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BASTIEN v. WILLIAM

United States District Court, S.D. New York


September 21, 2004.

DONALD BASTIEN, Petitioner,
v.
PHILLIPS WILLIAM, SUPERINTENDENT, Respondent.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

TO THE HONORABLE DENISE L. COTE, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

  Donald Bastien ("Bastien") has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Bastien contends that his confinement by the state of New York is unlawful because at the time that he tendered a plea of guilty to the criminal charges that occasion his present period of incarceration, he did so unknowingly and involuntarily due to mental illness. Furthermore, Bastien contends that the trial court erred when it failed to grant his motion to suppress evidence of a post-arrest statement Bastien made to the prosecution, because the statement was obtained after Bastien invoked his right to counsel. Moreover, Bastien alleges that the sentence imposed upon him, following his tender of a plea of guilty, was excessive.

  The respondent opposes Bastien's application for a writ of habeas corpus. He contends that Bastien's claims concerning the trial court's failure to suppress the post-arrest statement he made to the prosecution and the excessiveness of the sentence that was imposed upon him are procedurally barred from consideration through the instant application because Bastien waived his right to raise those claims on his direct appeal in the state court from the judgment of conviction. In addition, the respondent maintains that all of the claims raised by Bastien lack merit.

  II. BACKGROUND

  A New York County grand jury returned an indictment against Bastien and a codefendant through which Bastien was charged with first degree murder (one count), second degree murder (two counts), first degree robbery (six counts), second degree robbery (four counts), second degree criminal possession of a weapon (two counts), and second degree assault (one count).

  Before proceeding to trial, Bastien underwent a psychiatric examination, pursuant to New York Criminal Procedure Law ("CPL") Article 730, to determine whether he was fit to proceed to trial. After the mental health professionals who examined Bastien reported their findings to the New York State Supreme Court, New York County, a justice of that court held a hearing to determine whether Bastien was competent to stand trial. At the conclusion of the hearing, the court determined to commit Bastien to the custody of the Commissioner of the New York State Office of Mental Health, having determined that Bastien was not competent to proceed to trial.

  In due time, the state Commissioner of Mental Health's designee reported to the court that Bastien's condition had improved sufficiently such that he could proceed to trial. However, as pretrial hearings were about to commence, an application was made to the court by Bastien's trial counsel that Bastien be examined anew pursuant to CPL Article 730. The application was granted and Bastien was examined once again by two mental health professionals. They determined that Bastien was not fit to proceed to trial. The prosecution sought to controvert that finding and engaged a consulting psychiatrist to examine Bastien. That psychiatrist found evidence that Bastien was malingering and concluded that he was fit to proceed to trial. Thereafter, the trial judge conducted a hearing to determine whether Bastien was competent to proceed to trial. Based upon the record generated during that hearing, the trial court expressed the view that it was possible that Bastien was "malingering;" however, the court found that the prosecution had not established by the governing standard, "a preponderance of the evidence," Bastien's competency to proceed to trial. Therefore, Bastien was again committed to the custody of the state Commissioner of Mental Health.

  The Commissioner's designee later reported to the court that Bastien was fit to proceed to trial. Thereafter, the petitioner was returned to the New York State Supreme Court, New York County, where the trial court commenced a pretrial hearing to resolve motions the petitioner had made to suppress a post-arrest statement he had given to the prosecution and physical as well as identification evidence that the prosecution intended to present at his trial. During the pretrial hearing, the petitioner's counsel requested that Bastien be examined for a third time pursuant to CPL Article 730. The trial court denied that request. The court explained that its observations of Bastien during the pretrial hearing and its knowledge of the information that had previously been adduced during the course of the second competency hearing suggested to the court that Bastien was malingering. The court acknowledged that it had observed Bastien "talking to the walls" during the pretrial hearing, but noted that this occurred "whenever things seem to be not going in [Bastien's favor]." However, the court also noted that, whenever it admonished Bastien about his conduct, his inappropriate behavior would cease. The trial court denied the suppression motions made by Bastien. As a consequence, jury selection proceedings began. During those proceedings, the parties advised the court that a negotiated disposition had been reached. Under the terms of the parties' agreement, Bastien pleaded guilty to second degree murder and two counts of first degree robbery in full satisfaction of all of the charges made against him in the indictment. In addition, Bastien agreed to waive his right to appeal from the trial court's determination concerning his pretrial suppression motions. Moreover, Bastien also agreed that he would not challenge on appeal, as excessive, the sentence the parties recommended that the court impose upon him, as a result of his tender of a plea of guilty to second degree murder and to two counts of first degree robbery.

