Kot v. Keyser
DECISION AND ORDER denying and dismissing the petitioner's petition. No certificate of Appealability shall issue because petitioner failed to make a "substantial showing of the denial of a constitutional right" as 28 U.S.C. 2253(c)(2) requires. Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. Signed by Chief Judge Glenn T. Suddaby on 1/23/17. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BLAZEJ J. KOT,
WILLIAM KEYSER, JR.,
EASTON, THOMPSON LAW FIRM
Attorney for Petitioner
16 W. Main Street, Suite 243
Rochester, New York 14614
BRIAN SHIFFRIN, Esq.
HON. ERIC T. SCHNEIDERMAN
Attorneys for Respondent
Office of the Attorney General
New York, New York 10271
MICHELLE ELAINE MAEROV, AAG
GLENN T. SUDDABY
Chief United States District Judge
DECISION AND ORDER
Petitioner Blazej J. Kot, through counsel, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition ("Pet."); Dkt Nos. 3 through 5, State Court
Records filed by petitioner; Dkt. No. 7, Petitioner's Memorandum of Law ("Pet. Mem.").1
Petitioner challenges a 2010 judgment of conviction, following a jury trial in Tompkins County
The cited page numbers for the petition, petitioner's state court records, and petitioner's memorandum
of law refer to those generated by the court's electronic filing system (“ECF”).
Court of Murder in the Second Degree, Arson in the Third Degree, and Tampering with
Physical Evidence. Pet. at 2. Petitioner's conviction stems from his actions on the evening
of June 2, 2009. That evening, while out jogging with his wife, petitioner struck her in the
head with a pipe, slit her throat, and left her for dead. Petitioner then returned home and
attempted to destroy evidence from the killing. As a result of his conviction, petitioner was
sentenced to an aggregate term of twenty-five (25) years to life in prison with one year of
post-release supervision. Id.
Petitioner argues in his habeas petition that his trial counsel was ineffective for various
reasons. Pet. at 5-6; Pet. Mem. at 18-49. Respondent opposes the petition. Dkt. No. 14,
Answer; Dkt. No. 14-1, Respondent's Memorandum of Law ("Resp. Mem."); Dkt. Nos. 15-1
through 15-6, State Court Records ("SR"); Dkt. Nos. 16-1 and 16-2, Transcripts ("T").2
Petitioner filed a Reply Memorandum of Law. Dkt. No. 22, Reply Memorandum of Law
For the reasons that follow, the petition is denied and dismissed.
Factual Background and the Trial
In 2007, petitioner was a doctoral student at Cornell University in Information Science.
After becoming disappointed in his Ph.D. program, petitioner dropped out and joined
Predictive Systems, a technology start-up company started by a friend, Peter Brodsky. Dkt.
No. 16-1, at T 535-36.
The cited page numbers for the Answer (Dkt. No. 14), Respondent's Memorandum of Law (Dkt. No. 14-1),
and the Transcripts (Dkt. Nos. 16-1 and 16-2) refer to those generated by the court's electronic filing system.
Although Respondent did not sequentially number the State Court Records as required by Local Rule 72.4, the Court
has reviewed these records for the sake of expediency. The cited page numbers for the State Court Records (Dkt.
Nos. 15-1 through 15-6) refer to those generated by the Court's electronic filing system.
While working at Predictive, petitioner began dating Caroline Coffey. Although
petitioner seemed happy with the relationship, he confided in Brodsky that he felt uneasy that
they were moving in together and had started discussing marriage. Dkt. No. 16-1, at T 54142.
During the spring and summer of 2008, petitioner's performance at Predictive began
to deteriorate. Petitioner began drinking heavily, was missing work, and drastically reduced
his office hours. Dkt. No. 6-1, at T 543-44, 547. The produce launch went poorly, and
according to Brodsky, was the result of petitioner's inadequate work. While petitioner was on
vacation, Brodksy and Predictive's CEO emailed petitioner about their concerns, and when
he returned, they offered petitioner a leave of absence or his resignation. Petitioner felt he
was treated unfairly, left the company, and never spoke to Brodsky again. Id. at 544-46, 549.
In October 2008, petitioner and Coffey married in a small civil ceremony in Ithaca,
New York. They planned to hold a larger wedding in Costa Rica the following year. Dkt. No.
16-1, at T 520-21.
In January 2009, petitioner returned to his doctoral program at Cornell University. Dkt.
No. 16-1, at T 710-11.
