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United States District Court, S.D. New York

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 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 Circuit


[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 rationally.
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.



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