  Bastien appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. He asked that court to vacate his plea of guilty because the plea was made involuntarily and unknowingly because Bastien suffered with mental illness. Bastien also urged that court to find that his waiver of his right to: (a) appeal from the determination made by the trial court to deny his suppression motions; and (b) challenge his sentence on appeal were not valid because, during the plea allocution, the trial court did not distinguish clearly for Bastien between those rights that were automatically waived as a consequence of his plea of guilty and the right to appeal, which would ordinarily survive a guilty plea but, perforce of Bastien's plea agreement, was nonetheless being surrendered as well. Furthermore, Bastien argued to the Appellate Division that the trial court erred when it declined to suppress his post-arrest statement to the prosecution because the statement was made after Bastien had requested the assistance of an attorney. Moreover, Bastien asked the Appellate Division to find that the sentence imposed upon him — due to his status as a second violent felony offender, 32 years to life imprisonment — was unduly harsh and excessive. He asked, further, that the court exercise the authority conferred upon it through CPL § 470.15, and reduce his sentence because of its unduly harsh and severe nature.

  The Appellate Division affirmed Bastien's conviction unanimously. See People v. Bastien, 295 A.D.2d 165, 743 N.Y.S.2d 706 (App. Div. 1st Dep't 2002). The Appellate Division determined that the trial court acted properly in denying Bastien's request for a third competency hearing. It found that the petitioner's responses to the trial court during the plea allocution established that his plea of guilty was made knowingly, intelligently and voluntarily and that it was not affected by Bastien's "purported mental illness." In addition, the Appellate Division found that Bastien's waiver of his right to appeal "expressly encompassed his suppression and excessive sentence claims." Therefore, Bastien was foreclosed from seeking appellate review of those claims. Notwithstanding that fact, the Appellate Division concluded that Bastien's claims respecting his right to appeal: (i) the determination on his motions to suppress; and (ii) his sentence on the ground that it was excessive, each lacked merit.

  Bastien then sought leave to appeal from the determination of the Appellate Division to the New York Court of Appeals. That application was denied by the chief judge of that court. See People v. Bastien, 99 N.Y.2d 533, 752 N.Y.S.2d 593 (2002). Thereafter, the petitioner filed the instant application in this court. Through his application for a writ of habeas corpus, Bastien has resurrected three of the four claims that he asked the Appellate Division to entertain, namely, that: (1) Bastien's plea of guilty was made involuntarily and unknowingly because of his mental illness; (2) Bastien's post-arrest statement to the prosecution should have been suppressed because it was made after he requested the assistance of an attorney; and (3) Bastien's sentence was excessive. III. DISCUSSION

  Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: (1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

  Involuntary Plea of Guilty

  Bastien contends that he did not make a knowing and voluntary plea of guilty because he suffered with mental illness. The Supreme Court has explained that the standard for mental competency to stand trial is the same standard for mental competency that must attend a plea of guilty to a criminal offense. See Godinez v. Moran, 509 U.S. 389, 396-97, 113 S. Ct. 2680, 2685-86 (1993) (citing Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788 [1960]). That standard requires that a criminal defendant have sufficient present ability to consult with his counsel with a reasonable degree of rational understanding. It also requires that the criminal defendant have a rational as well as a factual understanding of the proceedings against him. See Dusky, 362 U.S. at 402, 80 S. Ct. at 789. A history of mental illness does not render a defendant incompetent to tender a plea of guilty knowingly and voluntarily in a criminal action. See United States v. Nichols, 56 F.3d 403, 412 (2d Cir. 1995); Bolius v. Wainwright, 597 F.2d 986, 990 (5th Cir. 1979). A plea of guilty is voluntary when it is "entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, [] unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their very nature improper as having no proper relationship to the prosecutor's business (e. g. bribes)." Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970) (quoting Shelton v. United States, 246 F.2d 571, 572 n. 2 [5th Cir. 1957]). Whether a plea of guilty is voluntary is a question of federal law. See Matusiak v. Kelly, 786 F.2d 536, 543-44 (2d Cir. 1986).

  In Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969), the Supreme Court noted that the tender of a plea of guilty by a criminal defendant in a state court involves the waiver of certain federal constitutional rights; they include: (a) the Fifth Amendment right against self-incrimination, made applicable to the states by the Fourteenth Amendment; (b) the right to trial by jury; and (c) the right to confront one's accusers. See Boykin, 395 U.S. at 242-243, 89 S. Ct at 1711-12. Since these federal constitutional rights are implicated when a criminal defendant pleads guilty in a state court, the Supreme Court emphasized in Boykin the need for a state court to ensure, through on-the-record inquiry, that a criminal defendant, who is pleading guilty, is fully aware that by his or her plea of guilty the above-noted federal constitutional rights are surrendered. A review of the minutes generated at Bastien's plea proceeding establishes that after determining that the petitioner had consulted with counsel concerning the terms and conditions of the parties' plea agreement, the trial court ascertained by questioning Bastien directly, whether he wished to plead guilty. The court then inquired of Bastien whether he understood that by pleading guilty he was, inter alia, waiving his right to: (i) trial by jury; (ii) confront the witnesses who might testify against him at his trial; and (iii) avoid self-incrimination. To each of these inquiries, Bastien answered that he understood that the particular constitutional right was being waived by his plea of guilty. Based upon the above, the Court finds that Bastien's plea proceeding comported with, that is, was not contrary to, the applicable legal requirements set forth by the Supreme Court in Boykin. Therefore, the trial court's determination that Bastien's plea of guilty was voluntary does not provide any basis for granting habeas corpus relief.

