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September 23, 1980

UNITED STATES of America ex rel. Sylvester COLEMAN, Petitioner,
Sidney HICKS et al., Respondents

The opinion of the court was delivered by: LACEY

Petitioner in this habeas corpus action, 28 U.S.C. § 2254, was indicted by an Essex County Grand Jury for unlawful possession of marijuana, unlawful possession of a dangerous knife, atrocious assault and battery, and murder. N.J.S.A. 24:21-20; N.J.S.A. 2A:151-41; N.J.S.A. 2A:90-2; N.J.S.A. 2A:113-1 and 2. Petitioner pled not guilty to all charges; the State chose to go to trial on the murder indictment. Petitioner was tried to a jury, which convicted him. Subsequent to the trial, petitioner pled guilty to possession of marijuana and possession of a dangerous knife. As part of the plea bargain the atrocious assault and battery charge was dismissed. The trial judge imposed a 20-to-25-year sentence for murder in the second degree. The petitioner received sentences of 2 to 3 years on both possession charges, with all sentences being made concurrent with each other.

After the Appellate Division of the Superior Court affirmed petitioner's conviction, the Supreme Court of New Jersey denied certification. He then filed his petition here.

 Acting pro se, petitioner filed a petition containing four constitutional claims: (1) denial of due process because the trial judge incorrectly found he was competent to stand trial; (2) denial of due process because the State did not bear the burden of establishing competency to be tried or sanity at the time of the murder; (3) denial of the right to a fair and impartial jury trial; and (4) denial of due process because the trial court did not hold a competency hearing to determine if petitioner was competent to plead guilty or be sentenced.

 Before considering the merits of these claims, it is first necessary to determine that petitioner "has exhausted the remedies available in the court of the State." 28 U.S.C. § 2254(b). Petitioner's counsel later filed an amended complaint which deleted petitioner's fourth claim. *fn1" The other three claims were retained. All claims having been exhausted, I now turn to the merits.

 Petitioner contends that he did not receive a fair and impartial jury trial. One of petitioner's defenses at trial was that he was not guilty by reason of insanity. On July 3, 1975, the jury began deliberating. That same day the Newark Star Ledger reported a Morris County court had released a defendant six weeks after a jury had found him not guilty by reason of insanity. Petitioner's counsel became aware of the article while the jury was deliberating, Transcript of July 25, 1975, at 7, but he took no action until after the jury had returned a guilty verdict and had been discharged. Only then did he move to have the jury reassembled and interrogated to see if any juror had read the article and had been influenced by it. Id. at 3-4. Petitioner's counsel candidly admitted that he had no factual basis for believing that any juror had seen the article. Id. at 4-5.

 The court denied petitioner's application, stating that "(t)he absence of facts in the affidavit would indicate to me that they do not exist." Id. at 5. Noting that "the Court's (sic) treatment of the defenses of insanity had received widespread attention," id. at 11, the judge reminded counsel that he had charged the jury "not to read anything or watch anything of a similar type of case" and that he had stressed to the jury that "they have to decide it on the law and the facts and not concern themselves with the ultimate results." Id. at 12. He therefore concluded, "I can't believe that this jury ignored all the instructions that I had given them during the course of this trial and I think it would be unappropriate (sic) and it would be against the mandate . . . set forth in . . . those cases in interpreting (Rule 1:16-1) to permit an interview of the jurors in this regard or for this purpose." Id. at 13.

