CORONADO v. LEFEVRE

No. 87 Civ. 2539 (RJW)

748 F. Supp. 131 (1990) | Cited 0 times | S.D. New York | October 1, 1990

OPINION

Rolando Coronado petitions this Court pro se for a writ ofhabeas corpus pursuant to 28 U.S.C. § 2254. By order datedApril 16, 1987, the petition was referred to the Honorable JoelJ. Tyler, United States Magistrate, to hear and report pursuantto 28 U.S.C. § 636(b)(1) and Rule 4 of the Local Rules forProceedings Before Magistrates. On September 7, 1989,Magistrate Tyler filed a Report and Recommendation (the"Report") in which he recommended that the writ be denied andthe petition dismissed. Petitioner filed timely objections tothe Report on May 17, 1990.1 Having reviewed the Report andconsidered de novo those portions to which petitioner hasobjected, the Court hereby adopts the magistrate'srecommendations, denies petitioner's writ of habeas corpus, anddismisses the petition.

BACKGROUND

Petitioner was convicted, on January 18, 1985, after atwo-week bench trial in the Supreme Court of the State of NewYork, Bronx County, of Murder in the Second Degree and twocounts of Criminal Possession of a Weapon in the Fourth Degree(New York Penal Law, §§ 125.25(1) and 265.01) in connectionwith the death of Sonia Gutierrez ("Gutierrez"), a 13-year oldstudent at Junior High School 52 ("JHS 52") in Manhattan.Gutierrez was found murdered on April 16, 1983, on Boone Avenuein the Bronx. Wrapped around her body was a metallicgold-colored belt.

The evidence implicating petitioner in the murder ofGutierrez originated in part from an assault on Roberto Perez("Perez") on May 21, 1983. According to Perez, a 17-year oldstudent attending JHS 52, on that night petitioner approachedhim from behind, put a knife to his back and demanded hiswallet. Although Perez offered his wallet to petitioner, Pereztestified that petitioner refused to take it. Petitionerinstead placed a blindfold on Perez's face, and forced him towalk for "hours" through the streets of the Upper West Side ofManhattan. Before leading Perez into Riverside Park ("thepark"), petitioner kicked and hit Perez in an alley, and toldhim that it was "just a shame that its got to happen again."

Later, while in the park, petitioner asked Perez what schoolhe attended. Perez stated that he went to JHS 52. Petitioner,who had graduated from JHS 52 in 1979, asked Perez if he knewa boy named Danny. Perez told him that he did. Petitioner andPerez then had a conversation regarding Danny, whereuponpetitioner inquired whether "anything interesting had happenedin the school recently?" Perez responded that a girl had beenkilled. Accordingto Perez, petitioner then stated: "I want you to know I killedher and if you don't shut up, I'm going to have to kill youtoo."

Sometime after this conversation, Perez tried to escape.Petitioner grabbed him, stabbed him in the back several times,and left him for dead in the park, discarding the knife innearby bushes. Perez regained consciousness at Mt. SinaiHospital ("Mt. Sinai") the following day. There he wasexamined by a psychiatrist who concluded that Perez wassuffering from visual and auditory hallucinations andrecommended that he be subjected to further psychiatricevaluation.2

Also on May 22, the day after the stabbing, petitioner wentto the 20th Precinct to confess to the murder of Perez,believing that he had killed him the night before in the park.The police attempted to confirm the story. However, since nomurder had been reported in the park, petitioner was released.

After Perez spoke with the police and confirmed an attack inthe park, petitioner was arrested by Detectives Robert Subach("Subach") and Carlos Rivera ("Rivera") and taken intocustody.

At the police station, Subach and Rivera brought petitionerto an interrogation room. Petitioner was read his rightspursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16L.Ed.2d 694 (1966), whereupon he told Subach and Rivera that heunderstood his rights and that he wished to speak to them.Subach and Rivera told petitioner that he was being arrestedfor the stabbing of Perez and that he was under investigationfor the murder of Gutierrez. The interrogation lastedapproximately nine hours, from 3:00 or 3:30 P.M. on May 31,1983, to 1:00 or 1:30 A.M. on June 1, 1983, and ended with avideotaped statement by petitioner in the presence of AssistantDistrict Attorneys from both New York and Bronx Counties.

During the interrogation, petitioner made severalstatements. He confessed to the Perez stabbing, and also totwo murders, which police could not confirm. He repeatedlytold the detectives that he liked to watch people suffer andenjoyed terrifying others. He stated that he used drugs on adaily basis.3 Although petitioner continually denied anyinvolvement in, or knowledge of, the murder of Gutierrez, heasked the detectives "how he could drive and hold her[Gutierrez] at the same time," even though the detectives didnot tell petitioner that Gutierrez's body had been transportedby car to the Bronx. Additionally, when petitioner saw apicture of the deceased he stated, "good-bye Sonia, I guessits all over."4 Petitioner also suggested that he did notmind telling the police about Perez since they already knewabout him, but that they would have to "figure out" whathappened to Gutierrez, since they knew nothing about her.

Petitioner pled guilty to charges relating to the assault onPerez, and was sentenced to a term of 8 to 16 years. He waslater indicted by a Bronx grand jury for Murder in the SecondDegree and two counts of Criminal Possession of a Weapon inthe Fourth Degree (one count was later dropped), in relationto the Gutierrez murder.

Prior to trial for the Gutierrez murder, a suppressionhearing was held before the trial judge, the Honorable ElbertHinkson. The prosecution sought the admission of all ofpetitioner's statements to the detectives,a videotape of the crime scene showing the body of Gutierrez,and the identification of petitioner by Perez and all ofpetitioner's statements to Perez. Petitioner moved forsuppression of the statements he made to the detectives on theground that they were not made voluntarily; of Perez'stestimony and identification on the grounds that Perez wasmentally unstable5 and the identification procedure undulysuggestive; and the videotape of the crime scene due to itshighly prejudicial nature and low probative value.

The detectives testified at the hearing that petitioner wasalways responsive to their questions during the interrogationsession, and that he was generally calm. However, they alsostated that petitioner seemed to have "severe psychiatricproblems," that he seemed to be "missing a few parts" and thathe was "crazy as a bedbug." They stated that there were breaksduring the interrogation while petitioner ate dinner, used thebathroom, and watched some television.

Judge Hinkson's ruling on these issues included findings offact and conclusions of law. He suppressed much of theevidence that was proffered by the prosecution during thecourse of the hearing,6 primarily on the ground that itsprobative value was outweighed by the extreme prejudice thatit would cause to the defendant. With respect to thestatements made by petitioner to the detectives, the judgefound that "the record clearly established that the defendantwas fully aware of the statements he was making [to thedetectives];" that "he responded to questions in a clear andrational manner," and that "there is no definitive indicationof mental disease attributable to the defendant." JudgeHinkson determined that although petitioner was interrogatedfor nine hours, he was not questioned continuously, for he wasfed, went to the bathroom, and watched television for a periodof time.

Regarding Perez, the Judge found that he had beenhospitalized for physical, and not mental reasons, and thatalthough Perez had hallucinations and his recitation of eventswere "bizarre," this was "clearly understandable consideringthe traumatic ordeal he had just experienced." The judgeconcluded that Perez's "recounting of the ordeal . . . [was]at a minimum substantially factual."

After Judge Hinkson announced his decision, petitioner askedthat his attorney be relieved since he was urging petitionerto plead guilty on all counts. The Court reserved decision,but later denied the application. Petitioner then requested anon-jury trial, over the vociferous objections of his counsel.The Court again reserved decision, and told petitioner to"discuss the matter very thoroughly with [his] attorney andgive it a great deal of thought overnight." The following day,Judge Hinkson warned petitioner of the risks of a non-jurytrial. He explained to petitioner the possible prejudice thatcould occur against him. However, petitioner insisted onwaiving his right to a jury trial.

Petitioner's attorney then requested that a competencyhearing be held to determine petitioner's mental state.7The hearing was held before Judge Hinkson on January 3 and 4,1985. At the hearing, the prosecution called as witnesses twopsychiatrists who had examined petitioner several weeksearlier to evaluate his competency to stand trial. Bothtestified that it was their opinion that petitioner wascompetent to stand trial, since he had the ability to assistin his defense and to understand the charges against him.Petitioner did not present any evidence as to his competencyat the hearing.

Following the testimony of the witnesses and argument ofcounsel, Judge Hinkson concluded that petitioner was competentto stand trial and assist in his own defense. He alsodetermined that petitioner had the capacity to understand theconsequences of waiving his right to a jury trial, and thatthere was no evidence of any mental disease. At the close ofthe hearing, Judge Hinkson again asked petitioner if he wishedto waive his right to a jury trial. Petitioner stated that hedid. During a colloquy with the court, petitioner said that heunderstood the effects of his decision, but still wished towaive his right to a jury trial. Judge Hinkson found thatpetitioner understood what he was doing, and grantedpetitioner's application. Petitioner then signed a writtenwaiver.

The case was tried before Judge Hinkson. A number ofwitnesses were called by both the prosecution and thedefense.8 The first significant witness called by theprosecution was Subach. His direct testimony related to theinvestigation and subsequent interrogation of petitioner. Hetestified to petitioner's admissions concerning his attack onPerez and to petitioner's statements that linked him to theGutierrez homicide.9

Next to testify was Perez. Perez first recounted the eventsthat occurred the night of May 21, 1983, when petitionerassaulted him in the park, as circumscribed by Judge Hinkson'srulings at the suppression hearing. Perez testified that afterthey had discussed the murder at JHS 52, petitioner told himthat "it was a shame that it had to happen again," and that "Ijust want you to know that I killed her, and if you don't shutup I'm going to have to kill you too."

The prosecution also called Abigail Alvarez ("Alvarez"), afriend of Gutierrez from JHS 52. Alvarez testified that shehad seen Gutierrez with petitioner a few times; that the twohad a relationship which was symbolized by the wearing of eachother's clothes or jewelry (in this case the gold belt); andthat just before Gutierrez was killed, she and petitioner hadargued over the fact that her parents would not let her go outon dates.

The defense called Gutierrez's sister as a witness. Shetestified that although she and Gutierrez had shared a roomand did all of their shopping together, she had never seen thegold belt prior to Gutierrez's death. She also testified thatwhile Gutierrez said that a "big boy" was in "love with her,"Gutierrez had never mentioned petitioner's name. Additionally,she testified that she had never seen either Alvarez orpetitioner previous to that day in court.

Gutierrez's step-mother also testified for the defense. LikeGutierrez's sister, she stated that she had never seen thegold belt, and that Gutierrez had stated before she was killedthat an older boy was in love with her. The witness alsotestified that Gutierrez never asked her if she could go outon a date. In addition, the court reporter who had taken downthe grand jury proceedings testified that during the grandjury proceedings Perez had testified that petitioner asked himif he knew a girl named "Dinah" at JHS 52, and not about agirl "dying," and the psychiatrist who had examined Perezfollowing the stabbing testified as to her evaluation ofPerez' mental condition at that time.

After hearing closing arguments, the court reserveddecision. When it rendered its verdict four days later, thecourt concluded that "after along [sic] and due deliberation"petitioner is "guilty in the first count of the indictment,the crime of Murder in the Second Degree; under the secondcount of the indictment the defendant is found guilty of thecrime of Criminal Possession of a Weapon in the FourthDegree." Petitioner was sentenced on February 13, 1985, byJudge Hinkson, to concurrent sentences of 25 years to life,and one year, to be served consecutively to the 8 to 16 yearsentence petitioner received for the assault on Perez.

