United States District Court, S.D. New York
December 17, 2004.
DONALD BASTIEN, Petitioner,
PHILLIP WILLIAM, Respondent.
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION & ORDER
In a timely filed petition, Donald Bastien ("Bastien") seeks a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Bastien seeks
to challenge his February 2000 sentence of thirty-two years to
life for second degree murder and two counts of first degree
robbery. He contends that his incarceration is unlawful because
(1) he pled guilty unknowingly and involuntarily due to mental
illness; (2) the trial court erred when it failed to grant his
motion to suppress evidence of a post-arrest statement made after
he invoked his right to counsel; and (3) the sentence imposed, after he entered his plea of guilty, was excessive. Bastien's
petition was referred to Magistrate Judge Kevin N. Fox for a
Report and Recommendation ("Report"), which he issued on
September 21, 2004. The Report recommends that the petition be
denied. After receiving an extension of time, Bastien submitted
objections to the Report dated on or about October 29, 2004.
These objections were filed on December 1. For the following
reasons, the Report is adopted and the petition is denied.
The relevant facts are set forth in the Report and are
summarized here. In August 1996, Bastien participated in a series
of armed robberies in New York City, at least one of which
resulted in the death of a person. A New York County grand jury
indicted Bastien and charged him 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).
In October 1997, Bastien underwent psychiatric examination,
pursuant to New York Criminal Procedure Law ("CPL") Article 730,
to determine whether he was fit to proceed to trial. Two mental
health professionals retained by the court examined Bastien.
Following a competency hearing in 1998, the court concluded that Bastien was not competent to proceed to trial. It committed him
to the custody of the Commissioner of the New York State Office
of Mental Health (the "Commissioner").
Shortly thereafter, a designee of the Commissioner reported
that Bastien's condition had improved enough such that he could
proceed to trial. In January 1999, the court granted Bastien's
application to the court for reexamination. Two mental health
professionals determined that Bastien was still not fit to
proceed to trial and that his symptoms were "almost impossible to
malinger" to an experienced psychiatrist. The prosecution engaged
a consulting psychiatrist to examine Bastien to controvert that
finding. The prosecution's psychiatrist found that Bastien was
malingering and that he was fit to proceed to trial. At the
competency hearing in April 1999, the court concluded that it was
possible that Bastien was "malingering;" however, the prosecution
had not established Bastien's competency by "a preponderance of
the evidence," which is the governing standard. Therefore, the
court again committed Bastien to the custody of the Commissioner.
At the end of 1999, the Commissioner's designee again reported
to the court that Bastien was fit to proceed to trial. The trial
court subsequently commenced a pretrial hearing to address
motions Bastien had made to suppress a post-arrest statement he
had provided the prosecution and physical as well as identification evidence that the prosecution intended to present
at trial. At a hearing to address these motions in January 2000,
Bastien's counsel requested that he undergo a psychiatric
evaluation for a third time pursuant to CPL Article 730. The
court rejected this request because of its observations of
Bastien at the pretrial hearing as well as a result of the
evidence from previous hearings which suggested that Bastien was
malingering. The court noted that a committee at the Mid-Hudson
Forensic Psychology Center which examined Bastien, unanimously
found that "not only is he capable of going forward, but he has
been malingering." The court also stated that although it had
observed Bastien "talking to the walls" during the pretrial
hearing, this seemed to occur "whenever things seem to be not
going in" Bastien's favor. In addition, the court stated that
whenever it reprimanded Bastien about his conduct, such conduct
would cease. The court denied the suppression motions, including
a motion to suppress Bastien's post-arrest statement, and began
During jury selection, the parties notified the court that a
negotiated disposition had been reached. On January 24, 2000,
Bastien pleaded guilty to one count of second degree murder and
two counts of first degree robbery in full satisfaction of all
the charges made against him in the indictment. The defendant
responded with a yes or no answer, as was appropriate, to each of the questions posed during the plea allocution. He represented
that he had discussed the plea agreement with his counsel. Among
other things, Bastien agreed to waive his right to appeal from
the court's determination concerning his pretrial suppression
motions. Additionally, Bastien agreed that he would not challenge
as excessive the sentence the parties recommended that the court
impose upon him as a result of his agreement to plead guilty. The
pertinent portion of the plea allocution transcript reads:
The Court: In entering these pleas of guilty, you
agree to waive any issues that were raised on the
hearing that was held, any suppression issues and any
appeal based on excessive sentence; is that correct?
The Defendant: Yes.
Bastien appealed from the judgment of conviction to the New
York State Supreme Court, Appellate Division, First Department.
