Waterman and Feinberg, Circuit Judges, and Zampano, District Judge.*fn*
Appellant Danton S. Miller is now serving a sentence of four to fourteen years in a state prison. After a jury trial in the County Court, Nassau County, in which Miller represented himself, he was convicted of possession of burglar's tools, and was sentenced as a third felony offender.*fn1 Miller appeals from denial of his petition for a writ of habeas corpus by the United States District Court for the Eastern District of New York, Jack B. Weinstein, J. Although denying the writ, the district court issued a certificate of probable cause under 28 U.S.C. § 2253. Thereafter, this court granted leave to appeal in forma pauperis under 28 U.S.C. § 1915, and assigned counsel.*fn2 For reasons given below, we affirm.
Appellant claims that he was denied due process in the state trial by two comments of the prosecutor, one referring to Miller's failure to testify and the other to his decision to appear pro se. Judge Weinstein carefully considered both arguments. As to the former, he ruled that Miller's repeated unsworn testimonial statements operated as a partial waiver of his right to have no comment on his failure to take the stand. Alternatively, the judge held that any error in either comment of the prosecutor was harmless. United States ex rel. Miller v. Follette, 278 F. Supp. 1003 (E.D.N.Y.1968).
On the first issue, the comment complained of occurred early in the prosecutor's summation. After pointing out some of the difficulties he had labored under, the prosecutor stated:
We have a unique situation here of a defendant who has represented himself and who has made statements which are not evidence and which put me on the horns of a dilemma because if a district attorney comments in some way in summation upon the failure of someone to take the stand, that is reversible error. So all I can say to you is please listen to the Judge's admonition. It is what you hear from the people up there on the stand, that is what the evidence is. (Emphasis added.)
Relying on Griffin v. State of California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), and United States v. Curtiss, 330 F.2d 278 (2d Cir. 1964), appellant claims that this was a comment on his failure to testify, which required the grant of the writ.
In Griffin, the Supreme Court forbade adverse comment by prosecutor and judge on the failure of a defendant to testify in a state criminal trial. In that case, defendant apparently was represented at trial by counsel, the prosecutor in summation made much of defendant's failure to testify,*fn3 and the judge charged the jury, inter alia, that defendant's failure to testify could justify an unfavorable inference in certain circumstances.*fn4 The facts in this case are obviously different.
A more analogous situation, however, was presented to a panel of this court in Curtiss, although the language used by the prosecutor was much more inflammatory and direct. Over a vigorous dissent by Judge Medina, we stated there, 330 F.2d at 281:
Appellant's summation as his own attorney did not constitute a waiver of his Fifth Amendment protection. Nor could it be used as an excuse to disregard the admonition against "comment or argument about his failure to testify."
Since our decision in Curtiss, the Ninth Circuit has adopted the view that the actions of a defendant representing himself, who "persistently testified, though not under oath, throughout his trial," waived his privilege against self-incrimination. Redfield v. United States, 315 F.2d 76, 80 (9th Cir. 1963). Accord, State v. Schultz, 46 N.J. 254, 216 A.2d 372, cert. denied, 384 U.S. 918, 86 S. Ct. 1367, 16 L. Ed. 2d 439 (1966).*fn5
This court has not since addressed itself to this aspect of the thorny problems raised by a pro se defendant who repeatedly engages in improper conduct. For there is no doubt that such was Miller's course here. As Judge Weinstein stated, 278 F. Supp. at 1006:
Without taking the stand, petitioner persistently used his position as attorney to make unsworn statements of fact. In large part, these statements in question form were appropriate cross-examination, but they took on testimonial color because it was defendant rather than his lawyer who was inquiring.
Before he summed up, petitioner received an explicit warning not to testify or comment on matters not in evidence. Despite this warning, petitioner utilized his summation to testify to the following matters: the allegedly deliberate and malicious lies of the prosecution; details of his personal life; the dismissal of an earlier information; and the fact that the tools he was found with "were not burglar's tools." There were, petitioner told the jury, "no burglar tools in my car." ...