On appeal to the Appellate Division, First Department,petitioner argued that he did not voluntarily, knowingly andintelligently waive his Miranda rights prior to interrogation;that he did not knowingly and intelligently waive his right toa jury trial; that the evidence presented at the trial wasinsufficient to prove guilt beyond a reasonable doubt; and thatthe sentence imposed was excessive. The Appellate Division,First Department unanimously affirmed petitioner's convictionwithout opinion. People v. Coronado, 502 N.Y.S.2d 315,120 A.D.2d 993 (1986). Leave to appeal to the New York Court ofAppeals was denied. People v. Coronado, 506 N.Y.S.2d 1043,497 N.E.2d 713, 68 N.Y.2d 756 (1986).

After thus exhausting his available state remedies,petitioner brought the instant petition asserting threegrounds for relief, as follows:

1) that he did not knowingly, intelligently and voluntarilywaive his Miranda rights prior to police interrogation;

2) that he did not knowingly and intelligently waive hisright to a jury trial; and

3) that his guilt was not established beyond a reasonabledoubt due to the weak and equivocal evidence adduced at trial.

DISCUSSION

To accept the report and recommendation of a magistrate towhich no timely objection has been made, a district court needonly satisfy itself that there is no clear error on the faceof the record. See Rule 72, Fed.R.Civ.P., Notes of AdvisoryCommittee on Rules (citing Campbell v. United States DistrictCourt, 501 F.2d 196, 206 (9th Cir.), cert. denied,419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974)).28 U.S.C. § 636(b)(1) affords the district court broad latitude inconsidering a magistrate's recommendation, even if no partyobjects to it. Grassia v. Scully, 892 F.2d 16, 19 (2nd Cir.1989). However, when timely objection has been made to aportion or portions of a magistrate's report, the districtjudge must "make a de novo determination . . . of any portionof the magistrate's disposition to which specific writtenobjection has been made." Rule 72(b), Fed.R.Civ.P.; See also28 U.S.C. § 636(b)(1). The judge may then accept, reject, or modify,in whole or in part, the magistrate's proposed findings andrecommendations. 28 U.S.C. § 636(b)(1).

A district court's obligation to make a de novo determinationof properly contested portions of a magistrate's report doesnot require that the judge conduct a de novo hearing on thematter. United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct.2406, 2412, 65 L.Ed.2d 424 (1980). It is sufficient that thedistrict court "arrive at its own, independent conclusion aboutthose portions of the magistrate's report to which objection ismade." Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983).To this end, the court must "exercise . . . sound judicialdiscretion with respect to whether reliance should be placed on[the magistrate's] findings." American Express Int'l BankingCorp. v. Sabet, 512 F. Supp. 472, 473 (S.D.N.Y. 1981), aff'dwithout opinion, 697 F.2d 287 (2nd Cir.), cert. denied,459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982).

In the instant case, petitioner filed timely objections tothe magistrate's Report. The Court has reviewed de novo thoseportions of the Report to which petitioner has objected.Petitioner, in his objections, has failed to raise any argumentthat would justify granting the petition. Thus, the Courthereby adopts the magistrate's recommendations.

1. Waiver of Miranda rights

Petitioner's first ground for relief is that he did notvoluntarily, knowingly and intelligently waive hisMiranda rights prior to police interrogation. Petitioner claimsthat he was suffering from mental illness at the time he wasinterrogated. He relies on certain statements made by thedetectives at the suppression hearing, such as "he's[petitioner] missing a few parts" and "he [petitioner] wascrazy as a bedbug." Petitioner also asserts that just before hewas interrogated, he swallowed five pills of mescaline. Heclaims that due to his illness and ingestion of drugs, hewas impaired, and thus could not have waived hisMiranda rights voluntarily, knowingly and intelligently.

Under 28 U.S.C. § 2254(d), state court findings of fact aregiven a presumption of correctness in a federal habeas corpusproceeding unless one of eight enumerated exceptions applies.28 U.S.C. § 2254(d).10 The presumption of correctnessapplies to factual determinations made either by a state trialcourt or an appellate court. Sumner v. Mata, 449 U.S. 539,544-47, 101 S.Ct. 764, 767-69, 66 L.Ed.2d 722 (1981). Althougha federal court is required to presume a state court's findingof fact to be correct, it is also required to conduct anindependent review of any conclusions of law. See Miller v.Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985);Wainwright v. Witt, 469 U.S. 412, 429-30, 105 S.Ct. 844,854-55, 83 L.Ed.2d 841 (1985).

It has been noted that it is not always readily apparentwhether the resolution of a particular issue turns on aquestion of fact or one of law. Miller v. Fenton, supra, 474U.S. at 113, 106 S.Ct. at 451. Although Courts of Appeals inother circuits have disagreed as to whether the determinationthat a waiver was made voluntarily, knowingly and intelligentlyis a factual or legal inquiry, compare Bryan v. Warden,820 F.2d 217, 219 (7th Cir. 1987), cert. denied, 484 U.S. 867, 108S.Ct. 190, 98 L.Ed.2d 142 (1987) (voluntariness of a waiver ofMiranda rights is a question of fact entitled to a presumptionof correctness) with Ahmad v. Redman, 782 F.2d 409, 413(3d Cir. 1986), cert. denied, 479 U.S. 831, 107 S.Ct. 119, 93L.Ed.2d 66 (voluntariness of waiver is a mixed question of factand law subject to independent review by federal habeascourts), in this circuit it has been held that a state court'sfinding that a waiver was voluntary, knowing and intelligent isa legal inquiry subject to de novo review. Toste v. Lopes,861 F.2d 782, 783 (2d Cir. 1988), cert. denied sub nom. Toste v.Meachum, ___ U.S. ___, 109 S.Ct. 3170, 104 L.Ed.2d 1032 (1989)("[t]he validity of a waiver is a matter for independentfederal determination") (quoting Brewer v. Williams,430 U.S. 387, 403-04, 97 S.Ct. 1232, 1241-42, 51 L.Ed.2d 424 (1977)).See also Miller v. Fenton, supra, 474 U.S. at 113, 106 S.Ct. at451 (voluntariness of confession a matter for independentfederal review). Nonetheless, subsidiary factual conclusions ofa state court must be given a presumption of correctness by afederal court on habeas corpus review. Miller v. Fenton, supra,474 U.S. at 112, 106 S.Ct. at 450; Ahmad v. Redman, supra, 782F.2d at 412.

The inquiry into whether a person has voluntarily, knowinglyand intelligently waived his Miranda rights "has two distinctdimensions." Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct.1135, 1141, 89 L.Ed.2d 410 (1986) (quoting Edwards v. Arizona,451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981)and Brewer v. Williams, supra, 430 U.S. at 404, 97 S.Ct. at1242):

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Moran v. Burbine, supra, 475 U.S. at 421, 106 S.Ct. at 1141(quoting Fare v. C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61L.Ed.2d 197 (1979)).

With respect to the first dimension — that of voluntariness— the focus of the inquiry is on the conduct of the police.Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d473 (1986). Coercive police activity is "a necessary predicate"to finding that a waiver of Miranda rights was not voluntary.Id. 479 U.S. at 167, 107 S.Ct. at 522. The fifth amendmentprivilege is "not concerned with moral and psychologicalpressures to confess emanating from sources other than officialcoercion." Oregon v. Elstad, 470 U.S. 298, 304-05, 105 S.Ct.1285, 1290, 84 L.Ed.2d 222 (1985). Rather, the voluntariness ofa waiver of an individual's Miranda rights has "always dependedon the absence of police over-reaching. . . ." Colorado v.Connelly, supra, 479 U.S. at 170, 107 S.Ct. at 523.

Petitioner claims that he did not voluntarily waive hisMiranda rights. The trial court found that althoughpetitioner's interrogation lasted for approximately nine hours,it was not continuous. The detectives fed petitioner, let himuse the bathroom, and allowed him to watch television for anextended period of time. It appears that petitioner answeredthe questions freely, and was described by the detectives as"always responsive." Presuming these subsidiary factualfindings to be correct, and having carefully reviewed therecord, the Court finds after an independent legal review thatno coercion or duress occurred, and that petitioner voluntarilywaived his Miranda rights prior to interrogation.

With respect to the second dimension of inquiry — whetherthe waiver was knowing and intelligent — the focus is solelyon the mental ability of the individual. Perri v. Director,Dep't of Corrections, 817 F.2d 448, 452 (7th Cir.), cert.denied sub nom Perri v. Lane, 484 U.S. 843, 108 S.Ct. 135, 98L.Ed.2d 92 (1987). In order for a waiver to be knowing andintelligent, a person must understand and comprehend the rightin question as well as the consequences of abandoning thatright. Moran v. Burbine, supra, 475 U.S. at 423, 106 S.Ct. at1141.

However, a full appreciation of all the consequences of awaiver is not necessary for the waiver to be knowing andintelligent. Oregon v. Elstad, supra, 470 U.S. at 316, 105S.Ct. at 1296; Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct.851, 857, 93 L.Ed.2d 954 (1987). Rather, the suspect need onlyunderstand that he has the right to remain silent, the right torequest an attorney, and that "anything he says may be usedagainst him." Toste v. Lopes, 701 F. Supp. 306, 312 (D.Conn.1987), aff'd, 861 F.2d 782 (2d Cir. 1988), cert. deniedsub nom. Toste v. Meachum, ___ U.S. ___, 109 S.Ct. 3170, 104L.Ed.2d 1032 (1989).

Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.

Moran v. Burbine, supra, 475 U.S. at 422, 106 S.Ct. at 1141.

Petitioner does not dispute that he was read hisMiranda rights prior to the interrogation. He also concedesthat after the detectives had read him his rights, he statedthat he understood them and that he still wished to speak withthem. The trial court found that "the record clearlyestablished that the defendant was fully aware of thestatements he was making. He responded to questions in a clearand rational manner." The trial court also determined thatthere was no indication of mental disease attributable topetitioner and that his ability to be attentive was unimpairedby drugs. Based on these subsidiary findings of fact, the Courtdetermines that petitioner knowingly and intelligently waivedhis Miranda rights. Accordingly, petitioner's first ground forrelief is rejected.

2. Waiver of jury trial

Petitioner's second ground for relief is that he did notknowingly and intelligently waive his right to a jury trial.He claims that the trial judge should not have granted hisrequest for a bench trial over the vigorous objections of hisattorney, and in light of the highly inflammatory evidencethat the judge had heard during the suppression hearings.

As previously noted, state court findings of fact must begiven a presumption of correctness by a federal habeas court,and must be upheld unless those factual findings are notfairly supported by the record. 28 U.S.C. § 2254(d). See Sumnerv. Mata, supra, 449 U.S. at 544, 101 S.Ct. at 767. Thismandate, however, applies only to matters of "historical" factand subsidiary factual determinations drawn from the historicalfacts; it does not apply to questions of law or mixed questionsof fact and law. Id. at 545, 101 S.Ct. at 768.

The Second Circuit has held that a state court's findingthat a waiver of a jury trial was knowing and intelligent isa mixed question of fact and law, subject to federal de novoreview. Matusiak v. Kelly, 786 F.2d 536, 543 (2d Cir.), cert.dism'd, 479 U.S. 805, 107 S.Ct. 248, 93 L.Ed.2d 172(1986).11 See also United States ex rel. Williams v.DeRobertis, 538 F. Supp. 899 (N.D.Ill. 1982), rev'd on othergrounds, 715 F.2d 1174 (7th Cir. 1983), cert. denied,464 U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984); Phillips v. Murphy,796 F.2d 1303 (10th Cir. 1986).

