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
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
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
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; two counts of felony murder in violation of N.Y. Penal
Law § 125.25; one count of burglary in the first degree, a
violation of N.Y. Penal Law § 140.30; and one count of robbery
in violation of N.Y. Penal Law § 160.15. 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. 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;
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).
Harris filed the present application for a writ of habeas
corpus on April 25, 1997.
As grounds for relief, Petitioner presented the same grounds that
he first argued on direct appeal to the Second Department. In
fact, after listing the grounds one by one in the petition
itself, Petitioner annexed a copy of his brief on direct appeal
to the Second Department, presumably as an exhibit to his
petition. On December 29, 1997, this Court dismissed the petition
as time-barred pursuant to the Anti-Terrorism and Effective Death
Penalty Act of 1996, 28 U.S.C. § 2244 and 2254 ("AEDPA").
Petitioner appealed the dismissal of his petition. On September
28, 1998, the United States Court of Appeals for the Second
Circuit vacated this Court's Order of Dismissal and remanded this
case for a determination (1) whether Petitioner timely filed his
petition and (2) if the petition was timely filed, for
consideration of its merits.
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.
FACTS UNDERLYING THE TWO INDICTMENTS
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.
On September 21, 1984, while trial for these crimes was
pending, Petitioner and Giano escaped from the custody of a court
officer at the County Courthouse in Mineola,
New York. Affidavit of Margaret E. Mainusch, Esq., dated December
14, 1998, ¶ 7. During a shootout that ensued when court officers
sought to recapture him, Petitioner shot a court officer in the
head. Id. Petitioner himself also was shot in the head. Id.
The bullet that hit Petitioner passed through the midline of his
skull and lodged in the central ventricle of his brain.
Petitioner's Memorandum of Law in Support of Petition for Writ of
Habeas Corpus, at 3. The bullet has never been removed. Id.
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.
On January 2, 1985, the case proceeded to trial, with jury
selection the first task of the day. The first black venire
be examined was a prospective juror named Mr. McGruder. Both the
prosecution and the defense accepted McGruder for the jury panel.
However, on the following day, before any additional jurors had
been selected, McGruder told the court that in 1961 he had been
charged with a misdemeanor involving the carrying of weapons,
that he was convicted, that he received a suspended sentence, and
that he thereafter was granted a certificate of relief from civil
disabilities. Minutes of Voir Dire Proceedings ("V.D.") 107-08.
McGruder had failed to provide this information when questioned
by the judge during his examination the previous day. As a result
of this disclosure, the assistant district attorney asked that
McGruder be dismissed for cause, or in the alternative, that he
be permitted to utilize a peremptory challenge to strike
McGruder. V.D. 108.
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.
THE TRIAL, THE GUILTY PLEA, AND SENTENCING
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
[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 ...