argued as amended august 24 1977.: March 31, 1977.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. D.C. Civil No. 74-145.
Van Dusen, Gibbons, and Garth, Circuit Judges. Gibbons, Circuit Judge, concurring in part and dissenting in part.
This appeal from a denial of habeas corpus relief involves three claims stemming from petitioner Trantino's alleged ingestion of psychoactive drugs before and during his trial for murder. The district court found all three claims to be meritless. 408 F. Supp. 476 (D. N.J. 1976). However, we find that we may pass upon the district court's disposition of only two, because Trantino did not exhaust available state remedies as to his third claim, which alleges a Brady*fn1 violation.
We affirm the district court's dismissal of all three claims, but we predicate our dismissal of the Brady claim not on the merits of that claim but rather on the absence of any indication that the federal claim was "fairly presented to the state courts." Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Zicarelli v. Gray, 543 F.2d 466, 474-75 (3d Cir. 1976) (en banc).
On August 28, 1963, Trantino surrendered to police in New York City, where he was the object of a massive manhunt as the principal suspect in the August 26, 1963 killing of two Lodi, New Jersey policemen.*fn2 He was extradited to New Jersey, and was held in the Bergen County jail until his conviction on two counts of murder on February 18, 1964.
When first incarcerated, Trantino was under the care of a Dr. Sarla, the jail physician. Trantino suffered from what Dr. Sarla diagnosed as tension headaches; consequently, Dr. Sarla prescribed aspirin to provide relief. When the headaches persisted, Trantino was given Equanil, a mild tranquilizer, in twice-daily dosages beginning on October 7, 1963. This regimen continued through October 15, 1963.*fn3
On the evening of that day, Trantino, "irritated by a jail employee's verbal abuses, erupted into [a] vocal tirade 'yelling at the top of his head that he was being treated like an animal.'" 408 F. Supp. at 484-85 (transcript citations omitted). Because of this violent outburst, Trantino was placed in an observation cell and was straightjacketed.*fn4 A Medical Log entry for October 15, 1963 notes Dr. Sarla's observation: "This man is completely unbalanced mentally at the moment, should be under psychiatric treatment and observation."*fn5 Dr. Sarla, however, was not a psychiatrist.
The "October 15 incident" apparently prompted the state to bring a psychiatrist into the case. Pursuant to a court order,*fn6 Dr. Joseph Zigarelli, a staff neuropsychiatrist at Greystone Park State Hospital, examined Trantino on October 17, 1963. Dr. Zigarelli wrote a brief letter to the prosecutor summarizing his findings:
On October 17, 1963, Mr. Thomas Trantino, age 25 years, was examined by me at the Bergen County Jail. Patient was informed of the nature of the examination, that it was being done at the request of your office as to his mental condition prior to appearing in court. At that time a complete neuropsychiatric examination was performed. A report of this examination will follow.
It is my considered neuropsychiatric opinion that at the present time Mr. Trantino is mentally competent to consult with counsel. It is also my opinion that at the time of the alleged offense he was able to differentiate right from wrong and able to understand the nature and quality of his actions.
It must be stated, however, that patient is beginning to formulate some paranoid ideas and has expressed some vague feeling of persecution. These, in my opinion, are not sufficiently developed to interfere with his mental status to consult with counsel.
Letter of October 17, 1963, R-34 at 8.
Following his examination of Trantino, Dr. Zigarelli consulted with Dr. Sarla. He recommended that Trantino be treated with Thorazine, a psychoactive drug of considerably greater potency than Equanil. The Medical Log that sets forth Trantino's treatment while he was confined reveals that a dosage of 50 mg./day, four times daily was prescribed and began on October 17, 1963, that the authorized dosage was doubled on October 24, and that thereafter 400 mg./day was prescribed until December 20, 1963, when the authorization for Thorazine treatment ended.
In the interim, Dr. Zigarelli filed his formal report with the prosecutor. Letter of October 23, 1963, R-34 at 9-13. This report concludes as follows:
Impression : The impression gained from the initial interview with this individual is that we are dealing with a Sociopathic Personality of long standing. There is evidence of poorly controlled feelings of hostility and anxiety. This individual has never learned from past experiences and has always been able to rationalize his behavior. In spite of this maladjustment there has not been any psychotic episode in my opinion until his most recent episode several days ago. He is now beginning to formulate some vague Paranoid ideas of persecution. These are in the beginning stage and are not fully developed. At the present time this individual is fully oriented in all spheres. He is able to fully appreciate his position and is able to consult with counsel. It is my considered Neuropsychiatric opinion that at the present time and at the time of the alleged offense, this individual is and was capable of understanding the nature and quality of his acts and to differentiate right from wrong.
Id. at 12-13. The report, however, did not mention the Thorazine prescription.
On November 6, 1963, Trantino's newly appointed counsel made a number of motions to the trial court, seeking, inter alia, appointment of a psychiatrist for the defense and procurement of "copies of all medical psychiatric or other examinations made by the State or its agents of the defendant in this case."*fn7 The motion for medical reports was denied: thus Trantino's attorneys were denied access to the reports received by the prosecutor, i. e., Dr. Zigarelli's letters of October 17 and October 23, 1963.