In May 2009, petitioner and Coffey held a wedding in Costa Rica. Dkt. No. 16-1, at T
According to each witness that testified during the trial, no one was aware that
petitioner was unhappy in his marriage, and none of the witnesses expressed observing any
signs that petitioner suffered from a mental illness.
On June 2, 2009, Coffee went to work as usual around 9 a.m. Later that day,
petitioner went to see Coffey to drop off wedding photographs which had arrived. Dkt. No.
16-1, at T 598-99, 602. Petitioner also met with his faculty advisor, who informed him that
additional funding was received for his work, and that he was happy to continue supporting
petitioner's research for the foreseeable future. Id. at T 720-22.
After work, petitioner went to a friend's house to lift weights. They joked and laughed,
and petitioner expressed that everything was going well, and that he and Coffey were
planning to go away for a few days together. Petitioner left to go home at 6:00 p.m. Dkt. No.
16-1, at T 512-19.
As was their routine, petitioner and Coffey went for an evening jog. On the trail,
petitioner recalled letting Coffey take the lead while jogging. When he ran past a pipe he had
previously seen on the trail, he picked it up and sprinted to his wife. He then struck her in the
head with the pipe. After Coffey fell to the ground, petitioner struck her again. Petitioner
proceeding to slash Coffey's neck with a box cutter he had brought with him. Petitioner left
Coffey on the trail and ran home. Defense Exhibit D ("Ex. D"), Jul. 19, 2009.3
Once home, petitioner saw his clothes were covered in blood and attempted to burn
them. He doused his clothes with paint thinner and placed them in the fire place. When he
saw that his face and hands were covered with Coffey's blood, petitioner decided he was
going to kill himself. Ex. D, Jul. 19, 2009.
Petitioner left the box cutter he used to murder Coffey at home, and drove to a park.
Once there, petitioner lost his nerve to jump off a bridge and returned home to get a sharper
knife to kill himself. Ex. D, Jul. 19, 2009. At approximately 9:45 p.m., New York State Police
Respondent traditionally filed several videotaped interviews of petitioner which were introduced during his
trial. Dkt. No. 21. The cited portions of the videotaped interview by Dr. Horwitz are identified as the People's Exhibit
146 ("Ex. 146"), and the cited portions of the interviews with Dr. Houghtalen are identified as Defense Exhibit D ("Ex.
D.") followed by the date of the interview.
Officer Gerald Lewis saw petitioner sitting in his car in the parking lot of the park. The officer
shined his flashlight into the vehicle and saw that petitioner was covered with dried blood all
over his left arm and hand. When he tapped on the window, petitioner did not make eye
contact, but started his car and accelerated out of the parking lot. Dkt. No. 16-1, at T 83-91.
Officer Lewis called in petitioner's description and pursued petitioner as he drove over
90 miles per hour down a road. After other police vehicles joined in the pursuit, the roadway
became congested, and petitioner was forced to slow down. All of a sudden, petitioner's
vehicle drifted over the double yellow line and came to a stop near some trees. Dkt. No. 161, at T 91-95.
The police found petitioner in his car with several large lacerations on his neck. He
was unconscious and holding a utility knife in his hand. Petitioner was only clothed in his
bathrobe. The police and paramedics administered first aid, and when they found his
identification in his glove compartment, petitioner began to gain consciousness. He
corrected the police on how to pronounce his name, and asked where his wife was.
Petitioner then became agitated and yelled that he wanted to die. Petitioner was airlifted to a
medical facility in Pennsylvania. Dkt. No. 16-1, at T 98-103, 123-24, 144-46, 183-87.
The following morning, Coffey's body was found by two pedestrians on the trail where
petitioner had killed her the night before. Dkt. No. 16-1, at T 111-13, 165-68.
A forensic pathologist who conducted an autopsy of Coffey's body concluded that she
sustained a blow with a heavy linear object to her right eye area. Other bruises and scrapes
to her right wrist and forearm, as well as her nose and right eyelid, suggested that Coffey
tried to defend herself from the blow to her face. Although the blow was not fatal, the
pathologist opined it rendered her unconscious. Coffey then sustained a stab wound to her
carotid artery. The pathologist estimated that Coffey died within two minutes of having her
throat slit. Dkt. No. 16-1, at T 303-29.
The police also executed a search warrant on petitioner and Coffey's apartment.
