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LEAO v. PHILLIPS

United States District Court, S.D. New York


June 10, 2004.

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

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

OPINION

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.
[PETITIONER]: I know.
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. Constitution. The Appellate Division, First Department affirmed his conviction on June 6, 2002, however, concluding:

  The [trial] court properly permitted [Petitioner] to represent himself. In response to [Petitioner's] unequivocal expression of his desire to proceed pro se, the court thoroughly warned him of the dangers and disadvantages of self-representation, thereby ensuring that [Petitioner] made a voluntary and intelligent waiver of his right to counsel. [Petitioner's] lack of legal knowledge would not have been a proper basis upon which to deny him the right of self-representation. We have considered and rejected [Petitioner's] remaining arguments. Leao, 259 A.D.2d at 132, 742 N.Y.S.2d at 827-28 (internal citations omitted).

  Leao thereafter sought leave to appeal the Appellate Division's affirmance to the New York Court of Appeals by letter application dated June 25, 2002. On September 18, 2002, leave to appeal was denied. See Leao, 98 N.Y.2d at 731, 749 N.Y.S.2d at 481, 779 N.E.2d at 192.

  The Standard For Relief

  Leao seeks to vacate his conviction by writ of habeas corpus pursuant to 28 U.S.C. § 2254. As Leao filed for habeas corpus relief after April 26, 1996, certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996 are applicable here. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402 (2000); Hemstreet v. Greiner, 367 F.3d 135, 139 (2d Cir. 2004).

  These provisions, codified at 28 U.S.C. § 2254(d), specify that:

An 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).

  According to the U.S. Supreme Court, these provisions, introduced by the 1996 amendment, have imposed a "new constraint" on courts reviewing habeas corpus petitions regarding claims that were reached on the merits by the state court. Williams, 529 U.S. at 412. In addressing 28 U.S.C. § 2254(d)(1), the Court has explained that under the "contrary to" clause, a habeas court "may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13; see also Harris v. Kuhlmann, 346 F.3d 330, 344 (2d Cir. 2003). In commenting on the "unreasonable application" clause, the Court has stressed that "unreasonable" does not mean "incorrect" or "erroneous." Williams, 529 U.S. at 410-11. Thus, a writ may only issue under this latter clause "if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413; see also Hemstreet, 367 F.3d at 139. The Second Circuit has interpreted the 1996 amendment as requiring denial of a habeas corpus petition, even in cases where the state court is incorrect, so long as the state court has not been unreasonable. See Jones v. Stinson, 229 F.3d 112, 119-21 (2d Cir. 2000).

  If the dispute involves a purely factual question, 28 U.S.C. § 2254(d)(2) governs, and a federal court can grant a habeas corpus application only if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997) (quoting 28 U.S.C. § 2254(d)(2)); see also Channer v. Brooks, 320 F.3d 188, 195 (2d Cir. 2003). A state court's determination of a factual issue is "presumed to be correct" and the petitioner can rebut the presumption only by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

  In addition to imposing a more deferential standard of review, the 1996 amendment restricts courts when reviewing habeas claims to the case law of the U.S. Supreme Court. Williams, 529 U.S. at 412-13; Delvalle v. Armstrong, 306 F.3d 1197 (2d Cir. 2002). Accordingly, the courts evaluating a habeas petition should survey the legal landscape at the time the state court adjudicated the petitioner's claim to determine the applicable U.S. Supreme Court authority, as federal law is "clearly established" only if the Supreme Court precedent in existence at the time of the petitioner's conviction would have compelled a particular result in the case. See Williams, 529 U.S. at 412 (The phrase "`clearly established Federal law' . . . refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision."); accord Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003); see generally 28 U.S.C. § 2254(d) (limiting habeas relief to any claim that "was adjudicated" on the merits in state court unless that decision was inconsistent with "clearly established Federal law, as determined by the Supreme Court").

  In addressing the present petition, the Court is mindful that Leao is proceeding pro se and that his submission should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotation marks omitted).

  Discussion Leao has claimed in both his direct appeal and the instant petition 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. As the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court, Leao's petition for habeas relief must be denied.

