Opinion
03 Civ. 397 (LAP) (AJP)
September 26, 2003
REPORT AND RECOMMENDATION
To the Honorable Loretta A. Preska, United States District Judge:
Petitioner Mario Wilder, pro se, seeks a writ of habeas corpus from his 1996 conviction in Supreme Court, Bronx County, of first degree robbery and sentence of twenty-five years to life imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-4.) Wilder's habeas petition asserts eight claims: (1) denial of the right to represent himself at trial (Pet. ¶ 12(A)); (2) admission of a suggestive lineup (Pet. ¶ 12(B)); (3) failure to be provided Rosario material (Pet. ¶ 12(C)); (4) police use of a suggestive photo array (Pet. ¶ 12(D)); (5) a prejudicial jury charge (Pet. ¶ 12(E)); (6) the trial court lacked jurisdiction and the Bronx was an improper venue (Pet. ¶ 12(F)); (7) admission of prejudicial evidence of uncharged crimes (Pet. ¶ 12(G)); and (8) double jeopardy (Pet. ¶ 12(H)).
For the reasons set forth below, the Court should deny in part, and grant in part, Wilder's petition and direct that Wilder be released unless he is given a new trial within sixty days. While the old saying is that one who represents himself has a fool for a client, the Supreme Court in Faretta v. California recognized a criminal defendant's right to self-representation. The trial court violated Wilder's right to represent himself at trial, and for that reason Wilder's habeas petition should be granted.
FACTS
Wilder's Request to Represent Himself is Denied
By an indictment filed on February 3, 1995, the Bronx County Grand Jury accused Wilder of robbery, larceny, and criminal possession of stolen property, for allegedly stealing a car at gunpoint in the Bronx. (Dkt. No. 6: Markoe Aff. ¶ 5; Markoe Aff. Ex. B: Wilder 1st Dep't Br. at 2.) During pretrial proceedings before the commencement of voire dire (Transcript ["Tr."] 44), Wilder made an application to represent himself at trial:
References to Exhibits are to those attached to the Affidavit of Assistant District Attorney Zaharah R. Markoe (Dkt. No. 6).
[DEFENSE COUNSEL]: Your Honor, my client asks me to make an application. He wishes to represent himself.
THE COURT: And I'm speaking to you. . . . What is your educational background?
THE DEFENDANT: Twelfth degree-I mean twelfth grade.
THE COURT: And is that as far as you've gone, sir?
THE DEFENDANT: Yes, sir.
THE COURT: And did you receive a high school diploma?
THE DEFENDANT: No, sir.
THE COURT: Did you drop out of school in the twelfth grade?
THE DEFENDANT: Yes, sir.
THE COURT: And, therefore, did you not complete the twelfth grade?
THE DEFENDANT: Exactly, sir.
THE COURT: Therefore, you've had no training, other than that which you had — what time during the year did you go into the twelfth grade?
Did you start the twelfth grade?
THE DEFENDANT: Yes, sir.
THE COURT: And did you go through the first semester?
THE DEFENDANT: Yes, sir.
THE COURT: Did you pass all of the courses that you had in your first semester?
THE DEFENDANT: No, sir.
THE COURT: And so that basically you completed the eleventh grade and not the twelfth grade?
THE DEFENDANT: Basically.
THE COURT: Now, is that the extent of the education that you've had?
THE DEFENDANT: Yes, sir.
THE COURT: And you've had no college education?
THE DEFENDANT: No. No, sir.
THE COURT: And you've not taken any courses above — I would say college or any courses that you might have —
THE DEFENDANT: Legal courses.
THE COURT: You took legal courses?
THE DEFENDANT: Yes, sir.
THE COURT: Where'd you take the —
THE DEFENDANT: Comstock, Clinton and Auburn.
THE COURT: Comstock, Clinton and Auburn?
THE DEFENDANT: Yes, sir.
THE COURT: And you took those when you were incarcerated?
THE DEFENDANT: Incarcerated, yes, sir.
THE COURT: Incarcerated on the sentence of two-and-a-half to five?
THE DEFENDANT: Seven-and-a-half to 15.
THE COURT: And seven-and-a-half to fifteen.
Based upon the information you've just given me, I come to the conclusion, sir, that you're not equipped to represent yourself.
And based upon my questions to you and your answers to me — and under the circumstances, I think that to further protect your interest you need a skilled attorney at — not only to represent you but —
There are two things I could do: I could let you represent yourself and have Mr. Zizmor in a standby position, but under the circumstances, I believe that the prosecution here is so complex, to my mind, that based upon the answers you've given me, sir, that you're not equipped in handling yourself.
And, therefore, your application is most respectfully denied.
I insist and order Mr. Zizmor to continue the representation of Mr. Wilder.
Thank you.
THE DEFENDANT: May I say something, your Honor?
THE COURT: No, you may not, sir.
(Tr. 44-48.)
Once the application to represent himself was denied, Wilder told the court through his counsel that he did not wish to continue with his current attorney. (Tr. 48.) The trial judge took Wilder's request as a delaying tactic, responding:
I anticipated this, and consequently, I thought that Mr. Wilder would do everything that he possibly could to avoid this case going to trial, and his application is most respectfully denied in this regard.
I notice that he didn't make this application last week when we were conducting . . . any pretrial hearings, or several weeks ago; he makes the application on the eve of trial.
Sir, would you kindly put your hand down.
As I said to you earlier, sir, if you prove to be disruptive during this trial, you will have abdicated your possibility of being here, and I'll send you upstairs.
I want you to make sure that you know that now. I'm not going to put up with any childishness. I did everything I possibly could to discuss this with your lawyer, and you wanted to play games.
The trial has begun with respect to the calling of a jury, and we're going to do that today.
(Tr. 48-50.) Wilder's Conviction and Sentencing
The trial judge's reference in the next to last paragraph of the above quote, to Wilder "want[ing] to play games," refers to the judge's earlier reference to Wilder's laughing when discussing a possible plea bargain with his attorney:
THE COURT: Bring the jury in.
I see he wants to play games. . . .
I tried to be intelligent with respect to and I can see that this defendant thinks this is a laughing matter, and I can assure you it's not.
(Tr. 44.) Immediately after this exchange, Wilder asked to represent himself.
On November 18, 1996, Wilder was convicted of first degree robbery and sentenced, as a persistent violent felony offender, to twenty-five years to life imprisonment. (See Dkt. No. 2: Pet. ¶¶ 1-4.) See also People v. Wilder, 275 A.D.2d 268, 712 N.Y.S.2d 534 (1st Dep't), appeal denied, 95 N.Y.2d 893, 715 N.Y.S.2d 386 (2000).
