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Remy v. Graham

February 12, 2007

GAETAN REMY, PETITIONER,
v.
HAROLD GRAHAM, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

Gaetan Remy, a state prisoner, petitions for a writ of habeas corpus challenging his conviction by a Queens jury of, among other crimes, multiple counts of intentional assault. Remy was sentenced to 25 years in prison. For the reasons discussed below, the petition is denied.

BACKGROUND

A. The Offense Conduct and Subsequent Mental Health Analyses

On July 6, 2002, Remy was arrested on a misdemeanor assault charge after an altercation with a woman he was living with. After a recommendation by a doctor that he be transferred to the general population at Rikers Island, Remy pled guilty to attempted assault in the third degree and was sentenced to time served and probation. On August 29, 2002, the Probation Department charged Remy with violating probation because he refused to sign certain documents at an intake interview without an attorney present.

The events giving rise to the conviction challenged by this petition took place at the hearing on that charge on October 10, 2002. Remy became agitated and disruptive in court. The judge ordered that he be remanded. A female court officer cuffed one of Remy's arms, at which point he began flailing his arms and knocked her backward. Two other court officers and the court clerk then attempted to subdue Remy while he resisted. One officer struck Remy with a baton. In the struggle, two officers were injured and the group overturned and smashed a table in the courtroom. Another officer then grabbed Remy around the waist to execute a takedown and struggled with him briefly until Remy bit off the officer's earlobe using a removable metal dental bridge. Eventually, Remy was subdued.

Remy was arrested for this conduct. His mental health intake screening diagnosed him as suffering from post-traumatic stress disorder ("PTSD"). The report of that screening noted that Remy reported being beaten and sexually abused by gang members while in prison previously. Remy also reported that he bit the officer in court because he had suffered "flashbacks" of the prison assault incident. Petition Ex. H (Intake Screening Form 3, Oct. 15, 2002). Subsequent mental health evaluations before the grand jury proceedings also reflected Remy's reports of the prison assault and presented a similar diagnosis.

Documents attached to Remy's petition indicate that Remy had reported the prison assault before the October 10, 2002 incident. On June 5, 1999, while he was incarcerated at Riker's Island, Remy wrote a notarized letter to two attorneys stating that he had been "assaulted physic[a]lly and sexually" and he complained of injuries and emotional disturbance as a result. Petition Ex. G (Letter of Gaetan Remy, June 5, 1999). In the letter, Remy also stated that he initially reported the incident truthfully, but that after his return from the hospital, corrections officers forced him to provide a false account in return for removal to a safer part of the prison. In addition, the notes of a mental health social worker who examined Remy shortly after his July 6, 2002 arrest state, "Mr. Remy reported that he was attacked by a gang who tried to rape him in 3U2 building C-73 -- 2 1/2 years ago. Since his arrest he has been having flash backs [sic], nightmares and hypervigilance. He is scared of going to Riker's Island." Petition Ex. H (Physicians' Clinic Notes).

B. The Grand Jury Proceedings and Subsequent Mental Health Analyses

On November 7, 2002, Remy, accompanied by his attorney, testified before a grand jury. He spoke about the prison assault, and stated that after he was remanded, several court officers had "jump[ed]" on him, he had suffered a flashback to the assault, reacted out of "temporary insanity," and "didn't know what [he] was doing." Grand Jury Tr. 47. He said he had later been told that he had bitten off an officer's ear during the incident. In response to the prosecutor's questions, Remy demonstrated and critiqued*fn1 certain submission holds and grappling techniques he claimed were used in the altercation. He also stated that he had pled guilty to the underlying attempted assault charge because his fear of being in jail was so extreme and he had been offered a sentence of time served and probation.

Remy was indicted on a number of counts of intentional assault and other crimes relating to the courtroom incident. On December 3, 2002, the court ordered an examination to determine Remy's competency to stand trial. Two doctors, Richard L. Weidenbacher, a psychiatrist, and Robin Kerner, a psychologist, examined Remy and found him fit to proceed. Both also diagnosed him as suffering from chronic PTSD. Remy reported to Weidenbacher that he had been physically assaulted by a gang while in prison, but did not report any claims of sexual abuse. Weidenbacher noted that certain missing teeth corroborated Remy's report. He concluded that Remy "may well have suffered from post-traumatic stress disorder as a result of having been assaulted in 1999, but probably also as a result of 3 automobile accidents" Remy had been involved in. Petition Ex. B (Examination of Dr. Weidenbacher) 2. In addition to PTSD, Weidenbacher opined that Remy's "family history might also have been a factor" contributing to his fear of prison. Id. at 3. The psychiatrist concluded that "[i]t may well be . . . that [Remy] was in fact beset by extraordinary or irrational[] apprehensi[on] or fear and that such fear was an important factor in his reaction on court officers who converged on him." Id. at 2. Dr. Kerner's report agreed with the findings of Dr. Weidenbacher.

Remy's attorney received copies of the Kerner and Weidenbacher examinations. The attorney then wrote to Weidenbacher, telling him he was considering calling the two doctors as defense witnesses to testify about PTSD and its relationship to the offense conduct, and asking to speak to Weidenbacher before trial. In a postscript, he asked Weidenbacher whether he had based his discussion of the prison assault on "prison records" or only "the defendant's word." Petition Ex. D (Letter of Martin Goldberg, Mar. 5, 2003) 2. Weidenbacher responded with his availability, and stated that he had seen no records other than the accusatory instrument.

C. The Sandoval Hearing

At a pretrial hearing, the prosecutor moved to preclude Remy from presenting psychiatric testimony at trial because his attorney had not provided notice of such testimony. Remy's attorney objected that the prosecutor was already on notice of the possibility of such evidence from Remy's grand jury testimony. He stated, though, that he did not want to commit himself to a particular defense because of "the nature of [his] relationship" with Remy. H'g Tr. 10-11. When pressed by the court, however, Remy's attorney stated he would call the psychiatrist to testify, on the theory that the prison assault had "impacted on ...


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