Boyd v. United States of America
Filing
5
MEMORANDUM DECISION AND ORDER. The petition for a writ of habeas corpus is denied. A certificate of appealability shall not issue. See 28 U.S.C. § 2253(c). Further, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See attached order for further details. Ordered by Judge Brian M. Cogan on 11/18/2013. Forwarded for judgment. C/M by chambers. (Siegfried, Evan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------LORENZO BOYD,
Petitioner,
- against UNITED STATES OF AMERICA,
Respondent.
-----------------------------------------------------------
C/M
X
:
:
:
:
:
:
:
:
:
:
X
MEMORANDUM DECISION
AND ORDER
13 Civ. 5572 (BMC)
COGAN, District Judge.
Petitioner seeks habeas corpus relief under 28 U.S.C. § 2255, vacating his conviction on
one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), for which I
sentenced him to 96 months’ custody (below the Guidelines’ range of 120 months) and three
years’ supervised release. His claims are: (1) “ineffective assistance of counsel” because
petitioner was “heavily sedated with prescribed psycotropic [sic] drugs which impaired his
ability … to confer with counsel and make appropriate decisions concerning the trial;” and (2) he
had a “biased jury pool” because “everyone in the room was of European descent.” His petition
is time barred and without merit, and his claims are accordingly denied.
BACKGROUND
The procedural facts surrounding petitioner’s conviction after a jury trial are set forth in
the Second Circuit’s affirmance of the conviction. United States v. Boyd, 398 F. App’x 649 (2d
Cir. 2010), cert. denied, 131 S.Ct. 2444 (2011). To summarize the relevant points, petitioner was
represented before me by three different attorneys. His first attorney moved to suppress the
firearm seized at the time of his arrest, and the Magistrate Judge to whom the motion was
referred recommended denial. Petitioner then requested and received a new attorney, and upon
receiving advice from that attorney, he pled guilty pursuant to a plea agreement, and after
accepting the plea, I denied his motion to suppress as moot. During his plea allocution, he
specifically acknowledged under oath that he had possession of a firearm at the time he was
arrested. “I was going to the store and I took it out, I was looking for my girlfriend so I took it
outside. I went around the corner from where I live at, on my way back that’s when they popped
me.” After his guilty plea, he then became dissatisfied with that attorney, and I appointed
someone else. Petitioner then moved to withdraw his guilty plea, which I granted, and the matter
went to trial.
At trial, the Government offered testimony from the two police officers who had
observed petitioner with a sawed-off rifle protruding from his sleeve. When they made eye
contact with him, he immediately started running to the apartment in which he was residing. The
officers arrested him just after he reached the apartment and recovered from his person a fully
loaded, operable rifle with the serial number obliterated.
Petitioner testified very coherently on his own behalf (I specifically recall his testimony,
and thinking that he had a surprisingly “professorial” affect in explaining his version of the
facts), asserting that he never had any possession of a weapon, thus suggesting that the police
were framing him, or that the weapon that they had recovered belonged to the person in whose
residence he was staying. He acknowledged that he was on his way to purchase some crack
cocaine at the time he was arrested and had seen the officers on his way out. When he returned
with the crack cocaine, he entered the apartment and the police came through the door. He said
the police thoroughly searched the apartment and if they found a weapon, it was not his, and he
had no knowledge of it. The jury rejected his testimony and found him guilty.
2
As a result of his prior (and subsequently withdrawn) guilty plea, as well as his testimony
at trial, I was aware (as was the jury, as he had testified briefly about it) that petitioner had a
history of mental illness, particularly paranoid schizophrenia and depression, for which he was
receiving medication after his arrest. He remained in custody after his arrest. Following his
conviction before the jury, this was confirmed by the presentence investigation report, which
showed a long history of mental illness. The PSR also noted that since his arrest for the instant
crime, petitioner stated that he had “been feeling well and had no suicidality nor depression.”
The report also noted that his “mood, sleep, and appetite were all normal. The defendant works
as an orderly in his unit, and has had no psychotic symptoms/homicidal ideations since his
incarceration.”
