Alexis v. Griffin

Filing 30

OPINION AND ORDER ACCEPTING REPORT AND RECOMMENDATION #104901...The Report is accepted. Alexiss petition for a writ of habeas corpus is denied, and, as Alexis has not made a substantial showing of a denial of a federal right, a certificate of appeal ability shall not issue. See 28 U.S.C. § 2253(c)(2); Hoffler v. Bezio, 726 F.3d 144, 154 (2d Cir. 2013). The Clerk of Court shall dismiss the petition and close the case. (Signed by Judge Denise L. Cote on 10/20/2014) Copies Mailed By Chambers To Kenny Alexis. (gr) Modified on 10/20/2014 (soh).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
:
KENNY ALEXIS,
:
:
Petitioner,
:
:
-v:
:
PATRICK GRIFFIN,
:
:
Respondent.
:
:
----------------------------------------X

11cv5010 (DLC)
OPINION AND ORDER
ACCEPTING REPORT
AND RECOMMENDATION

DENISE COTE, District Judge:
On July 18, 2014, Magistrate Judge Maas issued a report
(“Report”) recommending that Kenny Alexis’s petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 be denied and that
no certificate of appealability issue.

Alexis v. Griffin, No.

11cv5010 (DLC) (FM), 2014 WL 3545583 (S.D.N.Y. July 18, 2014).
On August 13, 2014, Alexis submitted an objection to one portion
of the Report.
is accepted.

Having considered Alexis’s objection, the Report
The petition is denied and no certificate of

appealability shall issue.
BACKGROUND
Familiarity with the case, as described in the Report, is
presumed.

Here, only the facts pertinent to the ensuing

discussion are presented.
Charges were brought against Alexis in New York state court
in connection with a one-day crime spree in which he engaged in

a series of knife attacks at various locations in Manhattan.

In

June 2006, shortly after Alexis’s arraignment, the trial court
sua sponte ordered an initial competency evaluation.

Then, in

April 2008, at defense counsel’s request, the court ordered a
second competency evaluation.
deemed competent.

On both occasions, Alexis was

In September 2008, pursuant to N.Y. Crim.

Proc. Law § 730.30(2), the court held a competency hearing
because Alexis disputed the findings of the second evaluation.
At the hearing, doctors for the People testified that
although Alexis had a history of paranoid schizophrenia, he
nonetheless was capable of understanding the proceedings against
him and assisting in his defense.

They concluded that Alexis

was malingering -- exaggerating his cognitive disabilities -because of frustration with the criminal proceedings.

The

doctors noted that Alexis had not demonstrated any psychotic
symptoms in the months prior to the second evaluation and did
not require medication at the time of that evaluation.
A doctor for Alexis, by contrast, testified that Alexis’s
mental illness would impair his ability to assist in his
defense, thereby rendering him unfit to stand trial.

This

doctor did not believe that Alexis was malingering.

On the

other hand, the doctor admitted that Alexis seemed to understand
the roles of defense counsel, prosecutor, judge, and jury.

2

The court emphasized that Alexis’s paranoid schizophrenia
was not, in and of itself, sufficient to render him unfit to
stand trial; rather, the question was whether the mental illness
impaired his ability to cooperate in the judicial process.

In

this regard, the court credited the testimony of the People’s
doctors, finding that Alexis had refused to cooperate because he
was “unhappy . . . with his present situation . . . [and] with
the amount of time that he faces should he be convicted.”
Accordingly, the court ruled that Alexis was competent.
Following this ruling, Alexis received further inpatient
treatment at a psychiatric hospital.

Nonetheless, defense

counsel requested no further competency inquiry and the case
proceeded to trial.

The fact of Alexis’s hospitalization was

later brought to the attention of the trial court.
In January 2009, jury selection began.
in the courtroom was erratic.

Alexis’s behavior

On multiple occasions he

interrupted exchanges between the court and counsel with
indications that he was not ready to proceed to trial -- a
contention that he had never before raised.

The court

maintained that this sudden change in Alexis’s behavior on the
eve of trial seemed “too much of a coinciden[ce].”

The court

cautioned Alexis that his erratic behavior could cause him to be
removed from the courtroom and directed that jury selection
proceed.
3

The morning session of jury selection went forward without
incident.

Indeed, the court noted that Alexis had been “well

behaved” throughout the proceedings.

About halfway through the

afternoon session, however, Alexis interrupted the proceedings
to request a new lawyer.

The court reminded Alexis that when it

had previously granted his request for new counsel it had
cautioned that no further requests would be entertained.

Near

the end of the day, Alexis again attempted to interrupt the
proceedings, requiring court officers to forcibly make him sit.
After the prospective jurors were released for the evening,
Alexis complained that he was having difficulty breathing.

The

court offered Alexis a drink of water, but warned that it would
not tolerate further disruptive behavior.
The next day jury selection resumed.

Soon after

proceedings commenced, Alexis stood and began to struggle with
court officers, who eventually removed him from the courtroom.
At the court’s suggestion, defense counsel informed Alexis that
the trial would continue in his absence if he was unable to
behave.

