Musaid v. Kirkpatrick

• Decision Date: 20 July 2021
• Docket Number: 19-CV-7944 (AT) (RWL)
• Parties: MOHAMED MUSAID, Petitioner, v. MICHAEL KIRKPATRICK, Superintendent of Clinton Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

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MOHAMED MUSAID, Petitioner, v. MICHAEL KIRKPATRICK, Superintendent of Clinton Correctional Facility, Respondent.

No. 19-CV-7944 (AT) (RWL)

United States District Court, S.D. New York

July 20, 2021

REPORT AND RECOMMENDATION TO HON. ANALISA TORRES

ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE

INTRODUCTION 2

FACTS AND PROCEDURAL HISTORY 3

A. The Crime, Investigation, And Indictment ............................................. 3

B. Fitness Evaluations, Hearings, And Determinations .......................... 10

1. First Cycle 10

2. Second Cycle 21

3. Third Cycle .................................................................................. 34

4. Fourth And Final Cycle ............................................................... 40

C. Fitness Decision .................................................................................... 61

D. DNA Comparison ................................................................................... 61

E. Psychiatric Defense ............................................................................... 63

F. Trial ......................................................................................................... 70

1. Day One ....................................................................................... 70

2. Day Two ....................................................................................... 76

3. Day Three ..................................................................................... 79

4. Day Four And Verdict ................................................................. 83

G. Sentencing ............................................................................................. 84

H. Direct Appeal .......................................................................................... 86

I. Habeas Petition ...................................................................................... 88

STANDARD OF REVIEW ............................................................................................. 90

DISCUSSION ................................................................................................................ 94

A. Exhaustion ............................................................................................. 94

B. Legal Standards For Competency ........................................................ 97

C. Analysis ................................................................................................ 100

1. The Trial Court's Initial Fitness Decision Was Not Unreasonable ............................................................................ 101

2. Proceeding Through Trial Without A Competency Hearing Was Not Unreasonable ............................................................. 108

D. Waiver Of Psychiatric Defense ........................................................... 137

CONCLUSION AND OBJECTIONS ........................................................................... 141

INTRODUCTION

Mohamed Musaid petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions by a jury of second-degree murder and second-degree criminal possession of a weapon. Musaid argues that his due process rights were violated when the trial court (1) declared him competent to stand trial; (2) failed to hold a hearing on his competency at any point after declaring him competent; and (3) failed to adequately inquire into the waiver of his right to present a psychiatric defense at trial. For the reasons explained below, this Court recommends that Musaid's petition be DENIED.

Competency to stand trial is a fundamental feature of due process. A defendant may not be tried unless they understand the nature of the proceedings against them and can assist in their own defense. Drope v. Missouri, 420 U.S. 162, 171 (1975). The instant case involves a defendant who went through four cycles of psychological evaluations, hearings and determinations and was repeatedly assessed as unfit for trial. Although ultimately determined competent to stand trial eight years after his arrest, Musaid exhibited a number of behaviors both before and during trial by which a reasonable person could conclude that he was incompetent. Deference imposed by federal statutory law, however, compels denial of Musaid's petition.

Because of the long and winding road leading to Musaid's petition for habeas corpus, and the importance of a defendant's competency to a fair trial, the Court sets forth the factual and procedural history of this case in considerable detail.

FACTS AND PROCEDURAL HISTORY

A. The Crime, Investigation, And Indictment

1. The Crime

On the morning of November 21, 2007, Juanita Brown sat against a wall on the west side of Lenox Avenue between 132nd and 133rd Streets in Manhattan, waiting for her boss to arrive at work. (2T 39-43, 52.^[1]) At approximately 7:15 a.m., she noticed two men, one walking downtown on her side of Lenox Avenue and another, who was wearing a gray hoodie that covered most of his face, crossing Lenox Avenue in her direction. (2T 45-48.) After the man in the hoodie reached the sidewalk, he walked up behind the other man and shot him in the back of head. (2T 46-47.) The victim fell face first onto the pavement, and the shooter walked past Brown to 132nd Street. (2T 49, 53.) Brown did not see the shooter's face and could not describe his height or weight. (2T 49, 53.)

