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Kiltinivichious v. United States

September 15, 2010


The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.


Pro se Petitioner Vitautus Kiltinivichious ("Petitioner") petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 ("Section 2255"), asking the Court to vacate, set aside, or correct his sentence on the grounds that: (1) his trial counsel provided ineffective assistance; (2) his appellate counsel provided ineffective assistance; (3) he was denied substantive and procedural due process when this Court found that he was competent to stand trial; and (4) he is entitled to a new trial based on the Government's violation of its Brady and Giglio obligations by failing to turn over specific evidence to the defense.

For the reasons set forth below, the Court DENIES the petition.

I. Factual Background

A. Trial and Crimes of Conviction

On December 14, 2000, after a ten-week trial, a jury convicted Petitioner on seven counts of racketeering: (1) participating in a racketeering enterprise, in violation of 18 U.S.C. § 1962(c) (Count 1); (2) participating in a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (Count 2); (3) conspiring to extort and extorting the owners, operators, and employees of businesses that transported women from New York to clubs in New Jersey (where the women performed as exotic dancers), in violation of 18 U.S.C. §§ 1951 and 1952 (Counts 11 and 12); (4) conspiring to commit arson in connection with the destruction of motor vehicles used to transport the women, in violation of 18 U.S.C. § 844(i) and (n) (Count 13); and (5) conspiring to extort and extorting Ernest Malamoud, a Russian immigrant businessman, in violation of 18 U.S.C. §§ 1951 and 1952 (Counts 14 and 15).

B. Adjudication of Competency Prior to Sentencing

Following Petitioner's conviction, and prior to sentencing, defense counsel raised the question of whether Petitioner was mentally competent. In response, the Court took several steps to determine Petitioner's competency, both at the time of trial and for purposes of sentencing.

After trial, Petitioner asked to proceed pro se with sentencing. The Court appointed an attorney, Lee Ginsburg, to advise Petitioner with respect to his request to proceed pro se. At a conference on March 27, 2001, Mr. Ginsburg, as well as Petitioner's trial counsel, Robert Krakow, expressed to the Court their concern about Petitioner's competency. Mr. Ginsburg and Mr. Krakow informed the Court that Petitioner had stated that (1) God had directed him to make certain case-related decisions throughout the criminal proceedings, and (2) God was directing him to proceed pro se for sentencing.*fn1 At counsel's request, the Court ordered a psychological evaluation of Petitioner pursuant to 18 U.S.C. § 4244(a), which provides for an evaluation of a convicted defendant for whom "there is a reasonable cause to believe . . . may presently be suffering from a mental disease or defect for the treatment of which he is in need of custody for care or treatment in a suitable facility."

Pursuant to the Court's order, two specialists from the Bureau of Prison (BOP), forensic psychologist Dr. Thomas Patenaude and psychiatrist Dr. James Fletcher, evaluated Petitioner at FMC-Devens. Dr. Patenaude completed a written report, in which he found that Petitioner demonstrated "exaggerated symptoms of mental illness." Dr. Patenaude also found that Petitioner "attempted to present himself as grossly psychotic which was inconsistent with his actual clinical presentation," and that Petitioner "alluded that by appearing severely mentally ill," he might be able to lessen his prison sentence. Dr. Patenaude concluded that Petitioner was "not suffering from a mental disease" that required treatment at a special medical facility. (Patenaude Report at 9.) Dr. Patenaude's report was provided to all counsel and to the Court.*fn2

Thereafter, Petitioner's counsel asked the Court to appoint a psychological specialist to assist counsel in interpreting Dr. Patenaude's report and in preparing for the competency hearing. On August 17, 2002, the Court granted counsel's request. Pursuant to the Court's order, counsel retained Dr. Sanford L. Drob to review Dr. Patenaude's report and to assist in preparing for the competency hearing. Dr. Drob provided to Petitioner's counsel a report that reviewed Dr. Patenaude's findings as to Petitioner's medical condition.

On January 24, 2003, the Court held the first competency hearing,*fn3 which was limited to the issue of Petitioner's current mental state. At that hearing, Dr. Patenaude and Dr. Fletcher testified extensively about the conclusions of their psychological evaluation of Petitioner. Petitioner's counsel conducted detailed cross-examination of both experts.

At the conclusion of the hearing, the Court reserved judgment on the issue of Petitioner's competency and permitted additional submissions from the parties. Petitioner's counsel then asked the Court to appoint an independent psychological expert to evaluate Petitioner. The Government objected. The Court granted the request and ordered an independent psychological expert, Dr. Thomas Kucharski,*fn4 to evaluate (1) Petitioner's competency at the time of trial, and (2) Petitioner's competency to proceed with sentencing. Dr. Kucharski evaluated Petitioner in April 2003. Although he disagreed with some findings made by Dr. Patenaude and Dr. Fletcher, Dr. Kucharski concluded that Petitioner was competent both (1) at the time of trial, and (2) for purposes of sentencing.

On April 25, 2003, the Court held further proceedings regarding Petitioner's mental condition and competency. Based on all of the evidence in the record, the Court concluded that Petitioner was competent (1) at the time of trial and (2) for purposes of sentencing.

C. Sentencing and Post-Sentencing Proceedings

Following the Court's decision on Petitioner's competency, the parties proceeded with sentencing and the post-conviction appellate process.