Following this conversation, defense counsel advised

the court that Alexis had indicated he was “done for the day”
but would return to court the following morning.

After another

recess, however, defense counsel reported that Alexis wished to
return to the courtroom.

When he returned, the court again

explained that he had a right to be present provided that he did
4

not cause any “commotion” in front of the jury.

Alexis

indicated that he understood this instruction and would “try” to
behave appropriately.
At the end of the day, the court noted that Alexis had been
able to sit quietly with no problems.

Nonetheless, the court

reiterated its expectations regarding appropriate courtroom
conduct.

Alexis indicated that he understood that while he

would be permitted to speak with his lawyer during the
proceedings, he could not shout or stand without permission.
When trial began the following morning, the court asked
defense counsel to remind Alexis that he would be expected to
maintain good behavior throughout the proceedings.

Alexis

responded by asking whether he could call his family to come
pick him up.

After advising Alexis that this would not be

possible, the court reminded Alexis that he needed to behave in
the jury’s presence.

As the court greeted the jury, however,

Alexis stood, began to speak, and struggled with court officers.
The court excused the jury and granted defense counsel’s request
to speak privately with Alexis.

After this conversation,

defense counsel was unable to assure the court that Alexis would
behave.

The court therefore directed that Alexis be held

outside the courtroom, in close proximity, while the trial
proceeded.

The court asked defense counsel to explain to Alexis

5

that whenever he was willing to abide by the “rules of conduct,”
he could return to the courtroom.
While in an adjoining room, Alexis evidently began making
loud noises.

The trial judge instructed defense counsel to tell

Alexis that he would be removed from the vicinity if he could
not remain quiet.

Counsel reported that he “did not get a

response one way or the other” from Alexis.

The trial then

commenced with Alexis outside the courtroom.
During a mid-morning recess, defense counsel spoke with
Alexis but was unable to secure an assurance that he would
behave properly.

Nonetheless, at counsel’s request, the court

permitted Alexis to return to the courtroom, again remarking
that Alexis’s recent misbehavior, which was a departure from his
behavior during numerous previous appearances before the court,
seemed “too much of a coincidence.”
This pattern continued over the next several days.

At

times, Alexis expressed interest in attending the trial and
stated that he understood that he would need to behave.
other times, Alexis refused to attend.

At

As a result, Alexis did

not hear the testimony of ten witnesses.
At the end of trial, the jury returned a guilty verdict on
two counts each of Attempted Murder in the Second Degree,
Assault in the First Degree, and Assault in the Second Degree,
and on three counts of Attempted Assault in the First Degree.
6

Alexis was sentenced to an aggregate term of thirty-four years
in prison, to be followed by five years of post-release
supervision.

Following his conviction, Alexis was again

hospitalized due to his psychiatric disorder.
Alexis appealed to the Appellate Division, which affirmed,
and his ensuing application for leave to appeal to the Court of
Appeals was denied.

In 2011, Alexis filed a petition for a writ

of habeas corpus, which was referred to Magistrate Judge Maas.
DISCUSSION
In his habeas petition, Alexis presents what amounts to
five claims.

They are: (1) the trial court erroneously found

him competent to stand trial; (2) the trial court improperly
failed to hold a second hearing to reassess his competency in
light of subsequent signs of potential incompetency; (3) the
Appellate Division erred in failing to consider the fact that he
had been hospitalized again following his conviction; (4) the
jury erred in rejecting his affirmative defense of insanity; and
(5) the prosecution failed to prove his criminal intent beyond a
reasonable doubt.

The Report found that the fifth claim was

unexhausted and should be denied as procedurally defaulted.
recommended that the other four claims be denied under the
standards that apply to habeas claims.
Alexis’s objection pertains only to the portion of the
Report dealing with his argument that the trial court should
7

It

have held a second hearing to reassess his competency to stand
trial.

No objection has been made to the rest of the Report.

“To accept those portions of a report to which no timely
objection has been made, a district court need only satisfy
itself that there is no clear error on the face of the record.”
Deng v. 278 Gramercy Park Grp., LLC, No. 12cv7803 (DLC), 2014 WL
4996255, at *3 (S.D.N.Y. Oct. 7, 2014) (citation omitted).
Here, there is no clear error on the face of the record with
regard to the un-objected to portions of the Report.

Those

portions are thus accepted.
With regard to the objected-to portion, the court must
“make a de novo determination.”

28 U.S.C. § 636(b)(1).

Alexis

argues that he was denied due process by the trial court’s
failure to conduct an additional competency hearing after (i)
learning of his hospitalization following the initial hearing
and (ii) observing his behavior at trial.

This claim was also

pursued in state court, where it was rejected on the merits.
Where a state court has reached the merits of a claim,
habeas relief may not be granted unless the state court’s
decision was “contrary to or an unreasonable application of
clearly established federal law, as determined by the Supreme
Court of the United States” or “was based on an unreasonable
determination of facts in light of the evidence presented in the
State court proceeding.”