There they seized a pair of blood-stained sneakers, a fire-damaged computer, and a can of
Kleen Strip Brush Cleaner which police suspected was used as a fire accelerant. Police also
found remnants of clothes in the ashes of the fireplace. Police also took swabs from a wine
refrigerator and a light switch which were covered in blood. Dkt. No. 16-1, at T 239-52, 25564, 268-73, 334-40.
Upon investigation, the Ithaca Fire Department determined that the fire was
deliberately set in two different locations in the apartment. Dkt. No. 16-1, at T 342-65.
Subsequent DNA testing revealed that the bloodstain on the sneakers was consistent
with Coffey's DNA. The blood on the wine refrigerator was a mixture of both petitioner's and
Coffey's DNA. The blood found on the knife petitioner was holding when he drove off the
road contained blood from petitioner and another person: Coffey could not be excluded as
the donor. Petitioner's DNA was found on the laptop and the Kleen Strip can, as well as the
stains on the bridge. Dkt. No. 16-1, at T 464-78.
New York State Police investigators also analyzed data found on the computer taken
from the apartment. Dkt. No. 16-1, at T 656-93. The analysis showed the computer was
configured for petitioner's use and that sometime between 7:45 p.m. and 9.29 p.m. on the
date of Coffey's murder, the following query was entered in Google: "how to kill neck." Id. at
T 659-64. The first link was to a Yahoo page entitled "Is there an artery or vein in the neck
that if cut can kill you instantly." Id. The user next searched Google for jugular vein, and
clicked through the results page to the Wikipedia entry for "Jugular Vein." Id.
At the jury trial held in April 2010, defendant conceded that he killed his wife, but
argued that he was acting under extreme emotional duress. Accordingly, the County Court
instructed the jury to consider this affirmative defense. In support of this defense, petitioner
presented videotaped interviews conducted between July 19, 2009 and April 4, 2010, by Dr.
Rory Houghtalen, a forensic psychologist hired by petitioner's counsel. Dkt. No. 21, Ex. D.
During the trial, Dr. Houghtalen testified that he interviewed petitioner on four separate
occasions. Dkt. No. 16-2, at T 71. Dr. Houghtalen stated that he found petitioner credible
and concluded that he suffered from a "substance-induced depressive psychosis." Id. at T
203. Specifically, Dr. Houghtalen opined that petitioner's use of an anti-malarial drug
chloroquine, which petitioner took prior to visiting Costa Rica, combined with petitioner's
underlying major depressive disorder which included hallucinations, and a schizotypal
personality disorder gave petitioner an "underlying vulnerability to psychosis." Id. at T 146,
159, 193-94, 203. Dr. Houghtalen ultimately opined that under New York State Law,
petitioner's mental state at the time he killed his wife was "consistent with an extreme
emotional disturbance." Id. at T 287-89.
At no point during Dr. Houghtalen's extensive evaluation of petitioner, or during his five
days of testimony during the trial, did he question or raise any issue regarding petitioner's
competency to stand trial.
To rebut Dr. Houghtalen's opinion, the People presented the testimony of forensic
psychiatrist, Gary Horwitz. Dr. Horwitz testified to reviewing the prior interviews conducted by
Dr. Houghtalen, reviewing medical reports and articles about chloroquine, and conducting his
own interview with petitioner. Dkt. No. 16-2, at T 483, 490.
During Dr. Horwitz' interview with petitioner prior to trial, he asked if petitioner
understood the purpose of their meeting. Petitioner responded that he knew Dr. Horwitz was
working for the prosecution. Petitioner also said that he understood he was pursuing an
extreme emotional disturbance defense, so he needed a psychiatrist to determine what his
state of mind was. Dkt. No. 21, Ex. D. After a lengthy interview, Dr. Horwitz told petitioner
his description of his "mental illness" did not comport with someone who is mentally ill, but
instead as someone pretending to be mentally ill to "outsmart the system." Id. Dr. Horwitz
also asked if petitioner knew what the outcome would be if he prevailed on his extreme
emotional disturbance defense at trial. Petitioner responded that he would only get "a
manslaughter conviction." Id.
At trial, Dr. Horwitz rejected the defense's position that petitioner was under extreme
emotional disturbance when he killed his wife. Instead, he opined that petitioner killed his
wife because he was unhappy and stressed, and "saw Caroline as the obstacle to the life he
wanted." Dkt. No. 16-2, at T 499-500, 510. He specifically noted that the killing was premeditated, and that petitioner used extensive forethought and planning before committing the
murder. Id. at T 500, 516-17. He also noted that petitioner attempted to conceal his crime
and destroy evidence. Id. at T 500.
