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June 10, 2004.

ISAAC LEAO, Petitioner,
WILLIAM PHILLIPS, Acting Superintendent, Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Petitioner Isaac Leao ("Leao" or "Petitioner"), currently incarcerated at Green Haven Correctional Facility in Stormville, New York, seeks by writ of habeas corpus pursuant to 28 U.S.C. § 2254 to vacate his conviction for one count of murder in the second degree under N.Y. Penal Law § 125.25[2]. Respondent William Phillips, Acting Superintendent of Green Haven Correctional Facility (the "State") has opposed Leao's petition, which is denied for the reasons set forth below.

Prior Proceedings

  Leao's conviction arose from the homicide of Mario Curbelo ("Curbelo") on March 29, 1998. Following a jury trial, a judgment of conviction was entered on May 11, 2000, by the Honorable Martin Marcus of the Supreme Court, State of New York, Bronx County, for one count of murder in the second degree. Leao was sentenced to an indeterminate term of 25 years to life imprisonment. His conviction was affirmed on June 6, 2002 by the Appellate Division, First Department. People v. Leao, 295 A.D.2d 132, 742 N.Y.S.2d 827 (N.Y. App. Div. 2002). On September 18, 2002, the New York Court of Appeals denied leave to appeal that affirmance. People v. Leao, 98 N.Y.2d 731, 749 N.Y.S.2d 481, 779 N.E.2d 192 (2002). Leao did not seek review of his conviction by the United States Supreme Court. Leao timely filed the present petition, pro se, on October 31, 2003, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 after first exhausting his remedies in state court. Leao's petition raises the same claims at issue in his direct appeal, to wit, that his waiver of the right to trial counsel was not knowing, voluntary and intelligent where he was confused about basic concepts, had only an eighth-grade education, and did not understand the risks of self-representation, and there must therefore be a new trial, pursuant to the Sixth and Fourteenth Amendments to the U.S. Constitution. The State filed its opposition to Leao's petition on February 19, 2004,*fn1 at which time the matter was marked fully submitted.

  State Court Proceedings

  Leao's trial began on April 4, 2000. At trial, the prosecution presented evidence that on March 29, 1998, Leao stabbed Curbelo with a kitchen knife, leading to the latter's death. Four eye-witnesses testified that they saw Leao stab Curbelo (Transcript of Trial Proceedings ("Tr.") at 223-24, 229, 266, 328-24, 366-67), and just minutes after the stabbing, two police officers caught Leao fleeing from the scene, with a blood-stained kitchen knife hidden in his waist band (Tr. at 89-98, 145-48, 269-70, 370-72). DNA analysis of the blood on the knife and blood observed by the police officers on Leao's clothes revealed that the blood belonged to Curbelo. (Tr. at 460; see also Tr. at 113-17, 155-59.) According to four witnesses who lived in Leao's household, the kitchen knife appeared to be from Petitioner's kitchen. (Tr. at 238, 273, 316, 339.) Curbelo's autopsy report indicated that his death was caused by a stab wound, consistent with having been made by the knife recovered from Leao. (Tr. at 418-24.)

  On April 6, 2004, when the trial resumed after an adjournment, defense counsel informed the court that Leao wished to represent himself. (Tr. at 377.) Leao stated on the record that he preferred to defend himself and that he believed his attorney did not want to represent him because she was working with the District Attorney. (Tr. at 377-79.) He also expressed his dissatisfaction with his attorney's failure to strike certain jurors and her failure to act in accordance with his wishes. (Tr. at 379.)

  The court then inquired into Leao's background and education. (Tr. at 380-84.) Leao informed the court that he had "a lot" of education and explained that he had attended school in Cuba until the age of 15. (Tr. at 380-84.) He further explained that he had spent 20 years in the United States and that he was not a lawyer but had studied with friends who were lawyers. (Tr. at 382-83.) He also stated that he had previously defended himself in front of a jury. (Tr. at 387.)

