The opinion of the court was delivered by: Denise Cote, United States District Judge
On December 18, 1996, Dickens was sentenced to twenty years' to life imprisonment as a persistent violent felony offender following his conviction at trial for second degree robbery. Dickens brings this timely pro se petition for a writ of habeas corpus pursuant to Title 28, United States Code, Section 2244. In his careful and thorough Report of November 6, 2002, Magistrate Judge Peck recommends that the petition be denied ("Report"). Dickens has filed objections to the Report. For the following reasons, the Report is adopted and the petition is denied.
The evidence at trial showed that Dickens approached a newspaper delivery person on October 18, 1995, pressed an object that felt like a gun into the person's back, and took between $700 and $800 from the victim's pocket. Soon thereafter, Dickens was taken into custody when he was found lying under a nearby car. The stolen money was recovered from underneath the same car. The victim identified Dickens then and at trial. The jury found Dickens guilty of second degree robbery.
At sentence, after determining that this was Dickens' fourth conviction and third violent felony conviction, the judge sentenced him to twenty years' to life imprisonment. The First Department affirmed the conviction and the New York Court of Appeals denied leave to appeal on July 6, 1999.
On March 16, 2000, Dickens filed a pro se motion pursuant to C.P.L. § 440.10, which was denied on November 22, 2000. The First Department denied leave to appeal on March 13, 2001. On May 15, 2001, Dickens applied to the First Department for a writ of error coram nobis. It was denied on February 21, 2002.
This petition is dated February 27, 2002, and was received by this Court's Pro See Office on March 8, 2002. In general, Dickens does not deny that he participated in the crime for which he was convicted. He does assert, however, that he had no weapon. The petition asserts several grounds for relief, principally related to Dickens' absence from a sidebar conference with a prospective juror during the voir dire, his failure to testify before the grand jury, and his enhanced sentence as a persistent violent offender. His claims will be considered in turn.
1. Voir Dire Dickens alleges that a sidebar with a prospective juror during the voir dire was conducted in his absence in violation of his Sixth Amendment right to be present at all critical stages of the trial. This prospective juror was chosen as a juror and served as foreperson.
The Report concluded that there is no federal Constitutional right to be present at such a side bar conference. Assuming the existence of such a right, however, the Report also outlined the law establishing the right of a defendant to waive his presence so long as the waiver is given knowingly and voluntarily. The record indicates that Dickens did waive his presence at the sidebar, as the trial court found when denying Dickens' 440.10 motion. As described in the Report, prior to the sidebar, the trial court had notified Dickens of his right pursuant to People v. Antommarchi, 80 N.Y.2d 247 (1992), to be present at sidebar conferences held during the voir dire. At the sidebar held with the prospective juror, defense counsel notified the court that Dickens had waived his right to be present. At no point during the voir dire process did Dickens, who remained in the courtroom during the sidebar, indicate a desire to attend the sidebar.
Applying the deferential standard of review that applies under AEDPA to facts found by a state court, the Report concluded that Dickens had not shown by clear and convincing evidence that he had not waived his right to participate in the side bar conference.
In the course of making his objections, Dickens confirms that he knew of his right to be present at the sidebar, but protests that he did not know of the "nature of the proceeding." Dickens contends that his counsel did not describe to him what had occurred at the side bar. Relying on Cohen v. Senkowski, 290 F.3d 485 (2d Cir. 2002), Dickens contends that the Report erred in stating that "[w]hile counsel should have conferred with Dickens about what the potential juror said at sidebar, the standard is whether the defendant knew of the right to be present at sidebar, not whether he knew what the juror said at sidebar." (Emphasis in original.) Dickens also objects that he is entitled to de novo review of the question of whether he waived his right to be present at the sidebar since the AEDPA standard does not apply to waivers of constitutional rights.
The pre-screening of jurors is a "material stage of trial at which the defendant has a constitutional right to be present." Cohen, 290 F.3d at 489.*fn1 See also Gomez v. United States, 490 U.S. 858, 873 (1989). The right, however, can be waived. The Cohen court described the circumstances under which a knowing waiver occurs: "when a defendant is fully apprised of the nature of the pre-screening procedure, makes no objection to the procedure, and has counsel present for the duration of the pre-screening." Cohen, 290 F.3d at 492. Dickens does not dispute that each of these conditions was met. Dickens' claimed lack of knowledge of the details of the sidebar discussion does not vitiate his waiver when ...