He asked that his plea of guilty be vacated because it was made
involuntarily and unknowingly because he suffered from a mental
illness. Bastien asked the court to find that the waiver of his
rights to appeal the denial of his motions to suppress and
challenge his sentence on appeal, were not valid. He alleged that
during the plea allocution, the trial court did not distinguish
clearly for the petitioner between rights automatically waived as
a consequence of the tender of his plea of guilty and the right
to appeal. Further, Bastien claimed that the trial court erred
when it declined to suppress his post-arrest arrest statement to the prosecution, as it was made after he
invoked his right to counsel. Bastien also asked that the court
find his sentence, thirty-two years to life imprisonment, unduly
harsh and excessive, despite his status as a second violent
felony offender. Finally, Bastien asked that the court exercise
its authority pursuant to 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, 743 N.Y.S.2d 706 (1st
Dep't 2002). The Appellate Division held that the trial court
properly exercised its discretion in denying Bastien's request
for a third competency evaluation. Id. It found that the
responses Bastien gave during the plea allocution established
that his plea of guilty was made knowingly, intelligently and
voluntarily and was not affected by Bastien's "purported mental
illness." Id. The Appellate Division also found that Bastien's
waiver of his right to appeal "expressly encompassed his
suppression and excessive sentence claims." Id. Even if
Bastien's waiver did not preclude his ability to seek appellate
review, the Appellate Division found that both his claims
regarding his right to appeal lacked merit. Id.
Bastien then sought leave to appeal to the New York Court of
Appeals. That application was denied. People v. Bastien,
752 N.Y.S.2d 593 (N.Y. 2002). Thereafter, Bastien filed a petition for a writ of habeas corpus. The petition includes three of the
four claims brought in the Appellate Division.
In reviewing the Report, the court "may accept, reject or
modify, in whole or in part, the findings or recommendations made
by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court
shall make a de novo determination of those portions of the
Report to which objection is made. United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Habeas petitions are subject to the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. With
respect to any claim that was adjudicated on the merits in state
court proceedings, a writ of habeas corpus may be issued only if
the state court's adjudication was "(1) 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 proceeding."
28 U.S.C. § 2254(d); see also Williams v. Taylor,
529 U.S. 362, 412-413 (2000). Further, AEDPA mandates that any
determination of factual issues by the State court is presumed to
be correct. 28 U.S.C. § 2254(e)(1). The applicant has the burden
of rebutting the presumption of correctness by clear and convincing evidence. Id.
1. Involuntary Plea of Guilty
Bastien contends that he did not make a knowing and voluntary
plea of guilty because he suffered from a mental illness. The
standard for mental competency to stand trial is the same as the
standard for mental competency that must attend a guilty plea.
Godinez v. Moran, 509 U.S. 389, 396-397 (1993). In order to
stand trial and have the mental competency to plead guilty, a
defendant must have "sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding
and . . . a rational as well as factual understanding of the
proceedings against him." Dusky v. United States, 362 U.S. 402
(1960) (per curiam); see also United States v. Nichols,
56 F.3d 403, 412 (2d Cir. 1995). In determining mental competency, a
court may rely on psychiatric evaluations as well as its own
observation of the defendant. Drope v. Missouri, 420 U.S. 162,
180 (1975); see also United States v. Hemsi, 901 F.2d 293,
295 (2d Cir. 1990).
The Supreme Court established the standard for a voluntary plea
of guilty in Brady v. United States, 397 U.S. 742 (1970). The
Court held that 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, must stand unless induced by threats
(or promises to discontinue improper harassment), misrepresentation
(including unfulfilled or unfulfillable promises), or
perhaps by promises that are by their nature improper
as having no proper relationship to the prosecutor's
business (e.g., bribes).
Id. at 755 (citation omitted). As explained by the Second
[A] plea is deemed `intelligent' if the accused had
the advice of counsel and understood the consequences
of his plea, even if only in a fairly rudimentary
way; it is deemed `voluntary' if it is not the
product of actual or threatened physical harm, mental
coercion overbearing the defendant's will, or the
defendant's sheer inability to weigh his options
Miller v. Angliker, 848 F.2d 1312
, 1320 (2d Cir. 1988). The
trial court must assure, through on-the-record inquiry, that the
waiver of the defendant's constitutional rights is knowing and
voluntary. Parke v. Raley, 506 U.S. 20, 28-29 (1992). This is
of particular importance because a criminal defendant waives
three constitutional rights when he pleads guilty: the privilege
against self-incrimination, the right to a jury trial, and the
right to confront one's accusers. Boykin v. Alabama,
395 U.S. 238
, 243 (1969). If the waiver is not voluntary and knowing, then
it has been obtained in violation of due process and is void.
McCarthy v. United States, 394 U.S. 459
, 466 (1969).
