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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 ...

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