Davalloo v. Kaplan

          ORDER FOR PETITIONER TO FILE SUPPLEMENTAL NOTICE

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

         On February 28, 2017, petitioner, Sheila Davalloo, an inmate currently incarcerated at the Bedford Hills Correctional Institution in Bedford Hills, New York, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the Southern District of New York challenging her Connecticut conviction for murder. Pet., ECF No. 1 (Feb. 28, 2017).

         Ms. Davalloo raises three claims in support of her petition: (1) the trial court improperly admitted evidence of conversations she had with her husband, which were protected by Connecticut's marital privilege statute; (2) the trial court improperly admitted evidence of uncharged misconduct, including her attempted murder of her husband and statements to her husband about surveilling the victim, and (3) she “did not voluntarily and knowingly waiver her right to counsel.” Id. at 5-8.

         On July 18, 2017, Ms. Davalloo's case was transferred to the District of Connecticut. Order, ECF No. 17 (July 18, 2017).

         On November 8, 2017, Respondents submitted a written opposition to the petition. Resp't Mem. in Opp. to Pet., ECF No. 25 (Nov. 8, 2017). In support of their opposition, Respondents filed thirty-six documents, labeled as Appendices A through N, of filings and judgments from the New York and Connecticut state cases in which Ms. Davalloo was convicted. See, Docket Entries, ECF Nos. 25-1 through 25-36 (Nov. 8, 2017).

         On January 16, 2018, Petitioner filed an objection to Respondents' opposition. Pet'r Obj. to Resp't Mem. in Opp., ECF No. 27 (Jan. 16, 2018).

         In support of her third ground for habeas relief, Ms. Davalloo appears to be arguing that the trial court failed to inquire into her competency to waive counsel. See Pet. at 8-9 (describing history of mental illness and failure of mental health evaluators to opine on competency to waive counsel); Pet'r Obj. at 7-8 (arguing failure of state courts to apply Connecticut Supreme Court and United States Supreme Court precedent on competency to waive counsel). Although Ms. Davalloo asserted that she raised this claim in state court, Pet. at 9; the Court's review of her appellate court filings and state court judgments shows otherwise.

         On direct appeal, Ms. Davalloo argued that the trial court erred in finding a knowing, intelligent, and voluntary waiver of counsel. Pet'r Appellate Ct. Brief, Resp't App. C, ECF No. 25-3 at 46-50 (Aug. 30, 2013).

         Whether an accused possesses the mental competency to waive counsel, however, is a separate inquiry from whether her waiver was knowing, intelligent, and voluntary. As the U.S. Supreme has held:

The focus of a competency inquiry is the defendant's mental capacity; the question is whether he has the ability to understand the proceedings. The purpose of the ‘knowing and voluntary' inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.

Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993) (emphasis in the original) (internal citations omitted); see Wright v. Bowersox, 720 F.3d 979, 985 n.5 (8th Cir. 2013) (“A defendant's waiver of his right to counsel must also be knowing and voluntary, but this is a separate and distinct inquiry from whether he is competent to waive his right to counsel.” (emphasis in the original)).

         Ms. Davalloo did not challenge the trial court's failure to inquire into her competency to waive counsel on direct appeal; she challenged only its finding of a knowing, intelligent, and voluntary waiver.^[1] Therefore, to the extent petitioner is now challenging the trial court's failure to inquire into her competency to waive counsel, such a claim is unexhausted.

         In light of the foregoing, the Court hereby ORDERS Petitioner to file a notice with this Court by February 14, 2020, indicating whether she wishes to (a) exhaust the competency claim in state court before this Court rules on her federal petition; or (b) waive the competency claim and limit her third ground for habeas relief to whether the trial court erred in finding a knowing, intelligent, and voluntary waiver.

         If Ms. Davalloo chooses to exhaust her competency claim in state court, this Court will deny her federal habeas petition without prejudice subject to re-opening after the claim is fully exhausted. See Fine v. Erfe, No. 3:17-cv-531 (AWT), 2017 WL 1362682, at *4 (D. Conn. Apr. 11, 2017) (“[D]ismiss[ing a habeas petition] without prejudice to reopening the case after completion of the exhaustion process. . . . provides the same protection as the issuance of a stay pending exhaustion.”); Rhines v. Weber, 544 U.S. 269, 277 (2005) (“Staying a federal habeas petition frustrates [the Antiterrorism and Effective Death Penalty Act of 1996]'s objective of encouraging finality by allowing a petitioner to delay the ...