 The petitioner's claim is without merit. He did not move in a timely fashion. When he finally moved he had no evidence any juror had seen the article, let alone read it in disregard of the trial judge's admonitions. Moreover, even if jurors had read the article, it is far from clear that petitioner would have been substantially prejudiced. Accordingly, this claim must be dismissed. See United States v. Taylor, 569 F.2d 448, 454 (7th Cir.), cert. denied, 435 U.S. 952, 98 S. Ct. 1581, 55 L. Ed. 2d 803 (1978); United States v. Armocida, 515 F.2d 29, 48-49 (3d Cir.), cert. denied, 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975); United States v. Vento, 533 F.2d 838, 869-70 (3d Cir. 1976); Frame v. United States, 444 F.2d 71 (9th Cir.), cert. denied, 404 U.S. 942, 92 S. Ct. 291, 30 L. Ed. 2d 256 (1971); United States v. Manning, 440 F.2d 1105, 1112 (5th Cir.), cert. denied, 404 U.S. 837, 92 S. Ct. 125, 30 L. Ed. 2d 69 (1971).

 Next, petitioner contends that he is unlawfully incarcerated because the jury was unconstitutionally charged that he bore the burden of proving insanity by a preponderance of the evidence. According to petitioner, the State should have been assigned the burden of proving his sanity.

 In Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952), the Supreme Court upheld an Oregon statute which required the defendant to prove insanity beyond a reasonable doubt. Since Leland, however, the Supreme Court has stated on a number of occasions that due process compels the prosecution to prove all elements of a crime beyond a reasonable doubt. See, e.g., Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Relying on these cases, petitioner argues that Leland is no longer good law, because it impermissibly allocates the burden of persuasion to the criminal defendant.

 Petitioner's contention is without merit, for Leland has not been overruled. The Supreme Court dismissed, as not raising a substantial federal question, a case presenting a direct challenge to the validity of Leland. Rivera v. Delaware, 429 U.S. 877, 97 S. Ct. 226, 50 L. Ed. 2d 160 (1976). More recently, the Supreme Court announced, "We are unwilling to reconsider Leland and Rivera." Patterson v. New York, supra, 432 U.S. at 207, 97 S. Ct. at 2325. Rivera and Patterson plainly foreclose the argument petitioner advances. As the Court of Appeals for the Third Circuit succinctly stated in affirming a statute placing the burden of proving voluntary intoxication on the defendant, "(T)he (Supreme) Court has held that the defense may be required to establish insanity." United States ex rel. Goddard v. Vaughn, 614 F.2d 929, 935 (3d Cir. 1980) (citations omitted).

 The State of New Jersey has chosen to require the defendant seeking an acquittal by reason of insanity to establish, by a preponderance of the evidence, his insanity. State v. Lewis, 67 N.J. 47, 48, 335 A.2d 12 (1975); State v. DiPaglia, 64 N.J. 288, 293, 315 A.2d 385 (1974). See also State v. Molnar, 81 N.J. 475, 492, 410 A.2d 37 (1980). The Due Process Clause does not forbid the states from requiring the defendant to carry the burden of disproving sanity. Rivera v. Delaware, supra; Leland v. Oregon, supra; United States ex rel. Goddard v. Vaughn, supra; Nelson v. Hutto, 597 F.2d 137, 138 (8th Cir. 1979) (per curiam); Duisen v. Wyrick, 566 F.2d 616, 617 (8th Cir. 1977) (per curiam); Grace v. Hopper, 566 F.2d 507, 509-10 (5th Cir.), cert. denied, 439 U.S. 844, 99 S. Ct. 139, 58 L. Ed. 2d 144 (1978). Accordingly, petitioner was not deprived of any constitutional right when he was obliged to persuade the jury by a preponderance of the evidence that he was insane at the time the murder was committed.

 The first witness was Dr. Seymour Kuvin, a psychiatrist, who testified as an expert witness. Dr. Kuvin had examined petitioner for an hour approximately three weeks before the hearing. He based his testimony almost entirely on facts learned during that interview.

 Dr. Kuvin diagnosed petitioner as suffering from organic brain damage. Tr. at 7, 47. He testified that petitioner's condition resulted from ingesting LSD. According to Dr. Kuvin, petitioner's condition manifested itself in a variety of ways.

(H)e gave the appearance of being spaced out, he was very flat in his affect, he would stare, he didn't seem to be communicative and I would have to repeat questions, I would ask a question and I would get a stare for a reply as if it ...

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