The right to trial by jury is "fundamental to Americancriminal jurisprudence." United States v. Martin, 704 F.2d 267,271 (6th Cir. 1983), and is explicitly protected by theConstitution. U.S. Const. Art. III, § 2. Since the right is sofundamental, it is not to be dispensed with routinely. Pattonv. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854(1930). In order for a waiver of this right to be valid, itmust be "express and intelligent," Patton v. United States,supra, 281 U.S. at 276, 50 S.Ct. at 253, and must comport withthe waiver standard formulated in Johnson v. Zerbst,304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Adams v.United States, 317 U.S. 269, 275-78, 63 S.Ct. 236, 240-41, 87L.Ed. 268 (1942). See Schneckloth v. Bustamonte, 412 U.S. 218,237, 93 S.Ct. 2041, 2052, 36 L.Ed.2d 854 (1973). To be validunder Johnson v. Zerbst, a waiver of certain constitutionalrights must amount to an "intentional relinquishment of a knownright or privilege." Johnson v. Zerbst, supra, 304 U.S. at 464,58 S.Ct. at 1023. "Waivers of constitutional rights must notonly be voluntary, but must also be knowing, intelligent actsdone with sufficient awareness of the relevant circumstancesand likely consequences." Brady v. United States, 397 U.S. 742,748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970).

In the instant case, petitioner does not contest thevoluntariness of his waiver of a jury trial.12 Instead, hedirects his attack solely at the second dimension of thewaiver inquiry, arguing that the waiver was not knowing andintelligent. In order for a waiver to have been knowing andintelligent, the defendant must have understood the "nature ofthe right" and the consequences of waiving that right.Estrada v. United States, 457 F.2d 255, 256 (7th Cir.), cert.denied, 409 U.S. 858, 93 S.Ct. 143, 34 L.Ed.2d 104 (1972). SeeBoykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709,1712-13, 23 L.Ed.2d 274 (1969).

Waiver cannot be inferred from a silent record; there mustbe "an affirmative showing that [the waiver] was intelligentand voluntary." Boykin v. Alabama, supra, 395 U.S. at 242, 89S.Ct. at 1711. The fact that a defendant has counsel is alsorelevant to determining whether he knowingly waived his rightto a jury trial. United States ex rel. Williams v. DeRobertis,supra, 715 F.2d at 1175. In the instant case, when petitionerfirst stated his desire for a bench trial, the trial judge toldhim to discuss the matter very thoroughly with his attorneyovernight. The following day, when petitioner continued toinsist upon a non-jury trial, the judge explained to him therisks involved.13 The judge told petitioner that he wasgiving up the right to have twelve individuals decide hiscase, and instead was depending solely on the court. The judgealso explained to petitioner that he had seen a lot ofmaterial that normally would not be submitted to the jury.Additionally, the judge pointed out to petitioner that he wasgoing against the advice of his counsel. Petitioner statedthat he understood all of this, and that he nonetheless wishedto waive his right to a jury trial.14

Although a reviewing court might question the wisdom ofpetitioner's decision to have his case tried solely to ajudge, it appears from the record that petitioner knowinglyand intelligently made this choice, informed by both the judgeand his attorney of the substantial risks involved. Underthese circumstances, the Court finds that petitioner knowinglyand intelligently waived his right to a jury trial:

While many factors might enter into a decision to waive the right to trial by jury, and while an attorney's advice concerning the matter may often be followed by a defendant, given the attorney's experience and expertise, the defendant must ultimately decide for himself if he trusts the judgment of his fellow citizens with his fate, or if he would rather entrust it to the judgment of a solitary state judicial officer.

Id. at 1180.

Petitioner further argues that the trial judge erred inaccepting his jury trialwaiver without making a specific and separate determinationthat he was competent to waive this right. Although the judgedid order a competency hearing to "determine [petitioner's]competency to stand trial . . . [along with] [h]is knowledgeand understanding of his ability to assist in his owndefense," petitioner claims that a stricter standard must beapplied when examining a defendant's competence to waive ajury trial.

While a waiver must have been made voluntarily, knowinglyand intelligently, it must also have been made competently.Johnson v. Zerbst, supra, 304 U.S. at 465, 58 S.Ct. at 1023;Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d429 (1966). Petitioner relies on Westbrook v. Arizona,384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966), to support hisassertion that a more stringent standard of competency appliesin waiving his jury right. In Westbrook, the Supreme Court heldin a brief per curiam opinion that there is a distinctionbetween a defendant's competence to waive the right to counselat trial and his competence to stand trial. Id. However,the Supreme Court did not define the higher standard, and didnot direct the discussion to any other constitutional rightbesides waiving right to counsel.

The Ninth Circuit in Sieling v. Eyman, 478 F.2d 211 (9th Cir.1973), a guilty plea case, read Westbrook to require a higherstandard of competence whenever constitutional rights arewaived. Thus, that court held that the standard of competenceto plead guilty, and thus waive a jury trial, is higher thanthat required to stand trial. Id. at 214-15. Other CircuitCourts of Appeals, however, have rejected this reasoning andheld that the standard of competence is no different. SeeUnited States ex rel. Heral v. Franzen, 667 F.2d 633 (7th Cir.1981); Allard v. Helgemoe, 572 F.2d 1 (1st Cir.), cert.denied, 439 U.S. 858, 99 S.Ct. 175, 58 L.Ed.2d 166 (1978);United States ex rel. McGough v. Hewitt, 528 F.2d 339 (3d Cir.1975); Malinauskas v. United States, 505 F.2d 649 (5th Cir.1974); United States v. Harlan, 480 F.2d 515 (6th Cir.), cert.denied, 414 U.S. 1006, 94 S.Ct. 364, 38 L.Ed.2d 242 (1973);Wolf v. United States, 430 F.2d 443 (10th Cir. 1970). See alsoUnited States v. Valentino, 283 F.2d 634 (2d Cir. 1960)(pre-Westbrook).

The Second Circuit has not yet addressed this issue in theaftermath of Westbrook, but has suggested that a higherstandard may not be appropriate. See Suggs v. La Vallee,570 F.2d 1092 (2d Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 290,58 L.Ed.2d 263 (1978). Other courts in this district haverejected the Sieling distinction. See Kelly v. Lefevre, No. 81Civ. 0491, slip op. (S.D.N.Y. January 13, 1982); Sharp v.Scully, 509 F. Supp. 493 (S.D.N.Y. 1981). This Court findspersuasive the reasoning of those courts which have determinedthat the standard of competence required to waiveconstitutional rights other than the right to counsel is nohigher than that required to stand trial.15 In any event,the trial judge in the instant case made a specific finding atthe conclusion of the competency hearing that petitioner wascompetent to waive his right to a jury trial. Thus, even werethis Court to hold that a more stringent standard of competencyshould apply to a determination of competency to waiveconstitutional rights, that higher standard would arguably havebeen met in this case in light of the findings of the trialcourt in that regard.

"A trial judge's `finding that a defendant is mentallycompetent to stand trial satisfies due process when the courtfinds that the prosecution has carried the burden of provingthe defendant's competency by a preponderance of theevidence.'" Baum v. Leonardo, No. 88 Civ. 8181, slip op. at6-7, 1989 WL 85786 (S.D.N.Y. July 25, 1989) (available on Lexisat 1989 U.S.Dist.LEXIS 8395) (quoting Brown v. Warden, Great Meadow Corr.Facility, 682 F.2d 348, 353-54 (2d Cir.), cert. denied,459 U.S. 991, 103 S.Ct. 349, 74 L.Ed.2d 388 (1982)).

Under a preponderance of the evidence standard of proof, in order to find the existence of a disputed fact in favor of the party who has the burden of persuasion, a factfinder is required only to find "`that the existence of [the] fact is more probable than its nonexistence.'"

Id. at 352 (quoting In re Winship, 397 U.S. 358, 371, 90 S.Ct.1068, 1076, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring)).

At petitioner's competency hearing, two psychiatrists whohad previously examined petitioner testified that theybelieved him able to understand the nature of the chargesagainst him and to assist meaningfully in his defense. Thus,each opined that he was competent to stand trial. This Courthas carefully reviewed the entire transcript of the competencyhearing, which consists of over 200 pages of testimony andargument. The testimony of the psychiatrists is troubling.Cross-examination by petitioner's counsel revealed that onlya few standard questions were asked by the psychiatristsduring the examination, and that in essence the substance ofpetitioner's answers to those questions was irrelevant totheir conclusions of competency. The witnesses had absolutelyno independent recollection of the examination, which hadoccurred only a few weeks prior to the hearing. One of thedoctors apparently indicated defense counsel when asked if sherecognized petitioner in court. Upon cross-examination,neither witness was able to state with any degree ofspecificity the basis for their conclusion that petitioner wascompetent, or to suggest any answer petitioner could havegiven, or any fact about him they might learn,16 whichwould have altered their conclusions. In sum, the transcriptof the hearing depicts a largely empty exercise in which nomeaningful cross-examination could take place.

However, petitioner offered no evidence regarding hiscompetency at the hearing. In addition, the trial court hadthe opportunity to observe petitioner's demeanor at thecompetency hearing as well as at the several prior proceedingsthat had already taken place. Cf. Baum v. Leonardo, supra, No.88 Civ. 8181, slip op. at 8 (defendant's demeanor at trialrelevant to determination whether competency hearing required).Under these circumstances, this Court must conclude that theprosecution did succeed in proving petitioner's competency by apreponderance of the evidence. Accordingly, petitioner's secondground for relief is denied.

3. Sufficiency of the evidence

Petitioner's final claim is that the evidence adduced attrial was insufficient to support his conviction and thus thathis conviction is inconsistent with the due process clause.Petitioner contends that his conviction was based solely oncircumstantial evidence, which was "weak and equivocal."

Respondent argues that petitioner's claim that there wasonly circumstantial evidence is procedurally barred.17Petitioner did not raise this claim at trial. The prosecution,in its brief to the Appellate Division, argued that the claimwas thus procedurally barred, but also argued that the claimwas meritless. The Appellate Division affirmed withoutopinion.

Where a petitioner has not raised an issue in state court,"a procedural default does not bar consideration of a federalclaim on . . . habeas review unless the last state courtrendering a judgment in thecase `clearly and expressly' states that its judgment rests ona state procedural bar." Harris v. Reed, 489 U.S. 255, 109S.Ct. 1038, 103 L.Ed.2d 308 (1989) (quoting Caldwell v.Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86L.Ed.2d 231 (1985) and Michigan v. Long, 463 U.S. 1032, 1041,103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983)). In the instantcase, the last state court to render a judgment was theAppellate Division. Since the Appellate Division affirmedwithout opinion, that court cannot be said to have "clearly andexpressly state[d] that its judgment rests on a stateprocedural bar" as required by the court in Harris. See Matosv. Senkowski, No. 89 Civ. 2961, slip op., 1990 WL 17680(S.D.N.Y. February 20, 1990); Lopez v. Scully, 716 F. Supp. 736,738-39 (E.D.N.Y. 1989). Accordingly, the Court turns to themerits of petitioner's claim.

