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December 17, 2004.


The opinion of the court was delivered by: DENISE COTE, District Judge


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 jury selection.

  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 ...

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