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BASTIEN v. WILLIAM

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 ...


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