Rosenthal v. O'Brien

713 F.3d 676

Richard ROSENTHAL, Petitioner, Appellant,

v.Steve O'BRIEN, Respondent, Appellee.

No. 11–2210.

United States Court of Appeals, First Circuit.

April 15, 2013.

John H. Cunha, Jr., for petitioner.

Annette C. Benedetto, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General of Massachusetts, was on brief, for respondent.

Before HOWARD, STAHL and LIPEZ, Circuit Judges.

HOWARD, Circuit Judge.

Richard Rosenthal appeals the denial of his 28 U.S.C. § 2254 petition. His habeas petition, challenging his Massachusetts murder conviction, claimed that the state courts violated his constitutional rights in denying his motion for a new trial. For the reasons given below, we affirm the district court's order.

I. Factual Background

The district court issued a forty-page memorandum and order denying Rosenthal's habeas petition. Rosenthal v. O'Brien, 814 F.Supp.2d 39 (D.Mass.2011). This order ably recounts the history surrounding Rosenthal's murder conviction. We summarize only the facts pertinent to this appeal.

On August 28, 1995, Rosenthal killed his wife by beating her in the face with a rock before cutting her open, removing her organs, and placing them on a stake in their backyard. Later that evening, he told police that he had done a “terrible thing,” which led to the discovery of her body and his arrest.

Rosenthal's arraignment occurred the next day in Framingham District Court. At that time, Dr. Priscilla Hoffnung conducted an initial examination of Rosenthal to ascertain his mental competency. She determined that Rosenthal had a knowledge of the legal system, including possible penalties, various court procedures, affirmative defenses, and the attorney-client relationship. She also concluded, however, that “while appearing generally competent, there were some observations that raised doubts,” including his failure to grasp that his wife had died. Consequently, the arraigning judge ordered Rosenthal's commitment to Bridgewater State Hospital for a full competency evaluation pursuant to Massachusetts General Laws chapter 123, section 15(b). Dr. Joel Haycock attempted to perform this examination, but Rosenthal, acting under the advice of his attorney Norman Zalkind, declined to participate. Dr. Haycock offered the court no opinion as to Rosenthal's competency.

Although Rosenthal did not undergo a subsequent competency evaluation, he did speak with numerous mental health examiners. Reports by those professionals provided evidence of both Rosenthal's mental lucidity and some dysfunctional behavior. In follow-up examinations, Dr. Haycock reported that Rosenthal spoke in goal-directed sentences and displayed no evidence of major psychological symptomatology. Other doctors, however, noted increasing suicidality and bizarre, oppositional, and threatening behavior. In April 1996, Rosenthal was again committed to Bridgewater, where a Dr. DiCataldo evaluated him. Dr. DiCataldo considered Rosenthal's responses “well-measured and succinct ... [and] devoid of spontaneity and elaboration,” but he also found that Rosenthal was suspicious about the identity of his parents and other family members.

Rosenthal's attorneys also sought a medical opinion about Rosenthal's mental state to explore the possibility of an insanity defense.¹ They retained Dr. Marc Whaley to carry out the examinations. During the course of these evaluations, Zalkind raised concerns with Dr. Whaley about Rosenthal's competency after Rosenthal had exhibited unusual behavior at a court hearing. ² Dr. Whaley stated:

However, the next time I met with Mr. Rosenthal [after learning of Zalkind's concerns], 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....

The motion judge noted that Rosenthal's delusional and erratic behavior increased after he filed notice that he would assert a defense of lack of criminal responsibility.

The case proceeded to trial, about two weeks into which Rosenthal began growling and making other strange noises. He also informed Zalkind that he wished to testify. Zalkind alerted the court of this unusual behavior and asked for a short recess to speak with his client. After the recess, Zalkind informed the court that Rosenthal would not testify and that Zalkind was satisfied about his competency. Zalkind did not want Rosenthal to address the court at all—not even regarding his waiver of the right to testify—and the court honored that wish. The prosecutor asked the court to inquire into Rosenthal's competency, to which Zalkind responded:

We feel satisfied that he's competent to stand trial. I can't tell you anything more than that. Sure, there's always some doubts when a man is as sick as he is, and he's a very sick man, and there are a lot of pressures that a trial brings out that you don't have in more regular times, but I wouldn't have gone forward trying this case unless I felt he was competent. Am I a hundred percent sure? No. I am not a hundred percent sure. Do I think that he should be evaluated for competency? No. I don't think it's in his best interest.

