Bisnett v. Kelly, 97 CV 2127(RR).
| Decision Date | 08 July 2002 |
| Docket Number | No. 97 CV 2127(RR).,97 CV 2127(RR). |
| Citation | 221 F.Supp.2d 373 |
| Parties | Michael BISNETT, Petitioner, v. Walter KELLY, Superintendent, Attica Correctional Facility, and Glenn Goord, Commissioner, New York State Department of Correctional Services, Respondents. |
| Court | U.S. District Court — Eastern District of New York |
Law Office of Ronald L. Kuby, New York, By Ronald L. Kuby, Esq., Eve S. Rosahn, Esq., for Petitioner.
Honorable Charles J. Hynes, Kings County District Attorney, Brooklyn, By Thomas Burka, Assistant District Attorney, Andrew Leff, Assistant District Attorney, for Respondents.
Michael Bisnett petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994 & Supp.2001). Bisnett was convicted in 1986 after a jury trial in Kings County of Criminal Sale of a Controlled Substance in the First Degree, see N.Y. Penal Law § 220.43[1] (McKinney 2000), Criminal Possession of a Controlled Substance in the First Degree, see N.Y. Penal Law § 220.21[1] (McKinney 2000), and Criminal Possession of a Weapon in the Third Degree, see N.Y. Penal Law § 265.02[4] (McKinney 2000). He is presently incarcerated serving concurrent terms of twenty-three years to life for the sale and possession of a controlled substance, and two and one-third to seven years for weapon possession. In challenging his conviction before this court, Bisnett asserts that he was denied (1) due process of law when the trial court erroneously found him competent to stand trial, and (2) his Sixth Amendment right to the effective assistance of trial counsel. Having carefully reviewed the submissions of the parties as well as the record of proceedings in the state courts, the court concludes that Bisnett's petition must be denied as without merit.
For at least six months prior to September 1984, petitioner Michael Bisnett and co-defendant Alonzo Wilson operated a cocaine network out of various Brooklyn locations, including Bisnett's shop, Liberty Locksmith, at 2135 Caton Avenue. Working with them were Frank Solomon and Herbert Reid, both of whom would eventually plead guilty to selling drugs and testify against their bosses.
Much of the evidence against Bisnett and Wilson was developed by Police Lieutenant Willis Krebs and Sergeant Raul Valles, who posed as corrupt officials willing to shield defendants' drug operation in return for bribes. At trial, Lt. Krebs testified that starting on June 13, 1984, and continuing for several weeks thereafter, he received cash payments from Frank Solomon in return for "protecting" certain locations on Caton Avenue from police investigation.
To advance the investigation, police executed search warrants at 2160 and 2164 Caton Avenue in late July, seizing drugs and money at each location. Then, on August 1, 1984, Lt. Krebs attempted to speak with one of the suspected leaders of the Caton Avenue operation, Alonzo Wilson, by stopping him for a traffic violation. During this encounter, Wilson told Krebs that he knew the officer had been paid to protect the drug organization. Krebs replied that the failure to make a recent payment had prompted the July searches. Wilson proposed a meeting to discuss future payments and told Krebs that he could be reached through Bisnett at Liberty Locksmith. A few days later, Krebs saw Wilson and Bisnett together on Caton Avenue.
When Krebs, Valles, and Wilson sat down for a meeting, Wilson identified himself as the street manager of the Caton Avenue drug operation and indicated that he was authorized to accept any reasonable payment demand. On a napkin, Krebs wrote that he wanted $15,000 in cash and four ounces of cocaine. He then asked Wilson to identify the particular places he wanted shielded from police investigation. Wilson named 2160 and 2164 Caton Avenue and 2025 Regent Place. He also requested that the police "stop bothering" the people at Liberty Locksmith, noting that Bisnett had had to rent office space at 2128 Caton Avenue because the area around the locksmith shop had become too "hot" for organization meetings. Wilson also asked the police to eliminate a drug competitor working on Parkside Avenue.
A short time later, Krebs received a telephone call from Herbert Reid who represented himself as a ranking member of the Caton Avenue operation. Reid advised Krebs that the first week's bribe payment would be "ten [thousand dollars] and two [ounces of cocaine]," to be followed in future weeks by the demanded $15,000 and four ounces of cocaine. When, in fact, the second week's payment was not made, police executed search warrants at 2025 Regent Place, as well as 2060 and 2164 Caton Avenue.