On September 8, 2003, this Court sentenced Petitioner to concurrent sentences of 188 months incarceration for each count on which Petitioner was convicted. Petitioner appealed the conviction and sentence on numerous grounds, but did not challenge the Court's finding on Petitioner's competency.*fn5

On April 1, 2005, the Court of Appeals for the Second Circuit affirmed Petitioner's conviction, and remanded the case for a clarification on the appropriateness of Petitioner's sentence in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005).

On February 10, 2006, after accepting supplemental briefing and hearing oral argument from the parties, the Court issued an order declining to modify Petitioner's sentence. Petitioner appealed the Court's decision; on December 28, 2006, the Second Circuit affirmed the Court's ruling.

On December 18, 2003, during the pendency of Petitioner's appeal, the BOP sent the Court a letter stating that Dr. Patenaude was under investigation for falsifying patient evaluations. Due to a clerical error, that letter did not reach chambers until July 2008. The letter, from David L. Winn, the warden at FMC-Devens, stated that:

[A]n investigation by the Bureau of Prisons Office of Internal Affairs recently revealed that there is sufficient evidence to question the credibility and accuracy of a psychological evaluation conducted by Dr. Thomas Patenaude. This internal investigation could call into question the credibility of other psychological evaluations conducted by the psychologist. (Pet'r Aff. Ex. 4, D.E. 3 under No. 08 Civ. 5640 (hereinafter, the "Winn Letter").) The BOP Office of Internal Affairs did not specifically investigate Dr. Patenaude's evaluation of Petitioner.

When the Court received the Winn Letter, the Court sought to determine whether the new information about Dr. Patenaude should affect the Court's finding on Petitioner's competency. The Court directed Dr. Kucharski to notify the Court, in writing, whether his conclusions about Petitioner's competency would have been different absent consideration of Dr. Patenaude's report or any other information provided by Dr. Patenaude. (Order, July 31, 2008, D.E. 329 under No. 98 Cr. 727.) The Court also directed Dr. Kucharski to interview Petitioner's trial counsel and, if necessary, to submit to the Court any amendment or addendum to his evaluation report. (Id.) On September 15, 2008, Dr. Kucharski submitted a supplemental report that reaffirmed his original conclusion, as stated in his April 2003 report, that Petitioner was competent to stand trial and to proceed with sentencing. Dr. Kucharski noted that Dr. Patenaude's reported findings had "little to no bearing on the opinion" that Dr. Kucharski provided to the Court in April 2003, and that his opinion on Petitioner's mental condition "remains unchanged." (Supplemental Report, D.E. 334 under No. 98 Cr. 727.)

Petitioner now seeks a writ of habeas corpus.*fn6

II. Analysis of Petitioner's Claims

A. An Evidentiary Hearing Is Not Warranted

Section 2255 of Title 28 of the United States Code requires that a court hold an evidentiary hearing on a petition for a writ of habeas corpus, unless the motions and records in the case establish that the petitioner is not entitled to relief. "It is within a district court's discretion to determine whether an evidentiary hearing is warranted." Bennett v. United States, No. 03-1852, 2004 WL 2711064, at *3 (S.D.N.Y. Nov. 23, 2004). An evidentiary hearing is not warranted where the "files and records of the case conclusively show" that the petition is without merit. Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001) (quoting 28 U.S.C. § 2255(b)); see also Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003) (noting that Second Circuit "precedent disapproves of summary dismissal of petitions where factual issues exist, but it permits a 'middle road' of deciding disputed facts on the basis of written submissions") (citation omitted). To obtain a hearing, "a petitioner 'must demonstrate a colorable claim,' and the court must evaluate whether a hearing would 'offer any reasonable chance of altering its view of the facts.'" Bennett, 2004 WL 2711064, at *3 (quoting Chang, 250 F.3d at 84, 86).

An evidentiary hearing is not warranted for the instant petition. As discussed below, the briefs and supporting record make clear that no factual disputes exist that would warrant a hearing, and that the petition is without merit.

B. Ineffective Assistance of Trial Counsel

Petitioner raises claims of ineffective assistance of trial counsel with respect to both Mr. Krakow and Mr. Ginsburg. Petitioner claims that Mr. Krakow failed: (1) to investigate and obtain Petitioner's 1989 political asylum application; (2) to independently translate the September 1997 "wiretap" recording of Ernest Malamoud (a victim in the case), or to object to the admission and authentication of the recording; and (3) to sufficiently investigate Petitioner's mental condition, or to provide information on Petitioner's mental condition to Mr. Ginsburg when Mr. Ginsburg was substituted as counsel.

Petitioner also argues that Mr. Ginsburg failed to call witnesses to testify about Petitioner's competency, and to utilize available evidence on the matter.

As discussed below, Petitioner's claims of ineffective assistance of counsel with respect to Mr. Krakow and Mr. Ginsburg are without merit. There is no evidence that (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, or (2) a reasonable probability exists that, but for counsel's purported errors, the result of the proceedings would have been different.

1. Legal standard

To prevail on a claim for ineffective assistance of counsel, a defendant must satisfy both prongs of the test set forth by the Supreme Court in Strickland v. Washington: (1) deficient performance by counsel; and (2) prejudice. 466 U.S. 668, 694 (1984). To establish deficient performance, Petitioner must show that counsel made errors "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. The proper measure of attorney performance is reasonableness under "prevailing professional norms," to be judged pursuant to an objective standard. Id. at 688; Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005). For this first prong of the Strickland test, there is a "strong presumption that [a lawyer's] conduct falls within the wide range of reasonable professional assistance," and "judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. A court should thus avoid "second-guessing" counsel's assistance after conviction, making "every effort . . ...

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