  The merits of Leao's claim are governed by the U.S. Supreme Court's holdings in Gideon v. Wainwright, 372 U.S. 335 (1963) and in Faretta v. California, 422 U.S. 806 (1975). See Gilchrist v. O'Keefe, 260 F.3d 87, 93-94 (2d Cir. 2001), cert. denied sub nom. Gilchrist v. Smith, 535 U.S. 1064 (2002); Torres v. United States, 140 F.3d 392, 401 (2d Cir. 1998). In Gideon, the Supreme Court held that under the Sixth Amendment, applied to state court defendants through the Fourteenth Amendment, "counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived." 372 U.S. at 340. In Faretta, the Court delved further into the requirements for permitting a defendant to proceed pro se:

When an accused manages his own defense, he relinquishes . . . many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must knowingly and intelligently forego those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.
422 U.S. at 835 (internal quotation marks and citations omitted).

  There is no "talismanic" procedure to follow in determining whether a defendant's waiver was competent and intelligent. United States v. Tracy, 12 F.3d 1186, 1194 (2d Cir. 1993). As the Second Circuit has recently explained:

[T]he Supreme Court has repeatedly emphasized that a knowing and intelligent waiver depends on the totality of "facts and circumstances" in a given case, Edwards v. Arizona, 451 U.S. 477, 482, 101 So. Ct. 1880, 68 L.Ed.2d 378 (1981) (quoting Johnson v. Zerbst, 304 U.S. [458,] 464, 58 S.Ct. 1019[, 82 L.Ed. 1461 (1938)]), and it has generally rejected arguments urging adoption of per se waiver rules based on any single factor, see North Carolina v. Butler, 441 U.S. 369, 374-76, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (declining to replace totality of circumstances standard for assessing knowing and voluntary waiver of right to counsel with an "inflexible per se rule" requiring such waivers always to be explicit).
Dallio v. Spitzer, 343 F.3d 553, 563 (2d Cir. 2003), cert. denied, 124 S.Ct. 1713 (2004). Nevertheless, in reaching a determination as to whether a waiver was knowing and intelligent the trial court should consider "`whether the defendant understood that he had a choice between proceeding pro se and with assigned counsel, whether he understood the advantages of having one trained in the law to represent him, and whether the defendant had the capacity to make an intelligent choice.'" United States v. Hurtado, 47 F.3d 577, 583 (2d Cir. 1995) (quoting United States v. Calabro, 467 F.2d 973, 985 (2d Cir. 1972) (internal quotation marks and citation omitted)). Put simply, the trial court must be satisfied that the defendant was aware of the dangers associated with self-representation and that, in choosing to represent himself, the defendant knew "what he [was] doing and his choice [was] made with eyes open." Faretta, 422 U.S. at 835 (quotation marks omitted).

  As the Appellate Division recognized in affirming Leao's conviction, Leao's waiver of his right to counsel before the trial court was made knowingly, voluntarily and intelligently. Leao, 259 A.D.2d at 132, 742 N.Y.S.2d at 827. As set forth above, the trial court inquired into Leao's background and education, and Leao informed the court that he had prior experience representing himself before a jury. The trial court proceeded to warn Leao that proceeding pro se would be a risk and elaborated on the nature of the risk. The trial court expressed the view that Leao was not qualified to represent himself effectively and stated that his trial counsel was adequately trained and experienced to handle his case. Leao's trial counsel also indicated her strong reservations about Leao representing himself. Throughout the trial court's and trial counsel's warnings, however, Leao continued to insist on representing himself and acknowledged that he understood the risk involved. Although Leao was permitted to proceed pro se, his former trial counsel was appointed by the trial court to serve as his legal advisor, and Leao was free to consult with her at any time during the remainder of the trial.

  After Leao began representing himself and during the testimony of the expert witnesses, the trial court again warned petitioner about the dangers of self-representation, expressing concern about Leao's ability to cross-examine the witnesses effectively and the possibility of self-incrimination. Leao indicated that he understood the court's concerns and wished to continue representing himself. Throughout the remainder of the trial as well as during sentencing, Leao insisted on continuing to represent himself.

