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September 19, 2000


The opinion of the court was delivered by: Seybert, District Judge.


Pending before the Court is the petition of Curtis Harris ("Petitioner" or "Harris"), proceeding pro se, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of murder, burglary and robbery in February 1985. Later that same year, Petitioner pled guilty to attempted murder in connection with his attempted escape before his trial. Harris currently is serving an indeterminate term of custody of thirty-seven and one-half years to life on the murder, burglary and robbery charges, and a consecutive term of imprisonment of seven and one-half to fifteen years on the attempted murder charge.

Petitioner raises four grounds for the relief sought. First, Petitioner alleges that his conviction was obtained by statements obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Second, Petitioner argues that the prosecution unlawfully excluded black jurors from the jury, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Third, Petitioner argues that he was not competent to stand trial on the murder, robbery and burglary charges, and that he was not competent to plead guilty to the attempted murder charge. Finally, Petitioner contends that his sentences for the crimes he committed are unconstitutionally excessive.

The evidence of Harris' guilt on all the charges is overwhelming. Nevertheless, a federal court on habeas review is not charged with determining guilt or innocence, but rather with ensuring that a petitioner is not being held in violation of the Constitution. A federal court may not simply ignore the well-established mandates of the Constitution simply because the end result was correct. Thus, although it gives the Court no particular pleasure to prolong these proceedings, the Court finds that Harris' due process rights, as guaranteed by the Fourteenth Amendment, were violated by the exclusion of five black jurors from the jury that heard and deliberated over his case. The Court further finds that, as a constitutional matter, substantial questions about Petitioner's competency to proceed to trial were raised, and that the trial court impermissibly failed to order a competency hearing when Petitioner's competency was reasonably in doubt. Therefore, for the reasons discussed below, the petition is granted.


On February 7, 1985, a jury in Nassau County Court found Petitioner guilty, under indictment number 57785, of one count of intentional murder in violation of New York Penal Law § 125.25[1]; two counts of felony murder in violation of N.Y. Penal Law § 125.25[3]; one count of burglary in the first degree, a violation of N.Y. Penal Law § 140.30[2]; and one count of robbery in violation of N.Y. Penal Law § 160.15[1]. The convictions followed Petitioner's trial before the Honorable Stuart L. Ain. Petitioner later was sentenced by Judge Ain to an indeterminate term of twenty-five years to life on each of the three murder counts, and twelve and one-half to twenty-five years on each of the burglary and robbery counts.

Later that year, Harris pled guilty, under indictment number 59972, to attempted murder in the second degree, in violation of N Y Penal Law §§ 11000/125.25[1]. This conviction resulted from Harris' attempt to escape from custody, during which both a court security officer and Petitioner were shot.*fn1 Petitioner originally had been charged in this indictment with escape in the first degree, in violation of N.Y. Penal Law § 205.15[2]; aggravated assault upon a police officer, in violation of N Y Penal Law § 120.11; and four counts of assault in the second degree, in violation of N.Y. Penal Law § 205.05[2,3,6,7]. However, Petitioner pled guilty to the attempted murder charge in full satisfaction of all the charges contained in the indictment.

Petitioner thereafter was sentenced to seven and one-half to fifteen years, to run consecutively to the sentence previously imposed under indictment number 57785. This sentence also was imposed by Judge Ain in the County Court of Nassau County.

Petitioner appealed both of the convictions to the Supreme Court of New York, Appellate Division, Second Department. In that appeal, Harris presented the following claims: (1) that the conviction under indictment number 57785 was unlawfully obtained by introduction of statements obtained in violation of Miranda; (2) that the prosecutor used his peremptory challenges to unlawfully exclude black jurors in violation of Batson; (3) that Petitioner was not competent to stand trial or take a plea because of his low IQ and the impact of the bullet that had lodged in his brain as a consequence of being shot during his escape attempt; and (4) that Petitioner's sentence was excessive.

In a five-paragraph decision, the appellate court essentially affirmed the judgments of conviction. However, the court sua sponte found that the evidence supporting Petitioner's intentional murder conviction was insufficient as a matter of law. The court reversed that part of the conviction under the first count of indictment number 57785, and vacated that portion of the sentence. People v. Harris, 160 A.D.2d 726, 555 N.Y.S.2d 607 (2d Dep't 1990).

Petitioner then sought leave to appeal to the New York State Court of Appeals. By Order dated September 14, 1990, the court, per Titone, J., denied leave to appeal. People v. Harris, 76 N.Y.2d 893, 561 N.Y.S.2d 555, 562 N.E.2d 880 (1990).

Respondent opposes Petitioner's application for a writ of habeas corpus. Respondent correctly concedes that each of Harris' claims is exhausted,*fn2 but contends that the claims are without substantive merit.