Wilder's Direct Appeals in State Court
Wilder's counseled direct appeal to the First Department raised two of the claims that he has now re-asserted in his federal habeas petition: (1) his claim regarding self-representation; and (2) admission of prejudicial evidence of uncharged crimes. (Ex. 2: Wilder 1st Dep't Br.)
On August 24, 2000, the First Department affirmed Wilder's conviction, holding in full:
Defendant's contention that the trial court improperly denied his request to represent himself at trial solely because of his limited eleventh-grade education and his lack of legal training is without merit. Had that been the only basis for the court's ruling, defendant might arguably be correct; however, such request was the penultimate of an innumerable series of efforts to delay or frustrate the trial of this matter, which was about to commence. Thus, "[w]hen a defendant's conduct is calculated to undermine, upset or unreasonably delay the progress of the trial he forfeits his right to self-representation" and denial of his request to proceed pro se was proper.
After conducting a Sandoval hearing on Thursday, the trial court announced that jury selection would proceed the next morning. Defendant's attorney thereupon informed the court that his client had just informed him, for the first time, that he was a Muslim and that he refused to proceed to trial on a Friday. The court, after careful consideration, agreed to put the trial over until Monday. Apparently recognizing that the trial was in fact about to go forward, defendant then told his attorney to advise the court that this Court had issued a stay of proceedings. This might have been mere wishful thinking, however, since there was no such stay, this Court having denied defendant's application for such relief.
On Monday, as the jury was about to enter the courtroom, the Trial Judge asked the parties whether all plea possibilities had been exhausted. Defendant's apparently mocking response prompted the court to note that defendant was playing games and treating a serious proceeding as a "laughing matter." At that point, defendant then asserted, for the first time, that he wanted to represent himself. After the court denied that application, the defendant next sought a new attorney. Upon denial of this final request, the court noted that the defendant had not made such a request at any time during the past several weeks or during the prior week's pretrial hearings and stated: "I anticipated this and consequently thought Mr. Wilder would do everything that he possibly could to avoid the case going to trial." Thus, a careful review of the record confirms the trial court's conclusion that defendant's course of conduct was a reflection of his desire to merely "play games" and, under such circumstances, defendant's application to proceed pro se was properly denied.
Likewise, defendant's contention that the trial court improperly admitted irrelevant and prejudicial evidence about the uncharged Staten Island carjacking and a Brooklyn shooting is unpersuasive inasmuch as, during the cross-examination of Detective Powers, the trial court correctly noted that defense counsel clearly "opened the door" about those matters because the District Attorney had not brought out anything on direct examination about other criminal cases. Additionally, defense counsel incorrectly classified the Staten Island matter as "an unrelated case" when it obviously related to the instant matter.
People v. Wilder, 275 A.D.2d 268, 268-69, 712 N.Y.S.2d 534, 534-35 (1st Dep't 2000) (citations omitted). On September 22, 2000, the New York Court of Appeals denied leave to appeal. People v. Wilder, 95 N.Y.2d 893, 715 N.Y.S.2d 386 (2000). Wilder's Writ of Error Coram Nobis
On May 30, 2001, Wilder filed a writ of error coram nobis in the First Department, asserting ineffective assistance of counsel. (Ex. 5: Wilder Pro Se Coram Nobis Motion Papers.) Wilder asserted that his appellate counsel was ineffective for failing to raise on direct appeal the remaining six of the eight claims that Wilder now asserts in his habeas petition (id.)-i.e., all his present claims except the self-representation and uncharged crimes claims that were raised on direct appeal. On April 18, 2002, the First Department denied Wilder's coram nobis motion, citingPeople v. DeLaHoz, 131 A.D.2d 154, 158, 520 N.Y.S.2d 386, 388 (1st Dep't 1987), appeal dismissed, 70 N.Y.2d l005, 526N.Y.S.2d 940(1988) (Ex. 7:4/18/02 1st Dep't Order.) See People v. Wilder. 293 A.D.2d 963, 762 N.Y.S.2d 180 (1st Dep't 2002).
Wilder's Present Federal Habeas Corpus Petition
Wilder's timely-filed federal habeas petition asserts eight claims: (1) denial of the right to represent himself at trial (Dkt. No. 2: Pet. ¶ 12(A)); (2) admission of a suggestive line-up (Pet. ¶ 12(B)); (3) failure to be provided Rosario material (Pet. ¶ 12(C)); (4) police use of a suggestive photo array (Pet. ¶ 12(D)); (5) a prejudicial jury charge (Pet. ¶ 12(E)); (6) the trial court lacked jurisdiction and the Bronx was an improper venue (Pet. ¶ 12(F)); (7) admission of prejudicial evidence of uncharged crimes (Pet. ¶ 12(G)); and (8) double jeopardy (Pet. ¶ 12(H)).
ANALYSIS
For additional decisions by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see Besser v. Walsh. 02 Civ. 6775, 2003 WL 22093477 at *14 (S.D.N.Y. Sept. 10, 2003); Guzman v. Fischer. 02 Civ. 7448, 2003 WL 21744086 at *7-9 (S.D.N.Y. July 29, 2003) (Peck. M.J.): Skinner v. Duncan. 0l Civ. 6656, 2003 WL 21386032 * 11-13 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Quinones v. Miller. 01 Civ. 10752, 2003 WL 21276429 at *16-18 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Wilson v. Senkowski. 02 Civ. 0231, 2003 WL 21031975 at *5-6 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Naranjo v. Filion. 02 Civ. 5449, 2003 WL 1900867 at *5-7 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Hediam v. Miller. 02 Civ. 1419.2002 WL31867722 at*8-10(S.D.N.Y.Dec. 23, 2002) (Peck. M. J.): Dickens v. Filion. 02 Civ. 3450, 2002 WL 31477701 at *6-8 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.), report rec. adopted. 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.); Figueroa v. Greiner. 02 Civ. 2126, 2002 WL 31356512 at *5-6 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Aramas v. Donnelly. 99 Civ. 11306, 2002 WL 31307929 at *6-8 (S.D.N.Y. Oct. 15, 2002) (Peck, MJ.); Velazquez v. Murray. 02 Civ. 2564, 2002 WL 1788022 at *12-14 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v. Greiner. 02 Civ. 2129, 2002 WL 1678641 at *6-7 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Green v. Herbert. 01 Civ. 11881, 2002 WL 1587133 at *9-11 (S.D.N.Y. July 18, 2002) (Peck, M.J.); Bueno v. Walsh. Ol Civ. 8738, 2002 WL 1498004 at * 10-11 (S.D.N.Y. July 12, 2002) (Peck, M.J.); Larrea v. Bennett. 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted. 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2000) (Scheindlin, D.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *8-9 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane. 98 Civ. 0013, 2002 WL 929536 at *12-13 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier. 01 Civ. 6678, 2002 WL 100642 at 8-9 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin. 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan. Ol Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v. Duncan. 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord. 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M. J.); James v. People of the State of New York. 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.), report rec. adopted. 2002 WL 31426266 (S.D.N.Y. Oct. 25, 2002) (Berman, D.J.): Ventura v. Artuz. 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz. 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted. 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D. J.), aff'd, 303 F.3d 411, 417 (2d Cir. 2002), cert. denied. 123 S.Ct. 1353 (2003); Fluellen v. Walker. 97 Civ. 3189, 2000 WL 684275 at * 10 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd. No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied. 123 S.Ct. 1787 (2003).