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 court must defer. Thompson v. Koehane,
516 U.S. 99, 111 (1995); Francis S. v. Stone, 221 F.3d 100, 114 (2d Cir. 2000). As already noted, a state court's determination of a
factual issue will be presumed to be correct and the burden
shifts to the defendant to rebut that presumption by clear and
convincing evidence. 28 U.S.C. 2254(e)(1). The clear and
convincing evidence standard is somewhere between the
preponderance of the evidence standard and the proof beyond a
reasonable doubt standard. Addington v. Texas, 441 U.S. 418,
431 (1979). The Second Circuit has interpreted this standard to
require that the evidence support a conclusion with a "high
degree of certainty." United States v. Chimurenga,
760 F.2d 400, 405 (2d Cir. 1985).
The petitioner has not shown that the state court's finding
that he was competent, and that his plea was knowing and
voluntary should be set aside. The trial court heard testimony in
support of and in contravention to the psychiatric findings
regarding Bastien's competency to stand trial. The court's
observations, coupled with the psychiatric reports and the
relevant testimony from the competency hearings, led the trial
court to conclude that a third psychiatric evaluation of the
petitioner was not required and that Bastien was competent. At
his plea allocution, Bastien answered the trial court's inquiries
in the affirmative when asked whether 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 he was giving up by
tendering a plea of guilty. The trial court determined that
Bastien had consulted with counsel, wished to plead guilty,
understood that he was waiving constitutional and other rights,
and was not being threatened or coerced.
Bastien's counsel's request for a third psychiatric evaluation
four days before Bastien tendered his plea of guilty is
insufficient to warrant a conclusion that the trial court's
finding of competence was incorrect particularly when Bastien's
attorney did not renew the request for another evaluation at the
plea hearing. Without more, Bastien has not met the burden
imposed upon him by 28 U.S.C. § 2252(e) to show by clear and
convincing evidence that he was not competent.
2. Suppression of Post-Arrest Statement
Bastien contends that the trial court erred when it denied his
pretrial suppression motion to exclude a post-arrest statement he
gave to the Government. Bastien, however, waived his right to
appeal the trial court's determination on that pretrial motion
when he pled guilty pursuant to a negotiated plea agreement. The
Report concluded that because the Appellate Division had looked
to firmly established and regularly followed state law which was
independent of any federal question and adequate to deny
Bastien's appeal of his waiver of his right to appeal the suppression ruling, Bastien could not obtain federal
habeas corpus review of his suppression claim. See Cotto v.
Herbert, 331 F.3d 217, 238-39 (2d Cir. 2003); People v.
Seaberg, 543 N.Y.S.2d 968, 970-72 (N.Y. 1989); Bastien,
743 N.Y.S.2d at 706.
In any event, suppression claims are not cognizable in a
federal habeas proceeding. After entering a guilty plea, a
criminal defendant may not "thereafter raise independent claims
relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea. He may only
attack the voluntary and intelligent character of the guilty
plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973); see
also Hayle v. United States, 815 F.2d 879, 881 (2d Cir. 1987).
Having failed to show that his plea was invalid, Bastien may not
collaterally attack the denial of his motion to suppress.
3. Excessive Sentence
Bastien contends that the sentence imposed upon him was
excessive. Bastien's excessive sentence claim is unreviewable
because it is not a question of federal law. "No federal
constitutional issue is presented where, as here, the sentence 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). A conviction of murder in the second degree has a statutory
sentence of at least 15 but not more than 25 years imprisonment
and a maximum of life imprisonment. Bastien agreed to and the
court sentenced him to 22 years to life imprisonment. A
conviction of robbery in the first degree (two counts), for a
second violent felony offender, has a minimum sentence of 10
years imprisonment and a maximum of 25 years imprisonment.
Bastien received a sentence of 10 years imprisonment on each of
the counts of first degree robbery. The sentencing court directed
that the periods of incarceration for the two first degree
robbery convictions run concurrently with each other and
consecutively to Bastien's sentence for second degree murder.
Because the sentences imposed were within the state statutory
range for the offenses to which Bastien pleaded guilty, Bastien
is not entitled to habeas corpus relief based upon the claim that
his sentence was excessive.
The Report is adopted and the petition for a writ of habeas
corpus is denied. Additionally, the petitioner has not made a
substantial showing of a denial of a federal right and appellate
review, is therefore, not warranted. Tankleff v. Senkowski,
135 F.3d 235, 241 (2d Cir. 1998). Further, pursuant to
28 U.S.C. § 1915(a)(3), any appeal taken from this Order would not be in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The
Clerk of Court shall dismiss this petition and close the case.
© 1992-2005 VersusLaw Inc.