally culpable; and (2) in light of the fact that no one was hurt as a result of the arson, and because the petitioner was mentally ill, the sentence imposed upon him was excessive. For the reasons set forth below, I recommend that the petition be denied.


  On March 5, 1994, Mr. Davis threw a lit incendiary device toward the window of 1686 Metropolitan Avenue, a residential building in the Bronx in which his estranged wife, Jean Fields Davis, was living. The device, which was composed of a bottle, paper, and gasoline, did not penetrate the window, but instead exploded on a window sill, causing minor damage. (Pet.App. Br. at 3; Resp. App. Br. at 4),*fn1 In an indictment filed on April 8, 1994, a Grand Jury charged the petitioner with committing the crimes of Arson in the First Degree (N.Y. PenalLaw § 150.20), Attempted Arson in the First Degree (N.Y. PenalLaw §§ 110, 150.20), Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02), and Reckless Endangerment in the First Degree (N.Y. Penal Law § 120.25).(Pet. App. Br. at 3; Resp. App. Br. at 3).

  On April 18, 1994, just over a month after Mr. Davis was arrested, the state court ordered him to be examined by two psychiatrists, Dr. Hilda Brewer-Gizzarelli, and Dr. Eugene Allen. (Pet. App. Br. at 3). Both concluded that he was not competent to proceed to trial. (Pet. App. Br. at 3-4). He was committed to the Mid-Hudson Psychiatric Facility, where he was confined for more than two months. (Pet. App. Br. at 4). He was examined again in July, 1995, by Dr. Gary Gosselin lessthan six months after he was released from Mid-Hudson, and was again found unfit to proceed. Dr. Gosselin noted that Mr. Davis had "become suspicious and paranoid again since he stopped taking medications." (Pet. App. Br. at 5). He was recommitted to Mid-Hudson and remained there until November 3, 1995. (Pet. App. Br. at 4-5). On April 18, 1996, the petitioner was again examined by Dr. Allen and on May 30, 1996. by Dr. Bruce David. Both doctors concluded that Mr. Davis was finally fit to proceed to trial. (Pet. App. Br. at4-5; Resp. App. Br. at 6-7).

  On February 18, 1997, immediately prior to jury selection, the petitioner pled guilty to Attempted Arson in the First Degree in full satisfaction of the indictment, in exchange for a sentence of five to fifteen years. (Pet. App.Br. at 3; Resp. App. Br. at 3). On March 4, 1997, he was sentenced to five to fifteen years in accordance with the plea agreement. (Resp. App. Br. at 4). During sentencing, the petitioner advised his attorney that he wanted to withdraw his guilty plea and proceed to trial because he was innocent.(Resp. App. Br. at 4). The court denied the petitioner's request, finding that he had entered the plea knowingly and voluntarily. (Resp. App. Br. at 4).

  On direct appeal to the Appellate Division, First Department, Mr. Davis' counsel contended that "given both the circumstances of the incident at issue, specifically that no one was injured, and the fact that Michael Davis is a person of extremely limited intelligence who suffers from mental illness, Mr. Davis's sentence of five to fifteen years is harsh and excessive and should be reduced." (Pet. App. Br. at7). On October 17, 2000, the Appellate Division unanimously affirmed the petitioner's conviction without opinion. People v. Davis, 276 A.D.2d 1015, 715 N.Y.S.2d 205 (1st Dep't 2000). Mr. Davis' application for leave to appeal to the New York Court of Appeals was denied on February 23, 2001. People v. Davis, 96 N.Y.2d 757, 725 N.Y.S.2d 284 (2001). On October 22, 2001, the petitioner filed his application for a writ of habeas corpus in the Eastern District of New York, and it was transferred to this Court on November 8, 2001. Discussion

  A. Competence to Enter a Plea

  1. Exhaustion

  A petitioner in a habeas corpus proceeding is required to exhaust all available state remedies as to each of his federal claims. 28 U.S.C. § 2254 (b)(c); Rose v. Lundy, 455 U.S. 509, 522 (1982). To fulfill the exhaustion requirement, a petitioner must have fairly presented the substance of his federal constitutional claims "to the highest court of the pertinent state." Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990). A claim has been "fairly presented" to the state court when the court has been apprised of both the factual and legal premises of the claim upon which the petitioner now seeks federal relief. Picard v. Connor, 404 U.S. 270, 276-77 (1971).