Before the Court can determine whether Wilder is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").
In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners."Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2); see also, e.g.,Dallio v. Spitzer, No. 01-2718, 2003 WL22080010 at *6, ___ F.3d ___(2d Cir. Sept. 9, 2003); Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001). cert. denied, 535 U.S. 1019, 122 So. Ct. 1611 (2002)).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523. "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context."Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.
Accord, e.g., Parsad v. Greiner. 337 F.3d 175, 181 (2d Cir. 2003); Jones v. Stinson. 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner. 228 F.3d 113, 125 (2d Cir. 2000), cert. denied. 532 U.S. 943, 121 S.Ct. 1404 (2001): Clark v. Stinson. 214 F.3d 315. 320 (2d Cir. 2000). cert. denied. 531 U.S. 1116, 121 S.Ct. 865 (2001).
Accord, e.g., Wiggins v. Smith. 123 S.Ct. 2527, 2534 (2003); Parsad v. Greiner. 337 F.3d at 181; DelValle v. Armstrong. 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker. 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller. 289 F.3d 36, 42 (2d Cir.), cert. denied. 123 S.Ct. 251 (2002); Loliscio v. Goord. 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman. 261 F.3d 303, 309 (2d Cir. 2001).
As to the "contrary to" clause:
A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.
Accord, e.g., DelValle v. Armstrong. 306 F.3d at 1200; Yung v. Walker. 296 F.3d at 135; Kennaugh v. Miller. 289 F.3d at 42; Loliscio v. Goord. 263 F.3d at 184; Lurie v. Wittner. 228 F.3d at 127-28.
In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor. 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521. The Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed."Kennaugh v. Miller, 289 F.3d at 45; accord Yung v. Walker, 296 F.3d at 135. Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.
Accord, e.g., Wiggins v. Smith. 123 S.Ct. at 2534-35; Parsad v. Greiner. 337 F.3d at 181.
See also, e.g., Wiggins v. Smith. 123 S.Ct. at 2535; Eze v. Senkowski. 321 F.3d at 124-25; DelValle v. Armstrong. 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").
Accord, e.g., Wiggins v. Smith. 123 S.Ct. at 2535: Eze v. Senkowski. 321 F.3d at 125: Ryan v. Miller. 303 F.3d 231, 245 (2d Cir. 2002); Yung v. Walker. 296 F.3d at 135; Loliscio v. Goord. 263 F.3d at 184; Lurie v. Wittner. 228 F.3d at 128-29.
Accord, e.g., Eze v. Senkowski. 321 F.3d at 125: Ryan v. Miller. 303 F.3d at 245: Yung v. Walker. 296 F.3d at 135; Loliscio v. Goord. 263 F.3d at 184.
Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:
For the purposes of AEDPA deference, a state court "adjudicate [s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim-even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
Sellan v. Kuhlman. 261 F.3d at 312: accord, e.g., Dallio v. Spitzer. 2003 WL 22080010 at *6: Parsad v. Greiner, 337 F.3d at 180-81; Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003); Eze v. Senkowski, 321 F.3d at 121; Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett. 296 F.3d 58, 62 (2d Cir.), cert. denied, 123 S.Ct. 694 (2002); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition-the word 'denied'-triggered AEDPA deference."); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001). "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations
The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the 'unreasonable application' or 'contrary to' tests." Sellan v. Kuhlman. 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:
We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain. 179 F.3d 271, 274 (5th Cir. 1999).
Sellan v. Kuhlman. 261 F.3d at 314: accord, e.g., Cotto v. Herbert. 331 F.3d at 230; Eze v. Senkowski. 321 F.3d at 121-22; Norde v. Keane. 294 F.3d at 410; Aparicio v. Artuz. 269 F.3d at 93; see also Dallio v. Spitzer. 2003 WL 22080010 at *6.
omitted). Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies."Cotto v. Herbert, 331 F.3d at 230.
The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit 'or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.
In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)). II. SIX OF WILDER'S HABEAS CLAIMS ARE UNEXHAUSTED BUT DEEMED EXHAUSTED AND PROCEDURALLY BARRED FROM HABEAS REVIEW
For additional decisions by this Judge discussing the unexhausted but deemed exhausted and procedurally barred doctrine in language similar to that in this section of this Report Recommendation, see Besser v. Walsh. 02 Civ. 6775, 2003 WL 22093477 at *30-32 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Figueroa v. Greiner. 02 Civ. 2126, 2002 WL 31356512 at *6-8 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Soto v. Greiner. 02 Civ. 2129, 2002 WL 1678641 at *13-15 (S.D.N.Y. July 24, 2002) (Peck, MJ.): Jamison v. Berbary. 01 Civ. 5547, 2002 WL 1000283 at *15-16 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Simpson v. Portuondo. 01 Civ. 1379, 2001 WL 830946 at *5-6 (S.D.N.Y. Jul., 12, 2001) (Peck, M.J.); Bailey v. People of State of New York. 01 Civ. 1179, 2001 WL 640803 at *3-4 (S.D.N.Y. Jun. 8, 2001) (Peck, M.J.); Bryant v. Bennett. 00 Civ. 5692, 2001 WL 286776 at *7-9 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Brock v. Artuz. 99 Civ. 1903, 2000 WL 1611010 at *11 (S.D.N.Y. Oct. 27, 2000) (Peck, M.J.); Gumbs v. Kelly. 97 Civ. 8755, 2000 WL 1172350 at *5 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Ventura v. Artuz. 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000); Mendez v. Artuz. 98 Civ. 2652, 2000 WL 722613 at *23 n. 14 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted. 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D. J.); Foreman v. Garvin. 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner. 111 F. Supp.2d 271, 274-75 n. 2 (S.D.N.Y. 2000) (Preska, DJ. Peck, M.J.); Cruz v. Greiner. 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann. 68 F. Supp.2d 347, 360 (S.D.N.Y. 1999) (Patterson, DJ. Peck, MJ.); Orraca v. Walker. 53 F. Supp.2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, DJ. Peck, MJ.); Otero v. Stinson. 51 F. Supp.2d 415, 419 (S.D.N.Y. 1999) (Baer, DJ. Peck, MJ.); Jordan v. LeFevre. 22 F. Supp.2d 259, 266 (S.D.N.Y. 1998) (Mukasey, DJ. Peck, MJ.), aff'd on this ground, rev'd on other grounds. 206 F.3d 196, 198-99 (2d Cir. 2000).