The standard of federal review of a habeas claim based oninsufficiency of evidence is well-established. A court is notto conduct a de novo determination and is not required to:

`ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt.' Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of a crime charged, the fact finder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781,2788-89, 61 L.Ed.2d 560 (1979) (emphasis in original)(citations omitted). See also Reddy v. Coombe, 846 F.2d 866,869 (2d Cir. 1988), cert. denied, 488 U.S. 929, 109 S.Ct. 316,102 L.Ed.2d 334 (1988); Mallette v. Scully, 752 F.2d 26, 31 (2dCir. 1984). A petitioner challenging his conviction on thisground faces a heavy burden. Gruttola v. Hammock, 639 F.2d 922,927 (2d Cir. 1981).

In reviewing such a claim, the Court must "credit everyinference that could have been drawn in the State's favor,whether the evidence being reviewed is direct orcircumstantial." Reddy v. Coombe, supra, 846 F.2d at 869(citations omitted). The verdict of the jury must be sustainedif any "rational trier of fact could properly find or inferthat the accused is guilty beyond a reasonable doubt." Mallettev. Scully, supra, 752 F.2d at 31.

A careful review of the trial transcript adequately supportsthe finding that a rational trier of fact could have foundpetitioner guilty of murder beyond a reasonable doubt. Viewingthe testimony in a light most favorable to the prosecution, asis required, it is clear that the standard in Jackson has beenmet.

First, Perez testified at trial that petitioner confessed tothe murder of Gutierrez during his attack on Perez. Perez alsotestified that before petitioner led him into the park, heexclaimed that it was "just a shame that its got to happenagain." In addition, Alvarez stated that petitioner had had arelationship with Gutierrez before she was killed; that thetwo symbolized this relationship by wearing each other'sclothing, in this case a gold belt; and that this was the samegold belt that was found wrapped around Gutierrez's dead body.Alvarez also testified to the tension between petitioner andGutierrez that was created by the restraints posed byGutierrez's parents on Gutierrez's social activities.

Further, petitioner showed a certain familiarity with someof the details of the killing. He told the detectives duringhis interrogation that he thought it would be impossible todrive and hold the decedent's body at the same time. As notedearlier, the detectives had not told petitioner that thedecedent's body had been transported by a car to the Bronxafter the murder. He also suggested to the detectives thatalthough he would tell them about Perez, they would have to"figure out" what happened to Gutierrez since they knewnothing about her.

Petitioner contends that many of the prosecution's witnesseswere not credible, in particular attacking the truthfulness ofPerez and Alvarez.18 However, assessing the credibility ofwitnesses at trial is a matter for the fact-finder, not afederal court on habeas corpus review. Thus, viewing all ofthe evidence in the light most favorable to the prosecution,the Court finds that a rational trier of fact could concludebeyond a reasonable doubt that petitioner murdered Gutierrez.

Finally, petitioner argues that since the case against himrelies entirely on circumstantial evidence, a more rigorousstandard than "beyond a reasonable doubt" should have beenapplied. However, on federal habeas corpus review of a stateconviction, the same standard applies to cases based oncircumstantial evidence as those based on direct evidence.Lee v. Scully, No. 88 Civ. 7217, slip op., 1990 WL 67696(S.D.N.Y. 1990). The Supreme Court has stated that,

circumstantial evidence . . . is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.

Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127,137-38, 99 L.Ed. 150 (1954).19 Thus, petitioner's claimthat the evidence was insufficient to support a guilty verdictbeyond a reasonable doubt, is denied.

CONCLUSION

The Court has reviewed both Magistrate Tyler's Report andpetitioner's objections, and has considered de novo thoseportions of the Report to which the objections pertain. Inaccordance with the Magistrate's recommendation, petitioner'sapplication for a writ of habeas corpus is denied. The Reportis adopted and the petition dismissed.

Inasmuch as an appeal from this Memorandum Decision would befrivolous, the Court certifies, pursuant to the in formapauperis provisions of 28 U.S.C. § 1915(a), that such an appealwould not be taken in good faith. Furthermore, as the petitionpresents no questions of substance for appellate review, seeAlexander v. Harris, 595 F.2d 87, 90 (2d Cir. 1979), acertificate of probable cause will not issue.

It is so ordered.

1. The Court granted petitioner extensions of time in whichto file his objections to the Report.

2. The psychiatrist based her evaluation on statements madeto the doctors at Mt. Sinai. For example, Perez told thedoctors that he saw a Hispanic male everywhere he went forfour days prior to his admittance into the hospital; that hehad discussions about a boy named Danny with this Hispanicmale; and that he had been hearing the voice of a femalecousin calling his name. At trial, the doctor conceded thather conclusion might be called into question by the fact thatPerez had, indeed, been attacked by a hispanic male severaldays earlier.

3. Petitioner told the detectives that he ingested fivepills of mescaline every day, including the day he wasarrested and interrogated.

4. Petitioner knew that the name of the deceased was SoniaGutierrez prior to this statement. The detectives toldpetitioner her name during the interrogation.

5. Here petitioner is referring to the diagnosis of Perezat Mt. Sinai on May 22.

6. Judge Hinkson suppressed the entire videotape of thecrime scene; the details of petitioner's attack on Perez(except the fact that the attack occurred and theconversations and admissions made by petitioner to Perez); theportions of petitioner's confessions to the detectives dealingwith his fascinations with death and violence; his sexualorientation; and those statements referring to other unrelatedcrimes.

7. The competency hearing followed a prior examination ofpetitioner by two psychiatrists on December 18, 1984.

8. The prosecution called seven witnesses and introducedtwelve exhibits, while the defense presented four witnessesand five exhibits.

9. For example, "how could he drive and hold her at thesame time" and that the police should "figure out" whathappened to Gutierrez.

10. 28 U.S.C. § 2254(d) provides in pertinent part:

"In any proceeding instituted in a Federal Court by anapplication for a writ of habeas corpus by a person in custodypursuant to the judgement of a State court, a determinationafter a hearing on the merits of a factual issue, made by aState court of competent jurisdiction . . . shall be presumedto be correct, unless . . .

"(8) . . . the Federal court . . . concludes that such factualdetermination is not supported by the record as a whole."

11. Although this case involved a guilty plea, when adefendant enters a guilty plea he waives severalconstitutional rights, including the right to trial by jury,the right to confront his accusers, and the privilege againstcompulsory self-incrimination. Matusiak v. Kelly, supra, 786F.2d at 543.

12. The record does not indicate any sign of coercion onpetitioner's free will. Thus, had even had petitioner raisedsuch a claim, it would fail.

13. The trial judge engaged in the following colloquy withpetitioner:

Court: Now, there is also an application before me made bythe defendant for a non-jury trial. At this time, I wouldinform the defendant that a non-jury trial, before me, that Inow know the defendant's complete record and criminal history,criminal record. I have seen the video tapes and I havelistened to this motion for days on end, and I have listenedvery closely to all of the witnesses. And, I ask thisdefendant whether or not he still is so inclined to ask for anon-jury trial before me?

Petitioner: Yes, sir . . .

Giampa: I strongly oppose the non-jury trial. I believe thatmy client cannot get a fair trial if he gets a non-jury trial.There has been incredible prejudicial evidence presentedbefore your honor . . . I think if my client insists upon it,I must request 730 examination (competency hearing) for him.

Court: Mr. Coronado, will you please tell me why you want anon-jury trial in view of what your counsel has just said andstated on the record?

Petitioner: Well, sir, being that you are the judge, youhave the case and you know what's happening with the case. Idon't think I need anybody else to judge me. I like for you toprove whether I am innocent or guilty, being that you know thecase.

Court: Well, as your counsel has pointed out, I have seenall the video tapes that were involved in this matter, I haveheard a lot of extraneous material that normally would not be,because of my rulings, before a jury. I point that out to youand you still feel that I could be fair and impartial?

Petitioner: Yes, sir.

Court: Mr. Coronado, do you realize that by giving up yourright to 12 people sitting there and deciding your faith andjust depending on me, you are giving up 12 individual peoplelooking at your case and making a decision about your case oneway or another, do you realize that?

Petitioner: Yes sir, I understand that.

Court: You still want just me to handle it?

Petitioner: Yes, sir.

Court: Mr. Coronado, you are obviously going in the oppositedirection than your counsel. You are going against his advice.You understand that, don't you?

Petitioner: Yes, sir.

Court: But assume that I grant you the waiver, grant yourapplication, assume that I do. Would you cooperate with him inyour own defense in the case, would you cooperate with yourlawyer?

Petitioner: Well, being that he is my lawyer I have too.

Court: And you would do that?

Petitioner: Of course.

Court: You fully understand what you are doing?

Petitioner: Yes, sir, perfectly.

Court: Under those conditions, that you fully understand andhave had a full opportunity to understand, you have hadovernight to discuss this with your attorney and to thinkabout it, and having read the statute that permits you to makethis application and it is your determination, and I am nowsatisfied that you know what you are doing, I am granting[your] application.

14. Although the Second Circuit has not specified what atrial judge must tell a defendant before accepting a waiver ofa jury trial, the Seventh Circuit requires that the trialjudge explain to the defendant that a jury is composed of 12members of the community, and that if a defendant waives ajury trial, a judge alone will decide his guilt or innocence.Id.

15. As the Seventh Circuit noted in Franzen, the standardenunciated by the Ninth Circuit in Sieling has proved ratherunworkable, and that court has limited the scope of Sieling toallow the district court to reconstruct the competence of thedefendant to plead guilty based upon the evidence presented inconnection with determining his competence to stand trial.United States v. Franzen, supra, 667 F.2d at 637, 637-38 n. 4.See Makal v. Arizona, 544 F.2d 1030 (9th Cir. 1976),cert. denied, 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782(1977).

16. For example, defense counsel asked the witnesseswhether their opinion might be altered if they were told thatpetitioner had stated that he wanted to kill his mother orthat he enjoyed throwing cats and dogs off rooftops to watchthem suffer — hypothetical questions not without some factualbasis in petitioner's case. Both witnesses insisted that thesefacts would not alter their opinions, but refused to give anyexample of a fact which would cause them to find incompetency.

17. There does seem to be some direct evidence here,despite petitioner's claim that there is only circumstantialevidence. Perez testified that petitioner told him that hemurdered Gutierrez.

18. Petitioner claims that Perez and Alvarez are notcredible since they have a strong dislike for him, and becausethey made a number of contradictory statements.

19. Petitioner cites the standard enunciated in People v.Taddio, 292 N.Y. 488, 489, 55 N.E.2d 749 (1944), as theappropriate standard when a case relies on circumstantialevidence. That case required that, where the evidence againstthe accused is solely circumstantial, it must point "logicallyto the defendant's guilt and exclud[e] to a moral certaintyevery other reasonable hypothesis." Id. This is the standardthat is applied under New York State law. See Prince,Richardson on Evidence § 148, at 119-120 (1973). However, it iswell-settled that federal courts have no supervisory authorityover state courts, Chandler v. Florida, 449 U.S. 560, 570,582-83, 101 S.Ct. 802, 807, 813-14, 66 L.Ed.2d 740 (1981), andthat federal habeas corpus review of state criminal proceedingsunder 28 U.S.C. § 2254 is limited to errors of constitutionalmagnitude. See, e.g., Smith v. Phillips, 455 U.S. 209, 102S.Ct. 940, 71 L.Ed.2d 78 (1982); Donnelly v. DeChristoforo,416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974);Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38L.Ed.2d 368 (1973); Petrucelli v. Coombe, 735 F.2d 684 (2ndCir. 1984). Thus, even assuming that the trial judge erredunder state law, this claim would fail as it omits to allege aconstitutional violation.