At the same time, Detective Efrain Rivera was inside a McDonald's on the northeast corner of Lenox and 132nd, doing surveillance on an unrelated assignment, when he heard a gunshot. (2T 143-44.) He walked outside, looked across the street, and saw a man in a hoodie standing directly over a body lying on the ground. (2T 144-45, 150-51.) Detective Rivera got into his unmarked car, made a U-turn on Lenox Avenue, and followed the man as he ran south, but was pulled over by other officers, who had received reports that someone had fled the scene of the shooting in a car, and lost sight of the suspect. (2T 146-48, 151-52.)

EMS technicians responded to the shooting and declared the victim dead at the scene. (2T 61, 159-60.) He had been shot three times, once in the back of the head and twice in the back. (2T 125, 250.) Three shell casings were found next to his body, and three bullets were recovered - two lodged in his body and one in his clothing. (2T 117, 125-26, 250.)

One officer on the scene searched the victim and found a piece of identification bearing the name Rafik Alsamet. (2T 161.) Shortly thereafter, Rafik's brother, Noman Alsamet, arrived at the scene.^[2] (2T 9-11.) Noman was planning to meet Rafik for breakfast. (2T 9.) Both Noman and Rafik had immigrated from Yemen, and Rafik co-owned the grocery store on 132nd Street and Lenox in front of which he was killed. (2T 3-6.) Noman and Rafik were also related to Musaid - Musaid had married Noman and Rafik's cousin, becoming their cousin-in-law. (2T 14.) Musaid had immigrated to the United States, as well, but his wife and their three children remained in Yemen. (2T 8, 206, 215.) As Noman later testified, before Rafik was shot, Musaid had repeatedly threatened to kill Rafik, but Noman did not know why and did not think Musaid would actually do it. (2T 11-12.)

Another immigrant from Yemen, Omar Hadwan, was later identified as a witness and placed Musaid at the scene of the crime shortly before the murder. (2T 21, 23-24.) Hadwan was fifteen years old at the time. (See 2T 19.) He had immigrated from Yemen when he was nine years old and had known Musaid since he was a small child back in Yemen. (2T 19-21.) Since they had both relocated to New York, Hadwan had seen Musaid regularly. (2T 22.) They would see each other, give each other a high five, and chat with one another. (2T 22.) Hadwan never had any problems with Musaid. (2T 22.)

On the morning that Rafik was killed, Hadwan was commuting to school. (2T 23-24.) To get there, he crossed town on 132nd Street then walked north on Lenox Avenue to the subway station on 135th Street. (2T 23-24.) That morning, when he turned north on Lenox Avenue - sometime between 7:00 and 7:15 a.m. - he saw Musaid standing by the door of a laundromat between 132nd and 133rd Streets. (2T 23-24.) Hadwan looked at Musaid, and Musaid looked at him, but then Musaid pulled his hoodie over his head and turned his back to Hadwan to face the wall. (2T 24-27.) Hadwan had never seen Musaid do that before, so he got nervous and kept walking, looked over his shoulder, and saw Musaid still standing there. (2T 28.) As he approached the subway station at 135th Street, he heard people running, but he had headphones in and was listening to music, so he minded his business, entered the subway, and continued to school. (2T 29-30.) Later, he learned that Rafik had been killed. (2T 30.)

2. Recovery Of The Gun, Ballistics Testing, And DNA Swabs

While officers investigated the crime scene, a switchboard operator noticed that, at 7:27 a.m., a caller had reported that someone had thrown a firearm into a vacant yard next to a church on Lenox Avenue and 131st Street. (2T 75-76.) Police responded to the scene and retrieved the gun, which contained one live round. (2T 85-87, 107.) The gun was tested and was fully operable. (2T 287.) Based on their tests, the police also believed - and later testified - that the three shell casings found next to Rafik's...