Notably, Dr. Horwitz credited petitioner's interview with Dr. Houghtalen that occurred
closest to the date of the crime. Dkt. No. 16-2, at T 519-22. During that initial interview, Dr.
Horwitz observed that petitioner had a normal affect, and said nothing about conspiracies, or
hallucinations. Id. Dr. Horwitz also noted that none of his close family, friends, or
associates, noticed anything wrong or unusual with petitioner's behavior, countering
petitioner's claim of suffering an ongoing mental illness. Id. at T 522-23. Finally, Dr. Horwitz
rejected Dr. Houghtalen's theory that petitioner's use of an antimalarial drug caused a
psychological disturbance. According to the reports reviewed by Dr. Horwitz and relied upon
by Dr. Houghtalen, petitioner's supposed illness did not match the onset pattern noted in the
reports, and that those who developed a psychological disturbance all took much larger
doses of the drug than petitioner. Id. at T 523-31. In sum, Dr. Horwitz opined that petitioner
did not suffer from a psychiatric disorder, but "was stressed and unhappy. He saw Caroline
as an obstacle to the life he wanted, and he decided that he had to kill her." Id. at 531.
On April 20, 2010, a jury found petitioner guilty of all charges: Murder in the Second
Degree (N.Y. Penal Law § 125.25(1)), Arson in the Third Degree (N.Y. Penal Law §
150.10(1)), and Tampering with Physical Evidence (N.Y. Penal Law § 215.40(2)). Dkt. No.
16-2, at T 849-50. On June 16, 2010, petitioner was sentenced to an aggregate term of
twenty-five (25) years to life in prison. Id. at T 895.
Post-Trial Motion and Appeal
In addition to filing a direct appeal to the Appellate Division, Third Department (Dkt.
No. 15-6, at SR 154-261), petitioner moved, through counsel, to vacate his judgment of
conviction pursuant to New York's Criminal Procedure Law ("C.P.L.") § 440.10. Dkt. No. 151 through 15-5. Among other things, petitioner sought relief on the ground that his counsel
was ineffective for (1) failing to move for a competency evaluation; and (2) failing to object to
Officer Kubasiak's testimony regarding the internet searches on petitioner's laptop and to Dr.
Horwitz's testimony to the extent it differed from his written report. Dkt. No. 15-1, at SR 1-2.
Petitioner attached his own affidavit and affidavits from his trial counsel and Dr. Houghtalen,
as well as his most recent medical records. Id. at SR 6-38. The trial court denied the
motion, holding that all of petitioner's claims were on the record and needed to be raised on
direct appeal. Dkt. No. 15-6, at SR 133-135.
Petitioner sought leave to appeal the denial of his C.P.L. § 440.10 motion. The
Appellate Division granted the appeal of his C.P.L. § 440 motion, and joined it with his
pending direct appeal. Id. at 153. The Appellate Division ultimately affirmed petitioner's
conviction finding, among other things, that petitioner was not deprived the effective
assistance of counsel. People v. Kot, 126 A.D.3d 1022, 1025 (3rd Dep't 2015). Petitioner
then sought leave to appeal to the New York State Court of Appeals, which was denied on
July 13, 2015. People v. Kot, 25 N.Y.3d 1203 (2015).
Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal
court may grant habeas corpus relief with respect to a claim adjudicated on the merits in
state court only if, based upon the record before the state court, the state court's decision: (1)
was contrary to, or involved an unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States; or (2) was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. 28 U.S.C. §§2254(d)(1), (2); Cullen v. Pinholster, 563 U.S. 170, 181 (2011);
Premo v. Moore, 562 U.S. 115, 120-21 (2011); Schriro v. Landrigan, 550 U.S. 465, 473
(2007). This standard is "highly deferential" and "demands that state-court decisions be
given the benefit of the doubt." Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam)
(quoting Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted)).
The Supreme Court has repeatedly explained that "a federal habeas court may
overturn a state court's application of federal law only if it is so erroneous that 'there is no
possibility fairminded jurists could disagree that the state court's decision conflicts with th[e
Supreme] Court's precedents.'" Nevada v. Jackson, __ U.S. __, 133 S. Ct. 1990, 1992
(2013) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)); see Metrish v.