The court did not conduct a competency examination.

In his closing statement, Zalkind emphasized Rosenthal's delusional understanding of reality to the jury in the following terms: “Ladies and gentlemen, again and again afterwards when [Rosenthal] sees his brother and he sees his family he's delusional. He doesn't think I'm me. He asked Dr. Whaley for his license ID. He doesn't think his parents are his parents.” The jury did not accept Rosenthal's insanity defense and convicted him of first degree murder based on extreme atrocity or cruelty.

On plenary review, the Massachusetts Supreme Judicial Court (“SJC”) affirmed. Commonwealth v. Rosenthal, 432 Mass. 124, 732 N.E.2d 278 (2000). Subsequently, Rosenthal brought three successive motions for a new trial on grounds not raised in his direct appeal pursuant to Rule 30(b) of the Massachusetts Rules of Criminal Procedure. The third motion, which superseded the previous two, addressed four issues: 1) the trial court's failure to hold a competency hearing sua sponte; 2) the trial court's failure to inquire into Rosenthal's decision not to testify; 3) the trial court's decision not to hold a hearing about the voluntariness of his statements to police; and 4) ineffective assistance of trial counsel.

The motion judge denied this motion for a new trial in a 31–page memorandum and order. Mem. Decision & Order Def.'s Mot. For New Trial, Commonwealth v. Rosenthal, No. 95–01775 (Mass. Super. Ct. July 24, 2009). This order addressed the four issues raised in Rosenthal's third motion, as well as briefly mentioning a previously abandoned claim of ineffective assistance of appellate counsel. Rosenthal then filed a motion to reconsider along with a fourth motion for a new trial. The motion judge denied the motion to reconsider and did not rule on the fourth motion. A single “gatekeeper” SJC justice denied Rosenthal's petition for leave to appeal. SeeMass. Gen. Law ch. 278, § 33E (barring further SJC review unless a single justice finds that the appeal raises “new and substantial” questions of law).

Thereafter, Rosenthal initiated his habeas corpus petition, which challenged the following conclusions by the motion judge: 1) that the trial court did not need to hold a competency hearing sua sponte; 2) that trial counsel was not constitutionally deficient for not seeking a competency examination; 3) that the trial court did not need to inquire into Rosenthal's waiver of his right to testify; 4) that trial counsel was not constitutionally deficient for persuading Rosenthal not to testify; 5) that trial counsel was not constitutionally deficient for failing to suppress statements made to the police without a Miranda warning; and 6) that Rosenthal's appellate counsel was not constitutionally deficient for failing to raise certain issues on appeal. The district court denied Rosenthal's petition, but certified all issues for appellate review. All except the Miranda issue have been raised here.

II. Discussion

A. Standard of Review

“We review the district court's denial of habeas relief de novo.” Yeboah–Sefah v. Ficco, 556 F.3d 53, 65 (1st Cir.2009) (quotations omitted). In order to obtain habeas relief from state custody, a petitioner must show that the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A state court's ruling is contrary to federal law either when it adopts a rule that “contradicts the governing law set forth in the Supreme Court's cases” or when it reaches a different result from a Supreme Court decision under “a set of facts that are materially indistinguishable.” John v. Russo, 561 F.3d 88, 96 (1st Cir.2009) (quotations omitted). Even if the state court correctly identifies the law, it may unreasonably apply the law to the facts of the case. To be unreasonable, however, the application of federal law must be “more than incorrect or erroneous.” Yeboah–Sefah, 556 F.3d at 65 (citing Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). In other words, “some increment of incorrectness beyond error is required.” Morgan v. Dickhaut, 677 F.3d 39, 47 (1st Cir.2012) (quotations and citations omitted). Finally, we only overturn state court factual determinations that are unreasonable in light of the record. 28 U.S.C. § 2254(d)(2).

B. Procedural Default

Counsel for Massachusetts belatedly invokes procedural default as a bar to Rosenthal's petition. A habeas claim is procedurally defaulted...