Wilder's habeas petition includes the following six claims (corresponding to the numbering used above): (2) admission of a suggestive line-up (Pet. ¶ 12(B)); (3) failure to be providedRosario material (Pet. ¶ 12(C)); (4) police use of a suggestive photo array (Pet. ¶ 12(D)); (5) a prejudicial jury charge (Pet. ¶ 12(E)); (6) the trial court lacked jurisdiction and Bronx was an improper venue (Pet. ¶ 12(F)); and (8) double jeopardy (Pet. ¶ 12(H)). The State contends that these six claims are unexhausted but deemed exhausted and forfeited since Wilder can no longer raise them in state court. (Dkt. No. 6: State Br. at 3-10.) Section 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-(A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999);Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948" in 28 U.S.C. § 2254.); Heard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Daye v. Attorney General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723 (1984). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203: accord, e.g., O'Sullivan v. Boerckel. 526 U.S. at 845, 119 S.Ct. at 1732.
The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:
First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, DJ. Peck, MJ.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)); accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 843-48, 119 S.Ct. at 1732-34.
"The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General of New York, 696 F.2d at 191] The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue. e.g., Cox v. Miller, 296 F.3d at 99; Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2nd Cir. 1984); Daye v. ttorney Gen., 696 F.2d at 191. In Daye, the Second Circuit en banc stated:
Accord, e.g., O'Sullivan v. Boerckel. 526 U.S. at 844. 119 S.Ct. at 1732: Picard v. Connor. 404 U.S. at 275-76, 92 S.Ct. at 512; Jones v. Keane. 329 F.3d 290, 294-95 (2d Cir. 2003); Cox v. Miller. 296 F.3d 89, 99 (2d Cir. 2002), cert. denied. 123 S.Ct. 1273 (2003); Jones v. Vacco. 126 F.3d 408, 413 (2d Cir. 1997).
[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye v. Attorney General, 696 F.2d at 194.
Accord, e.g., Cox v. Miller. 296 F.3d at 99; Ramirez v. Attorney General. 280 F.3d 87, 95 (2d Cir. 2001); Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied. 520 U.S. 1106, 117 S.Ct. 1112 (1997); Grady v. LeFevre. 846 F.2d at 864; Garofolo v. Coomb. 804 F.2d 201, 206 (2d Cir. 1986); Petrucelli v. Coombe. 735 F.2d at 688.
Here, Wilder's six claims under discussion were not raised in his direct appeal to the First Department. (See pages 6-7 above.) Nor were they raised, as such, in an appropriate state collateral proceeding. While Wilder claimed in his coram nobis petition to the First Department that his appellate counsel was ineffective for failing to raise these claims, his coram nobis papers merely identified the omitted claims without addressing their merits in federal constitutional terms. (See generally Ex. 5: Wilder Coram Nobis Motion Papers.) This did not "fairly present" any federal constitutional issue, except ineffective assistance of appellate counsel, to the state courts Thus, these six claims were not exhausted.
A'"coram nobis motion to the Appellate Division addresses errors at the appellate level . . . not trial errors.'" Otero v. Stinson. 51 F. Supp.2d at 418 (quoting Ehinger v. Miller. 928 F. Supp. 291, 294 (S.D.N.Y.1996) (Mukasey, DJ. Peck, MJ.)); see also, e.g., Camarano v. Irvin. 902 F. Supp. 358, 365 (S.D.N.Y 1994) ("Under New York law 'an application for a writ of error coram nobis is not an appropriate vehicle' for claims that would properly be addressed to the trial court in a § 440.10 motion . . .") (quoting Cortez v. Scully. 717 F. Supp. 224, 226 (S.D.N.Y. 1989)), aff'd mem., 122 F.3d 1055 (2d Cir. 1995).
"For exhaustion purposes, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred."" Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 1043 n. 9 (1989))). "In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d at 120. Consequently, such procedurally barred claims are "deemed exhausted" by the federal courts. e.g., McKethan v. Mantello, 292 F.3d at 122-23;Ramirez v. Attorney General, 280 F.3d at 94; Reyes v. Keane, 118 F.3d at 139; Bossett v. Walker, 41 F.3d at 828; Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993). cert. denied. 510 U.S. 1078, 114 S.Ct. 895 (1994); Grey v. Hoke, 933 F.2d at 120-21.
Accord, e.g., Castille v. Peoples. 489 U.S. 346. 350, 109 S.Ct. 1056, 1059 (1989) ("It would be inconsistent with [2254(b)], as well as with underlying principles of comity, to mandate recourse to state collateral review whose results have effectively been predetermined"); McKethan v. Mantello. 292 F.3d 119, 122-23 (2d Cir. 2002) (claims deemed exhausted where they were "procedurally barred for not having been raised in a timely fashion"); Ramirez v. Attorney General. 280 F.3d at 94; Bossett v. Walker. 41 F.3d at 828 ("[I]f the petitioner no longer has 'remedies available' in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted.").
In this case, it is clear that Wilder is now barred from raising these six habeas claims in federal terms in state court because they could have been raised on direct appeal, but were not, and thus a C.P.L. § 440 motion is not available to Wilder. As the Second Circuit explained in Washington v. James:
Consequently, we do not believe [Petitioner] has fairly presented to the state courts his constitutional objection. . . . [T]he state courts have not had an opportunity to address the federal claim raised on habeas review and this normally would preclude our review of that claim.
