Silverstein v. Henderson

Decision Date12 April 1983
Docket NumberD,No. 535,535
Citation706 F.2d 361
PartiesNorman SILVERSTEIN, Petitioner-Appellant, v. Robert HENDERSON, Respondent-Appellee. ocket 82-2028.
CourtU.S. Court of Appeals — Second Circuit

Michael Young, New York City, for petitioner-appellant.

George C. Perry, Jr., Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of the State of New York, Gerald J. Ryan, Asst. Atty. Gen., New York City, of counsel), for respondent-appellee.

Before LUMBARD, MANSFIELD and KEARSE, Circuit Judges.

LUMBARD, Circuit Judge:

Norman Silverstein appeals from a January 6, 1982, order of Judge Stewart in the Southern District of New York dismissing his petition for a writ of habeas corpus. Silverstein is imprisoned in the New York State correction facility at Auburn, serving a nine-to-eighteen year sentence for armed robbery. The heart of his claim is that he was incompetent to stand trial and that his guilty plea was thus constitutionally void. The district court held, however, that relief on this claim was barred because Silverstein had neglected to raise the issue on his direct appeal. We reverse and direct that the writ be issued.

I.

Silverstein is, allegedly, retarded and illiterate. He has an I.Q. of 74 and, according to one of his doctors, the mental age of a seven-year-old. He has not developed intellectually beyond the second grade level. He has a long institutional history, having been committed to Rockland State Hospital three times and held for observation at least once at Bellevue and Mid-Hudson State Hospitals. He has been diagnosed as possibly schizophrenic. 1

In 1976, Silverstein was arrested and indicted in Bronx County on several charges growing out of three "gunpoint" robberies allegedly committed with an accomplice. He was released on bail, defaulted and was arrested again on March 4, 1977.

One month later, about April 6, 1977, pursuant to court order, Silverstein was examined by two psychiatrists. Both agreed he was incompetent to stand trial. On April 12th Justice Goldfluss, of the New York Supreme Court in Bronx County, accepted the psychiatrists' report. The court stated for the record, "having examined such .... report, ... it now appears to my satisfaction that the defendant as a result of the mental disease or defect lacks capacity to understand the proceedings against him or to assist in his defense." Accordingly, the court ordered Silverstein detained at Bellevue, pending transfer by the State Department of Mental Hygiene.

One week later, on April 19th, the Mid-Hudson Psychiatric Center informed the Bronx County district attorney that a third psychiatrist had found Silverstein competent to stand trial, allegedly on the basis of one fifteen-minute interview. In proceedings on May 20th, Justice Goldfluss accepted this third psychiatric report. A few moments later, per an agreement with the Bronx County district attorney, Silverstein pled guilty to one count of robbery in the first degree, armed robbery, under N.Y. Penal Law Sec. 160.15(2) (McKinney 1975). All remaining charges were dropped. Neither the court nor Silverstein's counsel suggested that the disagreement between the three psychiatrists be resolved at a hearing, as required by N.Y.Crim.Proc.Law Sec. 730.30(4) (McKinney 1971). 2 Indeed, no hearing into Silverstein's competence to stand trial or to make a plea bargain was ever held.

The sentencing proceeding on June 21, 1977, again demonstrated Justice Goldfluss' knowledge that Silverstein "has had without question a psychiatric history," including a series of institutionalizations. The court expressed its "feeling that this defendant has a mental problem but the community must be protected against a defendant who [is] ... a dangerous person and I am [,] in sentencing this defendant [,] making a specific recommendation ... that [he] receive[ ] psychiatric care. In my opinion it is essential because ... someday he will be discharged [and] we must make every effort to see that he is not discharged in the same mental manner in which he goes in." The court sentenced Silverstein to nine to eighteen years in prison.

Silverstein appealed his conviction. The psychiatric report finding him incompetent to stand trial apparently did not become part of the record. 3 Appellate counsel, who had not represented the defendant at trial, was allegedly never made aware of the conflicting psychiatric opinion concerning Silverstein's competence. In any event, appellate counsel failed to urge incompetence as a ground for vacating the conviction. Counsel failed to argue that the trial court had not complied with the procedural requirements of Sec. 730.30 for determining competence. Counsel appealed only on the ground that the sentence was excessive in light of the defendant's diminished mental capacity and his lack of intent to harm his victims. The Appellate Division affirmed without opinion, 65 A.D.2d 679, 409 N.Y.S.2d 324 (1978), and leave to appeal to the Court of Appeals was denied (Nov. 28, 1978).