  The court and Leao then discussed the benefits of counsel and the disadvantages of proceeding pro se:
THE COURT: I am not asking you to prove to me that you are qualified to represent yourself. I am asking you to prove to me that you understand the risk that you are taking by representing yourself.
[PETITIONER]: I understand the risk.
THE COURT: Well, I'm not sure that you do.
[PETITIONER]: I feel more, I feel assured that if I lose it, I am okay. But, I don't feel well, I would not feel well if she loses the case for me and because she is united with the D.A. I don't want that.
THE COURT: Look, it is clear to me from the things that you have been saying during the course of the trial that you do not understand what's proper procedure and what is not proper procedure. And, it is going to be my obligation to hold you to the requirements of the law. So, whether you — if you represent yourself there are going to be limitations on the kinds of questions you can ask.
THE COURT: And, [trial counsel] is trained to ask proper questions and experienced at asking proper questions and you are not.
* * *
I just want you to understand that whatever you think you can do there may be objections to the things that you do and I will rule on those objections and you must abide by my rulings. You must follow them.
[PETITIONER]: Okay, that's fine.
THE COURT: If you testify, it is going to be very difficult one way or the other, however we proceed with your testimony, whether I permit you to just give a narrative, to just talk or whether I make you ask questions of yourself, either way its going to be very difficult. It is going to be much easier, much clearer and much better if [trial counsel] asked questions of you.
* * *
[Y]ou have to understand that when you give your summation that you are required to restrict yourself to the evidence in the case, the testimony of the witnesses and the exhibits that are in evidence and you may not tell the jury about things that are not in evidence. And I will hold you to that. Do you understand?
[PETITIONER]: I understand that.
* * *
THE COURT: But, I am telling you both in terms of cross examining witnesses[,] in terms of your testifying, if you want to, in terms of your making arguments at the end of the case, in terms of your making objections to questions that the prosecutor asks or the summation that he gives, that you are not qualified, you do not have the training and you do not understand the rules well enough to be effective in making those arguments and making those objections. And, you will have difficulty asking questions; you will have difficulty testifying if you wish to; you will have difficulty objecting to summations and it sounds to me like you are going to have difficulty summing up at the end of the case and restricting yourself to what's in evidence.
(Tr. at 385-92.) Leao's trial counsel expressed her own concern about Leao proceeding pro se, addressing the court as follows:
I am extremely uncomfortable with [Petitioner] proceeding pro se. It has been very clear to me in the time that I have represented him and the times that I have been in the pens with him and conversing at length with him in the courtroom that although he certainly has very good knowledge of what is contained in the discovery that he has been provided with and although he hears what's going on in the courtroom and he has paid strict attention to what's going on in the courtroom, I personally do not believe that he has the facility with which to represent himself.
(Tr. at 392-93.)
  Throughout these discussions, Leao repeatedly expressed the strong desire to proceed pro se. (Tr. at 378 ("I prefer to defend my own self."), 384 ("I want to defend myself."), 387 ("I want to defend myself. I don't want no lawyer, I want nothing. I will defend myself. . . . I know how to make questions, I know how to write and I know how to go to the limit as to where I am supposed to go."), 388 ("I am not going to testify, but I am going to defend myself."), 389 ("I'm not going to testify, but I am going to defend myself."), 392 ("I am my lawyer."), 393-94 ("I am my lawyer. I don't want a lawyer. I am my lawyer. I am my lawyer. I know how to talk well. I know how to make questions. I know to ask the questions. I know all of that.").) He also stated that he recognized the dangers of self-representation. (Tr. at 385 ("I understand the risk.").) The court granted Leao's request to proceed pro se, still expressing certain reservations:
Well, it is your right to proceed. Whether it is a wise thing to do or not, it is your right to proceed pro se. You have your attorney's opinion and this is mine that this is a mistake that you are making and you are hurting yourself by doing this. But, if that's what you want to do I am going to permit you to do it.
(Tr. at 394.) The court appointed Leao's former trial counsel to act as his legal advisor, over his repeated objections. (Tr. at 394-96.)
  The jury was then brought back into the courtroom, where the jury was informed by the court that Leao was going to represent himself and was instructed that this should not be used against him. (Tr. at 398-99.) The medical examiner was then called to testify, but shortly thereafter the court stopped the trial, asked the jury to leave the courtroom, and once again raised concerns about Leao representing himself:
You know, one of the reasons, Mr. [Leao], that I'm concerned about your representing yourself is that you don't understand the rules of evidence.
Now, there's an objection that could be made to what's happening here that you're not making.
I don't know whether your attorney would choose to make one or not, that's a tactical decision she would make.
* * *
You also understand that when you ask questions that run the risk of giving information, incriminating information about yourself that is implied in the question that you ask.
You understand what I'm saying? It may look to the jury — it may look to the jury from your question that you are saying things about yourself and about your knowledge and about your actions that may suggest to the jury that you're guilty. * * *
[T]he questions that you ask may suggest things to the jury about you that may make them think that you're guilty based only [on] those questions. I'm concerned about that.
Your lawyer can avoid that when you're asking the question. You may not be able to so easily, that's another reason why it's a problem for you to represent yourself.
(Tr. at 408-12.) Leao indicated that he understood the court's concerns. (Tr. at 412.)
  After the medical examiner concluded testifying and before the next witness, an expert in the field of forensic biology and forensic science, was called to the witness stand, the court once more expressed concern about Leao's ability to cross-examine the witness:
Once again I'm just cautioning you about your ability to cross-examine this witness. Again I'm advising you to think about whether you want to represent yourself in cross-examining this witness.
As difficult as the last witness was, this one is going to be more difficult because I don't think you know much about DNA, and I can tell already you don't know much about how to ask questions, and it's going to be much better for your lawyer to do this than you.
(Tr. at 439-40.) Once again, Leao indicated that he wished to continue to represent himself. (Tr. at 440 ("I'm going to make my questions.").) Throughout the remainder of the trial as well as during sentencing, Leao insisted on continuing to represent himself. (Tr. at 486, 494, 617; Sentence Minutes at 2.) On May 11, 2000, judgment was rendered convicting Leao of murder in the second degree, as a result of which he was sentenced to a term of 25 years to life.

  Appellate Proceedings

  Leao appealed his conviction with the assistance of appellate counsel on the grounds that his waiver to the right to counsel was not knowing, voluntary and intelligent, where he was confused about basic concepts, had only an eighth grade education and did not understand the risks of self-representation, and that there must therefore be a new trial, pursuant to the Sixth and Fourteenth Amendments of the U.S. ...

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