  A claim may be presented for habeas review even if the federal grounds were not explicitly asserted before the state courts, if the petitioner, in asserting his claim before the state court, (1) relied on pertinent federal cases employing constitutional analysis; (2) relied on state cases employing constitutional analysis in like fact situations; (3) asserted his claims in terms so particular as to call to mind specific rights protected by the constitution; or (4) alleged a pattern of facts well within the mainstream of constitutional litigation. See Dave v. Attorney General of New York, 696 F.2d 186, 194 (1982).

  Although the petitioner suggested in his appellate brief that he might not have been competent when he agreed to the guilty plea (Pet. App. Br. at 6, n.5), he never argued that his plea should be vacated for that reason. Rather, he only challenged his sentence, arguing that it was excessive since no one was hurt and unduly harsh given his mental illness. Since the petitioner never raised his incompetence claim in the state courts, it is not properly exhausted.

  Nevertheless, with the enactment of the Antiterrorism and Effective Death Penalty Act (the "AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (April 24, 1996), the habeas corpus statute was amended to provide that "[a]n 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." 28 U.S.C. § 2254 (b)(2). Thus, if the federal court finds that all the claims lack merit, it has discretion to dismiss the petition on its merits even though it may contain some unexhausted claims. It is thus appropriate to consider Mr. Davis' incompetency claim on the merits. 2. Merits

  "Subjecting an incompetent person to trial is a violation of that person's constitutional right to due process." Johnson v. Keane, 974 F. Supp. 225, 229 (S.D.N.Y. 1997)(citing Pate v. Robinson, 383 U.S. 375, 378 (1966)). Habeas relief is warranted where a trial court fails to hold a competency hearing when there is "reasonable ground" for believing that the petitioner is incompetent to stand trial. Silverstein v. Henderson 706 F.2d 361, 368 (2d Cir. 1983). In evaluating whether there was such a "reasonable ground," a court should examine evidence of any irrational behavior by the defendant, his demeanor at the trial or other proceedings, medical opinions, and the opinion of the defense counsel. See Drope v. Missouri, 420 U.S. 162, 179-80 (1975). Furthermore, one competency hearing or one psychiatric examination that establishes a defendant's competency to stand trial may not be enough. "[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." Id. at 182. To be constitutionally valid, a plea must be entered into knowingly and voluntarily, with an understanding of its consequences. Parke v. Raley, 506 U.S.20, 28-29 (1992). "A criminal defendant may not be tried unless he is competent, and he may not waive his right to counsel or plead guilty unless he does so competently and intelligently." Godinez v. Moran, 509 U.S. 389, 396 (1993)(internal quotation marks and citation omitted). The standard of competency for pleading guilty is the same as the competency requirement for standing trial. Id. at 399.

  As described above, after he was initially found unfit to stand trial, the petitioner was ultimately found competent after examination by two psychiatrists. (Pet. App. Br. at 4-5). However, Mr. Davis claimed in his appellate brief that there was a danger that he was not competent at the time that he agreed to plead guilty. (Pet. App. Br. at 6, n.5). He argued that because he stopped taking anti-psychotic drugs just six days before the final psychiatric examination, it was likely that he was still receiving benefit from these drugs when he was examined. (Pet. App. Br. at 6, n.5). He further argued that because there is no record indicating that heresumed taking anti-psychotic medications at any time after May 1996, it is likely that, having been off of medication for approximately nine months, he had returned to a severe state of paranoia which rendered him unfit to proceed when he agreed to plead guilty in February 1997. (Pet. App. Br. at 6, n.5). This argument is unpersuasive. If at the time of the guilty plea, there was evidence alerting the trial court that the petitioner's state of mind may have changed from when he was last examined nine months ago, and there was a "reasonable ground" to believe that he was not competent to proceed, another psychiatric examination or a competency hearing should have been ordered. Johnson, 974 F. Supp. at 232. However, there is no such evidence in this case. Apart from the assertion that he might have ceased taking anti-psychotic medication prior to the plea, Mr. Davis failed to present the court with any evidence, either from the plea or sentencing or from his medical record, that would constitute a "reasonable ground" to believe that he was incompetent at the time of the plea. To the contrary, Mr. Davis acknowledged that he was pleading guilty freely and voluntarily after consulting with his attorney. (Resp. App. Br. at 3). He stated that he understood that by pleading guilty, he was giving up the right to a jury trial, to confront and cross-examine witnesses, to remain silent, and to call witnesses on his own behalf. (Resp. App. Br. at 3). Neither the petitioner nor his attorney raised any concern about his competency at the time of the plea. Although courts need not accept without question a lawyer's representation concerning the competence of his client, Drope, 420 U.S. at 182, Mr. Davis' counsel was presumably well-positioned to know whether the petitioner was able to participate in his own defense. The fact that the counsel never raised this issue in the plea proceeding "provide[ed further and] substantial evidence of the defendant's competence." See United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986).