OPINION

Rolando Coronado petitions this Court pro se for a writ ofhabeas corpus pursuant to 28 U.S.C. § 2254. By order datedApril 16, 1987, the petition was referred to the Honorable JoelJ. Tyler, United States Magistrate, to hear and report pursuantto 28 U.S.C. § 636(b)(1) and Rule 4 of the Local Rules forProceedings Before Magistrates. On September 7, 1989,Magistrate Tyler filed a Report and Recommendation (the"Report") in which he recommended that the writ be denied andthe petition dismissed. Petitioner filed timely objections tothe Report on May 17, 1990.1 Having reviewed the Report andconsidered de novo those portions to which petitioner hasobjected, the Court hereby adopts the magistrate'srecommendations, denies petitioner's writ of habeas corpus, anddismisses the petition.

BACKGROUND

Petitioner was convicted, on January 18, 1985, after atwo-week bench trial in the Supreme Court of the State of NewYork, Bronx County, of Murder in the Second Degree and twocounts of Criminal Possession of a Weapon in the Fourth Degree(New York Penal Law, §§ 125.25(1) and 265.01) in connectionwith the death of Sonia Gutierrez ("Gutierrez"), a 13-year oldstudent at Junior High School 52 ("JHS 52") in Manhattan.Gutierrez was found murdered on April 16, 1983, on Boone Avenuein the Bronx. Wrapped around her body was a metallicgold-colored belt.

The evidence implicating petitioner in the murder ofGutierrez originated in part from an assault on Roberto Perez("Perez") on May 21, 1983. According to Perez, a 17-year oldstudent attending JHS 52, on that night petitioner approachedhim from behind, put a knife to his back and demanded hiswallet. Although Perez offered his wallet to petitioner, Pereztestified that petitioner refused to take it. Petitionerinstead placed a blindfold on Perez's face, and forced him towalk for "hours" through the streets of the Upper West Side ofManhattan. Before leading Perez into Riverside Park ("thepark"), petitioner kicked and hit Perez in an alley, and toldhim that it was "just a shame that its got to happen again."

Later, while in the park, petitioner asked Perez what schoolhe attended. Perez stated that he went to JHS 52. Petitioner,who had graduated from JHS 52 in 1979, asked Perez if he knewa boy named Danny. Perez told him that he did. Petitioner andPerez then had a conversation regarding Danny, whereuponpetitioner inquired whether "anything interesting had happenedin the school recently?" Perez responded that a girl had beenkilled. Accordingto Perez, petitioner then stated: "I want you to know I killedher and if you don't shut up, I'm going to have to kill youtoo."

Sometime after this conversation, Perez tried to escape.Petitioner grabbed him, stabbed him in the back several times,and left him for dead in the park, discarding the knife innearby bushes. Perez regained consciousness at Mt. SinaiHospital ("Mt. Sinai") the following day. There he wasexamined by a psychiatrist who concluded that Perez wassuffering from visual and auditory hallucinations andrecommended that he be subjected to further psychiatricevaluation.2

Also on May 22, the day after the stabbing, petitioner wentto the 20th Precinct to confess to the murder of Perez,believing that he had killed him the night before in the park.The police attempted to confirm the story. However, since nomurder had been reported in the park, petitioner was released.

After Perez spoke with the police and confirmed an attack inthe park, petitioner was arrested by Detectives Robert Subach("Subach") and Carlos Rivera ("Rivera") and taken intocustody.

At the police station, Subach and Rivera brought petitionerto an interrogation room. Petitioner was read his rightspursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16L.Ed.2d 694 (1966), whereupon he told Subach and Rivera that heunderstood his rights and that he wished to speak to them.Subach and Rivera told petitioner that he was being arrestedfor the stabbing of Perez and that he was under investigationfor the murder of Gutierrez. The interrogation lastedapproximately nine hours, from 3:00 or 3:30 P.M. on May 31,1983, to 1:00 or 1:30 A.M. on June 1, 1983, and ended with avideotaped statement by petitioner in the presence of AssistantDistrict Attorneys from both New York and Bronx Counties.

During the interrogation, petitioner made severalstatements. He confessed to the Perez stabbing, and also totwo murders, which police could not confirm. He repeatedlytold the detectives that he liked to watch people suffer andenjoyed terrifying others. He stated that he used drugs on adaily basis.3 Although petitioner continually denied anyinvolvement in, or knowledge of, the murder of Gutierrez, heasked the detectives "how he could drive and hold her[Gutierrez] at the same time," even though the detectives didnot tell petitioner that Gutierrez's body had been transportedby car to the Bronx. Additionally, when petitioner saw apicture of the deceased he stated, "good-bye Sonia, I guessits all over."4 Petitioner also suggested that he did notmind telling the police about Perez since they already knewabout him, but that they would have to "figure out" whathappened to Gutierrez, since they knew nothing about her.

Petitioner pled guilty to charges relating to the assault onPerez, and was sentenced to a term of 8 to 16 years. He waslater indicted by a Bronx grand jury for Murder in the SecondDegree and two counts of Criminal Possession of a Weapon inthe Fourth Degree (one count was later dropped), in relationto the Gutierrez murder.

Prior to trial for the Gutierrez murder, a suppressionhearing was held before the trial judge, the Honorable ElbertHinkson. The prosecution sought the admission of all ofpetitioner's statements to the detectives,a videotape of the crime scene showing the body of Gutierrez,and the identification of petitioner by Perez and all ofpetitioner's statements to Perez. Petitioner moved forsuppression of the statements he made to the detectives on theground that they were not made voluntarily; of Perez'stestimony and identification on the grounds that Perez wasmentally unstable5 and the identification procedure undulysuggestive; and the videotape of the crime scene due to itshighly prejudicial nature and low probative value.

The detectives testified at the hearing that petitioner wasalways responsive to their questions during the interrogationsession, and that he was generally calm. However, they alsostated that petitioner seemed to have "severe psychiatricproblems," that he seemed to be "missing a few parts" and thathe was "crazy as a bedbug." They stated that there were breaksduring the interrogation while petitioner ate dinner, used thebathroom, and watched some television.

Judge Hinkson's ruling on these issues included findings offact and conclusions of law. He suppressed much of theevidence that was proffered by the prosecution during thecourse of the hearing,6 primarily on the ground that itsprobative value was outweighed by the extreme prejudice thatit would cause to the defendant. With respect to thestatements made by petitioner to the detectives, the judgefound that "the record clearly established that the defendantwas fully aware of the statements he was making [to thedetectives];" that "he responded to questions in a clear andrational manner," and that "there is no definitive indicationof mental disease attributable to the defendant." JudgeHinkson determined that although petitioner was interrogatedfor nine hours, he was not questioned continuously, for he wasfed, went to the bathroom, and watched television for a periodof time.

Regarding Perez, the Judge found that he had beenhospitalized for physical, and not mental reasons, and thatalthough Perez had hallucinations and his recitation of eventswere "bizarre," this was "clearly understandable consideringthe traumatic ordeal he had just experienced." The judgeconcluded that Perez's "recounting of the ordeal . . . [was]at a minimum substantially factual."

After Judge Hinkson announced his decision, petitioner askedthat his attorney be relieved since he was urging petitionerto plead guilty on all counts. The Court reserved decision,but later denied the application. Petitioner then requested anon-jury trial, over the vociferous objections of his counsel.The Court again reserved decision, and told petitioner to"discuss the matter very thoroughly with [his] attorney andgive it a great deal of thought overnight." The following day,Judge Hinkson warned petitioner of the risks of a non-jurytrial. He explained to petitioner the possible prejudice thatcould occur against him. However, petitioner insisted onwaiving his right to a jury trial.

Petitioner's attorney then requested that a competencyhearing be held to determine petitioner's mental state.7The hearing was held before Judge Hinkson on January 3 and 4,1985. At the hearing, the prosecution called as witnesses twopsychiatrists who had examined petitioner several weeksearlier to evaluate his competency to stand trial. Bothtestified that it was their opinion that petitioner wascompetent to stand trial, since he had the ability to assistin his defense and to understand the charges against him.Petitioner did not present any evidence as to his competencyat the hearing.

Following the testimony of the witnesses and argument ofcounsel, Judge Hinkson concluded that petitioner was competentto stand trial and assist in his own defense. He alsodetermined that petitioner had the capacity to understand theconsequences of waiving his right to a jury trial, and thatthere was no evidence of any mental disease. At the close ofthe hearing, Judge Hinkson again asked petitioner if he wishedto waive his right to a jury trial. Petitioner stated that hedid. During a colloquy with the court, petitioner said that heunderstood the effects of his decision, but still wished towaive his right to a jury trial. Judge Hinkson found thatpetitioner understood what he was doing, and grantedpetitioner's application. Petitioner then signed a writtenwaiver.

The case was tried before Judge Hinkson. A number ofwitnesses were called by both the prosecution and thedefense.8 The first significant witness called by theprosecution was Subach. His direct testimony related to theinvestigation and subsequent interrogation of petitioner. Hetestified to petitioner's admissions concerning his attack onPerez and to petitioner's statements that linked him to theGutierrez homicide.9

Next to testify was Perez. Perez first recounted the eventsthat occurred the night of May 21, 1983, when petitionerassaulted him in the park, as circumscribed by Judge Hinkson'srulings at the suppression hearing. Perez testified that afterthey had discussed the murder at JHS 52, petitioner told himthat "it was a shame that it had to happen again," and that "Ijust want you to know that I killed her, and if you don't shutup I'm going to have to kill you too."

The prosecution also called Abigail Alvarez ("Alvarez"), afriend of Gutierrez from JHS 52. Alvarez testified that shehad seen Gutierrez with petitioner a few times; that the twohad a relationship which was symbolized by the wearing of eachother's clothes or jewelry (in this case the gold belt); andthat just before Gutierrez was killed, she and petitioner hadargued over the fact that her parents would not let her go outon dates.

The defense called Gutierrez's sister as a witness. Shetestified that although she and Gutierrez had shared a roomand did all of their shopping together, she had never seen thegold belt prior to Gutierrez's death. She also testified thatwhile Gutierrez said that a "big boy" was in "love with her,"Gutierrez had never mentioned petitioner's name. Additionally,she testified that she had never seen either Alvarez orpetitioner previous to that day in court.

Gutierrez's step-mother also testified for the defense. LikeGutierrez's sister, she stated that she had never seen thegold belt, and that Gutierrez had stated before she was killedthat an older boy was in love with her. The witness alsotestified that Gutierrez never asked her if she could go outon a date. In addition, the court reporter who had taken downthe grand jury proceedings testified that during the grandjury proceedings Perez had testified that petitioner asked himif he knew a girl named "Dinah" at JHS 52, and not about agirl "dying," and the psychiatrist who had examined Perezfollowing the stabbing testified as to her evaluation ofPerez' mental condition at that time.

After hearing closing arguments, the court reserveddecision. When it rendered its verdict four days later, thecourt concluded that "after along [sic] and due deliberation"petitioner is "guilty in the first count of the indictment,the crime of Murder in the Second Degree; under the secondcount of the indictment the defendant is found guilty of thecrime of Criminal Possession of a Weapon in the FourthDegree." Petitioner was sentenced on February 13, 1985, byJudge Hinkson, to concurrent sentences of 25 years to life,and one year, to be served consecutively to the 8 to 16 yearsentence petitioner received for the assault on Perez.