As we have already noted, this preclusion is not technically the result of a failure to exhaust state remedies, but is due to a procedural default. [Petitioner] no longer has the right to raise his claim under New York law either on direct appeal, see McKinney's 1993 Revised N.Y. Court Rules § 500.10(a), or on collateral review. New York's collateral procedures are unavailable because appellant could have raised the claim on direct review but did not. See N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore [petitioner] has no further recourse in state court. See 28 U.S.C. § 2254(c); Grey v. Hoke, 933 F.2d [at] 120 Because he failed to raise his claim in state court and no longer may do so, his claim is procedurally defaulted.996 F.2d at 1446-47.
New York C.P.L. § 440.10(2)(c) states, in pertinent part:
2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when:
(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to . . . raise such ground or issue upon an appeal actually perfected by him. . . .
See also, e.g., Jones v. Keane, 329 F.3d at 296 ("[Petitioner] has procedurally defaulted his vagueness claim since New York's procedural rules now bar [petitioner] from raising it in New York courts. Further direct review by the Court of Appeals is no longer available); Reyes v. Keane. 118 F.3d at 139 ("Section 440.10(2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.") (emphasis added).
To avoid such a procedural default, Wilder would have to "show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice,'" i.e., a showing of "actual innocence." Harris v. Reed, 489 U.S. at 262, 109 So. Ct. at 1043 (citations omitted);accord, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851. 865-67 (1995): Coleman v. Thompson. 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d at 415; Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996). cert. denied. 520 U.S. 1108, 117 S.Ct. 1116 (1997): Velasquez v. Leonardo. 898 F.2d 7, 9(2d Cir. 1990).
See also, e.g., Bailey v. People of State of New York. 2001 WL 640803 at *8; Perez v. Greiner. 99 Civ. 11806, 2000 WL 915114 at *3 (S.D.N.Y. July 5, 2000); Bond v. Walker. 68 F. Supp.2d 287, 297 (S.D.N.Y. 1999) (McKenna, DJ. Peck, M.J.), adhered to on reconsideration. 97 Civ. 3026, 2000 WL 460592 (S.D.N.Y. Apr. 19, 2000), aff'd. No. 00-2274, 242 F.3d 364 (table), 2000 WL 1804557 (2d Cir. Dec. 7, 2000); Avincola v. Stinson. 60 F. Supp.2d 133, 149 (S.D.N.Y. 1999) (Scheindlin, DJ. Peck, MJ.); Torres v. Irvin. 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, DJ. Peck, MJ.); Williams v. Bennet. 97 Civ. 1628, 1998 WL 236222 (S.D.N.Y. April 20, 1998) (Baer, DJ. Peck, MJ.); Farrington v. Senkowski. 19 F. Supp.2d 176, 180 (S.D.N.Y. 1998), aff'd. 214 F.3d 237 (2d Cir. 2000); Gibriano v. Attorney General. 965 F. Supp. at 492 n. 5; Vera v. Hanslmaier. 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, DJ. Peck, MJ.); Liner v. Keane. 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, DJ. Peck, MJ.).
Ineffective assistance of counsel can, of course, represent "cause" for a procedural default. See, e.g., Murray v. Carrier. 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986); Reyes v. Keane, 118 F.3d at 139. However, Wilder only raised his ineffective assistance of appellate counsel claim in his coram nobis motion to the First Department, and not in his habeas petition. While federal courts will liberally construe a pro se litigant's pleadings, this does not mean that when a pro se party omits a claim that he had raised at the state level, the Court should read the omitted claim into his habeas petition. For example, in Beatty v. United States, 293 F.3d 627 (2d Cir. 2002), the Second Circuit found abandoned claims that were initially presented to the district court by the pro se defendant in a § 2255 petition but were not subsequently mentioned in his affidavits seeking a certificate of appealability.
See, e.g., McPherson v. Coombe. 174 F.3d 276, 280 (2d Cir. 1999); Skinner v. Duncan. 01 Civ. 6656, 2003 WL 21386032 at *30 n. 48 (S.D.N.Y. Jan. 17, 2003) (Peck, M.J.); Aramas v. Donnelly. 99 Civ. 11306, 2002 WL 31307929 at *5 n. 4 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.): Nelson v. Rodas. 01 Civ. 7887, 2002 WL 31075804 a *1 nn. 3-4 (S.D.N.Y. Sept. 17, 2002) (Peck, M.J.); Walker v. Pataro. 99 Civ. 4607, 2002 WL 664040 at *5 (S.D.N.Y. Apr. 23, 2002) (Peck, M.J.); Ventura v. Artuz. 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.).
We have previously ruled in considering the merits of an appeal that issues not discussed in an appellate brief will normally be deemed abandoned. Even as to a pro se litigant, we have invoked a forfeiture "when he has raised an issue below and elected not to pursue it on appeal." . . .
We do not doubt the authority of our Court to relieve a litigant of a forfeiture of claims in an extraordinary case, but no basis exists for doing so on this motion.293 F.3d at 632-33 (citations omitted). Similarly, in Moates v. Barkley, 147 F.3d 207 (2d Cir. 1998), the habeas petitioner waived his challenge to the district court's injunction preventing future filings because he did not mention it in his appellate brief: "Although pro se litigants are afforded some latitude in meeting the rules governing litigation, . . . we need not, and normally will not, decide issues that a party fails to raise in his or her appellate brief." 147 F.3d at 209 (citations omitted). Like in Beatty and Moates, there is no "extraordinary" reason that Wilder should be afforded such extreme leeway as for this Court to add an ineffective assistance of appellate counsel claim to Wilder's existing eight habeas claims.
Wilder's habeas petition does not challenge the First Department's denial of his ineffective assistance of appellate counsel claim. The Court therefore assumes the First Department's decision on that issue was correct. Accordingly, ineffective assistance cannot be used as "cause" for Wilder's procedural default of his other six claims. Habeas review of these six claims is procedurally barred.
III. WILDER'S CONVICTION SHOULD BE SET ASIDE, AND HE SHOULD BE GIVEN A NEW TRIAL, BECAUSE HE WAS DENIED HIS SIXTH AMENDMENT RIGHT OF SELF-REPRESENTATION
Wilder's first claim in his habeas petition is that his right to self-representation was violated when the court refused to allow him to represent himself at trial. (Dkt. No. 2: Pet. ¶ 12(A)). This claim was properly exhausted on direct appeal and has merit.