  B. Criminal Culpability

  1. Exhaustion

  Mr. Davis next claim that he is innocent because he was suffering from a mental illness at the time he committed the crime. (Petition for Habeas Corpus ("Habeas Pet.") at 4thunnumbered page). This claim was never raised in the state courts. Mr. Davis claimed in his appellate brief that his history of mental illness "likely caused him to commit [the] crime, as he appears to have acted in response to his irrational and paranoid beliefs that his wife was committing adultery." (Pet. App. Br. at 10). He never raised an insanity defense, however, and he admitted that his illness did not excuse him from the punishment for the crime he committed. (Pet. App. Br. at 10). Again, however, even though this claim is not properly exhausted, the Court can address the merits pusuant to 28U.S.C. § 2254(b)(2).

  2. Merits

  Under the New York Penal Law, it is an affirmative defense that the defendant "lacked criminal responsibility by reason of mental illness or defect" at the time of the crime. See N.Y. Penal Law § 40.15. As with any affirmative defense, the burden is on the defendant to prove the elements of the defense by a preponderance of the evidence. See N.Y. Penal Law § 25.00.

  In habeas corpus proceedings, the petitioner bears the burden of proof by a preponderance of the evidence as to all of the claims in the petition. See Gaines v. Kelly, 202 F.3d 598, 601 (2d Cir. 2000); Pinkney v. Keane, 920 F.2d 1090, 1094(2d Cir. 1990); Harned v. Henderson, 588 F.2d 12, 22 (2d Cir. 1978) ("In federal habeas corpus proceedings the burden of proving a constitutional claim lies with the petitioner and . . . the nature of that burden is the customary civil one of a preponderance of the evidence.").

  In this case, except for the conclusory allegation that he might have been mentally ill at the time of the crime and that his attack on his estranged wife was somehow symptomatic of his illness, Mr. Davis failed to present any evidence to the state courts or to this Court that would support his insanity defense. (Pet. App. Br. at 6 n.5).

  Moreover, by pleading guilty, petitioner waived his right to raise the insanity defense. See People v. Cohen, 186 A.D.2d 843, 588 N.Y.S.2d 211, 212 (3d Dep't 1992) ("by pleading guilty, defendant waived all factual defenses"). Therefore, his claim cannot succeed on the merits.

  C. Sentence

  Finally, the petitioner's claim that his sentence was harsh and excessive because no one was injured, and because of his mental illness does not present any federal constitutional issue.

  If a petitioner's sentence falls within the state's statutory limits, it generally does not implicate a federal constitutional right. See White v. Keane, 969 F.2d 1381, 1383(2d Cir. 1992). In such a case, habeas relief is available only under "extraordinary circumstances." Herrera v. Artuz, 171 F. Supp.2d 146, 151 (S.D.N.Y. 2001) (citation omitted).

  Here, Mr. Davis pled guilty to Attempted Arson in the First Degree knowingly and voluntarily, and with an under standing of its consequences. His sentence of five to fifteen years was well within the guidelines established by New York law. Under N.Y. Penal Law § 70.02(1)(a), Attempted Arson in the First Degree is a Class B violent felony offense; and under N.Y. Penal Law § 70.02(3)(a), "For a Class B felony, the term must be at least five years and must not exceed twenty-five years." Furthermore, the defendant failed to demonstrate that the sentence imposed was disproportionate to his offense or that any extraordinary circumstances existed meriting habeas relief.


  For the reasons set forth above, I recommend that the Mr. Davis' petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a) and 6(e)of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Kimba M. Wood, Room 1610, and to the Chambers of the undersigned, Room 1960, 500 PearlStreet, New York, New York 10007. Failure to file timely objections will preclude appellate review.

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