  The issue of the severity of the charges against Leao was addressed and the severity acknowledged by Leao during pre-trial proceedings,*fn2 and the trial court's inquiry into Leao's education and background as well as its detailed explanation of the various risks inherent in such a waiver were adequate. Accordingly, the trial court properly concluded, notwithstanding the court's own misgivings about Leao's ability to represent himself, that Leao was knowingly and intelligently waiving his right to counsel, a decision that was properly affirmed by the Appellate Division. Cf. Faretta, 422 U.S. at 835-36 (concluding that Faretta should have been permitted to represent himself when questioning by the judge revealed that he had previously represented himself in a criminal prosecution, he had a high school education, was "literate, competent, and understanding," and was "voluntarily exercising his informed free will" in determining to proceed pro se and refusing to be represented by the public defender, despite the trial court's warning that it was a "mistake" not to accept the assistance of counsel); Hurtado, 47 F.3d at 583 (concluding that a defendant knowingly and voluntarily waived his right to counsel and that, although it could have been more thorough, the trial court's examination of the defendant was adequate where the trial court warned him of the specific perils of representing himself and the advantages of having legal counsel, the defendant was aware of the penalties he faced if convicted, and he clearly expressed the desire to proceed pro se and declined the trial court's subsequent offers to reinstate his counsel); Wells v. LeFavre, No. 96 Civ. 3417 (SAS), 1996 WL 692003, at *4 (S.D.N.Y. Dec. 2, 1996) (holding that the Appellate Division's decision that a petitioner properly waived his right to counsel was not contrary to, or an unreasonable application of, clearly established federal law where the trial court had discussed with the petitioner the various tasks that he would be called upon to perform during the trial, the petitioner had expressed his belief that he was competent to represent himself, and the trial court appointed the petitioner's former counsel to act as his legal advisor).

  Leao argues that he was unfit to proceed pro se because he lacked a "formal education" and did not "understand or know basic criminal law and procedures." (Petition at 5.) At trial, however, Leao asserted that he had attended school in Cuba until the age of 15, that he had friends who were attorneys, and that he had prior experience representing himself before a jury. In any event, a petitioner need not be well versed in criminal law and procedure in order competently and intelligently to elect self-representation. See Faretta, 422 U.S. at 835 (stating that "a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation"); cf. Godinez v. Moran, 509 U.S. 389, 400 (1993) (noting that "a criminal defendant's ability to represent himself has no bearing upon his competence to choose self-representation") (emphasis in original). Similarly, contrary to Leao's further contention, statements made on the record demonstrating that Leao knew nothing about how peremptory challenges were exercised and didn't know whether he should use a Spanish language interpreter are not relevant to determining whether his waiver was knowing and intelligent.

  Leao further argues that his waiver of the right to counsel "came as a [sic] the inconsistencies of the witnesses testimony." (Petition at 5.) Whether Leao's decision to waive the right to counsel was motivated by perceived inconsistencies in the testimony of witnesses who appeared prior to his decision is irrelevant to whether his waiver was knowing and intelligent. Similarly, any problems he may have experienced in cross-examining witnesses subsequent to his waiver do not establish that his waiver was anything other than knowing and intelligent. See Hurtado, 47 F.3d at 584 ("The fact that Hurtado's decision to represent himself was ultimately unwise does not render it involuntary."); Calabro, 467 F.2d at 985 ("The fact that the defendant's pro se representation turned out to be inadequate and ineffective is irrelevant to the issue of whether the waiver of his right to counsel was knowingly or intelligently made. . . .").

  Leao's contentions that the trial court failed both to hold a hearing to determine whether he was aware of what he was abandoning in waiving the right to counsel and to advise Leao of the dangers of self-representation and the advantages of retained counsel are refuted by the extended colloquies on the trial record.

  Conclusion

  As set forth above, Leao's claims have been considered and dismissed as lacking merit, as he has shown no violation of his constitutional rights in his conviction. His petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is therefore denied. Leao may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1). A certificate will be granted "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see generally United States v. 2 Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). Having found that Leao would not be able to sustain this burden, the Court declines to issue a certificate of appealability, see Lucidore v. N.Y.S. Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000), and also declines permission to appeal in forma pauperis. Pursuant to 28 U.S.C. § 1915(a)(3), the Court hereby certifies that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).

  It is so ordered.


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