Lancaster, __ U.S. __, 133 S. Ct. 1781, 1787 (2013) (explaining that success in a habeas
case premised on § 2254(d)(1) requires the petitioner to "show that the challenged
state-court ruling rested on 'an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.'") (quoting Richter, 562 U.S. at 103)).
Additionally, the AEDPA foreclosed "'using federal habeas corpus review as a vehicle
to second-guess the reasonable decisions of state courts.'" Parker v. Matthews, __ U.S. __,
132 S. Ct. 2148, 2149 (2012) (per curiam) (quoting Renico, 559 U.S. at 779). A state court's
findings are not unreasonable under §2254(d)(2) simply because a federal habeas court
reviewing the claim in the first instance would have reached a different conclusion. Wood v.
Allen, 558 U.S. 290, 301 (2010). "The question under AEDPA is not whether a federal court
believes the state court's determination was incorrect but whether that determination was
unreasonable - a substantially higher threshold." Schriro, 550 U.S. at 473.
Federal habeas courts must presume that the state courts' factual findings are correct
unless a petitioner rebuts that presumption with '"clear and convincing evidence.'" Schriro,
550 U.S. at 473-74 (quoting § 2254(e)(1)). Finally, "[w]hen a state court rejects a federal
claim without expressly addressing that claim, a federal habeas court must presume that the
federal claim was adjudicated on the merits[.]" Johnson v. Williams, __ U.S. __, 133 S. Ct.
1088, 1096 (2013).
Ineffective Assistance of Counsel
Petitioner argues his trial counsel was ineffective because he failed to (1) move for a
competency hearing; and (2) failed to object to (a) Officer Kubasiak's testimony concerning
the timing of the internet searches on petitioner's laptop computer, and (b) Dr. Horwitz's
testimony to the extent it differed from his written report. Pet. at 5.
Standard of Review
To demonstrate constitutionally ineffective assistance of counsel, a petitioner must
show "both deficient performance by counsel and prejudice." Premo v. Moore, 562 U.S. 115,
121-122 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 122, 129); Strickland v.
Washington, 466 U.S. 668, 694 (1984). Deficient performance requires a showing that
counsel's performance fell below an objective standard of professional reasonableness. Id.;
Harrington v. Richter, 562 U.S. 86, 104 (2010). "Strickland does not guarantee perfect
representation, only a reasonably competent attorney." Richter, 562 U.S. at 110 (quoting
Strickland, 466 U.S. at 687) (internal quotation marks and further citation omitted). A
petitioner must overcome "a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance ... [and] that, under the circumstances, the
challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Even assuming a petitioner can
establish counsel was deficient, he still must demonstrate prejudice. Id. at 693-694. This
requires more than showing "the errors had some conceivable effect on the outcome," but
that the counsel's errors were "so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Id. at 687, 693.
Meeting this burden is "never an easy task . . . [and] establishing that a state court's
application of Strickland was unreasonable under § 2254(d) is all the more difficult." Premo,
131 S. Ct. at 739-40 (citations and internal quotation marks omitted). When reviewing a
state court's decision under section 2254, "[t]he question is not whether a federal court
believes the state court's determination under the Strickland standard was incorrect but
whether that determination was unreasonable-a substantially higher threshold." Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (internal quotation marks and citation omitted).
Federal habeas courts "must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d)" because "[w]hen §2254(d) applies, the
question is not whether counsel's actions were reasonable." Richter, 562 U.S. at 105.
Instead, "the question is whether there is any reasonable argument that counsel satisfied
Strickland 's deferential standard." Id. Finally, it is "difficult to establish ineffective assistance
when counsel's overall performance indicates active and capable advocacy." Richter, 562
U.S. at 111.
Ground One - Failure to request competency hearing
The Supreme Court has repeatedly held that "'the criminal trial of an incompetent
defendant violates due process.'" Cooper v. Oklahoma, 517 U.S. 348, 354 (1996), quoting
Medina v. California, 505 U.S. 437, 453 (1992); see also Woodley v. Griffin, 652 Fed. Appx.
75, 76 (2d Cir. 2016). As the Supreme Court explained in Cooper, a "defendant may not be
put to trial unless he has sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding, and a rational as well as factual understanding of the
proceedings against him." Id. (internal citations and quotations omitted); see also Harris v.
Kuhlmann, 364 F.3d 330, 349-350 (2d Cir. 2003).
Under New York Law, a defendant is presumed to be competent. People v. Tortorici,
92 N.Y.2d 757, 765 (1999). A New York Court must only "issue an order of examination
when it is of the opinion that the defendant may be an incapacitated person." N.Y. C.P.L.