On appeal to the Appellate Division, First Department,petitioner argued that he did not voluntarily, knowingly andintelligently waive his Miranda rights prior to interrogation;that he did not knowingly and intelligently waive his right toa jury trial; that the evidence presented at the trial wasinsufficient to prove guilt beyond a reasonable doubt; and thatthe sentence imposed was excessive. The Appellate Division,First Department unanimously affirmed petitioner's convictionwithout opinion. People v. Coronado, 502 N.Y.S.2d 315,120 A.D.2d 993 (1986). Leave to appeal to the New York Court ofAppeals was denied. People v. Coronado, 506 N.Y.S.2d 1043,497 N.E.2d 713, 68 N.Y.2d 756 (1986).

After thus exhausting his available state remedies,petitioner brought the instant petition asserting threegrounds for relief, as follows:

1) that he did not knowingly, intelligently and voluntarilywaive his Miranda rights prior to police interrogation;

2) that he did not knowingly and intelligently waive hisright to a jury trial; and

3) that his guilt was not established beyond a reasonabledoubt due to the weak and equivocal evidence adduced at trial.

DISCUSSION

To accept the report and recommendation of a magistrate towhich no timely objection has been made, a district court needonly satisfy itself that there is no clear error on the faceof the record. See Rule 72, Fed.R.Civ.P., Notes of AdvisoryCommittee on Rules (citing Campbell v. United States DistrictCourt, 501 F.2d 196, 206 (9th Cir.), cert. denied,419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974)).28 U.S.C. § 636(b)(1) affords the district court broad latitude inconsidering a magistrate's recommendation, even if no partyobjects to it. Grassia v. Scully, 892 F.2d 16, 19 (2nd Cir.1989). However, when timely objection has been made to aportion or portions of a magistrate's report, the districtjudge must "make a de novo determination . . . of any portionof the magistrate's disposition to which specific writtenobjection has been made." Rule 72(b), Fed.R.Civ.P.; See also28 U.S.C. § 636(b)(1). The judge may then accept, reject, or modify,in whole or in part, the magistrate's proposed findings andrecommendations. 28 U.S.C. § 636(b)(1).

A district court's obligation to make a de novo determinationof properly contested portions of a magistrate's report doesnot require that the judge conduct a de novo hearing on thematter. United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct.2406, 2412, 65 L.Ed.2d 424 (1980). It is sufficient that thedistrict court "arrive at its own, independent conclusion aboutthose portions of the magistrate's report to which objection ismade." Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983).To this end, the court must "exercise . . . sound judicialdiscretion with respect to whether reliance should be placed on[the magistrate's] findings." American Express Int'l BankingCorp. v. Sabet, 512 F. Supp. 472, 473 (S.D.N.Y. 1981), aff'dwithout opinion, 697 F.2d 287 (2nd Cir.), cert. denied,459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982).

In the instant case, petitioner filed timely objections tothe magistrate's Report. The Court has reviewed de novo thoseportions of the Report to which petitioner has objected.Petitioner, in his objections, has failed to raise any argumentthat would justify granting the petition. Thus, the Courthereby adopts the magistrate's recommendations.

1. Waiver of Miranda rights

Petitioner's first ground for relief is that he did notvoluntarily, knowingly and intelligently waive hisMiranda rights prior to police interrogation. Petitioner claimsthat he was suffering from mental illness at the time he wasinterrogated. He relies on certain statements made by thedetectives at the suppression hearing, such as "he's[petitioner] missing a few parts" and "he [petitioner] wascrazy as a bedbug." Petitioner also asserts that just before hewas interrogated, he swallowed five pills of mescaline. Heclaims that due to his illness and ingestion of drugs, hewas impaired, and thus could not have waived hisMiranda rights voluntarily, knowingly and intelligently.

Under 28 U.S.C. § 2254(d), state court findings of fact aregiven a presumption of correctness in a federal habeas corpusproceeding unless one of eight enumerated exceptions applies.28 U.S.C. § 2254(d).10 The presumption of correctnessapplies to factual determinations made either by a state trialcourt or an appellate court. Sumner v. Mata, 449 U.S. 539,544-47, 101 S.Ct. 764, 767-69, 66 L.Ed.2d 722 (1981). Althougha federal court is required to presume a state court's findingof fact to be correct, it is also required to conduct anindependent review of any conclusions of law. See Miller v.Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985);Wainwright v. Witt, 469 U.S. 412, 429-30, 105 S.Ct. 844,854-55, 83 L.Ed.2d 841 (1985).

It has been noted that it is not always readily apparentwhether the resolution of a particular issue turns on aquestion of fact or one of law. Miller v. Fenton, supra, 474U.S. at 113, 106 S.Ct. at 451. Although Courts of Appeals inother circuits have disagreed as to whether the determinationthat a waiver was made voluntarily, knowingly and intelligentlyis a factual or legal inquiry, compare Bryan v. Warden,820 F.2d 217, 219 (7th Cir. 1987), cert. denied, 484 U.S. 867, 108S.Ct. 190, 98 L.Ed.2d 142 (1987) (voluntariness of a waiver ofMiranda rights is a question of fact entitled to a presumptionof correctness) with Ahmad v. Redman, 782 F.2d 409, 413(3d Cir. 1986), cert. denied, 479 U.S. 831, 107 S.Ct. 119, 93L.Ed.2d 66 (voluntariness of waiver is a mixed question of factand law subject to independent review by federal habeascourts), in this circuit it has been held that a state court'sfinding that a waiver was voluntary, knowing and intelligent isa legal inquiry subject to de novo review. Toste v. Lopes,861 F.2d 782, 783 (2d Cir. 1988), cert. denied sub nom. Toste v.Meachum, ___ U.S. ___, 109 S.Ct. 3170, 104 L.Ed.2d 1032 (1989)("[t]he validity of a waiver is a matter for independentfederal determination") (quoting Brewer v. Williams,430 U.S. 387, 403-04, 97 S.Ct. 1232, 1241-42, 51 L.Ed.2d 424 (1977)).See also Miller v. Fenton, supra, 474 U.S. at 113, 106 S.Ct. at451 (voluntariness of confession a matter for independentfederal review). Nonetheless, subsidiary factual conclusions ofa state court must be given a presumption of correctness by afederal court on habeas corpus review. Miller v. Fenton, supra,474 U.S. at 112, 106 S.Ct. at 450; Ahmad v. Redman, supra, 782F.2d at 412.

The inquiry into whether a person has voluntarily, knowinglyand intelligently waived his Miranda rights "has two distinctdimensions." Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct.1135, 1141, 89 L.Ed.2d 410 (1986) (quoting Edwards v. Arizona,451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981)and Brewer v. Williams, supra, 430 U.S. at 404, 97 S.Ct. at1242):

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Moran v. Burbine, supra, 475 U.S. at 421, 106 S.Ct. at 1141(quoting Fare v. C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61L.Ed.2d 197 (1979)).

With respect to the first dimension — that of voluntariness— the focus of the inquiry is on the conduct of the police.Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d473 (1986). Coercive police activity is "a necessary predicate"to finding that a waiver of Miranda rights was not voluntary.Id. 479 U.S. at 167, 107 S.Ct. at 522. The fifth amendmentprivilege is "not concerned with moral and psychologicalpressures to confess emanating from sources other than officialcoercion." Oregon v. Elstad, 470 U.S. 298, 304-05, 105 S.Ct.1285, 1290, 84 L.Ed.2d 222 (1985). Rather, the voluntariness ofa waiver of an individual's Miranda rights has "always dependedon the absence of police over-reaching. . . ." Colorado v.Connelly, supra, 479 U.S. at 170, 107 S.Ct. at 523.

Petitioner claims that he did not voluntarily waive hisMiranda rights. The trial court found that althoughpetitioner's interrogation lasted for approximately nine hours,it was not continuous. The detectives fed petitioner, let himuse the bathroom, and allowed him to watch television for anextended period of time. It appears that petitioner answeredthe questions freely, and was described by the detectives as"always responsive." Presuming these subsidiary factualfindings to be correct, and having carefully reviewed therecord, the Court finds after an independent legal review thatno coercion or duress occurred, and that petitioner voluntarilywaived his Miranda rights prior to interrogation.

With respect to the second dimension of inquiry — whetherthe waiver was knowing and intelligent — the focus is solelyon the mental ability of the individual. Perri v. Director,Dep't of Corrections, 817 F.2d 448, 452 (7th Cir.), cert.denied sub nom Perri v. Lane, 484 U.S. 843, 108 S.Ct. 135, 98L.Ed.2d 92 (1987). In order for a waiver to be knowing andintelligent, a person must understand and comprehend the rightin question as well as the consequences of abandoning thatright. Moran v. Burbine, supra, 475 U.S. at 423, 106 S.Ct. at1141.

However, a full appreciation of all the consequences of awaiver is not necessary for the waiver to be knowing andintelligent. Oregon v. Elstad, supra, 470 U.S. at 316, 105S.Ct. at 1296; Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct.851, 857, 93 L.Ed.2d 954 (1987). Rather, the suspect need onlyunderstand that he has the right to remain silent, the right torequest an attorney, and that "anything he says may be usedagainst him." Toste v. Lopes, 701 F. Supp. 306, 312 (D.Conn.1987), aff'd, 861 F.2d 782 (2d Cir. 1988), cert. deniedsub nom. Toste v. Meachum, ___ U.S. ___, 109 S.Ct. 3170, 104L.Ed.2d 1032 (1989).

Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.

Moran v. Burbine, supra, 475 U.S. at 422, 106 S.Ct. at 1141.

Petitioner does not dispute that he was read hisMiranda rights prior to the interrogation. He also concedesthat after the detectives had read him his rights, he statedthat he understood them and that he still wished to speak withthem. The trial court found that "the record clearlyestablished that the defendant was fully aware of thestatements he was making. He responded to questions in a clearand rational manner." The trial court also determined thatthere was no indication of mental disease attributable topetitioner and that his ability to be attentive was unimpairedby drugs. Based on these subsidiary findings of fact, the Courtdetermines that petitioner knowingly and intelligently waivedhis Miranda rights. Accordingly, petitioner's first ground forrelief is rejected.

2. Waiver of jury trial

Petitioner's second ground for relief is that he did notknowingly and intelligently waive his right to a jury trial.He claims that the trial judge should not have granted hisrequest for a bench trial over the vigorous objections of hisattorney, and in light of the highly inflammatory evidencethat the judge had heard during the suppression hearings.

As previously noted, state court findings of fact must begiven a presumption of correctness by a federal habeas court,and must be upheld unless those factual findings are notfairly supported by the record. 28 U.S.C. § 2254(d). See Sumnerv. Mata, supra, 449 U.S. at 544, 101 S.Ct. at 767. Thismandate, however, applies only to matters of "historical" factand subsidiary factual determinations drawn from the historicalfacts; it does not apply to questions of law or mixed questionsof fact and law. Id. at 545, 101 S.Ct. at 768.

The Second Circuit has held that a state court's findingthat a waiver of a jury trial was knowing and intelligent isa mixed question of fact and law, subject to federal de novoreview. Matusiak v. Kelly, 786 F.2d 536, 543 (2d Cir.), cert.dism'd, 479 U.S. 805, 107 S.Ct. 248, 93 L.Ed.2d 172(1986).11 See also United States ex rel. Williams v.DeRobertis, 538 F. Supp. 899 (N.D.Ill. 1982), rev'd on othergrounds, 715 F.2d 1174 (7th Cir. 1983), cert. denied,464 U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984); Phillips v. Murphy,796 F.2d 1303 (10th Cir. 1986).

