Bester v. Conway

• Decision Date: 21 April 2011
• Docket Number: No. 06–CV–0511 (VEB).,06–CV–0511 (VEB).
• Citation: 778 F.Supp.2d 339
• Parties: Anthony BESTER, Petitioner,v.James T. CONWAY, Superintendent, Respondent.
• Court: U.S. District Court — Western District of New York

778 F.Supp.2d 339

Anthony BESTER, Petitioner,

v.James T. CONWAY, Superintendent, Respondent.

No. 06–CV–0511 (VEB).

United States District Court, W.D. New York.

April 21, 2011.

Anthony Bester, Fallsburg, NY, pro se.Raymond C. Herman, Erie County District Attorney's Office, Buffalo, NY, for Respondent.

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.I. Introduction

Pro se habeas petitioner Anthony Bester (“Bester” or “Petitioner”) seeks release from state custody pursuant to 28 U.S.C. § 2254. Bester was convicted following a jury trial of murder in the second degree, and two counts of criminal possession of a weapon in the third degree. He is currently serving an aggregate sentence of twenty-five years to life in prison.

II. Factual Background and Procedural HistoryA. The Trial

The incident giving rise to Bester's conviction was the murder of his father, Jesse Bester (“Mr. Bester”), on March 31, 1997. According to Petitioner's sister Lakisha Bester (“Lakisha”), Petitioner and their father had maintained a good relationship, even though Mr. Bester had lived outside the family household for nineteen years. He had returned home less than a year earlier to help care for Petitioner, his son.

The day before the murder, Petitioner was observing striking Mr. Bester after Mr. Bester told Petitioner's niece to get out of the kitchen while he was cleaning. Later that day, Petitioner's conduct prompted Mr. Bester to take him to the hospital. However, Petitioner left the hospital without obtaining treatment.

Lakisha acknowledged that after Petitioner returned from the hospital, he told his mother that he wanted his father out of the house. T. 910 (Citations to “T.” followed by a numeral refer to pages from the transcript of Petitioner's trial.) Petitioner's girlfriend Fadra Rogers (“Rogers”), who was the mother of his children, also heard him say that. T. 579, 591. Rogers testified that Petitioner was angry at his father for taking him to the hospital. T. 594–595.

The following evening, at about 10:00 p.m., Petitioner entered his parent's bedroom with a shotgun and closed the door. His mother ran out and called 911. Petitioner then left the room, but he blasted his way back in as his father struggled to hold the door closed. T. 603–605.

Mr. Bester was able to escape the house and fled to a park, but Petitioner pursued him with a large knife and the shotgun. Petitioner eventually overtook his father. By the time Petitioner's attack was over, Mr. Bester had been shot twice and stabbed fifty-five times. T. 751–752, 756. Mr. Bester also suffered a broken jaw and dislodged teeth as a result of being kicked in the head. T. 747–759.

As it related to the defense of insanity, the defense called Dr. Bakhai. The prosecution called Dr. Grace on rebuttal. The doctors reached different diagnoses, and formed different opinions as to whether Petitioner understood that his actions were wrong.

Dr. Bakhai diagnosed the defendant with schizophrenia, of the “paranoid” type, T. 1017. Dr. Grace concluded that Petitioner suffered from schizophrenia, of the “undifferentiated” type. T. 1125. They both concluded that he also was a substance abuser.

Petitioner had previous psychiatric admissions in 1994 and 1996. In 1994, his diagnosis included schizophrenia, paranoid type; in 1996, the diagnosis was schizophrenia, undifferentiated type. T. 1128, 1134, 1209, 1382. Dr. Grace testified that the particular type of schizophrenia was not important, because neither diagnosis by itself would resolve the legal question presented by the insanity defense. Dr. Bakhai agreed that schizophrenics can be responsible for crimes they commit. T. 1136.

The thrust of the defense was that the defendant did not know what he was doing. According to Dr. Bakhai, Petitioner killed his father because he was suffering from command hallucinations, and because he believed that his father was an imposter. T. 1026. Notably, however, Dr. Bakhai did not diagnose Petitioner with a delusional disorder. Dr. Bakhai denied that Petitioner had told him that voices commanded him to kill his father. T. 1091–1092, 1095.

Dr. Bakhai concluded that Petitioner did not appreciate the wrongfulness of his conduct because he felt justified in defending his family from the perceived imposter. T. 1035. However, Dr. Bakhai acknowledged, Petitioner did not explain how he was defending his family when he chased his unarmed, fleeing father into the park and killed him. T. 1148.