Although not cited by the First Department (see pages 6-7 above), the "clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), on the issue of a criminal defendant's right to represent himself is contained in the Supreme Court's decision in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975). In Faretta, the Supreme Court reviewed the historical precedents in England and the United States recognizing the right of self-representation, id. at 812-18, 95 S.Ct. at 2530-32, and concluded by unequivocally recognizing such a constitutional right:
The right to proceed pro se is independently recognized under the New York State Constitution. See People v. McIntyre. 36 N.Y.2d 10, 15, 364 N.Y.S.2d 837, 843 (1974).
The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. . . . Although not stated in the Amendment in so many words, the right to self-representation to make one's own defense personally-is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.Faretta v. California, 422 U.S. at 819-20, 95 S.Ct. at 2533; accord, id. at 821, 95 S.Ct. at 2534 ("The Sixth Amendment, when naturally read, thus implies a right of self-representation."); Dallio v. Spitzer, No. 01-2718, 2003 WL 22080010 at *7, F.3d, (2d Cir. Sept. 9, 2003) ("Although not expressly stated in the Sixth Amendment, a clearly established corollary to the right to counsel is the 'right to dispense with a lawyer's help,' and to represent oneself") (citations omitted).
See also, e.g., Rock v. Arkansas. 483 U.S. 44, 52, 107 S.Ct. 2704, 2709 (1987) (the right to self-representation was found in Faretta "to be 'necessarily implied by the structure of the [ Sixth] Amendment'"); McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 948 (1984) ("The [Supreme] Court [in Faretta] held that an accused has a Sixth Amendment right to conduct his own defense . . ."); Wilson v. Walker. 204 F.3d 33, 37 (2d Cir.) ("Under the Sixth Amendment to the Constitution, an accused is guaranteed the right to represent himself"), cert. denied. 531 U.S. 892, 121 S.Ct. 218 (2000): United States v. Schmidt. 105 F.3d 82, 88 (2d Cir. 1996) ("A criminal defendant's right of self-representation has existed in Anglo-American jurisprudence since the sixteenth century, having its genesis in the common law rule that no person charged with crime can have a lawyer assigned him against his will"), cert. denied. 522 U.S. 846, 118 S.Ct. 130 (1997): United States v. Stevens. 83 F.3d 60, 66 (2d Cir.1997) ("A defendant in a criminal trial has an absolute to represent himself, and to reject the aid of legal counsel"), cert. denied. 519 U.S. 902, 117 S.Ct. 255 (1996); Williams v. Bartlett. 44 F.3d 95, 99 (2d Cir. 1994) ("Under the Sixth Amendment, the accused is guaranteed the right of electing to represent himself."); Johnstone v. Kelly. 808 F.2d 214, 216 (2d Cir. 1986), cert. denied. 482 U.S. 928, 107 S.Ct. 3212 (1987); Ortiz v. Kelly. 98 Civ. 7607, 2001 WL 290055 at *1 (S.D.N.Y. Mar. 26, 2001) ("The Sixth Amendment of the United States Constitution grants a criminal defendant the right to represent himself in proceedings against him."); United States v. Muyet. 993 F. Supp. 233, 235 (S.D.N.Y. 1998); United States v. Solomon. 95 Cr. 154, 1997 WL 232523 at *9 (S.D.N.Y. May 8, 1997) (Preska, D.J.).
The Supreme Court also has held that if a defendant's right to self-representation is violated, a new trial is required; harmless error analysis does not apply. "Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to 'harmless error' analysis. The right is either respected or denied; its deprivation cannot be harmless." McKaskle v. Wiggins, 465 U.S. at 177 n. 8, 104 S.Ct. at 950 n. 8.
See also, e.g., Wilson v. Walker. 204 F.3d at 37 ("[A] court's denial of the right to self-representation is not subject to harmless error analysis, and requires automatic reversal of a criminal conviction."); Williams v. Bartlett. 44 F.3d at 99 ("A state court's violation of a defendant's Sixth Amendment right to self-representation requires automatic reversal of a criminal conviction and is not subject to harmless error analysis."); United States v. Mills. 895 F.2d 897, 902 (2d Cir.) (citing McKaskle v. Wiggins), cert. denied. 495 U.S. 951, 110 S.Ct. 2216 (1990); Johnstone v. Kelly. 808 F.2d at 217-18 ("Application of harmless error analysis is particularly inappropriate to denial of the right to self-representation because a harmless error standard would, in practical effect, preclude vindication of this right. . . . For all these reasons, we agree with the five circuits that have concluded that violation of a defendant's right to proceed pro se requires automatic reversal of a criminal conviction."); Hodge v. Henderson. 761 F. Supp. 993, 1000-01 (S.D.N.Y. 1990) ("[D]enial of the right to proceed pro se, once asserted, requires the automatic reversal of a criminal conviction and is not subject to harmless error analysis.") (citing Johnstone v. Kelly), aff'd. 929 F.2d 61 (2d Cir. 1991).
In federal trials, Second Circuit caselaw is clear that "[i]f a defendant asks to proceed pro se before the trial commences, that request must be granted." United States v. Stevens, 83 F.3d at 66 (citing United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965) (granting habeas petition), cert. denied, 384 U.S. 1007, 86 S.Ct. 1950 (1966)); see also, e.g., Wilson v. Walker, 204 F.3d at 37 (habeas case; "Assuming that a defendant's waiver meets this standard and the matter is raised prior to the start of the trial, the right of a defendant in a criminal case to act as his own lawyer is unqualified . . .") (internal quotations omitted); Williams v. Bartlett, 44 F.3d at 99 (habeas; same);United States v. Matsushita, 794 F.2d 46, 51 (2d Cir. 1986) ("[T]he right to proceed pro se is unqualified only if exercised before the commencement of trial.'") (quoting United States v. Brown, 744 F.2d 905, 908 (2d Cir.), cert. denied, 469 U.S. 1089, 105 S.Ct. 599 (1984));Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976); United States ex rel. Jackson v. Follette, 425 F.2d 257, 259 (2d Cir. 1970); United States v. Muyet, 993 F. Supp. at 235; Larrabee v. Bartlett, 970 F. Supp. 102, 105 (N.D.N.Y. 1997) (Granting habeas relief; "the Second Circuit has held that the right to proceed pro se is unqualified only when exercised before the commencement of trial. The Second Circuit's bright-line rule that the right to proceed pro se is unqualified before the commencement of trial makes the issue of timeliness both tangible and unambiguous; hence its determination is conclusive."); compare, e.g., Aziz v. Warden of Clinton Corr. Facility, 89 Civ. 6053, 1991 WL 278907 at *4 (S.D.N.Y. Dec. 18, 1991) ("Although a defendant has a constitutional right to represent himself at trial [citing Faretta], his 'right to self-representation is "sharply curtailed" once trial with counsel has begun.'").