The right to trial by jury is "fundamental to Americancriminal jurisprudence." United States v. Martin, 704 F.2d 267,271 (6th Cir. 1983), and is explicitly protected by theConstitution. U.S. Const. Art. III, § 2. Since the right is sofundamental, it is not to be dispensed with routinely. Pattonv. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854(1930). In order for a waiver of this right to be valid, itmust be "express and intelligent," Patton v. United States,supra, 281 U.S. at 276, 50 S.Ct. at 253, and must comport withthe waiver standard formulated in Johnson v. Zerbst,304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Adams v.United States, 317 U.S. 269, 275-78, 63 S.Ct. 236, 240-41, 87L.Ed. 268 (1942). See Schneckloth v. Bustamonte, 412 U.S. 218,237, 93 S.Ct. 2041, 2052, 36 L.Ed.2d 854 (1973). To be validunder Johnson v. Zerbst, a waiver of certain constitutionalrights must amount to an "intentional relinquishment of a knownright or privilege." Johnson v. Zerbst, supra, 304 U.S. at 464,58 S.Ct. at 1023. "Waivers of constitutional rights must notonly be voluntary, but must also be knowing, intelligent actsdone with sufficient awareness of the relevant circumstancesand likely consequences." Brady v. United States, 397 U.S. 742,748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970).

In the instant case, petitioner does not contest thevoluntariness of his waiver of a jury trial.12 Instead, hedirects his attack solely at the second dimension of thewaiver inquiry, arguing that the waiver was not knowing andintelligent. In order for a waiver to have been knowing andintelligent, the defendant must have understood the "nature ofthe right" and the consequences of waiving that right.Estrada v. United States, 457 F.2d 255, 256 (7th Cir.), cert.denied, 409 U.S. 858, 93 S.Ct. 143, 34 L.Ed.2d 104 (1972). SeeBoykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709,1712-13, 23 L.Ed.2d 274 (1969).

Waiver cannot be inferred from a silent record; there mustbe "an affirmative showing that [the waiver] was intelligentand voluntary." Boykin v. Alabama, supra, 395 U.S. at 242, 89S.Ct. at 1711. The fact that a defendant has counsel is alsorelevant to determining whether he knowingly waived his rightto a jury trial. United States ex rel. Williams v. DeRobertis,supra, 715 F.2d at 1175. In the instant case, when petitionerfirst stated his desire for a bench trial, the trial judge toldhim to discuss the matter very thoroughly with his attorneyovernight. The following day, when petitioner continued toinsist upon a non-jury trial, the judge explained to him therisks involved.13 The judge told petitioner that he wasgiving up the right to have twelve individuals decide hiscase, and instead was depending solely on the court. The judgealso explained to petitioner that he had seen a lot ofmaterial that normally would not be submitted to the jury.Additionally, the judge pointed out to petitioner that he wasgoing against the advice of his counsel. Petitioner statedthat he understood all of this, and that he nonetheless wishedto waive his right to a jury trial.14

Although a reviewing court might question the wisdom ofpetitioner's decision to have his case tried solely to ajudge, it appears from the record that petitioner knowinglyand intelligently made this choice, informed by both the judgeand his attorney of the substantial risks involved. Underthese circumstances, the Court finds that petitioner knowinglyand intelligently waived his right to a jury trial:

While many factors might enter into a decision to waive the right to trial by jury, and while an attorney's advice concerning the matter may often be followed by a defendant, given the attorney's experience and expertise, the defendant must ultimately decide for himself if he trusts the judgment of his fellow citizens with his fate, or if he would rather entrust it to the judgment of a solitary state judicial officer.

Id. at 1180.

Petitioner further argues that the trial judge erred inaccepting his jury trialwaiver without making a specific and separate determinationthat he was competent to waive this right. Although the judgedid order a competency hearing to "determine [petitioner's]competency to stand trial . . . [along with] [h]is knowledgeand understanding of his ability to assist in his owndefense," petitioner claims that a stricter standard must beapplied when examining a defendant's competence to waive ajury trial.

While a waiver must have been made voluntarily, knowinglyand intelligently, it must also have been made competently.Johnson v. Zerbst, supra, 304 U.S. at 465, 58 S.Ct. at 1023;Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d429 (1966). Petitioner relies on Westbrook v. Arizona,384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966), to support hisassertion that a more stringent standard of competency appliesin waiving his jury right. In Westbrook, the Supreme Court heldin a brief per curiam opinion that there is a distinctionbetween a defendant's competence to waive the right to counselat trial and his competence to stand trial. Id. However,the Supreme Court did not define the higher standard, and didnot direct the discussion to any other constitutional rightbesides waiving right to counsel.

The Ninth Circuit in Sieling v. Eyman, 478 F.2d 211 (9th Cir.1973), a guilty plea case, read Westbrook to require a higherstandard of competence whenever constitutional rights arewaived. Thus, that court held that the standard of competenceto plead guilty, and thus waive a jury trial, is higher thanthat required to stand trial. Id. at 214-15. Other CircuitCourts of Appeals, however, have rejected this reasoning andheld that the standard of competence is no different. SeeUnited States ex rel. Heral v. Franzen, 667 F.2d 633 (7th Cir.1981); Allard v. Helgemoe, 572 F.2d 1 (1st Cir.), cert.denied, 439 U.S. 858, 99 S.Ct. 175, 58 L.Ed.2d 166 (1978);United States ex rel. McGough v. Hewitt, 528 F.2d 339 (3d Cir.1975); Malinauskas v. United States, 505 F.2d 649 (5th Cir.1974); United States v. Harlan, 480 F.2d 515 (6th Cir.), cert.denied, 414 U.S. 1006, 94 S.Ct. 364, 38 L.Ed.2d 242 (1973);Wolf v. United States, 430 F.2d 443 (10th Cir. 1970). See alsoUnited States v. Valentino, 283 F.2d 634 (2d Cir. 1960)(pre-Westbrook).

The Second Circuit has not yet addressed this issue in theaftermath of Westbrook, but has suggested that a higherstandard may not be appropriate. See Suggs v. La Vallee,570 F.2d 1092 (2d Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 290,58 L.Ed.2d 263 (1978). Other courts in this district haverejected the Sieling distinction. See Kelly v. Lefevre, No. 81Civ. 0491, slip op. (S.D.N.Y. January 13, 1982); Sharp v.Scully, 509 F. Supp. 493 (S.D.N.Y. 1981). This Court findspersuasive the reasoning of those courts which have determinedthat the standard of competence required to waiveconstitutional rights other than the right to counsel is nohigher than that required to stand trial.15 In any event,the trial judge in the instant case made a specific finding atthe conclusion of the competency hearing that petitioner wascompetent to waive his right to a jury trial. Thus, even werethis Court to hold that a more stringent standard of competencyshould apply to a determination of competency to waiveconstitutional rights, that higher standard would arguably havebeen met in this case in light of the findings of the trialcourt in that regard.

"A trial judge's `finding that a defendant is mentallycompetent to stand trial satisfies due process when the courtfinds that the prosecution has carried the burden of provingthe defendant's competency by a preponderance of theevidence.'" Baum v. Leonardo, No. 88 Civ. 8181, slip op. at6-7, 1989 WL 85786 (S.D.N.Y. July 25, 1989) (available on Lexisat 1989 U.S.Dist.LEXIS 8395) (quoting Brown v. Warden, Great Meadow Corr.Facility, 682 F.2d 348, 353-54 (2d Cir.), cert. denied,459 U.S. 991, 103 S.Ct. 349, 74 L.Ed.2d 388 (1982)).

Under a preponderance of the evidence standard of proof, in order to find the existence of a disputed fact in favor of the party who has the burden of persuasion, a factfinder is required only to find "`that the existence of [the] fact is more probable than its nonexistence.'"

Id. at 352 (quoting In re Winship, 397 U.S. 358, 371, 90 S.Ct.1068, 1076, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring)).

At petitioner's competency hearing, two psychiatrists whohad previously examined petitioner testified that theybelieved him able to understand the nature of the chargesagainst him and to assist meaningfully in his defense. Thus,each opined that he was competent to stand trial. This Courthas carefully reviewed the entire transcript of the competencyhearing, which consists of over 200 pages of testimony andargument. The testimony of the psychiatrists is troubling.Cross-examination by petitioner's counsel revealed that onlya few standard questions were asked by the psychiatristsduring the examination, and that in essence the substance ofpetitioner's answers to those questions was irrelevant totheir conclusions of competency. The witnesses had absolutelyno independent recollection of the examination, which hadoccurred only a few weeks prior to the hearing. One of thedoctors apparently indicated defense counsel when asked if sherecognized petitioner in court. Upon cross-examination,neither witness was able to state with any degree ofspecificity the basis for their conclusion that petitioner wascompetent, or to suggest any answer petitioner could havegiven, or any fact about him they might learn,16 whichwould have altered their conclusions. In sum, the transcriptof the hearing depicts a largely empty exercise in which nomeaningful cross-examination could take place.

However, petitioner offered no evidence regarding hiscompetency at the hearing. In addition, the trial court hadthe opportunity to observe petitioner's demeanor at thecompetency hearing as well as at the several prior proceedingsthat had already taken place. Cf. Baum v. Leonardo, supra, No.88 Civ. 8181, slip op. at 8 (defendant's demeanor at trialrelevant to determination whether competency hearing required).Under these circumstances, this Court must conclude that theprosecution did succeed in proving petitioner's competency by apreponderance of the evidence. Accordingly, petitioner's secondground for relief is denied.

3. Sufficiency of the evidence

Petitioner's final claim is that the evidence adduced attrial was insufficient to support his conviction and thus thathis conviction is inconsistent with the due process clause.Petitioner contends that his conviction was based solely oncircumstantial evidence, which was "weak and equivocal."

Respondent argues that petitioner's claim that there wasonly circumstantial evidence is procedurally barred.17Petitioner did not raise this claim at trial. The prosecution,in its brief to the Appellate Division, argued that the claimwas thus procedurally barred, but also argued that the claimwas meritless. The Appellate Division affirmed withoutopinion.

Where a petitioner has not raised an issue in state court,"a procedural default does not bar consideration of a federalclaim on . . . habeas review unless the last state courtrendering a judgment in thecase `clearly and expressly' states that its judgment rests ona state procedural bar." Harris v. Reed, 489 U.S. 255, 109S.Ct. 1038, 103 L.Ed.2d 308 (1989) (quoting Caldwell v.Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86L.Ed.2d 231 (1985) and Michigan v. Long, 463 U.S. 1032, 1041,103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983)). In the instantcase, the last state court to render a judgment was theAppellate Division. Since the Appellate Division affirmedwithout opinion, that court cannot be said to have "clearly andexpressly state[d] that its judgment rests on a stateprocedural bar" as required by the court in Harris. See Matosv. Senkowski, No. 89 Civ. 2961, slip op., 1990 WL 17680(S.D.N.Y. February 20, 1990); Lopez v. Scully, 716 F. Supp. 736,738-39 (E.D.N.Y. 1989). Accordingly, the Court turns to themerits of petitioner's claim.

