Lewis v. Zon
| Decision Date | 27 August 2008 |
| Docket Number | No. 03 Civ. 8359(RJH).,03 Civ. 8359(RJH). |
| Parties | Thomas LEWIS, Petitioner, v. Anthony ZON, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Thomas Lewis, Fallsburg, NY, pro se.
James A. Cohen, Lincoln Square Legal Services, New York, NY, for Petitioner.
Thomas Lewis ("Lewis") brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, following his 1999 conviction in the Supreme Court of the State of New York, New York County for second degree robbery. Lewis was sentenced as a second violent felony offender to a determinate term of imprisonment of fifteen years. In the main, petitioner challenges the ad hoc competency procedure the state trial court employed to supplement, and effectively, supplant the statutorilymandated adversary hearing. At the hearing, two court-appointed psychiatric examiners testified that petitioner had not been competent at the time of their examination four months earlier. The state's chosen psychiatric examiner testified that, on the basis of his slightly more recent examination, petitioner was competent to stand trial. All three witnesses were cross-examined at a hearing on the record. After closing the hearing, the trial court apparently believed another psychiatric examination was required, and therefore commissioned a social worker to examine petitioner. Upon receiving the social worker's written opinion that petitioner was, in fact, competent to stand trial, the trial court issued an order so finding, placing heavy reliance on the social worker's report. Petitioner was never afforded an opportunity to respond to the social worker's report in any way—he could not contest the social worker's qualifications, the accuracy of his factual assessments, the propriety of his method of analysis, or the reliability of his conclusions; he could not present contradictory psychiatric evidence of petitioner's mental state at the time of the social worker's examination; and he could not subject the social worker to cross-examination. The court did not offer any reason for its foreclosure of petitioner's ability to respond to the social worker's report. Nor did the court, or the state appellate court, which affirmed the decision, provide any reason to believe that the limitations on petitioner's opportunity to be heard were required by (or even consistent with) the state's carefully crafted statutory regime.
On February 1, 2007, Magistrate Judge Henry Pitman issued a report (the "Report") finding that the trial court's procedures violated petitioner's rights under the Confrontation Clause. However, Judge Pitman concluded that the application of the Confrontation Clause to pre-trial competency hearings was not clearly established, and therefore recommended that the petition be denied. Petitioner has objected to the Report. The Court concurs with Judge Pitman's determination that the trial court's competency procedure violated petitioner's constitutional rights, but concludes that petitioner's claim is more properly analyzed under the Due Process Clause. For the reasons that follow, the Court finds that the state court's reliance on an ad hoc supplement to New York's competency procedure involved an unreasonable application of clearly established federal law.
The facts and procedural history of this case are ably stated in Judge Pitman's thorough Report, familiarity with which is assumed. Lewis has been afflicted with severe psychiatric problems nearly his entire life. ( ) He has undergone "numerous ... psychiatric hospitalizations at all the major hospitals located in New York City." (Pet. Supp. App. Ex. B ( ) at 3; see also Bodek Exam. Rep. 2-3 (listing hospitals).) Mental health professionals have given Lewis a "variety of diagnoses over time, ranging from schizophrenia, schizoaffective disorder, psychosis not otherwise specified, major depression and various personality disorders." (Bodek Exam. Rep. 3.)
The incident that led to Lewis's arrest and conviction occurred less than twentyfour hours after he had been released from a three-week psychiatric admission at Presbyterian Hospital. (Id. at 1; see also Huntley Hearing Tr. 42, May 19, 1999.) Lewis's chief complaint upon his admission was "I will take any opportunity to kill myself." (Pet.App. Ex. K at 5). At the suppression hearing, Lewis testified that immediately prior to hospitalization, he attempted suicide by jumping in front of a train. (Huntley Hearing Tr. 43, May 19, 1999.) While at Presbyterian, Lewis was placed on suicide-watch and was medicated with an antipsychotic, a mood-stabilizer, an anti-anxiety agent, and an anticonvulsant. (Trachtenberg Exam. Rep. at 5.) Lewis was discharged, "as substantially improved" on September 1, 1998. (Id.)
