Rosenthal v. O'Brien

814 F.Supp.2d 39

Richard ROSENTHAL, Petitioner,

v.Steve O'BRIEN, Respondent.

Civil Action No. 10–10122–WGY.

United States District Court, D. Massachusetts.

Sept. 30, 2011.

Alan J. Black, Attorney at Law, Springfield, MA, for Petitioner.

Eva M. Badway, Attorney General's Office, Boston, MA, Annette C. Benedetto, Department of Attorney General, Boston, MA, for Respondent.

MEMORANDUM AND ORDER

YOUNG, District Judge.I. INTRODUCTION

Richard Rosenthal (“Rosenthal”) brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pet., ECF No. 1. He presents four grounds for relief: (1) he was deprived of due process by the motion judge's denial of his motion for a new trial without a competency hearing (Ground 1); (2) he was deprived of due process when the motion judge ruled that there was no lack of inquiry into the validity of Rosenthal's waiver of his right to testify (Ground 2); (3) he was deprived of due process by the ineffective assistance of trial counsel (Ground 3); and (4) he was deprived of due process by the ineffective assistance of the appellate counsel (Ground 4). Pet. App. Attach. Grounds, ECF No. 1–2.

A. Procedural Posture

On November 7, 1996, following a jury trial in Middlesex Superior Court (Graham, J.), Rosenthal was convicted of murder in the first the degree based on extreme atrocity or cruelty. Commonwealth v. Rosenthal, 432 Mass. 124, 124, 732 N.E.2d 278 (2000). Rosenthal did not dispute that he committed the murder, but claimed that he was not criminally responsible. Id. After his conviction, Rosenthal appealed, and the Supreme Judicial Court affirmed his conviction and denied relief under Massachusetts General Laws chapter 278, section 33E. Id. at 124, 131, 732 N.E.2d 278. On October 22, 2008, Rosenthal moved for a new trial, pursuant to Rule 30(b) of the Massachusetts Rules of Criminal Procedure. Rosenthal Mot. New Tr., Supplemental Answer, Vol. 3, Tab 12, SAA135, ECF No. 11. This motion was denied in a Superior Court Memorandum and Order (the “Memorandum and Order”), dated July 24, 2009. ¹ Mem. Decision & Order Def.'s Mot. For New Trial (“Mem. & Order”), Commonwealth v. Rosenthal, No. 95–01775 (Mass.Sup.Ct. July 24, 2009) (Kottmyer, J.) (the “motion judge”), ECF Nos. 1–4 to 1–6. On November 5, 2009, a single justice of the Supreme Judicial Court denied Rosenthal's application pursuant to Massachusetts General Laws chapter 278, section 33E, for leave to appeal. Order Den. Leave Appeal, Commonwealth v. Rosenthal, No. SJ–2009–0451 at 13 (November 5, 2009), ECF No. 1–6. On January 27, 2010, Rosenthal filed the present petition.

B. Facts ²

1. The murder of Laura Rosenthal

On the night of August 28, 1995, Rosenthal killed his wife, Laura Rosenthal, by beating her with a rock, rupturing her eye and the surrounding bones, and destroying her face beyond recognition. Mem. & Order 2. He then sliced her torso, removed her organs, and impaled them on a stake, leaving them lying in the backyard of their home. Id. After murdering his wife, Rosenthal drove about aimlessly with his four-and-one-half month old baby in the back seat of his car. Id. After the police approached him, and before administering Miranda warnings, one of the officers offered to help Rosenthal, telling him that the sooner he told the police what was going on, the sooner he could go home. Id. Rosenthal then told the police, “I'm driving around to cool off. I had an argument. I had a fight. I did a terrible thing. I'm having marital problems.” Id. After the police officers found bloody clothing in Rosenthal's car, they advised him of his Miranda rights. Id. Rosenthal later claimed that “he believed his wife was an ‘enemy alien vampire,’ part of an invasion” and that the crime was committed in self-defense. Id.

2. Pre–Trial Mental Health Evaluations

On August 29, 1995, Rosenthal was arraigned in Framingham District Court. Id. at 2. On that date, Dr. Hoffnung examined him pursuant to Massachusetts General Laws chapter 123, section 15(a). Id. at 2–3. In her report, Dr. Hoffnung noted that Rosenthal understood he was charged with the crime of murder:

[He] was able to discuss the range of possible penalties. He indicated an understanding of various court procedures, such as plea bargaining. He was able to correctly define the role of various court officers and to appreciate the adversarial nature of court hearings. He was able to discuss various defenses though initially confused between the meaning of a plea and legal strategy. However, he accepted the explanation of his attorney and generally followed his advice.

