Norman Silverstein appeals from a January 6, 1982, decision of the District Court for the Southern District of New York (Stewart, J.) dismissing his petition for a writ of habeas corpus. After refusing to consider an unrelated, unexhausted claim, the district court held that federal consideration of the claim that Silverstein had been incompetent to stand trial was barred by the state court's finding of procedural default for failure to raise the competence issue on direct review of his conviction. Reversed and remanded with orders to issue the writ.
Lumbard, Mansfield and Kearse, Circuit Judges.
Norman Silverstein appeals from a January 6, 1982, order of Judge Stewart in the Southern District of New York dismissing his petition for a writ of habeas corpus. Silverstein is imprisoned in the New York State correction facility at Auburn, serving a nine-to-eighteen year sentence for armed robbery. The heart of his claim is that he was incompetent to stand trial and that his guilty plea was thus constitutionally void. The district court held, however, that relief on this claim was barred because Silverstein had neglected to raise the issue on his direct appeal. We reverse and direct that the writ be issued.
Silverstein is, allegedly, retarded and illiterate. He has an I.Q. of 74 and, according to one of his doctors, the mental age of a seven-year-old. He has not developed intellectually beyond the second grade level. He has a long institutional history, having been committed to Rockland State Hospital three times and held for observation at least once at Bellevue and Mid-Hudson State Hospitals. He has been diagnosed as possibly schizophrenic.*fn1
In 1976, Silverstein was arrested and indicted in Bronx County on several charges growing out of three "gunpoint" robberies allegedly committed with an accomplice. He was released on bail, defaulted and was arrested again on March 4, 1977.
One month later, about April 6, 1977, pursuant to court order, Silverstein was examined by two psychiatrists. Both agreed he was incompetent to stand trial. On April 12th Justice Goldfluss, of the New York Supreme Court in Bronx County, accepted the psychiatrists' report. The court stated for the record, "having examined such . . . . report, . . . it now appears to my satisfaction that the defendant as a result of the mental disease or defect lacks capacity to understand the proceedings against him or to assist in his defense." Accordingly, the court ordered Silverstein detained at Bellevue, pending transfer by the State Department of Mental Hygiene.
One week later, on April 19th, the Mid-Hudson Psychiatric Center informed the Bronx County district attorney that a third psychiatrist had found Silverstein competent to stand trial, allegedly on the basis of one fifteen-minute interview. In proceedings on May 20th, Justice Goldfluss accepted this third psychiatric report. A few moments later, per an agreement with the Bronx County district attorney, Silverstein pled guilty to one count of robbery in the first degree, armed robbery, under N.Y. Penal Law § 160.15(2) (McKinney 1975). All remaining charges were dropped. Neither the court nor Silverstein's counsel suggested that the disagreement between the three psychiatrists be resolved at a hearing, as required by N.Y. Crim. Proc. Law § 730.30(4) (McKinney, 1971).*fn2 Indeed, no hearing into Silverstein's competence to stand trial or to make a plea bargain was ever held.
The sentencing proceeding on June 21, 1977, again demonstrated Justice Goldfluss' knowledge that Silverstein "has had without question a psychiatric history," including a series of institutionalizations. The court expressed its "feeling that this defendant has a mental problem but the community must be protected against a defendant who [is] . . . a dangerous person and I am [,] in sentencing this defendant [,] making a specific recommendation . . . that [he] receive psychiatric care. In my opinion it is essential because . . . someday he will be discharged [and] we must make every effort to see that he is not discharged in the same mental manner in which he goes in." The court sentenced Silverstein to nine to eighteen years in prison.
Silverstein appealed his conviction. The psychiatric report finding him incompetent to stand trial apparently did not become part of the record.*fn3 Appellate counsel, who had not represented the defendant at trial, was allegedly never made aware of the conflicting psychiatric opinion concerning Silverstein's competence. In any event, appellate counsel failed to urge incompetence as a ground for vacating the conviction. Counsel failed to argue that the trial court had not complied with the procedural requirements of § 730.30 for determining competence. Counsel appealed only on the ground that the sentence was excessive in light of the defendant's diminished mental capacity and his lack of intent to harm his victims. The Appellate Division affirmed without opinion, 65 A.D.2d 679 (1978), and leave to appeal to the Court of Appeals was denied (Nov. 28, 1978).
On September 20, 1980, Silverstein, acting pro se, commenced the series of proceedings that culminated in this appeal. He petitioned the New York Supreme Court, Bronx County, under N.Y. Crim. Proc. Law § 440.10 (McKinney 1971) to vacate his conviction. He argued, inter alia, that he had never been aware of his right to a hearing on competence.*fn4 In any event, he argued, "petitioner although an adult is no more than a seven year old child incapable of understanding" his constitutional rights. Thus, "petitioner[,] an illiterate with the mentality of a seven year old[,] waved [sic] no such rights and [neither] counsel nor court had any right to wave [sic] his rights."
The state argued in response that Silverstein's petition should be dismissed under § 440.10(2)(c), which requires denial of relief where the grounds for setting aside the conviction could have been raised on direct appeal but were not. The state argued specifically that because appellate counsel had been provided with a copy of the psychiatric report finding the defendant competent, counsel could have raised on appeal the question of defendant's competence to stand trial.*fn5
Justice Goldfluss, who had first found defendant incompetent, then competent, and then accepted the guilty plea, also heard the § 440.10 motion to set aside the conviction. The court's one-sentence opinion dismissing the petition tacitly rejected the state's procedural default argument, resting the dismissal instead on the factually erroneous ground that ...