Opinion
No. 99 Civ. 12016 (RMB) (HBP)
March 13, 2001
Mr. Ivan Barton, No. 95A4136, Great Meadow Correctional Facility, P.O. Box 51, Comstock, New York 12821-0051
Lee Alan Alderstein, Esq., Assistant Attorney General, State of New York, 120 Broadway, New York, New York 10271-0332
MEMORANDUM OPINION AND ORDER
Petitioner, a prisoner in the custody of the New York State Department of Correctional Services, has filed a petition for a writ of habeas corpus in which he seeks to challenge his 1995 conviction for three counts of robbery in the first degree and three counts of robbery in the second degree, in violation of New York Penal Law Sections 160.15(4) and 160.10(1), respectively. In connection with that petition, petitioner moves for an evidentiary hearing and for financial assistance. For the reasons stated below, both motions are denied without prejudice to renewal.
The claim most relevant to the present motions is petitioner's argument that he was incompetent at his trial based on his inability to see. After his arrest but substantially before his trial, two pairs of prescription eyeglasses were taken from petitioner by the police. The eyeglasses were subsequently marked as exhibits at petitioner's trial. Petitioner claims that the seizure of his eyeglasses left him so unable to perceive the witnesses and the jurors that he was, effectively, rendered incompetent. In his present motions, petitioner claims that he needs financial assistance to hire an expert ophthalmologist to testify to the severity of his visual deficit and that a hearing is necessary to develop this issue.
Assuming, without deciding, that the seizure, without replacement, of the mechanical aids required by a criminal defendant to perceive his trial constitutes a constitutional violation, it is by no means clear at this time that petitioner can assert such a claim here. Despite several direct exchanges between petitioner and the Trial Judge during the course of the trial, the transcript of petitioner's trial reflects no objection by petitioner that he was unable to perceive the proceedings at his trial. Petitioner first asserted this claim before the state courts in an October 25, 1997 pro se motion to vacate his conviction pursuant to N.Y. Crim. Proc. L. § 440.10 (Affirmation of Assistant Attorney general Lee Alderstein, dated July 10, 2000 ("Alderstein Aff."), Ex. E). Petitioner offered no evidence in connection with this motion other than his own statements that he could not observe the proceedings without his glasses, that the deprivation of his glasses caused him to suffer headaches and dizzy spells and that he was, thereby, rendered incompetent.
The prosecution opposed this motion, arguing that it was procedurally defective. The prosecution's brief in opposition to the motion stated:
It should be noted that the procedural defects in the motion itself would be sufficient reason to deny the motion in its entirety. The defendant has filed only an affidavit and nothing else. He has thus failed to support any of his claims.
C.P.L. § 440.30(4)(d) provides that:
"Upon considering the merits of the motion, the court may deny it without conducting a hearing if: (d) An allegation of fact essential to support the motion (i) is contradicted by a court record or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true." Id.
The defendant's motion consists entirely of conclusory statements made by him. He does not make any specific allegations or submit any papers to establish facts outside the record, for this Court to consider. Such bare allegation[s] are insufficient as a matter of law to support the extreme remedy of vacatur of judgment. See People v. Jesse Taylor, 211 A.D.2d 603, 621 N.Y.S.2d 877 (1st Dept. 1995) (defendants' own affidavit and affidavit by defense counsel with no personal knowledge insufficient to support vacating judgment pursuant to C.P.L. § 440.10)
(Alderstein Aff. Ex. F at 2-3)
In ruling on petitioner's motion, the Trial Court expressly rejected petitioner's claim of incompetence on the procedural grounds asserted by the prosecution.
The defendant claims in his motion to vacate the judgment of conviction that he was denied his right to a speedy trial, that he was incompetent to stand trial because he did not have his eyeglasses, and that he was denied his right to effective assistance of counsel. These claims are unsupported beyond the conclusory allegations offered by the defendant. . . . The motion is denied pursuant to CPL § 440.30(4).
(Alderstein Aff. Ex. G at 3).
Although I am not finally deciding the issue at this time, it appears, at least preliminarily, that petitioner's claim that he was incompetent at trial is procedurally barred. The opinion of the Trial Court quoted above is the last reasoned decision from a state court addressing the claim and expressly states that the claim is being rejected "pursuant to" state procedural requirements. At the very least, this analysis presents a serious issue of procedural bar. See generally Jones v. Stinson, 229 F.3d 112, 117-18 (2d Cir. 2000)
If petitioner's claim of incompetence at trial is procedurally barred, the factual development petitioner seeks to accomplish through his present motions will be immaterial. Accordingly, I conclude that allocating funds for an expert witness or directing that a hearing be held are premature at this time.
Petitioner also argues that funds should be allocated to enable him to purchase a transcript of his trial and to facilitate his copying of the papers that he seeks to submit to the Court. Although petitioner's need for the trial transcript is not entirely clear since the petition has already been filed, a copy of the trial transcript that has been filed with this Court is being provided to petitioner with a copy of this Order, pursuant to 28 U.S.C. § 2250. As to the latter reason offered by petitioner, funds for copying are not available as a matter of course in connection with habeas corpus proceedings and petitioner has not cited any facts that differentiate his petition from the other habeas corpus proceedings filed in this court.
Finally, to the extent that petitioner makes a generalized claim that issues other than his putative incompetence require an evidentiary hearing, petitioner has not identified any specific material issues of fact that could be resolved at a hearing, and, thus, there does not appear to be any need for a hearing at this time.
Accordingly, for all the foregoing reasons, petitioner's motions for an evidentiary hearing and for financial assistance are denied without prejudice to renewal.
Finally, if petitioner wishes to submit additional information explaining why his claim of incompetence at trial is not procedurally barred, he is directed to do so within thirty (30) days of the date of this Opinion and Order. A procedural bar may be overcome by showing (1) cause for the failure to comply with state procedural requirements and prejudice from the defaulted error, or (2) that application of the procedural bar would result in a fundamental miscarriage of justice, i.e., application of the procedural bar would prevent the petitioner from showing that he is actually innocent. See generally Fama v. Commissioner of Correctional Services, 235 F.3d 804, 809 (2d Cir. 2000); Spence v. Superintendent, 219 F.3d 162, 170-71 (2d Cir. 2000)
SO ORDERED