The standard of federal review of a habeas claim based oninsufficiency of evidence is well-established. A court is notto conduct a de novo determination and is not required to:

`ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt.' Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of a crime charged, the fact finder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781,2788-89, 61 L.Ed.2d 560 (1979) (emphasis in original)(citations omitted). See also Reddy v. Coombe, 846 F.2d 866,869 (2d Cir. 1988), cert. denied, 488 U.S. 929, 109 S.Ct. 316,102 L.Ed.2d 334 (1988); Mallette v. Scully, 752 F.2d 26, 31 (2dCir. 1984). A petitioner challenging his conviction on thisground faces a heavy burden. Gruttola v. Hammock, 639 F.2d 922,927 (2d Cir. 1981).

In reviewing such a claim, the Court must "credit everyinference that could have been drawn in the State's favor,whether the evidence being reviewed is direct orcircumstantial." Reddy v. Coombe, supra, 846 F.2d at 869(citations omitted). The verdict of the jury must be sustainedif any "rational trier of fact could properly find or inferthat the accused is guilty beyond a reasonable doubt." Mallettev. Scully, supra, 752 F.2d at 31.

A careful review of the trial transcript adequately supportsthe finding that a rational trier of fact could have foundpetitioner guilty of murder beyond a reasonable doubt. Viewingthe testimony in a light most favorable to the prosecution, asis required, it is clear that the standard in Jackson has beenmet.

First, Perez testified at trial that petitioner confessed tothe murder of Gutierrez during his attack on Perez. Perez alsotestified that before petitioner led him into the park, heexclaimed that it was "just a shame that its got to happenagain." In addition, Alvarez stated that petitioner had had arelationship with Gutierrez before she was killed; that thetwo symbolized this relationship by wearing each other'sclothing, in this case a gold belt; and that this was the samegold belt that was found wrapped around Gutierrez's dead body.Alvarez also testified to the tension between petitioner andGutierrez that was created by the restraints posed byGutierrez's parents on Gutierrez's social activities.

Further, petitioner showed a certain familiarity with someof the details of the killing. He told the detectives duringhis interrogation that he thought it would be impossible todrive and hold the decedent's body at the same time. As notedearlier, the detectives had not told petitioner that thedecedent's body had been transported by a car to the Bronxafter the murder. He also suggested to the detectives thatalthough he would tell them about Perez, they would have to"figure out" what happened to Gutierrez since they knewnothing about her.

Petitioner contends that many of the prosecution's witnesseswere not credible, in particular attacking the truthfulness ofPerez and Alvarez.18 However, assessing the credibility ofwitnesses at trial is a matter for the fact-finder, not afederal court on habeas corpus review. Thus, viewing all ofthe evidence in the light most favorable to the prosecution,the Court finds that a rational trier of fact could concludebeyond a reasonable doubt that petitioner murdered Gutierrez.

Finally, petitioner argues that since the case against himrelies entirely on circumstantial evidence, a more rigorousstandard than "beyond a reasonable doubt" should have beenapplied. However, on federal habeas corpus review of a stateconviction, the same standard applies to cases based oncircumstantial evidence as those based on direct evidence.Lee v. Scully, No. 88 Civ. 7217, slip op., 1990 WL 67696(S.D.N.Y. 1990). The Supreme Court has stated that,

circumstantial evidence . . . is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.

Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127,137-38, 99 L.Ed. 150 (1954).19 Thus, petitioner's claimthat the evidence was insufficient to support a guilty verdictbeyond a reasonable doubt, is denied.

CONCLUSION

The Court has reviewed both Magistrate Tyler's Report andpetitioner's objections, and has considered de novo thoseportions of the Report to which the objections pertain. Inaccordance with the Magistrate's recommendation, petitioner'sapplication for a writ of habeas corpus is denied. The Reportis adopted and the petition dismissed.

Inasmuch as an appeal from this Memorandum Decision would befrivolous, the Court certifies, pursuant to the in formapauperis provisions of 28 U.S.C. § 1915(a), that such an appealwould not be taken in good faith. Furthermore, as the petitionpresents no questions of substance for appellate review, seeAlexander v. Harris, 595 F.2d 87, 90 (2d Cir. 1979), acertificate of probable cause will not issue.

It is so ordered.

1. The Court granted petitioner extensions of time in whichto file his objections to the Report.

2. The psychiatrist based her evaluation on statements madeto the doctors at Mt. Sinai. For example, Perez told thedoctors that he saw a Hispanic male everywhere he went forfour days prior to his admittance into the hospital; that hehad discussions about a boy named Danny with this Hispanicmale; and that he had been hearing the voice of a femalecousin calling his name. At trial, the doctor conceded thather conclusion might be called into question by the fact thatPerez had, indeed, been attacked by a hispanic male severaldays earlier.

3. Petitioner told the detectives that he ingested fivepills of mescaline every day, including the day he wasarrested and interrogated.

4. Petitioner knew that the name of the deceased was SoniaGutierrez prior to this statement. The detectives toldpetitioner her name during the interrogation.

5. Here petitioner is referring to the diagnosis of Perezat Mt. Sinai on May 22.

6. Judge Hinkson suppressed the entire videotape of thecrime scene; the details of petitioner's attack on Perez(except the fact that the attack occurred and theconversations and admissions made by petitioner to Perez); theportions of petitioner's confessions to the detectives dealingwith his fascinations with death and violence; his sexualorientation; and those statements referring to other unrelatedcrimes.

7. The competency hearing followed a prior examination ofpetitioner by two psychiatrists on December 18, 1984.

8. The prosecution called seven witnesses and introducedtwelve exhibits, while the defense presented four witnessesand five exhibits.

9. For example, "how could he drive and hold her at thesame time" and that the police should "figure out" whathappened to Gutierrez.

10. 28 U.S.C. § 2254(d) provides in pertinent part:

"In any proceeding instituted in a Federal Court by anapplication for a writ of habeas corpus by a person in custodypursuant to the judgement of a State court, a determinationafter a hearing on the merits of a factual issue, made by aState court of competent jurisdiction . . . shall be presumedto be correct, unless . . .

"(8) . . . the Federal court . . . concludes that such factualdetermination is not supported by the record as a whole."

11. Although this case involved a guilty plea, when adefendant enters a guilty plea he waives severalconstitutional rights, including the right to trial by jury,the right to confront his accusers, and the privilege againstcompulsory self-incrimination. Matusiak v. Kelly, supra, 786F.2d at 543.

12. The record does not indicate any sign of coercion onpetitioner's free will. Thus, had even had petitioner raisedsuch a claim, it would fail.

13. The trial judge engaged in the following colloquy withpetitioner:

Court: Now, there is also an application before me made bythe defendant for a non-jury trial. At this time, I wouldinform the defendant that a non-jury trial, before me, that Inow know the defendant's complete record and criminal history,criminal record. I have seen the video tapes and I havelistened to this motion for days on end, and I have listenedvery closely to all of the witnesses. And, I ask thisdefendant whether or not he still is so inclined to ask for anon-jury trial before me?

Petitioner: Yes, sir . . .

Giampa: I strongly oppose the non-jury trial. I believe thatmy client cannot get a fair trial if he gets a non-jury trial.There has been incredible prejudicial evidence presentedbefore your honor . . . I think if my client insists upon it,I must request 730 examination (competency hearing) for him.

Court: Mr. Coronado, will you please tell me why you want anon-jury trial in view of what your counsel has just said andstated on the record?

Petitioner: Well, sir, being that you are the judge, youhave the case and you know what's happening with the case. Idon't think I need anybody else to judge me. I like for you toprove whether I am innocent or guilty, being that you know thecase.

Court: Well, as your counsel has pointed out, I have seenall the video tapes that were involved in this matter, I haveheard a lot of extraneous material that normally would not be,because of my rulings, before a jury. I point that out to youand you still feel that I could be fair and impartial?

Petitioner: Yes, sir.

Court: Mr. Coronado, do you realize that by giving up yourright to 12 people sitting there and deciding your faith andjust depending on me, you are giving up 12 individual peoplelooking at your case and making a decision about your case oneway or another, do you realize that?

Petitioner: Yes sir, I understand that.

Court: You still want just me to handle it?

Petitioner: Yes, sir.

Court: Mr. Coronado, you are obviously going in the oppositedirection than your counsel. You are going against his advice.You understand that, don't you?

Petitioner: Yes, sir.

Court: But assume that I grant you the waiver, grant yourapplication, assume that I do. Would you cooperate with him inyour own defense in the case, would you cooperate with yourlawyer?

Petitioner: Well, being that he is my lawyer I have too.

Court: And you would do that?

Petitioner: Of course.

Court: You fully understand what you are doing?

Petitioner: Yes, sir, perfectly.

Court: Under those conditions, that you fully understand andhave had a full opportunity to understand, you have hadovernight to discuss this with your attorney and to thinkabout it, and having read the statute that permits you to makethis application and it is your determination, and I am nowsatisfied that you know what you are doing, I am granting[your] application.

14. Although the Second Circuit has not specified what atrial judge must tell a defendant before accepting a waiver ofa jury trial, the Seventh Circuit requires that the trialjudge explain to the defendant that a jury is composed of 12members of the community, and that if a defendant waives ajury trial, a judge alone will decide his guilt or innocence.Id.

15. As the Seventh Circuit noted in Franzen, the standardenunciated by the Ninth Circuit in Sieling has proved ratherunworkable, and that court has limited the scope of Sieling toallow the district court to reconstruct the competence of thedefendant to plead guilty based upon the evidence presented inconnection with determining his competence to stand trial.United States v. Franzen, supra, 667 F.2d at 637, 637-38 n. 4.See Makal v. Arizona, 544 F.2d 1030 (9th Cir. 1976),cert. denied, 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782(1977).

16. For example, defense counsel asked the witnesseswhether their opinion might be altered if they were told thatpetitioner had stated that he wanted to kill his mother orthat he enjoyed throwing cats and dogs off rooftops to watchthem suffer — hypothetical questions not without some factualbasis in petitioner's case. Both witnesses insisted that thesefacts would not alter their opinions, but refused to give anyexample of a fact which would cause them to find incompetency.

17. There does seem to be some direct evidence here,despite petitioner's claim that there is only circumstantialevidence. Perez testified that petitioner told him that hemurdered Gutierrez.

18. Petitioner claims that Perez and Alvarez are notcredible since they have a strong dislike for him, and becausethey made a number of contradictory statements.

19. Petitioner cites the standard enunciated in People v.Taddio, 292 N.Y. 488, 489, 55 N.E.2d 749 (1944), as theappropriate standard when a case relies on circumstantialevidence. That case required that, where the evidence againstthe accused is solely circumstantial, it must point "logicallyto the defendant's guilt and exclud[e] to a moral certaintyevery other reasonable hypothesis." Id. This is the standardthat is applied under New York State law. See Prince,Richardson on Evidence § 148, at 119-120 (1973). However, it iswell-settled that federal courts have no supervisory authorityover state courts, Chandler v. Florida, 449 U.S. 560, 570,582-83, 101 S.Ct. 802, 807, 813-14, 66 L.Ed.2d 740 (1981), andthat federal habeas corpus review of state criminal proceedingsunder 28 U.S.C. § 2254 is limited to errors of constitutionalmagnitude. See, e.g., Smith v. Phillips, 455 U.S. 209, 102S.Ct. 940, 71 L.Ed.2d 78 (1982); Donnelly v. DeChristoforo,416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974);Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38L.Ed.2d 368 (1973); Petrucelli v. Coombe, 735 F.2d 684 (2ndCir. 1984). Thus, even assuming that the trial judge erredunder state law, this claim would fail as it omits to allege aconstitutional violation.

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