Division's decision amounted to an unreasonable application of
clearly established Supreme Court law.
However, the inquiry does not end with this determination. The
Court must consider "whether the constitutional error justifies
the writ without regard to prejudice," known as structural error,
or "falls into the larger class of constitutional errors that is
subject to harmless error review." Lainfiesta v. Artuz,
253 F.3d 151, 156-57 (2d Cir. 2001). Structural error occurs where
the defect "affect[s] the framework within which the trial
proceeds, rather than simply an error in the trial process
itself." Id. at 157. Structural error is "per se reversible."
Peck v. United States, 106 F.3d 450, 454 (2d Cir. 1997).
Whether it is structural error when a court fails to advise a
defendant of the ramifications of proceeding pro se, appears to
be a question of first impression. However, "[t]he Supreme Court
has held that violations of the Sixth Amendment right to counsel
are per se reversible only when they amount to an actual or
constructive denial of the assistance of counsel altogether, or
when counsel was prevented from assisting the accused during a
critical stage of the proceeding." Lainfiesta, 253 F.3d at 157
(internal quotations and citations to Supreme Court authority
omitted); see, e.g., McKaskle v. Wiggins, 465 U.S. 168, 104
S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self-representation
at trial is structural error); Gideon v. Wainwright,
372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of
counsel is structural error); Bellamy v. Cogdell, 974 F.2d 302
(2d Cir. 1992) (recognizing a per se ineffective assistance of
counsel rule where, unbeknownst to the defendant, counsel was not
duly licensed to practice law at the time of representation
because of a failure to meet the substantive requirements for the
practice of law, or was implicated in the defendant's crimes)
(internal quotations and citations omitted). Otherwise, Sixth
Amendment violations have invariably been held subject to
harmless error analysis. See, e.g., Lainfiesta, 253 F.3d at 157
(recognizing that the arbitrary deprivation of a second attorney
of choice is a constitutional violation subject to harmless error
analysis) (citing cases); Coleman v. Alabama, 399 U.S. 1,
10-11, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (holding that
deprivation of counsel at a preliminary hearing is a Sixth
Amendment violation and remanding to the state courts to consider
whether the error was harmless). As the present case falls into
neither of the rare situations warranting automatic reversal,
Dallio's claim is subject to harmless error analysis.
In applying the harmless error standard, the Court must
consider whether the error had a "`substantial and injurious
effect or influence'" on the outcome. Brecht v. Abrahamson,
507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting
Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct.
1239, 90 L.Ed. 1557 (1946)); see Nova v. Bartlett,
211 F.3d 705, 709 (2d Cir. 2000). To make such a showing, the habeas
petitioner must establish that the constitutional claim "resulted
in actual prejudice." Id. (citing United States v. Lane,
474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)). If a
federal judge in a habeas proceeding is in grave doubt as to
the harmlessness of the error, meaning that "the matter is so
evenly balanced that he feels himself in virtual equipoise," then
the error should be treated as if it affected the outcome.
O'Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130
L.Ed.2d 947 (1995).
Although the standard set forth in Brecht arose in the
context of a jury trial, the standard is equally applicable
to proceedings conducted by a judge. See Beets v. Iowa Dep't of
Corr. Servs., 164 F.3d 1131, 1136 (8th Cir. 1999) (applying
harmless error analysis on habeas review to bench trial). As an
initial matter, the Court notes that Dallio, upon electing to
proceed pro se, was not actually or constructively deprived of
the assistance of counsel altogether since O'Grady was present on
stand-by throughout the remainder of the hearing. See McKaskle,
465 U.S. at 187-88, 104 S.Ct. 944 (courts are permitted to
appoint standby counsel-who must generally respect defendant's
right to appear pro se, but need not be excluded altogether).
Furthermore, by the time Dallio elected to proceed pro se, the
majority of the hearing had taken place. Pierce and Copeland each
had testified on direct-examination and cross-examination. Dallio
had already received the benefit of counsel's skilled and
thorough examinations of these witnesses. In addition, Dallio
ably represented himself by re-crossing Pierce and Copeland, and
questioning Willis in an attempt to undermine the credibility of
the investigating officers. Any failure by the court to warn
Dallio of the dangers and disadvantages of proceeding pro se
did not have a substantial and injurious effect on the outcome of
the hearing. Therefore, the Court concludes that although the
error was constitutional in dimension, the claim fails under
harmless error analysis.
III. Challenges to Confession
The Supreme Court has held that "the ultimate question,
whether, under the totality of the circumstances, the challenged
confession was obtained in a manner compatible with the
requirements of the Constitution is a matter for independent
federal determination." Miller v. Fenton, 474 U.S. 104, 112,
106 S.Ct. 445, 88 L.Ed.2d 405 (1985). However, a state court's
determinations of "subsidiary questions such as the length and
circumstances of the interrogation, the defendant's prior
experience with the legal process, and familiarity with the
Miranda warnings" are considered questions of fact, which are
entitled to a presumption of correctness under
28 U.S.C. § 2254(d). Id. at 117, 106 S.Ct. 445. In the face of the required
presumption, the petitioner "`shall have the burden of rebutting
the presumption of correctness by clear and convincing
evidence.'" Nelson v. Walker, 121 F.3d 828, 833 n. 4 (2d Cir.
1997) (quoting 28 U.S.C. § 2254(e)(1)).
