Fleming v. Griffin
| Decision Date | 01 March 2013 |
| Docket Number | 12 Civ. 3053 (CM) (JCF) |
| Parties | RUDY FLEMING, Petitioner, v. SUPERINTENDENT PATRICK GRIFFIN, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND
RECOMMENDATION
Rudy Fleming brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial in New York State Supreme Court, New York County, for one count of murder in the first degree (N.Y. Penal L. § 125.27(a)(vii)), two counts of robbery in the first degree (N.Y. Penal L. §§ 160.15(1), (2)), four counts of attempted robbery in the first degree (N.Y. Penal L. §§ 110, 160.15(2)), one count of attempted robbery in the second degree (N.Y. Penal L. §§ 110, 160.10(1)), and one count of criminal possession of a weapon in the second degree (N.Y. Penal L. § 265.03(2)). Mr. Fleming was sentenced to life imprisonment without the possibility of parole on the count of first-degree murder and to lesser sentences on all of the remaining counts. (Sentencing Transcript ( ) at A5:448-971 ). He now contends that (1) his Fourteenth Amendment due process rights were violated when he was (a) denied a post-conviction competency hearing despite new evidence of mental illness and (b) denied assignment of a psychiatric expert to assist him raising doubts as to his competency at trial; and (2) his Sixth Amendment right to an impartial jury was denied because the prosecutor exercised peremptory challenges to strike three African American jurors on the basis of their race. For the reasons that follow, I recommend that the petition be denied.
On January 27, 2005, Nicole Dufresne was fatally shot on Manhattan's Lower East Side. The shooting occurred during the robbery of Ms. Dufresne and three companions. On January 30, 2005, the petitioner was arrested in connection with the killing. (Trial Transcript ("Tr.") at A4: 419-20). The indictment charged Mr. Fleming and his co-defendants2 with 31 counts, including one count of first-degree murder, under a theory of intentional murder duringthe commission of a felony. (N.Y. Penal. L. § 125.27 (1) (a) (vii)). The indictment also charged the petitioner and one co-defendant, David Simmon, with a second crime that took place earlier on the same night -- the attempted robbery of Adam Chavez.
Following his arrest, Mr. Fleming conversed rationally with detectives about his pedigree and his supposed whereabouts on the date of the murder. (Competency Hearing Transcript dated Feb. 14-17, 2005 ("Comp. Tr.") at Al: 259-61). It was only when the detectives confronted the petitioner with statements implicating him in the murder that he began to act bizarrely -- stuffing paper towels into his mouth, becoming "limp," and possibly pretending to lose consciousness. (Comp. Tr. at 261-63).
While in custody at Anna M. Kross Center on Rikers Island ("AMKC"), Mr. Fleming reported having auditory hallucinations and suicidal thoughts. (Bellevue Hospital Center Discharge Summary dated April 20, 2005 ("Discharge Sum.") at A2: 563). He was transferred to Bellevue Hospital Center's Forensic Psychiatry Service on February 1, 2005, for evaluation and stabilization. (Discharge Sum. at A2: 563).
At Bellevue, Dr. Jessica Pearson assessed Mr. Fleming eight times between March 4, 2005, and March 21, 2005. (Bellevue Hospital Center Assessment Report of Dr. Jessica Pearson datedApril 6, 2005 ("Assessment Rep.") at A2: 472). The petitioner's treatment team had requested a psychological assessment in order to clarify their diagnosis, and they asked specifically that the assessment differentiate between psychosis and malingering. (Assessment Rep. at A2: 472). The six psychological tests performed on the petitioner showed that there was a strong possibility that he was exaggerating or feigning symptoms. (Assessment Rep. at A2: 475-76). Dr. Pearson reported that Mr. Fleming answered cognitive and memory testing questions at random, that he displayed no evidence of thought disturbance, and that the psychotic symptoms he reported were greatly exaggerated. (Assessment Rep. at A2: 475-76).
Dr. Pearson concluded that it was "very unlikely" that Mr. Fleming had a psychotic disorder. (Assessment Rep. at A2: 476). However, she noted that the petitioner has "fewer resources than most with which to cope" with a significant amount of situational stress and that he has "some deficits in cognitive functioning and expressive language." (Assessment Rep. at A2 : 477). She suggested that his "feigning of extreme psychiatric symptoms may be interpreted as an ill-advised attempt at coping with an extreme situation." (Assessment Rep. at A2: 477). He was diagnosed with adjustment disorder with mixed disturbance of emotions and conduct and was discharged on April 20, 2005. (Discharge Sum. at A2: 563,566).
On November 28, 2005, Supreme Court Justice Budd G. Goodman ordered a competency examination of Mr. Fleming pursuant to Article 730 of the New York Criminal Procedure Law ("CPL"). (Forensic Psychiatry Services Article 730 CPL Examination Reports ("Art. 730 Reps.") at A2: 572).