To make sure I had as complete an understanding of petitioner’s history and
characteristics at sentencing as possible, I sua sponte directed a psychological evaluation, which
was performed by Dr. Sanford Drob, prior to sentencing. Like petitioner’s previous health
professionals, Dr. Drob found severe mental impairments, although he thought it might be more
likely that petitioner had long-standing Complex Post-Traumatic Stress Disorder than his earlier
diagnoses of paranoid schizophrenia. He further found that since petitioner had been taken into
custody and was receiving regular medication, his condition had “somewhat improved,” both as
a result of that medication and “a certain reflectiveness that often comes with age as well as a
greater interest and capacity to relate to others.” Nevertheless, Dr. Drob’s view was that
petitioner was in continuing need of monitoring and treatment for mental illness and substance
abuse, as well as occupational rehabilitation. Although the severity of petitioner’s impairment is
apparent from Dr. Drob’s report, there was no suggestion that petitioner was incapable of
assisting in his own defense.
3
As I noted at sentencing, one aspect of either petitioner’s character or his mental illness
or both is his ability to engage in deceptive conduct to manipulate people. I noted his prior
conviction for obtaining money by entering homes through the impersonation of a television
technician, and that notwithstanding a full confession at the time of his guilty plea allocation, he
went on to testify at trial with a completely different story. He did so in a fairly convincing way,
even though the jury did not accept his testimony. Indeed, at sentencing, when I asked him to
explain the contradiction, he maintained that it was his guilty plea that had been fabricated, not
his trial testimony, although he gave me no reason why he would fabricate the story he had told
me at his plea allocution.
Based on all of the factors under 18 U.S.C. § 3553(a), I sentenced petitioner as noted
above, with drug abuse treatment recommended while in custody and mental health treatment as
a condition of supervised release. Petitioner appealed, raising an issue, among others, relating to
his Guidelines calculation, and also contending that I had failed to rule on his motion to suppress.
The Court of Appeals rejected both arguments, noting, as to the latter argument, that I had denied
the suppression motion as moot once he pled guilty (after the Magistrate Judge had
recommended denial on the merits), and that once the guilty plea was withdrawn, it was
incumbent on petitioner to seek its reinstatement if he wanted to pursue it, which he had not
done. The Circuit also predicted that even if I had ruled on the merits of the suppression motion,
“the District Court, after a de novo review, would have allowed the evidence to be admitted,
finding that the officers had probable cause to arrest Boyd and entered Boyd’s apartment without
a warrant due to exigent circumstances.” Boyd, 398 F. App’x at 651.
Thirty months after the Supreme Court’s denial of petitioner’s application for a writ of
certiorari (May 16, 2011), he commenced the instant proceeding under 28 U.S.C. § 2255. By
4
Order to Show Cause entered October 18, 2013, I directed him to show why his petition should
not be dismissed as time-barred. This Order advised petitioner that he was beyond the one-year
time limitation for filing this petition, but that mental illness can constitute the kind of
extraordinary circumstances that could toll the statutory period. The Order noted the statement
in the petition that “I was taking a number of psychotropic medicines and was unable to
understand the charges or to cooperate in my defense. I have been under such medications since
April 2007 til 2012.” The Order concluded that this statement was insufficient to warrant
equitable tolling, but it directed petitioner to submit medical records and a more detailed
explanation of when he became disabled and when he stopped being disabled.
Petitioner responded in two ways. First, he submitted a large volume of medical records
for his period in custody, both pre-dating and post-dating his sentence, up through February,
2012. 1 Second, petitioner submitted an affidavit, in which he offered some detail of his
condition during his time in custody. The affidavit lists the ten medications that he could recall
taking during custody, some psychotropic and some others such as ibuprofen, and their effects on
him. He asserts that his medication regime “prevented me from filing this proceeding for the
period from October 22, 2011 to the date I filed this petition [October 7, 2013].” He summarizes
his mental state during this period as follows:
The above meds made me alienated and made me drowsy all the time. Except
when I was awoken by hunger or my cellmate to eat, I slept. The meds caused me
to endure the exact conditions they were supposed to treat. There was no time
during this period of heavy medication that I could think. When I was awake, I
heard voices and they blotted out all other thoughts. The voices I heard told me
things and made suggestions which were not normal. It’s very hard to describe
but it was so impossible to think about anything, let alone legal complexities, I
just shut down mentally to escape the noise in my head.
1
These records were received in Chambers. I am hereby directing the Clerk to file them on the docket under seal,
finding that petitioner’s privacy interests outweigh the qualified right of public access to these documents.