Id. at 3 n. 5. She concluded that “while appearing generally competent, there were some observations that raised doubt.” Id. She reported that certain observations, including the fact that there was “no recognition or acknowledgment that his wife was dead or might be dead” raised the possibility of mental illness. Id. Dr. Hoffnung noted that Rosenthal referred to his wife as an unidentified or unspecified person, stressing, however, that due to the severity of her injuries, the body had to be identified through dental records and that process had not yet taken place. Id. She stated that, on one occasion, Rosenthal began to answer a question although his attorney had advised him not to answer and that, at the end, he asked her whether this was “a big case.” Id. Dr. Hoffnung later testified at trial that, when she asked Rosenthal what alternatives he had to pleading not guilty, he replied “after thinking for a while ... self-defense, temporary insanity, or a thyroid storm.” Id.

After Dr. Hoffnung reported her findings, the court issued an order committing Rosenthal to Bridgewater State Hospital (“Bridgewater”) for an evaluation of competency to stand trial. Id. at 3. Pursuant to that order, Dr. Haycock attempted to evaluate Rosenthal. Id. at 3–4. In a letter to the Framingham District Court dated September 14, 1995, Dr. Haycock wrote that Rosenthal informed him “that his lawyers had instructed him not to speak with [Dr. Haycock] for the purposes of this evaluation.” Id. at 4. Dr. Haycock released Rosenthal to the court without an opinion on his competency. Id.

In September 1995, at the request of the Middlesex County Jail, Dr. Schmidt evaluated Rosenthal pursuant to Massachusetts General Laws chapter 123, section 18(a). Id. In his report to the Framingham District Court dated September 15, 1995, Dr. Schmidt wrote that Rosenthal was

very unrevealing of his mental status, answering many questions with a refusal to answer or comment. He [said] he [was] not suicidal or homicidal now, but [said] he [could not] promise to tell if he [was] suicidal—‘Why would I tell you if I really wanted to do it?’ ”

Id. at 5. Dr. Schmidt also reported that it was not clear to him that the defendant had a mental illness, but there was “certainly a strong possibility ... [therefore] further inpatient evaluation [was] warranted.” ³ Id.

On September 28, 1995, a Middlesex County grand jury indicted Rosenthal for first-degree murder. Id. On the day after, Rosenthal was arraigned before a clerk magistrate, at which time the following exchange took place:

[Defense Counsel]: Stands mute.

CLERK: The defendant standing mute the Court will enter a plea of not guilty to this indictment. Be seated, Mr. Rosenthal.

THE DEFENDANT: Excuse me, I did have a statement to make, if the Court may allow it.

....

[Defense Counsel]: I've advised him not to, but he wants to say something.

[Commonwealth]: Your Honor, I think he should be inquired of as to guilty or not guilty and no more.

CLERK: Fine. [Clerk,] would you ask the defendant how he pleads.

[Commonwealth]: No, your Honor, that's what the Court has already done. I would suggest that no further statement be appropriate.

CLERK: Thank you.... Fine. Be seated, Mr. Rosenthal.

CLERK: Mr. Rosenthal, you're represented by counsel and under the advice of counsel he does not wish you to speak, so I do not want to hear from you at this time. What say you of this indictment, sir, are you guilty or not guilty?

[THE DEFENDANT:] I understand, but at the same time I would prefer to make a statement not on this case but on something else.

CLERK: Not right now.... You'll have a time to give a statement in due course.

Id. at 5–6. In the affidavit supporting his Motion for New Trial, Rosenthal stated that his only concern was to make a statement to apologize for bringing on the air strikes in Bosnia. Id. at 6. On the same day, defense counsel, Norman Zalkind (“Zalkind”), contacted Dr. Whaley, who had been retained by the defense to evaluate whether Rosenthal was criminally responsible for the murder and who had already interviewed Rosenthal on September 16, 1995.⁴ Id. Dr. Whaley's notes reflected that Zalkind reported to him that at arraignment, “pt wanted to talk in ct & apolog for the bombing strikes in Bosnia? ? compet.” Id. He acknowledged that Zalkind raised the question of Rosenthal's competence after the arraignment. Id. He also stated,

However, the next time I met with Mr. Rosenthal [October 6, 1995], he appeared the same as he had been previously. He was able to answer questions and interact with me in an appropriate fashion so I never performed the formal competency evaluation. I did not specifically ask him about his understanding of the trial, the charges against him, or the function of the various roles of the courtroom participants, in that his mental functions at the time seemed to be grossly intact....Id. at 6. Thereafter, additional petitions were filed to commit Rosenthal to Bridgewater, pursuant to Massachusetts General Laws chapter 123, section § 18(a). Id. at 6–7. On each occasion, the focus of the observation and examination was whether Rosenthal posed a danger to himself or others if held at the Middlesex County jail. Id. at 8. Rosenthal's competency to stand trial was not evaluated. Id. at 8.

On October 27, 1995, after receiving and meaningfully discussing the Lamb warning, see ...