§ 730.30. An "incapacitated person" is defined as a "defendant who as a result of mental
disease or defect lacks capacity to understand the proceedings against him or to assist in his
own defense." Id.
Here, petitioner maintains that he was deprived the effective assistance of counsel
due to his counsel's failure to request a competency hearing prior to trial. Pet. at 5-6. In
addition to raising this argument on appeal, petitioner also argued that the trial court denied
him procedural due process by failing to sua sponte order a competency examination. Dkt.
No. 15-1, at SR 64-72, 108-111; Dkt. No. 15-6 at 209-215, 255-257.
The Appellate Division rejected petitioner's claim that the County Court denied him
due process for failing to sua sponte order a competency hearing. Kot, 126 A.D.3d at 1024.
The Appellate Division first noted that County Court was able to observe petitioner's
"behavior and demeanor in the courtroom throughout the trial, as well as in video excerpts
from his discussions with [Dr.] Houghtalen." Id. "During the trial, Houghtalen did not opine
that [petitioner] was incompetent, and defense counsel at no point requested a competency
hearing." Id. The Appellate Division went on to state as follows:
Up to and throughout the trial, defendant continuously exhibited an awareness of the
nuances of the criminal justice process, including . . . the crucial role that Houghtalen,
as his forensic psychiatric expert, would play in his defense. Defendant's forthright
disclosures to Houghtalen concerning the dysfunction he observed in his family during
his youth, and the mental health symptoms he reportedly experienced in the days and
months leading up to his crime, support the conclusion that any psychiatric conditions
from which he might have been suffering over the course of the instant criminal action
did not prevent him from recognizing that providing Houghtalen with details of his
mental health history would bolster his defense, nor from actually supplying such
information to Houghtalen."
Id. at 1025. Accordingly, "[based] on the available information" the Appellate Division held
that County Court did not abuse its discretion in not, sua sponte, ordering a competency
hearing. For the same reasons, the Appellate Division also found "without merit defendant's
contention that he was deprived of the effective assistance of counsel due to counsel's
failure to request a competency hearing or to present an insanity defense." Id.
Here, in order to establish that his counsel was ineffective in failing to request a
competency hearing, "the record must show some evidence indicating that Petitioner's
competency was in doubt." Thousand v. Conway, No. 6:08-CV-6469T, 2010 WL 4823664
(W.D.N.Y. Nov. 29, 2010). Since the Appellate Division rendered a decision on the merits,
"the relevant question in this case is not whether the evidence 'presented a reasonable
ground for believing' that [petitioner] was incompetent; instead we must ask whether it was
objectively unreasonable for the state trial court to have concluded (and the state appeals
court to have agreed) that the circumstances did not present a reasonable ground for
believing that [petitioner] was incompetent." Kuhlmann, 346 F.3d at 356 (italics in original)
(internal quotations omitted).
Similarly, with regards to counsel's actions, the relevant question is not whether this
Court believes petitioner's counsel acted unreasonably by not requesting a competency
hearing, but whether "there is any reasonable argument that counsel satisfied Strickland's
deferential standard." Richter, 562, U.S. at 105; see also 28 U.S.C. §2254(d)(1).
The record before this Court does not substantiate petitioner's claim that his counsel
was ineffective for failing to request a competency hearing. To the contrary, the record
demonstrates that petitioner acted rational at all relevant times, and participated in his
For instance, petitioner was also able to clearly articulate during his hours of videotaped interviews with Dr. Houghtalen that he understood that (1) his counsel had retained Dr.
Houghtalen to determine whether he qualified for a psychiatric defense, (2) there was no
confidentiality between them, and (3) Dr. Houghtalen was not treating petitioner. See Dkt.
No. 21, Ex. D. Notably, at no time prior to or during trial did Dr. Houghtalen suggest that
petitioner was incompetent to stand trial, or indicate that petitioner was not cooperating in
presenting a defense.
Furthermore, when petitioner met with the People's psychiatric expert, Dr. Horwitz,
petitioner was able to explain his legal situation in great detail. He identified the charges
against him, and explained to Dr. Horwitz that if he prevailed on his extreme emotion
disturbance defense, that he would only face a manslaughter conviction.