5
The meds caused me to develop a nervous condition which the prison doctors told
me is called Tardive Dyskinesia. 2
Petitioner noted that he was due to be released on October 23, 2013, and would like to obtain a
lawyer specializing in representing those with mental health problems. 3
DISCUSSION
I
“Section 2255 provides that a prisoner sentenced by a federal court may move to have
that sentence vacated, set aside or corrected if he or she claims that the court, in sentencing him
or her, violated the Constitution or the laws of the United States, improperly exercised
jurisdiction, or sentenced him or her beyond the maximum time authorized by law.” Thai v.
United States, 391 F.3d 491, 493 (2d Cir. 2004). However, “[b]ecause collateral challenges are
in tension with society's strong interest in the finality of criminal convictions, the courts have
established rules that make it more difficult for a defendant to upset a conviction” through a
proceeding under §2255 than by direct appeal. Yick Man Mui v. United States, 614 F.3d 50, 53
(2d Cir. 2010) (citations and quotations omitted). The statute thus allows relief “only for a
constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that
constitutes ‘a fundamental defect which inherently results in a complete miscarriage of justice.’”
United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S.
424, 428, 82 S.Ct. 468 (1962)). For each ground for relief, a petition under section 2255 must set
2
Petitioner did not submit complete medical records, and there is no reference in those that he did submit to Tardive
Dyskinesia. In any event, it does not appear that this condition is related to petitioner’s schizophrenia or PTSD or
that it affects his ability to comprehend or assist in his own defense. See www.tardivedyskinesia.com (last visited
11/15/2013).
3
The Bureau of Prisons’ website shows a scheduled release date of March 26, 2014, but it may be that petitioner is
eligible for early release. He appears to reside presently in a residential reentry center.
6
forth “specific facts which he is in a position to establish by competent evidence.” LoCascio v.
United States, 395 F.3d 51, 57 (2d Cir. 2005).
Section 2255(f) sets forth the statute of limitations to file for relief. A movant must file
within one year from the latest of four benchmark dates: (1) when the judgment of conviction
becomes final; (2) when a government-created impediment to making such a motion is removed;
(3) when the right asserted is recognized initially by the Supreme Court, if it has been made
available retroactively to cases on collateral review; or (4) when the facts supporting a claim
could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2255(f).
In certain situations, petitioners are entitled to equitable tolling of the limitations deadline
on a Section 2255 petition. See Smith v. McGinnis, 208 F.3d 13 (2d Cir. 2000). A petitioner
must satisfy two elements to benefit from equitable tolling. First, he must show that he exercised
“reasonable diligence” during the limitations period, and second, that “extraordinary
circumstances” precluded him from timely filing. Hizbullahankhamon v. Walker, 255 F.3d 65,75
(2d Cir. 2001). Mental illness may constitute extraordinary circumstances so as to toll the statute
of limitations in some cases. Bolarinwa v. Williams, 593 F.3d 226 (2d Cir. 2010).
Petitioner’s mental status is relevant both to the issue of equitable tolling and the merits
of his first claim, although the issues relate to different times periods. To demonstrate grounds
for equitable tolling, petitioner must show that after the judgment against him became final on
May 16, 2011 (when the Supreme Court denied certiorari), he lacked the mental capacity to file
this proceeding during at least eighteen of the thirty months that ensued between the denial of his
certiorari petition and the date he commenced this action; that is, there was not an aggregate of
twelve months (whether consecutive or not) during the thirty month period during which he had
the mental capacity to file this proceeding.
7
His mental condition also relates to the merits of his first claim – that he was unable to
assist in his defense at trial and/or his sentencing. 4 As to that issue, petitioner would have to
show mental incapacity during that part of the case.
Because equitable tolling presents a threshold issue, I will consider his mental capacity in
these two time periods in reverse chronological order.
II
Petitioner’s affidavit, quoted above, constitutes prima facie evidence that he was too
mentally disabled to file this proceeding post-sentencing. However, the affidavit is directly
contradicted by all of the medical records during that period, as well as petitioner’s own
statements.
In his affidavit in response to the Order to Show Cause, he averred that his medications
“prevented me from filing this proceeding for the period from October 22, 2011 to the date I
filed this petition,” i.e., October 7, 2013. It is apparent that even on petitioner’s most favorable
dates, he had five chargeable months against his one-year period – from the Supreme Court’s
denial of his petition for a writ of certiorari on May 16, 2011 to his offered date of October 22,
2011.