Almost immediately after these searches, Krebs and Valles went to 2128 Caton Avenue where they found Bisnett and Solomon on the second floor. When the officers asked to speak to Bisnett, petitioner expressed concern that they might be wearing recording devices. Once satisfied that the officers were not recording the conversation, Bisnett boasted that the police could not charge him with anything more serious than conspiracy. Bisnett then proceeded to complain of the recent searches, stating that he knew police had recovered machine guns, revolvers, and a shotgun at one location. He also said he knew Krebs had received a recent protection payment of $10,000 cash and two ounces of cocaine, but that the organization was growing skeptical of the officers' reliability. When Krebs asked to discuss future protection with someone in authority, Bisnett replied that the "main man" would contact Krebs the following week.
On September 4, 1984, Reid called Krebs, prompting Krebs to call Bisnett. Bisnett assured Krebs that he could trust Reid. The following day, Reid met with the officer and represented himself as the organization's "boss," while dismissing Bisnett as a "white patsy." He reiterated the need for protection of drug operations at 2160 and 2164 Caton Avenue. Pointing to a blue shoulder bag that he had carried into the meeting, Reid advised Krebs that the demanded $15,000 and four ounces of cocaine were inside.
Reid missed the following week's payment appointment. Instead, Bisnett telephoned Krebs to advise him that Reid had been arrested on unrelated charges and to request his release. Krebs and Valles secured Reid's release and drove him to the site where the week's bribe payment was stored. Instead of completing this transaction, however, they placed Reid under arrest for his involvement in the Caton Avenue operation. Police then executed search warrants on eleven of the operation's locations, seizing cocaine, firearms, drug paraphernalia, and cash.
In their trial testimony, Reid and Solomon provided detailed evidence of the workings of the Caton Avenue operation. Reid explained that in April 1984, Wilson hired him to carry messages between himself and Bisnett at Liberty Locksmith, as well as other confederates who processed drugs at 2164 Caton Avenue. He would pick up the cocaine to be processed from Bisnett at the shop and return there to deliver the money made from drug sales. Within a few weeks, Reid was placed in charge of the 2164 location.
Frank Solomon testified that in April 1984, Wilson hired him as a "steerer" to direct customers to apartments where the organization was selling cocaine. Solomon stated that when, in the spring of 1984, it was decided to bribe police officers to prevent raids on these apartments, he volunteered to carry the money. On June 13, 1984, he went to Bisnett's shop where petitioner gave him a sum of money and instructed him regarding its delivery. Over the next several weeks, Solomon continued to deliver bribe payments to Lt. Krebs and Sgt. Valles. When the officers asked for partial payment in cocaine, Solomon reported this to Bisnett, who agreed.
Thereafter, Wilson also interacted briefly with the officers, but in July 1984, when Krebs demanded a $15,000 payment, Bisnett decided that Reid would be put forward in the role of a ranking member of the organization. As Reid explained at trial, Bisnett instructed him to tell Krebs that the first week's payment would be "ten and two" left in a grocery bag at a particular site. From Bisnett's office at 2128 Caton Avenue, Reid and Bisnett watched the officers pick up this payment. Reid again followed Bisnett's instructions when on September 4, 1984, he represented himself to Krebs as the organization's boss, a role that in fact belonged to Bisnett. The following day, Reid paid Krebs $15,000 in cash and four ounces of cocaine supplied by Bisnett.
In seeking a writ of habeas corpus, Bisnett asserts that he was incompetent to stand trial because he suffered from sleep apnea, a condition in which breathing stops during sleep causing frequent awakenings that deprive the person of adequate rest. The trial court rejected this claim after an evidentiary hearing. Thus, a brief discussion of the state court record is necessary for federal review.
Bisnett was first diagnosed with and treated for sleep apnea in 1982. Nevertheless, from 1984, when criminal charges were filed against Bisnett, until early 1986, when pre-trial suppression hearings commenced, petitioner's retained attorneys, Bruce Cutler and Richard Medina, were apparently unaware of this condition. Not until January 6, 1986, when defense counsel failed to secure a severance for Bisnett on the ground of prejudicial spillover evidence, did Mr. Cutler inform the court that he might file another severance motion based on Bisnett's medical incapacity. See Trial Tr. at 87.1
Petitioner's attorney did not file the motion for several weeks. For a brief time, the parties actively explored the possibility of Bisnett pleading guilty. Indeed, the court conducted a plea...
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