Of course, the Second Circuit made clear earlier this month that" [c]learly established federal law requires that a defendant's waiver of the right to counsel be knowing and intelligent." Dallio v. Spitzer. 2003 WL 22080010 at *7 (citing Johnson v. Zerbst. 304 U.S. 458, 464-65, 58 So. Ct. 1019, 1023-24(1938)). Here, while the trial judge established Wilder's educational and litigation background, he did not advise Wilder about the advantages and disadvantages of self-representation (see pages 2-5 above)-but the trial judge was not constitutionally required to so advise Wilder. See Dallio v. Spitzer. 2003 WL 22080010 at *7-8. Thus, there is no issue in this case as to the adequacy of Wilder's request for self-representation.
This Court recognizes that the Supreme Court itself has not held that a request to proceed pro se made before trial must be granted. That rule is only Circuit law, although it has been applied by the Second Circuit and district courts within the Circuit in state habeas cases even after enactment of the AEDPA; technically, it is not binding on New York's courts as a basis for habeas relief under the AEDPA since it is not Supreme Court precedent. (See discussion on page 11 above.) Nevertheless, New York utilizes the same rule under the State Constitution. See People v. McIntyre, 36 N.Y.2d at 17, 364 N.Y.S.2d at 844 ("[W]e deem a pro se application to be timely interposed when it is asserted before the trial commences."). Here, Wilder timely requested before trial to be allowed to proceed pro se. There was no reason to disallow his request.
Explicit in the Supreme Court's (and Second Circuit's) decisions is that a criminal defendant cannot be denied the right of self-representation because the defendant is not formally educated or legally knowledgeable. See, e.g., Godinez v. Moran, 509 U.S. 389, 399-400, 113 S.Ct. 2680, 2687 (1993) ("[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself. In Faretta v. California, we held that a defendant choosing self-representation must do so 'competently and intelligently,' but we made it clear that the defendant's 'technical legal knowledge' is 'not relevant' to the determination whether he is competent to waive his right to counsel. . . . [A] criminal defendant's ability to represent himself has no bearing upon his competence to choose self-representation.") (citations fns. omitted); McKaskle v. Wiggins. 465 U.S. at 176-88, 104 S.Ct. at 950-56 (recognizing role of standby counsel to, inter alia, "steer a defendant through the basic procedures of trial"); Faretta v. California, 422 U.S. at 835-36, 95 S.Ct. at 2541 ("[A] defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation. . . . We need make no assessment of how well or poorly [defendant] had mastered the intricacies of the hearsay rule and the California code provisions that govern challenges of potential jurors on voir dire. For his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself."); Wilson v. Walker, 204 F.3d at 37-38 (State trial judge "did not engage in the sort of questioning likely to elicit whether [defendant] was waiving his right knowingly and intelligently-for instance, much of her inquiry focused on whether [defendant] was able and qualified to defend himself, a matter that is simply irrelevant to the necessary determination."); Williams v. Bartlett, 44 F.3d at 99 ("[T]he grounds expressed by [the state trial judge] were principally the defendant's lack of legal training, college education, and skills or on-the-job training. Individually or cumulatively, these deficits furnish no basis to refuse a knowing, voluntary and unequivocal waiver of one's right to counsel." Second Circuit granted habeas relief); Johnstone v. Kelly. 808 F.2d at 216 (habeas petition granted; state trial judge denied defendant's right to represent himself "on the ground that [defendant] lacked the 'requisite education, background or training or experience,' "but "Faretta imposes no such qualification on the right to defend pro se."); United States v. Solomon, 1997 WL 232523 at *9 ("a criminal defendant has the absolute right to proceed pro se if he makes the decision knowingly, voluntarily, and unequivocally, regardless of lack of education and experience," citing Faretta).
Cf, e.g., United States v. Lussier. 71 F.3d 456, 463 (2d Cir. 1995) ("[T]he question whether a waiver is knowing and voluntary be determined by whether the defendant is informed and has the capacity for making a rational decision, not based on the defendant's formal education level") (citing United States v. Curcio. 680 F.2d 881, 889 (2d Cir. 1982) ("If the defendant reveals that he is aware of and understands the various risks and pitfalls, and that he has the rational capacity to make a decision on the basis of this information . . . we would regard his waiver as knowing and intelligent . . .")), cert. denied. 517 U.S. 1105, 116 S.Ct. 1321 (1996).
Here, Wilder made an unequivocal request before jury selection that he be permitted to represent himself. (Tr. 44-48, quoted at pages 2-5 above.) The trial judge inquired about his level of education (eleventh grade) and "legal courses" (while in prison). (Tr. 44-48, quoted at pages 2-5 above.) Based on that information, the trial judge denied Wilder's request for self-representation. (Tr. 47-48: "Based upon the information you've just given me, I come to the conclusion, sir, that you're not equipped to represent yourself")
"'[A] request to proceed pro se is not equivocal merely because it is an alternative position, advanced as a fall-back to a primary request for different counsel.'" United States v. Solomon. 1997 WL 232523 at *9 (quoting Johnstone v. Kelly. 808 F.2d at 216 n. 2): see also, e.g., Wilson v. Walker. 204 F.3d at 38 n. 3: Williams v. Bartlett. 44 F.3d at 101-02. Wilder's position is even stronger-he first asked to represent himself and then, secondarily, sought new counsel after the trial judge denied his request for self-representation. (See page 5 above.)
To the extent the trial judge's ruling was based on Wilder's education and lack of legal training, this ruling was not only erroneous but an unreasonable application of Supreme Court law. Indeed, the First Department's opinion grudgingly conceded the point, holding that had Wilder's "limited eleventh-grade education and his lack of legal training . . . been the only basis for the [trial] court's ruling, defendant might arguably be correct." People v. Wilder, 275 A.D.2d 268, 268, 712 N.Y.S.2d 534, 534 (1st Dep't 2000) (citing People v. McIntyre. 36 N.Y.2d at 17-18, 364 N.Y.S.2d at 845-46) ("Although the typical defendant pro se may lack certain legal skills, mere ignorance of law cannot vitiate an effective waiver of counsel as long as the defendant was cognizant of the dangers of waiving counsel at the time it was made. To hold otherwise would render the right to defend pro se an empty one indeed.") (citations omitted)).