More importantly, there is no support at all in the medical records that he has submitted
for the self-assessment in his affidavit. Contrary to his claim in this proceeding, the most notable
aspect from these interviews is that petitioner would frequently refuse to take his medications,
not that he became disabled as a result of taking them. Petitioner had regular contact, at least
once a month and usually more, with a prison psychologist, medical doctor, or physician's
4
Petitioner refers to this as “ineffective assistance of counsel,” but it is clear that that is not what he is talking about.
8
assistant. Much of the product of these interviews is petitioner’s self-reporting. The records are
too voluminous to discuss all of them in detail, but the virtually all show that he had the capacity
to commence this proceeding. Typical of them is an interview conducted on August 13, 2012:
Reports doing very well, and announced that he has not been taking his
medication this month. …
Affect was bright and broad. His cognition was goal-directed, sequential, and
logical. He was fully oriented. Reports sleep and appetite to be healthy, although
he admits not eating as much in an attempt to lose some unwanted weight. …
Denies any SI/AI 5 recent or current. Says the last time he heard voices was five
years ago and adds that it was at that time that he was last deeply depressed. And
that the only reason he was initially placed on the psychometric medications was
after having taken these previously, and that health services continued these upon
his arrival as a result.
Similarly, his clinical contact note of June 4, 2012 stated:
Remains largely compliant with his Prozac, Cogentin, and Zyprexa. Discussed the
benefit of increasing compliance to nearly 100%. Affect was normal and broad.
While he was initially hoping for a transfer to a low security institution, this was
rejected but he insists that he is much happier staying here as he knows the
routine and has made many associations within the GP. The crux of his day is said
to be working (CCS orderly) and taking GED classes. Sleep and appetite are
described to be well within normal ranges. Says the medication regime has been
helpful in managing the symptoms of depression and mood-related psychotic sx’s.
Says he hasn’t felt depressed for a very long time, and has not been experiencing
AH/VH 6 at all. He denied any SI/AI.
These same kinds of entries were made all the way through 2011. See e.g. Clinical
Contact note of March 11, 2011 (“He was fully oriented and engaged in meaningful and fluid
conversation regarding his mental health and plans for when he releases. We were able to discuss
his involvement in GED classes at this time and his goals to perhaps become involved in VT
[vocational training] after that is completed.”).
5
“SI” most likely refers to suicidal ideation. “AI” may mean aggressive ideation, homicidal or otherwise.
6
Auditory hallucinations/visual hallucinations.
9
When a habeas corpus petitioner puts in an affidavit that is directly contrary to regularly
kept documentary evidence, the Court need not credit the affidavit. See Florez v. United States,
No. 07–CV–4965, 2009 WL 2228121 at *9 (E.D.N.Y. July 24, 2009) (“Rather than challenging
his conviction, petitioner’s work records reinforce the testimonial and documentary evidence
against him.”); Percan v. United States, 294 F. Supp. 2d 505 (S.D.N.Y. 2003) (“When
considering Percan’s unsubstantiated statements on this point, and Percan’s other assertions in
his motion that are directly contradicted by the record . . . the Court finds not credible Percan’s
claim.”). I have no doubt that petitioner does in fact suffer from serious mental illness. But
based on the medical records, nothing prevented petitioner from filing this proceeding for any
substantial period within the 30 months after the Supreme Court denied his certiorari petition. If
he had any periods of incapacity, they were fleeting. I therefore reject his claim of equitable
tolling, and find that the petition is untimely.
III
Even if the petition was not time-barred, it would have to be dismissed on the merits.
As to his first claim, I recognize that if petitioner was not competent to assist in his own
defense, grounds would exist for habeas corpus relief. “It has long been accepted that a person
whose mental condition is such that he lacks the capacity to understand the nature and object of
the proceedings against him, to consult with counsel, and to assist in preparing his defense may
not be subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896 (1975). “Indeed,
‘conviction of an accused person while he is legally incompetent violates due process.’” United
States v. Auen, 846 F.2d 872, 877 (2d Cir. 1988) (quoting Pate v. Robinson, 383 U.S. 375, 378,
86 S.Ct. 836 (1966)).
10
However, I was very familiar with petitioner’s mental status at the time of sentencing,
having directed his examination by Dr. Drob and having reviewed his extensive report. There
can be no doubt that notwithstanding his mental illness, petitioner was very capable of assisting
with his own defense at trial and at sentencing. His testimony at trial was fully lucid, and that
lucidity continued in the manner in which he expressed himself at sentencing. As noted above,
there was nothing in Dr. Drob’s report to indicate a lack of ability to participate in his defense,
and everything I observed belied any such suggestion. “It is well-established that some degree of
mental illness cannot be equated with incompetence to stand trial.” United States v. Vamos, 797
F.2d 1146, 1150 (2d Cir. 1986).