On August 30, 1983, petitioner and co-defendant Julio Giano, with the express purpose of committing a robbery, drove to the home of Vicki Kestoglou, apparently Giano's former girlfriend, in Manhasset Hills, New York. Trial Transcript ("Tr.") 116-118. Pursuant to their plan, Giano entered the house first while Petitioner waited outside in the car. Petitioner remained outside the house for five minutes, then exited the car and rang the doorbell. When Kestoglou answered the door, Petitioner asked if he could use the bathroom. Giano told Kestoglou that everything was alright, because Petitioner was with him.

After Petitioner went into the bathroom, Giano pulled a gun on Kestoglou, holding a silver automatic to her head. Giano threatened to kill Kestoglou. Harris helped Giano tie up Kestoglou with a ripped bed sheet, and then watched as Giano brutally strangled Kestoglou with a cord. Although Harris protested Giano's attempt to strangle Kestoglou, Giano told him that he had to kill her because she knew him. Petitioner ran from the house and waited in the car. When Giano returned, Petitioner asked Giano what had taken so long. Giano told Harris that Kestoglou was "very hard to kill." The two then drove away with the meager proceeds of their crime: a plastic bag containing jewelry and coins, and a small television set. Tr. 117-18. Kestoglou was dead. Tr. 100-03.

Petitioner later gave a written statement to the police, confessing to his role in the crimes. Tr. 120-133; see also Respondent's Brief to the Appellate Division, Second Department, Appendix 1 (written confession). Petitioner also agreed to give a videotaped confession, which tape later was played for the jury. Tr. 217-19.


Prior to trial, and before his escape attempt, Petitioner moved to suppress the inculpatory statements he made to the police during the course of the investigation into Kestoglou's murder. Hearings held pursuant to the motion included the testimony of Detective James Magee, of the Nassau County Police Department. Hearing Minutes ("H.M.") 20. Detective Magee testified that he had questioned Petitioner about the retrieval of the items taken from the Kestoglou home. Without prompting, Harris told Detective Magee that he was present at Kestoglou's house, but that he did not kill Kestoglou. H.M. 25. At this point Detective Magee, reading from a card, advised Harris of his constitutional rights under Miranda. Petitioner indicated that he understood these rights by signing the back of the rights card that was read to him. H.M. 30. Petitioner further indicated that he was willing to answer questions without the presence of an attorney. H.M. 29-30. Petitioner then made a full oral confession. H.M. 31.

Detective Magee also asked Petitioner if he was willing to give a written statement, a request to which Harris consented. H.M. 31-39. Detective Magee reduced Petitioner's confession to a written statement, with Harris' help. H.M. 39. Petitioner was asked to make any corrections, additions or deletions, and sign his name at the bottom of each page and sign the last page, and include his address. H.M. 40. Petitioner did each of these things. H.M. 40. In the confession, Petitioner admitted his participation in the burglary and robbery, and to Kestoglou's murder. H.M. 33-35.

Dr. Roger P. Feldman, a psychiatrist, testified on behalf of the Petitioner. H.M. 243. Dr. Feldman was qualified as an expert in psychiatry. Dr. Feldman testified that Harris functioned at an IQ level of between seventy and eighty. H.M. 259. As a result of his low IQ, Dr. Feldman stated that Petitioner could only understand Miranda warnings if they were explained in detail and paraphrased in simpler language. H.M. 260. The expert also testified that repetition could increase Petitioner's understanding of Miranda warnings.

Petitioner's mother and father also testified at the hearings. Yvonne Harris testified regarding Petitioner's learning disabilities and his classification as "educationally retarded" in the second grade. H.M. 316. Mrs. Harris also testified that her son had a very bad problem with alcohol from the time he turned fourteen. H.M. 324. She further testified that Petitioner had great difficulty understanding many things, and that he had to be told things over and over until he "would kind of understand it." H.M. 325. Mrs. Harris also testified that her son read at a first-grade level and that his reading comprehension was minimal. H.M. 328-29. Petitioner's father testified that his son had very poor eyesight and had trouble reading. H.M. 336-37.

At the conclusion of the hearings, Judge Ain denied Petitioner's motion to suppress the confession. Judge Ain held that Petitioner fully comprehended the meaning and import of the Miranda warnings. See Respondent's Brief to the Appellate Division, Second Department, Appendix 2 (decision of Hon. Stuart L. Ain, dated December 4, 1984), at 9.


The court denied the challenge for cause, but allowed the prosecutor to exercise a peremptory challenge over the objection of defense counsel. V.D. 108-13. Defense counsel noted that McGruder was one of a few number of blacks on the panel of prospective jurors, and that he had no objection to McGruder in light of his receipt of relief from civil disabilities. V.D. 109. The trial judge was not persuaded, and McGruder was peremptorily struck by the assistant district attorney.

Thereafter, during the course of jury selection, four other blacks were peremptorily challenged and excused by the assistant district attorney: Mrs. Corring, Mr. Creeon, Mr. Jones and Mr. Mohammed. V.D. 242. As a result, Petitioner was tried before an all-white jury. Respondent's Memorandum of Law in Opposition to Petition, at 11.