28 U.S.C. §§ 2254(d)(1)-(2).
8

Alexis

does not appear to contend, nor could he, that the state court’s
decision was based on an unreasonable determination of facts in
light of the evidence, precluding relief under § 2254(d)(2).

As

for relief under § 2254(d)(1), the term “clearly established
federal law as determined by the Supreme Court of the United
States” “refers to the holdings, as opposed to the dicta, of
th[e Supreme] Court’s decisions as of the time of the relevant
state-court decision.”

Williams v. Taylor, 529 U.S. 362, 412

(2000).
The Appellate Division disposed of Alexis’s due process
claim as follows:
Neither defendant’s brief psychiatric hospitalization
two months after the competency determination nor his
behavior at trial required the court to order a
further competency hearing or to reevaluate its prior
ruling. The fact that a defendant receives
psychiatric treatment from correctional authorities
shortly after a finding of competency does not
necessarily call that finding into question. At most,
the posthearing events confirmed the undisputed fact
that defendant was psychiatrically ill, but they cast
no doubt on the finding that his illness did not
prevent him from understanding the legal process or
assisting his attorney in his defense.
People v. Alexis, 921 N.Y.S.2d 210 (N.Y. App. Div. 2011)
(citation omitted).

Nothing in this decision of the Appellate

Division is contrary to or an unreasonable application of
clearly established federal law as determined by the U.S.
Supreme Court, which has never held that a second competency
hearing is required by psychiatric hospitalization following an
9

initial competency hearing, disruptive behavior at trial, or a
combination of these events.
The cases of Pate v. Robinson, 383 U.S. 375 (1966) and
Drope v. Missouri, 420 U.S. 162 (1975), cited by Alexis, are not
to the contrary.

In neither of those cases had the trial court

conducted a pretrial competency hearing.
In Robinson, a state statute called for a hearing to be
held if evidence raised a bona fide doubt as to a defendant’s
competency, but, despite having received abundant evidence of
Robinson’s persistent mental instability, the state court
concluded that a hearing was not necessary because of his
relatively alert demeanor before the court.

383 U.S. at 378-85.

The Supreme Court held that the state court’s failure to invoke
the statutory procedure in light of the overwhelming evidence of
mental instability unconstitutionally deprived Robinson of an
inquiry into his competency.

Id. at 385-86.

The Court

observed, “While Robinson’s demeanor at trial might be relevant
to the ultimate decision as to his sanity, it cannot be relied
upon to dispense with a hearing on that very issue.”

Id. at

386.
In Drope, the defendant was psychiatrically unstable and
attempted to commit suicide and was hospitalized during the
trial, which forced him to miss the remainder of the trial.
U.S. at 164-67.

No hearing on the defendant’s competency was

420

10

held until after he brought a post-conviction motion for relief,
which was denied.

Id. at 168-69.

The Supreme Court concluded

that there was “sufficient doubt” of the petitioner’s competence
to stand trial “to require further inquiry on the question.”
Id. at 180.

The Court explained:

The import of our decision in Pate v. Robinson is that
evidence of a defendant’s irrational behavior, his
demeanor at trial, and any prior medical opinion on
competence to stand trial are all relevant in
determining whether further inquiry is required, but
that even one of these factors standing alone may, in
some circumstances, be sufficient. There are, of
course, no fixed or immutable signs which invariably
indicate the need for further inquiry to determine
fitness to proceed; the question is often a difficult
one in which a wide range of manifestations and subtle
nuances are implicated. That they are difficult to
evaluate is suggested by the varying opinions trained
psychiatrists can entertain on the same facts.
Id. at 180.
Alexis’s case is sufficiently distinguishable from Robinson
and Drope that the state court’s rejection of Alexis’s due
process claim was neither contrary to nor an unreasonable
application of the holdings in those cases.

Unlike the state

courts in those cases, here, the trial court held a pretrial
competency hearing and received opinion evidence as to Alexis’s
competency to stand trial.

Nothing in the holdings of Robinson

and Drope required the trial court to hold a second hearing
after learning of Alexis’s hospitalization for a mental illness
that the court had already ruled did not, standing alone, render

11

Alexis incompetent, or witnessing his demeanor during trial.
Moreover, while Alexis was absent from the courtroom during the
testimony of several witnesses, unlike in Drope, the trial judge
and defense counsel could still observe Alexis to gauge from his
demeanor whether he was able to assist his attorney and to
understand the nature and object of the proceedings against him.
It is noteworthy that Alexis’s counsel never requested a second
competency hearing.
CONCLUSION
The Report is accepted.

Alexis’s petition for a writ of

habeas corpus is denied, and, as Alexis has not made a
substantial showing of a denial of a federal right, a
certificate of appealability shall not issue.

See 28 U.S.C.

§ 2253(c)(2); Hoffler v. Bezio, 726 F.3d 144, 154 (2d Cir.
2013).

The Clerk of Court shall dismiss the petition and close

the case.
SO ORDERED.
Dated:

New York, NY
October 20, 2014
__________________________________
DENISE COTE
United States District Judge

12

COPY SENT TO
Kenny Alexis
Clinton Correctional Facility
P.O. Box 2001
Dannemora, New York 12929

13