Petitioner nevertheless requests this Court to consider post-conviction psychiatric
reports and affidavits submitted by his trial counsel and Dr. Houghtalen in his C.P.L. § 440
motion in state court. However, "the question of competency and reasonable cause to doubt
it must focus upon the defendant's abilities at the time of trial, not any conduct discovered or
analyzed after the fact." United States v. Gabb, 80 Fed. Appx. 142, 144-145 (2d Cir. 2003)
(italics in original), quoting United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986); see
e.g., Conway, 2010 WL 4823664, at *6-7 (The district court concluded that a post-conviction
letter from petitioner's counsel did not establish that counsel had any basis to doubt the
petitioner's competency during the plea and sentencing); Medina v. McGinnis, No. 04-CV2515, 2004 WL 2088578 (S.D.N.Y. Sept. 20, 2004) (The petitioner's ineffective assistance
claim based on post-conviction medical records and his physician's affidavit was rejected
"because defense counsel did not have that information, and this Court agrees . . .that based
on defense counsel's knowledge, he was not ineffective for not investigating [petitioner's]
psychological problems more than he did.").
Petitioner's post-conviction medical records and subsequent psychiatric treatment do
not show that petitioner's counsel should have known or investigated petitioner's alleged
competency further prior to trial. Furthermore, these post-conviction documents do not
demonstrate that petitioner's counsel was aware before or during the trial that petitioner was
unable to understand the proceedings against him. In fact, petitioner's counsel states in his
affidavit that he did not request a competency hearing during petitioner's case because
"[petitioner] displayed knowledge of the role of the defense attorney, prosecutor, and judge,
and the function of the jury. It had been my experience that a person who was capable of
functioning to that degree would not be declared incompetent." Dkt. No. 15-1, at SR 31.
Although petitioner's counsel now has "misgivings" about not requesting a competency
hearing, he explicitly states such apprehension is based on "knowing what I know now about"
petitioner's psychiatric illness. Id. at SR 32. As such, the post-conviction records are not
relevant to petitioner's ineffective assistance claim.
Based on counsel's knowledge at the time of trial, and giving due deference to the
Appellate Division's factual findings on this issue (Schriro, 550 U.S. at 473-74), counsel's
decision not to request a competency hearing was reasonable, and petitioner has not
established that his counsel's actions fell below the objective standard of effectiveness set
forth in Strickland. The Appellate Division's decision that petitioner's counsel provided
effective assistance was therefore not objectively unreasonable, and petitioner's
ineffectiveness claim based on his counsel's failure to request a competency hearing is
Ground Two: Failure to Raise Objections
Petitioner argues in Ground Two of his habeas petition that his counsel was ineffective
for (1) failing to object to Investigator Kubasiak's testimony regarding the timing of internet
searches on petitioner's laptop computer, and (2) failing to object to Dr. Horwitz's testimony
to the extent it conflicted with his written report provided prior to trial. Pet. at 5.
During the trial, Investigator Kubasiak testified that petitioner's laptop was used to run
the following query in Google: "how to kill neck," along with other searches regarding the
jugular vein. According to Investigator Kubasiak, the queries were performed sometime
between the following time-frames: 7:54 p.m. to 8:46 p.m., or 9:27:18 p.m to 9:28:04 p.m.
Dkt. No. 16-1, at T 656-69, 683-86,692-93. Petitioner argues his counsel should have
objected when Investigator Kubasiak testified, in response to the trial court's questioning, that
although it was "possible" that the queries regarding the neck anatomy occurred during the
46 second session after the victim was killed, it "likely wouldn't happen in this time frame
because of the extent of the searches that were occurring." Id. at 668-69.
Although a lay witness is ordinarily limited to testifying about facts as opposed to
opinion, petitioner was not prejudiced by Investigator Kubasiak's testimony; i.e., the error in
allowing the testimony without objection did not effect on the outcome and deprive petitioner
a fair trial. Strickland, 466 U.S. at 687, 693-94. To be sure, despite Investigator Kubasiak's
comment suggesting the internet search occurred during the earlier session when petitioner's
computer was active, he repeatedly testified that he could not definitively state when the
internet searches were performed. Dkt. No. 16-1, at T 679-680, 692-93. Furthermore,
during summation, the prosecutor acknowledged that the time of the internet search "is one
of those things I can't prove to the exact time it was done. You heard for yourselves that time
frame, somewhere between 8:27 and 9:27. I can't prove to you that it happened earlier on."