In an effort to uphold the trial court's ruling, the State argued here and before the First Department (which adopted the State's arguments) that the trial judge denied Wilder's application to represent himself not only on the clearly stated basis of lack of education, but also on the added grounds-not articulated by the trial judge-that Wilder sought to delay and disrupt the trial. (See Dkt. No. 6: State Br. at 17.) The State claims (and the First Department found) that Wilder was disruptive in three ways: (1) once the trial was scheduled for a Friday, Wilder, for the first time, informed the trial judge that he was a Muslim and would not be able to be in court on a Friday; (2) the trial judge indicated in the transcript that Wilder laughed at the plea bargain offer made before commencement of jury selection; and (3) the judge warned Wilder to behave during the trial and that he would not endure any "childishness." (Id. at 18-20.) See People v. Wilder, 275 A.D.2d at 268-69, 712 N.Y.S.2d at 534 (quoted at pages 6-7 above).
The Supreme Court has clearly established that "the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct." Faretta v. California, 422 U.S. at 834 n. 46, 95 So. Ct. at 2541 n. 46; see also, e.g., Wilson v. Walker. 204 F.3d at 38 n. 4 ("[A] court may deny a defendant's request to proceed pro se if it finds that the request is 'manipulative or abusive in some other way.'"); United States v. Matsushita, 794 F.2d at 51 (trial judge may consider the extent to which a defendant's request for self-representation "was simply a disruptive tactic, as opposed to a legitimate request."); People v. McIntyre, 36 N.Y.2d at 18, 364 N.Y.S.2d at 845 (A defendant may "lose his right to represent himself by engaging in disruptive or obstreperous conduct."). The question then is whether the trial judge denied Wilder's request to proceed pro se for the additional reasons found by the First Department, and whether the record evidence would support those additional grounds.
Of course, under the AEDPA, state court factual findings are entitled to deference and "presumed" to be correct. (See page 14 above.) That deference, however, cannot result in abdication of the federal court's constitutional responsibilities: "Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief. A federal court can disagree with a state court's credibility determination and, when guided by the AEDPA, conclude that the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence." Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1041 (2003): accord, e.g., Parsad v. Greiner. 337 F.3d 175, 181 (2d Cir. 2003): Shabazz v. Artuz. 336 F.3d 154, 161 (2d Cir. 2003).
There are two major problems with the State's argument and the First Department's conclusion that the trial court denied Wilder the right to represent himself because of delay and disruption. First, it is clear from the colloquy between Wilder and the trial judge, and the trial judge's stated reason for his decision, that the trial judge denied Wilder the right to represent himself because of his limited education: "Based upon the information you've just given me, I come to the conclusion, sir, that you're not equipped to represent yourself. And based upon my questions to you and your answers to me-and under the circumstances, I think that to further protect your interest you need a skilled attorney . . ." (Tr. 47-48.)
The trial judge further stated that he could have current trial counsel continue "in a standby position" (Tr. 48)-which the Supreme Court has approved. See McKaskle v. Wiggins. 465 U.S. at 169, 104 S.Ct. at 946: Faretta v. California, 422 U.S. at 833-34, 95 S.Ct. at 2140-41. But because the prosecution is "complex," the judge found "based upon the answers you've given," that Wilder could not handle himself. (Tr. 48.) Since the only "answers" Wilder gave were during the colloquy about his education and legal experience, this is further evidence that the trial judge's decision was based solely on that factor.
Second, the record lacks clear evidence of any disruptive or major delaying conduct by Wilder. His colloquy with the judge about his educational background was respectful, almost always responding with "sir" in his answers. (Tr. 44-45, quoted at pages 2-5 above.) The only evidence as to "misbehavior" appears to be the judge's admonitions to Wilder not to misbehave. (See Ex. 2: Wilder 1st Dep't Br. at 15-19; Ex. 3: State 1st Dep't Br. at 9-10, 13-20; Ex. 4: Wilder 1st Dep't Reply Br. at 1-5.) There is no evidence that Wilder's conduct caused the judge to issue these warnings For all this Court can know, perhaps this trial judge admonished all defendants to behave. Perhaps the judge was speculating about what might happen at trial. However, "[speculation is not a proper basis for denying Petitioner's constitutional rights."Larrabee v. Bartlett, 970 F. Supp. at 107 (possibility of later misconduct at trial is not a valid basis to deny self-representation from the start; habeas petition granted). The only specific "misbehavior" cited by the First Department is that Wilder "laughed" during a discussion with his counsel about a plea offer. (Tr. 44; see pages 5-7 n. 2 above.) This conduct occurred during an off the record discussion between Wilder and his attorney, albeit in the courtroom. It is hardly sufficiently disruptive to support denial of Wilder's right to self-representation.
The State has been unable to provide the Court with the pretrial hearing transcript prior to the transcript page (Tr. 44) on which Wilder asked to represent himself. (Dkt. No. 6: Markoe Aff. ¶ 4.) The Court has been forced to rely on the facts set forth in the parties' briefs to the First Department.
Finally, the First Department found delay to be a reason to support the trial judge's denial of Wilder representing himself. (See pages 6-7 above.) Wilder did not, however, ask for an adjournment to allow himself to prepare for trial; he merely said he wanted to represent himself at trial. (See pages 2-5 above.) Only after the trial judge denied Wilder's request did Wilder ask for a new lawyer. (Tr. 48.) While the trial judge said he "anticipated this" delaying tactic, this only occurred after the trial judge denied Wilder the right to represent himself, and thus can hardly be justification for a decision already made. (See decisions cited in fn. 27 above.) See also People v. McIntyre, 36 N.Y.2d at 18, 364 N.Y.S.2d at 845 ("[T]he Court may not validate an erroneous denial of a Pro se motion on the basis of a postruling outburst.").
Wilder was denied his Constitutional right to self-representation and should be granted a new trial.
This Court therefore need not decide whether Wilder was denied a fair trial because of the admission of uncharged crime evidence.
CONCLUSION
For the reasons set forth above, Wilder's habeas corpus petition should be denied in part and granted on the basis of the denial of Wilder's constitutional right to self-representation. The State should be directed to provide Wilder with a new trial within sixty days. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATIONPursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Preska. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied. 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992): Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989): Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988): McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).