  A state court's determination that a criminal defendant is competent to tender a plea of guilty is a factual determination to which a habeas corpus court must defer. See Maggio v. Fulford, 462 U.S. 111, 113, 103 S. Ct. 2261, 2262 (1983). Since the factual finding by the state court concerning Bastien's competence to plead guilty is presumed to be correct, 28 U.S.C. § 2254(e)(1) requires that Bastien rebut that presumption by clear and convincing evidence.

  Clear and convincing evidence is more than a preponderance of the evidence but less than proof beyond a reasonable doubt. Clear and convincing evidence means that quantum of proof that would be sufficient to support a conclusion with a high degree of certainty. See United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985) (citing Addington v. Texas, 441 U.S. 418, 431, 99 S. Ct. 1804, 1812 [1979]). Bastien contends that the trial court's determination that he was competent to tender a plea of guilty was erroneous because the court relied upon mental competency reports from March 17, 1999, June 20, 1999 and July 21, 1999, which were stale and overlooked the fact that four days before Bastien tendered his plea of guilty, his trial counsel had requested that a new competency examination be conducted. While it is true that the trial court drew upon its knowledge of the various psychiatrist-generated competency reports that had been prepared previously, Bastien overlooks the fact that the trial court presided at a competency hearing and received testimony in support of and in contravention of a psychiatric finding concerning Bastien's competency to stand trial. Moreover, as the trial court noted in denying the request made by Bastien's counsel for a third competency hearing, the court had observed Bastien during the pretrial suppression hearing at which the above-noted request for a third competency hearing was made. The trial court noted that any aberrant behavior demonstrated by Bastien usually followed immediately what Bastien perceived to be an adverse turn of events in the suppression hearing proceedings. Furthermore, the trial court noted that whenever Bastien was admonished by the court for his behavior, Bastien would correct his behavior immediately. These observations made by the trial court, coupled with the information developed before that court during Bastien's second competency hearing suggested to the trial court that Bastien was malingering. This led the trial court to conclude that no additional psychiatric examination of the petitioner was required.

  The trial court's assessment, that no additional psychiatric examination of Bastien was needed, is supported by the fact that four days later, at Bastien's plea proceeding, Bastien's attorney no longer suggested to the court, as he had when he requested the third psychiatric examination of the petitioner, that Bastien was not able to consult with counsel or to aid in his own defense. Moreover, Bastien was able to declare in open court that he had consulted with his counsel, understood the terms of his plea agreement, understood the charges to which he was pleading guilty, as well as the penalty he faced, and understood the rights that he was giving up by tendering a plea of guilty.

  Bastien claims that he is entitled to habeas corpus relief because his attorney's request, that he undergo a third psychiatric examination, demonstrates that four days later, at his pleading proceeding, he lacked the capacity to consult with counsel and was not competent to plead guilty. Bastien's allegation is not evidence of the type that would warrant a conclusion, with a high degree of certainty that the finding made by the trial court, that Bastien was competent to tender a plea of guilty, was incorrect. Without more, the Court finds that Bastien has not met the burden imposed upon him by 28 U.S.C. § 2254(e), and the finding that Bastien was competent to plead guilty must stand as a presumptively correct factual finding.

  Since the presumption of correctness of the determination made in the state court, that Bastien was competent to plead guilty, remains undisturbed and, furthermore, as Bastien has not demonstrated that the trial court's determination to accept his plea of guilty resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court pleading proceeding, Bastien is not entitled to habeas corpus relief based upon his claim that his plea of guilty was not voluntary and knowing. Suppression of Post-Arrest Statement

  Bastien maintains that the trial court erred when it denied a pretrial suppression motion he made to exclude from his trial evidence concerning a post-arrest statement he gave to the prosecution. This is a matter that Bastien presented to the Appellate Division on his direct appeal. That court declined to review Bastien's challenge to the determination reached on his suppression motion because Bastien waived his right to appeal the trial court's determination on that pretrial motion when he tendered his plea of guilty pursuant to a negotiated plea agreement. In reaching that decision, the Appellate Division relied upon New York substantive law by making citation to People v. Kemp, 94 N.Y.2d 831, 703 N.Y.S.2d 59 (1999). In Kemp, the New York Court of Appeals advised that a general waiver of the right to appeal, as part of a negotiated plea agreement, forecloses an attempt to appeal an adverse suppression ruling where the plea allocution establishes that the criminal defendant has made a knowing, voluntary and intelligent waiver of the right to appeal. See Kemp, 94 N.Y.2d at 833, 703 N.Y.S.2d at 60.