At two in the morning on September 2, 1998, Lewis approached a man named Abdul Butt on 137th Street near Broadway. Lewis asked Butt for money and Butt obliged. Butt removed his wallet from his pants pocket and gave Lewis a dollar. Lewis asked for more money, but Butt refused. Lewis told Butt that if Butt was not going to give him the money, Lewis would "have to do something about it." Lewis placed his hand near his waist on a bulge that Butt believed to be a gun. Butt froze for a few seconds with his wallet in his hands. Lewis grabbed money and papers from Butt's wallet. Lewis discarded the papers and walked away with the money—eight dollars in total. Butt did not inform police of the incident that night. The next day, however, Butt saw Lewis again and decided to call the police. Police arrested Lewis, and upon searching him, found a knife tucked into his waistband. Lewis was charged with, and ultimately convicted of, robbery in the second degree. Under New York law a person is guilty of second degree robbery "when he forcibly steals property and when ... [i]n the course of the commission of the crime or immediate flight therefrom, he or another participant in the crime ... [d]isplays what appears to be a be a pistol, revolver, rifle, shotgun, machine gun or other firearm." N.Y. Penal § 160.10(2)(b).
Before the suppression hearing and trial, petitioner's counsel requested that petitioner be examined to determine his competency to stand trial. (Pet. Supp.App. Ex. G. ("Decision and Order, Apr. 28, 1999").) The court granted the request and ordered that petitioner be examined, as the court was "of the opinion that the [petitioner] may be an incapacitated person." (Resp. Opp. Decl. Ex. A ("Order for Psychiatric Examination, Nov. 4, 1998").) The trial court's belief that petitioner might be incompetent triggered the detailed statutory regime New York has enacted to safeguard the right of criminal defendants not be tried while incompetent. Under this scheme, where the court is of the opinion that the defendant may be incompetent, the court must order the appropriate state or local mental health services official to designate two qualified psychiatric examiners to examine the defendant. N.Y.Crim. Proc. §§ 730.10(4),(7), 730.20(1), 730.30(1). If the two examiners agree as to the defendant's competency, or lack of competency, a further hearing is required if either of the parties requests it or if the judge orders such a hearing sua sponte. Id. § 730.30(2), (3). Where the examiners disagree, the court must hold a hearing. Id. § 730.30(4). The New York Court of Appeals has interpreted Article 730 to allow the parties to retain independent experts to present psychiatric testimony and to assist them in contesting the competency determinations of the initial psychiatric examiners. See People v. Christopher, 65 N.Y.2d 417, 492 N.Y.S.2d 566, 482 N.E.2d 45, 48-49 (1985).
In this case, after the court issued an order for an Article 730 competency examination, two qualified psychiatric examiners designated by the New York City Commissioner of Mental Health, Mental Retardation and Alcoholism Services, Drs. Murray Gordon and Howard Owens, examined petitioner on November 23, 1998. ( ) On December 9, 1998, Owens and Gordon submitted their reports to the Court; both found that petitioner was incompetent to proceed. (Id.) On December 23, the prosecutor moved to controvert the findings of Owens and Gordon pursuant to § 730.30(3). The district attorney's office retained Dr. Stuart Kirschner to assess petitioner's competency. (Pet. Supp.App. Ex. D at 1-2 ( ). Dr. Kirschner examined petitioner on January 22, 1999, and prepared a report dated March 18, 1999, in which he opined that petitioner was competent to stand trial.
On March 23 and March 25, 1999, the court conducted a hearing on petitioner's competence. (Decision and Order, Apr. 28, 1999 at 1.) Drs. Owens, Gordon and Kirschner each testified and were crossexamined. (Competency Hr'g Tr. 3, 29, 109, 155, 234, 256.) Drs. Owens and Gordon both testified that petitioner was not competent to stand trial as of November 1998, but that at the time of the hearing, they could not rule out the possibility that his condition could have changed in the intervening four months. (Tr. 26-27, 250-51.) Dr. Kirschner, who had examined defendant in January 1999, testified that petitioner was fit to proceed with trial. (Tr. 153.) At the end of the hearing, Justice Scherer advised the parties that they had until April 9, 1999 to submit additional materials or argument, and set the case down for decision on April 14. (Tr. 279-80.)
It appears that Justice Scherer did not find the evidence presented at the hearing to be sufficient to determine defendant's competency. On April 1, the trial court ordered that a fourth...
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