A. Invocation of Right to Counsel
Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966), custodial interrogations are prohibited
without prior warning of the Fifth Amendment privilege against
self-incrimination. "Once in the custody of law enforcement
officials, an accused must be informed of his constitutional
rights to remain silent, and to counsel." Campaneria, 891 F.2d
at 1022 (2d Cir. 1989) (citing Colorado v. Spring,
479 U.S. 564, 572-72, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987)). "An accused
is in `custody' when, in the absence of an actual arrest, law
enforcement officials act or speak in a manner that conveys the
message that they would not permit the accused to leave." Id.
Whether someone is in custody depends on the totality of the
circumstances. See Thompson v. Keohane, 516 U.S. 99, 113, 116
S.Ct. 457, 133 L.Ed.2d 383 (1995). If a person in custody chooses
to remain silent, the admissibility of statements obtained
thereafter will depend on "whether his `right to cut off
questioning' was `scrupulously honored.'" Mosley, 423 U.S. at
104, 96 S.Ct. 321 (quoting Miranda, 384 U.S. at 474, 86 S.Ct.
The questioning of an incarcerated prisoner is not a per se
interrogation for the purposes of Miranda. See Illinois v.
Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990)
(conversation between suspect and undercover agent in prison did
not implicate Miranda). However, under the circumstances here,
it is clear that Dallio was in custody. He was detained in a
private room, with a guard posted outside the door, and was not
permitted to go to the bathroom unaccompanied. Clearly, any
attempts by Dallio to exit the room would have been thwarted. In
this "police-dominated atmosphere," a reasonable person in
Dallio's position would not have felt free to leave. Miranda,
384 U.S. at 445, 86 S.Ct. 1602.
Nevertheless, the strictures of Miranda were adequately
observed. Dallio was read his rights shortly after he was brought
into the room. He acknowledged those rights and waived them. At
no point did Dallio choose to remain silent by exercising his
right to cut off questioning. Although, over the course of the
day, Dallio stated on several occasions that he did not wish to
talk on tape, this was not tantamount to a request for legal
representation. To the contrary, he stated that he did not want a
lawyer. Dallio freely and voluntarily continued discussions with
the officers off-tape. His hand signals and requests to stop were
only in regard to the recording, not the questioning. On these
facts, the Appellate Division specifically found that Dallio
agreed to speak to the officers after signing the Miranda
waiver. Dallio has not rebutted the presumption of correctness
that should be accorded this finding.
B. Voluntariness of Confession
Dallio further contends that his confession was not voluntarily
obtained. Supreme Court precedent requires a court to determine
the voluntariness of a statement based on "the totality of all
the surrounding circumstances." Schneckloth v. Bustamonte,
412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). "`No single
criterion controls whether an accused's confession is
voluntary.'" Nelson, 121 F.3d at 833 (quoting Green v.
Scully, 850 F.2d 894, 901 (2d Cir. 1988)). A confession is
voluntary if it "is the product of an essentially free and
unconstrained choice and involuntary if the product of a will
overborne." Mancusi v. Clayton, 454 F.2d 454, 456 (2d Cir.
1972) (citing Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct.
917, 9 L.Ed.2d 922 (1963)). Factors to be considered include: the
characteristics of the accused, such as his experience,
background, and education; the conditions of the interrogation;
and the conduct of the law enforcement officials, notably,
whether there was physical abuse, the period of restraint in
handcuffs, and use of psychologically coercive tactics, including
whether police engaged in trickery. See id.; Green, 850 F.2d at
According to Dallio, his will was overborne by the officers
when they preyed on his religious beliefs, lied to him about his
fingerprints being found in blood, and lied about whether
Berglund's mother would forgive him. The Appellate Division found
this claim to be without merit, and the Court agrees. There was
no indication of physical abuse, nor was Dallio handcuffed. The
conditions of the interrogation consisted of Dallio and two
officers sitting in a room; there is nothing inherently coercive
about such a situation. In addition, Dallio was no stranger to
the law. Dallio was incarcerated at the time and had a lengthy
criminal history; thus, he was familiar with police interrogation
tactics and unlikely to be confused or overwhelmed.
Furthermore, the fact that Dallio claims he was deceived by one
officers is insufficient to render his confession involuntary.
"The fact . . . that the police lie to a suspect to elicit his
confession does not necessarily render it involuntary;" again,
the Court must consider the totality of the circumstances.
Santiago Ortiz v. Kelly, 687 F. Supp. 64, 66 (E.D.N.Y. 1988)
(citing Green v. Scully, 850 F.2d 894 (2d Cir. 1988)); see
also Colorado v. Spring, 107 S.Ct. at 858 n. 8 (declining to
outlaw all trickery); Tankleff v. Senkowski, 135 F.3d 235,
242-243 (2d Cir. 1998). Here, Dallio was not lied to; the officer
merely asked what would happen if he were to tell Dallio that the
prints were found in blood. Since Dallio has not even alleged
that an affirmative misrepresentation was made, the Court finds
that under these circumstances, his confession was voluntary.
Finally, Dallio again voluntarily confessed to the murder when he
was on his way to the precinct. Therefore, according the factual
findings the appropriate presumption of correctness, Dallio's
involuntariness claim must fail.*fn5
The petition is denied. The Court determines that a certificate
of appealability will not be issued since Dallio has failed to
make a substantial showing of the denial of a federal right.
See 28 U.S.C. § 2253.