  In the instant case, Bastien made a general waiver of his right to appeal and, during his plea allocution, he waived specifically his right to appeal the trial court's suppression rulings. The analysis by the New York Court of Appeals in Kemp relies solely upon New York law. By making citation to Kemp, when it decided Bastien's appeal, the Appellate Division signaled that its determination of the constitutional claim raised by Bastien concerning the validity of his waiver of his right to appeal from the denial of his suppression motion was grounded solely upon New York law.

  A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553-54 (1991); see also Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480 (1991) (a federal habeas court should not reexamine state-court determinations on state-law questions.)

  Since it is clear that in deciding the instant claim, the Appellate Division looked solely to state substantive law that is independent of the federal law claim made by Bastien, it is appropriate to determine whether the state law is adequate to support the state court judgment. Here, it is useful to borrow from the procedure the Second Circuit Court of Appeals has adopted in determining whether a state law procedural ground is adequate to support a state court judgment.

  The Second Circuit has informed that a state law procedural ground is adequate to support a state court judgment only if it is based on a rule that is "firmly established and regularly followed" by the state in question. See Cotto v. Herbert, 331 F.3d 217, 239-41 (2d Cir. 2003). In the case at bar, the substantive law relied upon by the Appellate Division, that a plea agreement that contains a waiver of the right to appeal bars any attempt to appeal from an adverse suppression ruling when a criminal defendant makes a knowing, voluntary and intelligent waiver of his right to appeal, has existed for many years. See, e.g., People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968 (1989); People v. Williams, 36 N.Y.2d 829, 370 N.Y.S.2d 904 (1975). Moreover, this rule of substantive law is regularly followed. See e. g. People v. Roman, 8 A.D.3d 503, 778 N.Y.S.2d 527 (App. Div. 2d Dep't 2004); People v. Williams, 6 A.D.3d 1176, 775 N.Y.S.2d 697 (App. Div. 4th Dep't 2004); People v. Delarosa, 277 A.D.2d 180, 716 N.Y.S.2d 309 (App. Div. 1st Dep't 2000). In addition, the state has a strong interest in applying this rule of its substantive law since it promotes the "final and prompt conclusion of litigation . . . an important goal of public policy in criminal as well as civil litigation." Seaberg, 74 N.Y.2d at 8, 543 N.Y.S.2d at 971.

  Based on the above, Bastien cannot obtain federal habeas corpus review of the instant claim because the federal law question raised by Bastien was decided by a state court which relied solely upon a substantive state law ground to resolve the matter.

  Excessive Sentence

  Bastien alleges that the sentence imposed upon him was excessive, notwithstanding the fact that the parties agreed, when they negotiated the plea agreement through which Bastien avoided proceeding to trial, to recommend to the trial judge the precise sentence Bastien is now serving. However, "[n]o federal constitutional issue is presented where . . . the sentence [imposed] is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); see also Dorsey v. Irvin, 56 F.3d 425, 427 (2d Cir. 1995); Alvarez v. Scully, 833 F. Supp. 1000, 1009 (S.D.N.Y. 1993). Upon his conviction for murder in the second degree, Bastien could have been sentenced to a minimum of at least 15 but not more than 25 years imprisonment and a maximum of life imprisonment. He received a sentence of 22 years to life imprisonment. Upon his conviction for robbery in the first degree (two counts), having been adjudicated a second violent felony offender, Bastien could have been sentenced to a minimum of 10 years imprisonment and a maximum of 25 years imprisonment. He received a sentence of 10 years imprisonment on each of the robbery first degree counts and secured a directive from the sentencing court that the periods of incarceration for his two first degree robbery convictions run concurrently with each other and consecutively to the sentence imposed upon Bastien for second degree murder. Inasmuch as the sentences imposed upon Bastien for the offenses to which he pleaded guilty were within the ranges prescribed by state statute, Bastien is not entitled to habeas corpus relief based upon his claim that his sentence was excessive.

  IV. RECOMMENDATION

  For the reasons set forth above, Bastien's application for a writ of habeas corpus should be denied.

  V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, United States District Judge, 500 Pearl Street, Room 1040, New York, New York 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Cote. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

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