Petitioner's counsel, Thomas Liotti, Esq., raised the problem of the assistant district attorney's complete exclusion of blacks before the trial judge.*fn3 V.D. 245-246. With the prodding of the court, Mr. Liotti asserted a claim that "there was a systematic [a]nd purposeful exclusion of blacks and black persons from this jury by [the assistant district attorney]." V.D. 242. The prosecutor, Daniel Cotter, Esq., denied any systematic exclusion of black jurors, and stated that pursuant to the then-existing law as stated by the New York Court of Appeals, he was allowed to exercise peremptory challenges in any manner he saw fit. V.D. 247-48.

In accordance with McCray, Mr. Liotti moved for a hearing to discuss the selection of the jurors. V.D. 241-242; see also McCray, 750 F.2d at 1134 (noting that once a prima facie case of discrimination has been made out, the court should conduct a hearing to ensure that prospective jurors had not been removed for improper reasons). The motion was denied. V.D. 249.


Petitioner's trial was short and uneventful. After a little more than two days of trial, the jury deliberated and found Harris guilty of three counts of murder in the second degree, one count of burglary in the first degree, and one count of robbery in the first degree. Tr. 385. Petitioner subsequently was sentenced to twenty-five years to life on each of the three murder counts and twelve and one-half to twenty-five years on each of the burglary and robbery counts.

A few months later, on April 25, 1985, Petitioner offered to plead guilty to attempted murder in the second degree, in satisfaction of all charges contained in the indictment relating to his escape attempt. At the plea proceeding, Judge Ain made it clear to Harris and to Mr. Liotti that Harris needed to fully comprehend and understand what was occurring with respect to his plea. Plea Minutes, at 7. At the proceeding, Petitioner told the court that he did not read or write English. Plea Minutes, at 3. Harris' counsel had to paraphrase and explain each of the court's questions to Petitioner, in order to make sure Harris understood what was transpiring at the proceedings. Plea Minutes, at 8. After this extensive proceeding, which included Petitioner's conferences with his attorney after every question, the court was satisfied that Petitioner "ha[d] acknowledged his guilt and [wa]s willing to assume responsibility for it." Plea Minutes, at 22. The court then accepted Harris' guilty plea to a charge of attempted murder in the second degree. Plea Minutes, at 23. Judge Ain later sentenced Petitioner to a term of imprisonment of seven and one-half to fifteen years for this offense.


I. Timeliness of Petition

As an initial matter, the Court holds that pursuant to the prevailing law of the Second Circuit, Harris' petition for a writ of habeas corpus, filed in this Court on April 25, 1997, was timely. See Clark v. Stinson, 214 F.3d 315, 319 (2d Cir. 2000) (reiterating "the general rule that a prisoner had until April 24, 1997 to avail him or herself of habeas relief in federal court"). The petition was received by the Pro Se Office of the Eastern District one day after the generally applicable deadline. However, the petition was signed by Harris on April 21, 1997, as was Harris' application to proceed in forma pauperis. Although the envelope in which Harris' petition was mailed is not found in the case file maintained by the Clerk of the Court, the envelope which contained the IFP application is attached to that application, and is postmarked April 22, 1997.

Pursuant to the Court of Appeals' September 28, 1998 mandate, which constitutes the law of this case, the Court must determine whether the petition was timely filed with prison officials on or before April 24, 1997. Given that the IFP application was received by the Eastern District's Pro Se Office on April 24, 1997, with an April 22, 1997 postmark, and the petition itself was received by the pro se office on April 25, 1997, it is abundantly clear that Harris' petition was, in fact, filed with prison officials on or before April 24, 1997. Therefore, the Court holds that Harris' petition was timely filed pursuant to 28 U.S.C. § 2244(d)(1). The Court thus proceeds to determine the merits of the petition.

II. Failure to Comprehend Miranda Warnings Claim

Petitioner claims that although he was administered Miranda warnings as required by the Fifth Amendment to the Constitution, he could not understand the warnings because of his low IQ and his history of learning disabilities. As a result of his inability to understand the warnings he admittedly was provided, Petitioner argues that the inculpatory statements he made should have been suppressed, and that his waiver of the right to an attorney was invalid. See Petition, ¶ 12.A; see also Dickerson v. United States, ___ U.S. ___, 120 S.Ct. 2326, 2336, 147 L.Ed.2d 405 (2000) (holding that the warnings required by Miranda are constitutionally based, and upholding Miranda's "core ruling that unwarned statements may not be used as evidence in the prosecution's case in chief.").

Because this precise issue already has been litigated in the courts of the State of New York, this Court's duty in analyzing this claim is constrained by 28 U.S.C. § 2254(d)(1). This section provides 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 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) resulted in a decision that 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); see also Francis S. v. Stone, 221 F.3d 100, 107-11 (2d Cir. 2000) (analyzing federal court's standard of review in analyzing claims previously adjudicated in state courts); Clark, 214 F.3d at 320-21 (same).

Petitioner previously raised this exact claim to the trial court — which held hearings on the matter — and on direct appeal to the Appellate Division, Second Department and to the New York Court of Appeals. The trial court issued a written decision, and held that Harris' argument that he was too mentally ...

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