It is of some significance that in his affidavit, petitioner states that it was only in “early
2013” that he stopped taking his medications and “realized that I was innocent and had been
unfairly put in prison.” But this cannot be right. Petitioner was obviously aware of his alleged
innocence while his criminal case was pending before me – after all, it was on the basis of that
assertion that he withdrew his guilty plea and testified as to his innocence at trial. He also again
asserted his innocence at his sentencing hearing. His misstatement in this regard is consistent
with my view expressed at sentencing that one of petitioner’s adaptations to his mental illness is
the ability to use it to achieve short term goals.
All of the evidence shows that he was competent to proceed with trial and sentencing.
Based on his medical records and my observations of him in the long course of his criminal case,
it is far more likely that, if he has now stopped his medication as he asserts, his impairment is
interfering with his present thinking rather than his thinking when he was before me for trial and
sentencing.
11
IV
Petitioner’s second point is that he had a “biased jury pool” because everyone in the
room was of “of European descent.” The Sixth Amendment has been interpreted to require that
a jury be selected from a representative cross-section of the community. See Taylor v.
Louisiana, 419 U.S. 522, 95 S.Ct. 692 (1975). This claim would fail for two reasons.
First, the claim has been waived because petitioner neither raised it during jury selection
nor on appeal. See Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577 (1973); United States v.
Tarascio, 15 F.3d 224 (2d Cir. 1993); Campino v. United States, 968 F.2d 187 (2d Cir. 1992).
Where a defendant fails to raise an alleged constitutional violation on direct appeal, he may not
raise such a claim on collateral review unless he can show (1) “cause” for his failure to raise the
claim on appeal; and (2) actual “prejudice” due to the alleged violation. See Reed v. Farley, 512
U.S. 339, 354, 114 S.Ct. 2291 (1994). The good cause prong requires the movant to show that
something “external to the petitioner, something that cannot fairly be attributed to him,” resulted
in his failure to raise a claim on direct appeal. Coleman v. Thompson, 501 U.S. 722, 753, 111
S.Ct. 2546 (1991). I have rejected petitioner’s contention of mental incompetence, and he has
offered no other basis for a finding of cause.
Second, petitioner offers no evidence showing that the venire was not representative of a
cross-section of the community. To the contrary, the transcript undermines his contention, as it
shows his contention that the venire was entirely “of European descent” is in all likelihood
wrong. Although the names of the panel members are not conclusive as to national origin,
considering that the initial panel seated included Sanchez, Perea, Benjaskullluecha, Wu, Adedeji,
12
and Wong, petitioner cannot prevail on his unsupported claim that the venire was “of European
descent.”
Accordingly, his claim is rejected.
V
I have concluded that a further hearing is not necessary in this matter for three reasons.
First, as noted, I am very familiar with petitioner’s underlying criminal case, his demeanor, and
his mental condition. See Puglisi v. United States, 586 F.3d 209, 214 (2d Cir. 2009) (“[W]hen
the judge that tried the underlying proceedings also presides over the Section 2255 motion, a
less-than-full-fledged evidentiary hearing may permissibly dispose of claims where the
credibility assessment would inevitably be adverse to the petitioner.”). Second, the documentary
evidence that I directed petitioner to file in response to the Order to Show Cause conclusively
refutes the claims in his affidavit. See Chang v. United States, 250 F.3d 79 (2d Cir. 2001)
(district court may request documentary evidence in lieu of full hearing). Finally, petitioner’s
claims are simply too vague and conclusory to require further inquiry. See Machibroda v.
United States, 368 U.S. 487, 495-96, 82 S.Ct. 510 (1962).
CONCLUSION
The petition for a writ of habeas corpus is denied. A certificate of appealability shall not
issue. See 28 U.S.C. § 2253(c). Further, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
13
that any appeal from this Order would not be taken in good faith, and therefore in forma
pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S.
438, 82 S. Ct. 917 (1962).
SO ORDERED.
Digitally signed by Brian
M. Cogan
______________________________________
U.S.D.J.
Dated: Brooklyn, New York
November 18, 2013
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?