On September 20, 1980, Silverstein, acting pro se, commenced the series of proceedings that culminated in this appeal. He petitioned the New York Supreme Court, Bronx County, under N.Y.Crim.Proc.Law Sec. 440.10 (McKinney 1971) to vacate his conviction. He argued, inter alia, that he had never been aware of his right to a hearing on competence. 4 In any event, he argued, "petitioner although an adult is no more than a seven year old child incapable of understanding" his constitutional rights. Thus, "petitioner[,] an illiterate with the mentality of a seven year old[,] waved [sic] no such rights and [neither] counsel nor court had any right to wave [sic] his rights."

The state argued in response that Silverstein's petition should be dismissed under Sec. 440.10(2)(c), which requires denial of relief where the grounds for setting aside the conviction could have been raised on direct appeal but were not. The state argued specifically that because appellate counsel had been provided with a copy of the psychiatric report finding the defendant competent, counsel could have raised on appeal the question of defendant's competence to stand trial. 5

Justice Goldfluss, who had first found defendant incompetent, then competent, and then accepted the guilty plea, also heard the Sec. 440.10 motion to set aside the conviction. The court's one-sentence opinion dismissing the petition tacitly rejected the state's procedural default argument, resting the dismissal instead on the factually erroneous ground that "[t]he issues presented by the defendant have already been determined by the Appellate Division."

On December 29, 1980, Silverstein, again acting pro se, filed his second Sec. 440.10 petition. Silverstein reiterated his claims that he had been incompetent to stand trial and that he had been denied his right to a proper determination of his competence under N.Y.Crim.Proc.Law art. 730 (McKinney 1971). Silverstein also complained that counsel had failed to follow his suggestions to contest on appeal his competence to stand trial. 6

The state filed no opposing papers. Justice Goldfluss dismissed the petition on the ground that it contained "nothing new or novel that hasn't been brought to the attention of either this court or the Appellate Division." The court made explicit its earlier implicit holding that the defendant's mental capacity had been "clearly brought to the attention of the Appellate Division."

On January 8, 1981, Silverstein filed a pro se petition for a writ of habeas corpus in the District Court for the Southern District of New York. He subsequently retained counsel, who filed supporting papers. Silverstein claimed five grounds for relief: First, that the denial of a competency hearing and the acceptance of his guilty plea when he was incompetent to stand trial deprived him of due process; second, that the court improperly accepted his plea without determining whether he had committed all the elements of the crime; third, that he had been deprived of effective assistance of counsel on appeal and at trial; fourth, that by pleading guilty he had unknowingly waived his constitutional rights to confrontation, trial by jury, etc.; and fifth, that his sentence had been based upon misrepresentations in his presentence report. 7 The district court refused to consider the fifth claim, which had not been raised as a constitutional claim in state proceedings. The court found that the remaining four claims had been exhausted, and this finding is not disputed on appeal.

The state argued that Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), bars the federal court from reaching the merits of these claims, because the state court had denied relief on an independent and adequate state procedural ground--Silverstein's failure to raise the issues on direct appeal. In addressing this argument, the district court noted that Justice Goldfluss' express reason for denying relief--that the issues had already been determined on direct appeal--was erroneous. To determine the state court's "precise ratio decidendi" for denying relief, the district court looked to the papers filed by the state in the first Sec. 440.10 proceeding. As noted above, the state had argued that Silverstein was guilty of procedural default under N.Y.Crim.Proc.Law Sec. 440.10(2)(c) in failing to raise the issues on direct appeal. On this basis, the district court concluded that the state court must have been "thinking along procedural lines," and that this procedural ruling barred federal consideration of Silverstein's claims. 8

II.

Here too the state urges that we may not reach the merits, because this once pro se petitioner has not successfully wound his way through the labyrinthine procedural requirements surrounding federal habeas relief. We disagree.

The state argues, somewhat mysteriously, that the district court "blatantly ignored the Supreme Court's interdict" by "outright...

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    ...The petitioner, relying primarily on the decision of the United States Court of Appeals for the Second Circuit in Silverstein v. Henderson , 706 F.2d 361 (2d Cir.), cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983), contends that his due process claims, predicated on his a......
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