Dr. Steven Ciric and Dr. Pearson conducted the CPL § 730 examination of Mr. Fleming on December 30, 2005, at Bellevue Hospital Center. (Comp. Tr. at Al: 15).3 At the interview, Mr. Fleming appeared disheveled, with tissues in his ears and lint in his hair, and he spoke haltingly and at low volume. (Article 730 Report of Dr. Jessica Pearson dated Jan. 9, 2006 ("Pearson Art. 730 Rep.") at A2: 575-76; Article 730 Report of Dr. Steven Ciric dated Jan. 6, 2006 ("Ciric Art. 730 Rep.") at A2: 581). After the examination, both doctors concluded that the petitioner was trying to appear that he suffered from severe psychosis and cognitive impairments, but that "there was no evidence he actually suffered those illnesses." (Comp. Tr. at Al: 22-23, 118). They reportedthat Mr. Fleming was fit to proceed with his trial. (Pearson Art. 730 Rep. at A2: 573; Ciric Art. 730 Rep. at A2: 578). Their conclusion was corroborated by medical records showing that the petitioner's unusual behavior (shivering and speaking with a stutter) appeared to begin only when he was conscious that he was being watched. (Compt. Tr. at Al: 32, 48-49, 53-54, 62). For example, he was observed on multiple occasions speaking without a stutter while on the telephone. (Pearson Art. 730 Rep. at A2: 575; Comp. Tr. at Al: 48).
Mr. Fleming moved to controvert the findings of the report pursuant to CPL § 730.30(2), and a competency hearing commenced before Justice Daniel FitzGerald on February 14, 2005, and lasted four days. (Order dated March 23, 2005 at A2: 693). By decision and order dated March 23, 2006, Justice FitzGerald found that the petitioner was fit to proceed. (Order dated March 23, 2005 at A2: 693). Immediately prior to the start of the trial, the defense again moved for a CPL 730 examination, but the court denied the application.
Mr. Fleming was tried by jury with Justice FitzGerald presiding. Notably, the petitioner was removed from the courtroom before the jury selection began for physically struggling with court officers. (Tr. at A3: 3-5). He was brought into thecourtroom the next morning but was removed again for the same reason. (Tr. at A3: 27, 30-31). Thereafter, he did not again enter the courtroom during the trial or sentencing proceedings. Throughout the trial, he was unresponsive to defense counsel's request for his assistance with the trial defense. (Tr. at A3: 6, 26-27, 235-36; A4: 45, 99, 293; A5: 212-13).
Jury selection began on September 25, 2006. In all, the prosecutor exercised eleven peremptory challenges, including three challenges to African American jurors. Defense counsel raised Batson claims with respect to these jurors -- Oscar Fambro, Patricia Muhammad, and Dawn Hairston -- claiming that the prosecutor's decision to strike them was racially motivated.
Mr. Fambro was "a little older than" defense counsel, was unmarried, had a daughter, had no criminal record or family members with prior arrests, and had previously served as a juror on a civil case that settled. (Voir Dire Transcript dated Sept. 26, 2006 ("Voir Dire Tr.") at A3: 124-25, 220, 229). He was employed on the support staff of the NAACP Legal Defense and Education Fund. (Voir Dire Tr. at A3: 124). He acknowledged that his work "would not make it difficult for [him] to be fair and impartial in this case." (Voir Dire Tr. A3: 98). When prompted to provide a race-neutral reason for striking Mr. Fambro, the prosecutor cited Mr. Fambro'semployment with an organization that "su[es] the government and [sues] police officers." (Voir Dire Tr. at A3: 126).
Ms. Muhammad was a college graduate and had been working for the YMCA on programming for transient residents. (Voir Dire Tr. at A3: 146, 184-86). She had previously served as a juror on a narcotics case. (Voir Dire Tr. at A3: 146). She had a brother who had been murdered two years earlier (Voir Dire Tr. at A3: 146), and a sister who had fallen to her death while attempting to flee from police officers (Voir Dire Tr. at A3: 161-63). The prosecutor asserted three race-neutral reasons for striking Ms. Muhammad: (1) she had experienced the death of a sibling, possibly as a result of police error (Voir Dire Tr. at A3: 225); (2) she had "someone murdered that upset her" (Voir Dire Tr. at A3: 224); and (3) she "mumble[d] to herself often in an audible fashion when questions were asked to other people" (Voir Dire Tr. at A3: 225-26).
Ms. Hairston was unemployed, though she had worked for the previous five years as a "medical biller." (Voir Dire Tr. at A3: 147- 48). She had some college education, had two daughters, and had been a juror four years earlier on a criminal case. (Voir Dire Tr. at A3: 148). Her brother, who was imprisoned at the...
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