Dkt. No. 16-2, at T 759. Accordingly, failing to object to Investigator Kubasiak's statement
was not "so serious as to deprive [petitioner] of a fair trial," and this portion of petitioner's
ineffective assistance claim is denied and dismissed. Strickland, 46 U.S. at 687, 693.
Petitioner also argues that his counsel was ineffective for failing to object to Dr.
Horwitz's testimony to the extent it was in conflict with his written report. Pet. at 5. According
to petitioner, the written report primarily concluded that petitioner was feigning his mental
illness. However, at trial, petitioner claims Dr. Horwitz testified for the first time that his
psychiatric symptoms were primarily the result of suggestive questioning by Dr. Houghtalen.
Id. The Appellate Division rejected this claim on the merits. Kot, 126 A.D.3d at 1027
("Defendant's remaining arguments . . . have been considered and are without merit."). For
the reasons that follow, the Appellate Division's decision was neither contrary to, nor an
unreasonable application of Strickland.
As respondent correctly notes in opposition, Dr. Horwitz did opine in his written report
that petitioner's alleged psychiatric symptoms were the result of suggestive questions posed
by Dr. Houghtalen, among other things. For instance, Dr. Horwitz described Dr. Houghtalen's
first meeting with petitioner on July 19, 2009. During that interview, Dr. Houghtalen asked
whether petitioner ever heard voices, and petition responded negatively, reporting only an
"internal dialogue of his own thoughts." Dkt. No. 15-4, at SR 193. According to Dr. Horwitz,
"[t]his [was] significant because the nature of the questions raised by Dr. Houghtalen would
indicate to a person as intelligent as defendant that he was looking for a psychotic disorder."
Id. Dr. Horwitz goes on to note that petitioner's description of his alleged psychotic
symptoms did not emerge until after this initial meeting, and that his descriptions were often
inconsistent. Id. at 193-95.
Dr. Horwitz ultimately opined in his report that petitioner was not suffering a serious
mental disorder, nor was he delusional when he killed his wife. Instead, Dr. Horwitz
maintained he was "stressed and unhappy about his situation and increasingly saw his wife
as the obstacle between himself and the life he wanted." Id. at 195. Given petitioner's
premeditation and high degree of forethought and planning of the murder, and the desire that
someone else might be blamed for the killing, Dr. Horwitz rejected petitioner's claim that he
simply lost control and was in extreme emotional distress at the time of the murder. Id. at
During the trial, Dr. Horwitz did not deviate from this opinion. He opined hat petitioner
was not suffering an extreme emotional disturbance at the time of the murder because (1)
the killing was premeditated; (2) there was extensive forethought and planning involved
which did not indicate a "loss of emotional control, but was something that was developed;"
(3) the psychiatric evaluation performed shortly after petitioner was transferred to Ithaca
"found no hallucinations or other psychotic features," and (4) during petitioner's first meeting
with Dr. Houghtalen, which Dr. Horwitz opined was more reliable as it was closest to the
killing, petitioner denied having any delusions or hallucinations. Dkt. No. 16-2, at T 516-531.
Dr. Horwitz only made two comments during the trial indicating that petitioner's
description of his symptoms was the result of suggestive questioning over time by Dr.
Houghtalen. Dkt. No. 16-2, at T 506-507, 651-53. These statements did not contradict what
was already contained in his report in any meaningful way. Accordingly, even if counsel
objected to Dr. Horwitz's testimony on the ground it was inconsistent with his report, the
objection would have been denied. Petitioner is therefore not entitled to habeas corpus relief
and his ineffective assistance claim is denied and dismissed.
WHEREFORE, it is hereby
ORDERED that the petition, Dkt. No. 1, is DENIED AND DISMISSED; and it is further
ORDERED that no Certificate of Appealability ("COA") shall issue because petitioner
failed to make a "substantial showing of the denial of a constitutional right" as 28 U.S.C. §
2253(c)(2) requires.4 Any further request for a Certificate of Appealability must be addressed
to the Court of Appeals (Fed. R. App. P. 22(b)); and it is further
ORDERED that the Clerk serve copies of this Decision and Order upon the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
January 23, 2017
Hon. Glenn T. Suddaby
Chief U.S. District Judge
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); See Richardson v. Greene, 497 F.3d 212, 217 (2d Cir.
2007) (holding that, if the court denies a habeas petition on procedural grounds, "the certificate of appealability must
show that jurists of reason would find debatable two issues: (1) that the district court was correct in its procedural
ruling, and (2) that the applicant has established a valid constitutional violation" (citation omitted)).
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