Vance Johnson v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

This is a continuation of the Johnson matter, and I have, for record, I just want to go through the exact exhibits that I have reviewed.   I have not reviewed all of them, just so everybody understands that, but I have reviewed the relevant pages and more because in some cases some of these pages were—there were slight overlaps to the next section and I just read through for continuity, but having said that, it is Exhibits 5, Petitioner's Exhibits 5, 6, 7, and 12, that I reviewed, as well as Respondent's Exhibit C, those were all full exhibits.   So, in addition to the transcripts, portion of the transcripts, I reviewed the petitions, the earlier petitions.

All right.   Now, at this point I will defer to counsel for any comments and/or arguments.   Did you want to say anything, Ms. Macchiarulo?

ATTY. MACCHIARULO:  No, Your Honor.

THE COURT:  Okay. Do you want to ․

ATTY. PATEL:  No, Your Honor.

THE COURT:  All right.   Then, what I will do is proceed to make findings with respect to the testimony, that I've heard, and with respect to the exhibits, that I've reviewed, and I would just ask the reporter to prepare these as a transcript so that the court will be able to sign them as the judgment and memorandum in this case.

First, I will say that it does appear that in each and every portion of the transcripts that I have reviewed there is no possibility, as far the court is concerned, and there may be differences of opinion here, but it does not, at least from what I have read, appear to be a question in anyone's mind that Mr. Johnson was incompetent.   There isn't even a hint of it.

What I see repeatedly through each and every one of these portions of the transcript is that Mr. Johnson had a number of disagreements with Mr. DeCaprio, and I think he testified to that.   He didn't want him to do certain things and Mr. DeCaprio continued to advise him in one particular way, but ultimately Mr. Johnson either told the court directly or decided he was going to do something else.

As far as the ineffectiveness of Mr. DeCaprio was concerned, we'll start with him because he did testify today and it would appear to this court that I am fully able to find all of his testimony credible, and what he did say unequivocally is that in no time did he feel that there was a question of incompetency.   He used the opportunity to address the court, to ask the court to give him a chance, some time to have a doctor explain to Mr. Johnson why he was proceeding with his defense in the way—the manner in which he wished to proceed.   I don't think there was ever a question in Mr. DeCaprio's mind that Mr. Johnson was incompetent.

And beyond that, each—that would certainly make each of the—the testimony of Ms. Hutchinson and of Mr. Burns, as they proceeded up the line here with these further habeas proceedings to conclude themselves that there certainly was in no way any issue of competency.   It was never raised.   It was never even suggested by Mr. DeCaprio, and Mr. Burns had mentioned that he spoke to both Ms. Hutchinson and Attorney DeCaprio.

So, it does not appear that the—and certainly as both counsel obviously know and Ms. Macchiarulo alluded to earlier, the controlling case here is Washington, the Washington case, Strickland versus Washington, and so we find that with the first prong, the ineffective prong, once the court is able to determine that there was no ineffectiveness, it certainly does not have to consider the second prong of prejudice, which is why I assume the respondent expected the court to hear the testimony of these attorneys before even considering whether it was appropriate to proceed to the testimony of Dr. Meisler, and at this stage it's obvious that I do not feel that there is any reason to do that and, therefore, I will enter an order of denial as far as the petition is concerned.

Now, does the clerk have the appeal papers?

All right.   And I will indicate for the record that those papers are being transferred to Mr. Patel and his client, his client should consider signing them today and filing them that he may proceed to appeal.

Any comments or questions?

ATTY. MACCHIARULO:  No, thank you, Your Honor.

ATTY. PATEL:  No, Your Honor.

THE COURT:  Thank you very much.

ATTY. PATEL:  Would I have opportunity to spend five minutes with him so he can sign the papers?

THE COURT:  Absolutely, yes.

Thank you.

ATTY. PATEL:  Thank you.

THE COURT:  And we will adjourn.

ATTY. PATEL:  Can you agree to remove for the—while he signs—

THE PETITIONER:  I'm good.   Yeah,—

ATTY. PATEL:  He can sign?   Okay.

Thank you, Your Honor.

THE COURT:  We'll adjourn.

(End of excerpt as ordered.)

(Court adjourned.)

Santos, J.

Santos, Thelma A., J.