However, their first request was granted: two psychiatrists, Drs. Samuel Kesselman and Robert Latimer, were appointed for the defense. Doctor Kesselman examined Trantino on December 1; Doctor Latimer, on December 4. Both doctors concluded that Trantino was competent to stand trial and to assist in his defense.
So far as this record reveals, neither was aware of Trantino's ongoing Thorazine and Equanil treatment. That information was apparently not known by defense counsel (nor, for that matter, by the prosecutor) - although it was readily ascertainable from Trantino's Medical Log and Jail Log.*fn8
The subject of medication - either his failing or refusing to take prescribed drugs - was not related to his doctors by Trantino or by Trantino's attorney. Trantino's Jail Log further reveals that while medication was made available to Trantino in the prescribed dosages, he often refused it when offered.
Indeed, according to a summary of the Jail Log prepared by the State, Trantino refused 139 full doses of Thorazine during the period of authorized treatment (October 17, 1963 through December 19, 1963). He accepted only 59 doses of the drug during the same period. His sporadic acceptance of Thorazine ceased entirely between November 19, 1963 and December 7, 1963: thus he had not taken the drug for 14 days when Doctor Kesselman examined him on December 1, and for 19 days when Doctor Latimer saw him on December 5.
Prescribed Thorazine was offered to and accepted by Trantino for the last time on December 19, 1963. For the three days following still another drug - Compazine - was substituted. Finally, Trantino once again began to receive Equanil, the milder medication which had originally been prescribed prior to his outburst on October 15, 1963. This treatment with Equanil continued throughout his trial, which began February 3 and continued through February 18, 1964. During this period Trantino accepted approximately 75% of the prescribed doses of Equanil.*fn9
In addition to authorized medication, however, Trantino claimed to have received some Thorazine from other inmates. The district court's discussion of this contention is as follows:
Recognition of the more potent properties of Thorazine as compared to Equanil directed the state trial court's attention towards petitioner's claim that he secretively obtained Thorazine tablets from another jail inmate on the day of his testimony. It found that Trantino did not obtain the medication on the day of his trial testimony. Relying on the testimony of the two inmates which Trantino claimed could have provided him with the unauthorized Thorazine, the state court found that petitioner had not surreptitiously obtained the two Thorazine tablets on the day that he took the stand in his own defense. This finding of fact is fully supported by the record.
The state trial court found that Trantino did ingest Equanil tablets on the day of his trial testimony, one at 6:15 A.M. and another at 8:00 A.M. on February 14, 1963. It, however, found that this medication, Equanil, was a mild tranquilizer that would not affect the ability of Trantino to conduct his defense or to testify. In reaching this finding the trial court discounted the testimony of petitioner's medical expert, Dr. Maximillian Fink, for a variety of reasons. Fink's testimony was based upon the premises that Trantino was ingesting both Equanil and Thorazine during the October 17-December 20, 1963 period and that petitioner took all prescribed doses of medication offered him.*fn10
As noted above, Trantino's trial lasted from February 3 through February 18, 1964. The jury found Trantino guilty of both murders. He is presently serving a sentence of life imprisonment*fn11 in the State Prison at Rahway, New Jersey.
The federal habeas corpus statute by its terms precludes the granting of a writ of habeas corpus in the absence of a showing that a petitioner has exhausted his available state court remedies.*fn12 Thus, when Trantino's petition in this case was filed in 1974, the district court judge was careful to chronicle the post-conviction proceedings in both state and federal court.*fn13
Trantino's claims - as his petition denominates them and as the district court opinion sets them forth - are:
(A) That the state prosecutor and his staff deprived petitioner's counsel of the opportunity to interview and confront eye-witnesses to the crime prior to trial.
(B) That the state trial judge failed to hold a hearing on petitioner's competency to stand trial despite evidence casting some doubt on the matter.
(C) That medication administered to the petitioner impaired his ability to aid in the preparation and conduct of his defense, suppressed symptoms of mental illness, and adversely affected his demeanor in court.
(D) That petitioner was denied the effective assistance of his own psychiatrists by the state's failure to inform them of the psychoactive drugs he was taking, that he was denied the effective assistance of counsel in that the state was permitted to conduct a psychiatric examination in the absence of petitioner's counsel.
(E) That the trial judge improperly charged the jury with respect to the burden of proof on culpable mental state.
(F) That the petitioner was denied a fair and impartial trial because of massive pretrial publicity.
The district court's analysis of the exhaustion requirement separately considers each issue encompassed within Trantino's six claims. See id. at 480-81. This procedure correctly anticipated our discussion in Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976) (en banc):
a federal habeas court may not entertain a claim presented to it unless the "same claim" had been urged upon the state courts. In order to meet this standard, . . . the argument brought before the federal court must be "the substantial equivalent" of a claim already presented to the state courts; "the substance of" the claim raised in the federal court must first have been submitted to the state court.
Here, the district court has separately considered and ruled upon each issue raised by Trantino in terms of exhaustion. Because Trantino has not appealed from the district court's refusal to grant habeas corpus relief based upon claims (A) (confrontation of eye-witnesses); (E) (improper charge) and (F) (pretrial publicity), we need only review the court's "exhaustion" conclusions as to claims (B) (competency hearing); (C) ...