Despite his opinion that Petitioner did not know that his conduct was wrong, Dr. Bakhai did not hold to that conclusion in his report following his examination of Petitioner. T. 1154. Instead, Dr. Bakhai wrote that Petitioner did not know or appreciate the nature and consequences of his conduct. Dr. Bakhai reverted to his original conclusion that Petitioner did not know that his conduct was wrong in his trial testimony. T. 1141–1143, 1145, 1153.

Dr. Bakhai admitted that he had destroyed the “couple of pages” of notes he took during his interview with Petitioner. T. 1104. With regard to Petitioner's auditory hallucinations, Dr. Bakhai's report did not indicate when the voices had started or stopped, or how many voices Petitioner said he heard. T. 1103–1104. Nor did it state that Petitioner made any reference to “imposters”. With regard to some things that Petitioner told him about voices that were not in his report, Dr. Bakhai stated he had forgotten them. T. 1105–1107. Significantly, Dr. Bakhai agreed that if Petitioner was not under the influence of delusions or hallucinations at the time he killed his father, then he was not legally insane. T. 1179–1180.

The prosecution's expert witness, Dr. Grace, testified that Petitioner did not suffer from delusions or hallucinations. Dr. Grace conducted his evaluation of Petitioner in the presence of the defense counsel. Dr. Grace took copious notes during the examination which he retained and had with him at trial. T. 2265–1267, 1277.

Petitioner told Dr. Grace that he shot through the bedroom door because his father would not open it. He said that voices told him that his father had a gun and was going to kill him. Petitioner explained to Dr. Grace that he did not believe he had to obey those voices.

Dr. Grace testified that although Petitioner answered most questions promptly, he paused after being asked why he killed his father. T. 1297. Petitioner eventually responded that he “guessed” that his father was going to kill him first. T. 1297. However, Petitioner never told Dr. Grace why he thought his father was going to kill him. Nor did Petitioner ever tell Dr. Grace that he believed his father was someone else. T. 1291, 1298–1299.¹

Petitioner discussed his 1994 hospitalization with Dr. Grace, which was prompted by Petitioner's threats to shoot relatives on Thanksgiving Day. T.1279. During that hospital stay, Petitioner stated that he had problems with relatives coming over a lot. T. 1113. Records from that admission included a statement that Petitioner had experienced no “command hallucinations” T. 1113–1114. Petitioner did not tell Dr. Grace that he thought his relatives were imposters. When Dr. Grace asked him why he did not shoot anyone during the Thanksgiving Day incident, he answered that his mother had interfered. T. 1279.

Dr. Grace concluded that Petitioner was a malingerer who did not believe that his father was a dangerous imposter, based in part on Petitioner's failure to cease attacking his father long after any perceived threat had ended, and by Petitioner's failure to show that he was relieved when help arrived. T. 1298–1303. Dr. Grace also considered that Petitioner, just one week prior to the shooting, had told Dr. Brian Joseph that he had feigned being perplexed in an effort to avoid incarceration on an unrelated criminal charge. T. 1199, 1203, 1205. Dr. Grace concluded that Petitioner understood the nature and consequences of his actions, and understood that what he was doing was wrong. T. 1316–1317.

B. The Direct Appeal

On direct appeal to the Appellate Division, Fourth Department, of New York State Supreme Court, Bester argued that he was erroneously deprived of one peremptory challenge; the verdict was against the weight of the evidence; the indeterminate sentences on his convictions for weapons possession were illegal; and the sentence for the murder conviction was harsh and excessive and should be modified in the interests of justice.

The Fourth Department held that Bester had failed to preserve for review his contention that the trial court deprived him of his right to a jury of his choice when it misinformed defense counsel of the number of defendant's remaining peremptory challenges, and it declined to exercise its power to review that contention as a matter of discretion in the interest of justice. The Fourth Department also concluded that verdict was not against the weight of the evidence. The term of imprisonment imposed on the murder count was found to be not unduly harsh or severe.

The Fourth Department agreed with Bester that the terms of imprisonment imposed on the counts of criminal possession of a weapon in the third degree were unlawful. Because Bester was sentenced as a second felony offender, the maximum term of imprisonment for each of those counts was an indeterminate term of 3 1/2 to 7 years. Accordingly, the Fourth Department modified the judgment and remitted the matter to the trial for re-sentencing on counts three and four of the indictment. See People v. Bester, 21 A.D.3d 1366, 1367, 801 N.Y.S.2d 444 (App.Div. 4th Dept.2005).

Bester did not seek leave to appeal to the New York Court of Appeals.

C. The Federal Habeas Petition

This timely habeas petition followed in which Bester has raised the following grounds for habeas relief: (1) because of his mental disease or defect (schizophrenia) no reasonable jury could have found him guilty of intentional murder; (2) the sentence was harsh, unjust, cruel...