The opinion of the court was delivered by: DAVID TRAGER, District Judge
On January 20, 1999, pro se petitioner Miguel Miranda
("Miranda" or "petitioner") filed a petition pursuant to
28 U.S.C. § 2254 seeking a writ of habeas corpus. The petition was
dismissed by this court on July 27, 1999 for the reasons set out
in the decision of the Appellate Division and the State's
Memorandum of Law dated March 8, 1999, submitted in opposition to
the petition.*fn1 This court refused to issue a certificate
of appealability. Petitioner applied to the Second Circuit for a
certificate of appealability to permit review of this court's
judgment. On February 26, 2003, the Second Circuit remanded to
this court for a clarification of the ground or grounds on which
the petitioner's claims of prosecutorial misconduct and denial of
self-representation were rejected; as to all other claims raised
by petitioner, the Second Circuit denied a certificate of
appealability. Because the court of appeals has directed this
court to clarify the grounds for its denial of the petition with
respect to two of petitioner's claims, this memorandum and order
is issued.
Prosecutorial Misconduct Claim
Petitioner claims that prosecutorial misconduct deprived him of
a fair trial because he was subjected to unfair cross-examination
and because the prosecutor manipulated evidence he elicited from
a complaining witness. With regard to petitioner's claim of
unfair cross-examination, the Court of Appeals noted that "if
Miranda's challenge to the prosecutor's unprofessional
cross-examination were the only basis for his fair trial claim,
it would not warrant the granting of a certificate of
appealability." Miranda, 322 F.3d at 180. The Court of Appeals
further explained that "prosecutorial misconduct cannot give rise
to a constitutional claim unless the prosecutor's acts constitute
`egregious misconduct.' However, in order to determine whether
relief is warranted, prosecutorial misconduct must be assessed
`in the context of the entire trial,' and Miranda makes the more
serious claim that the prosecutor manipulated trial evidence."
Assuming, arguendo, that the prosecutor's cross-examination was
"unprofessional" the court will consider the manipulation of
evidence claim to determine whether the prosecutor's acts
constitute `egregious misconduct' amounting to a constitutional
claim.
At trial, petitioner claimed he was the owner of the wallet
that he was accused of stealing. The State, on the other hand,
sought to prove that the wallet belonged to alleged robbery
victim Sam Notghi. The trial record indicates that the police
inventory of the items seized from petitioner listed the wallet
and currency found in it but made no mention of any identifying
contents contained in the wallet. (Trial Tr. at 693-94). When the
wallet was marked by the prosecution for identification as a
trial exhibit, there was no mention of any identifying contents.
(Id. at 395). Before the wallet was admitted in evidence, the
prosecutor showed it to the three defense attorneys, who
inspected it and had no objection to the wallet being in
evidence. (Id. at 396). When the victim Sam Notghi was
testifying as a witness and was asked if he could identify the
wallet as his, he did so by reaching into the wallet and pulling
out a Social Security card belonging to him. (Id. at 679-80).
Later, when questioned by defense counsel outside the presence of
the jury, Notghi said he had been told by the prosecutor that
morning that he would find his Social Security card in the wallet
when he testified. (Id. at 691). Upon being questioned by the
court, the prosecutor said he assumed that defense counsel had
conducted a thorough inspection of the wallet. (Id. at 708-09).
The prosecutor said he found the card in an obscure recess of the
wallet and had put it back into the wallet, but he did not
mention the social security card to the defense. (Id. at
708-12). The trial judge criticized the prosecutor for his "lack
of forthrightness" (Id. at 711), calling his failure to
disclose to the defense the presence of documents inside the
exhibit "absolutely outrageous" (id. at 713). The court
excluded the card from evidence and admonished the jury to
"strike . . . from your minds all testimony regarding this item
of Sam Notghi's personal identification, which was allegedly
recovered from inside the brown and checkered leather wallet
which is People's Number 2 in evidence." (Id. at 762).
The prosecutor's attempt to introduce Sam Notghi's Social
Security card into evidence, while perhaps reflecting the
prosecutor's poor judgment in not mentioning it to defense
counsel, was proper and reasonable and did not constitute
`egregious misconduct.' The prosecutor's use of the Social
Security card was proper, as petitioner had been made aware of
the existence of the wallet, and had been given several
opportunities to examine it. Additionally, if introduction of the
Social Security card had been improper, petitioner was not
prejudiced because the court did not allow admission of the
Social Security card in evidence, and the court gave the jury
strong curative instructions regarding the card. Even when the
prosecutor's failure to disclose the identifying information in
the wallet is considered in the context of the entire trial,
including what might have been an `unprofessional'
cross-examination, the prosecutor's acts do not amount to
`egregious conduct.' Moreover, the Court of Appeals has stated
that the allegedly `unprofessional' cross examination itself does
not amount to `egregious conduct.' Therefore, the prosecutor's
acts, including `unprofessional' cross-examination and failure to
disclose the identifying contents of the wallet, do not give rise
to a constitutional claim.
Denial of Self-Representation Claim
In remanding to this court for identification of the grounds
based on which the court denied the petition insofar as it
asserted a claim of denial of the right to self-representation,
the Court of Appeals stated as follows:
As to the self-representation claim, the State's
Memorandum raised factual issues that required
resolution before its arguments could be accepted.
Miranda's habeas petition asserted that he had asked
the state trial court to allow him to represent
himself at trial; his petition attached copies of
pages from the brief submitted to the Appellate
Division by his attorney, which stated that
"defendant requested to represent himself." The
State's Memorandum to the district court, however,
arguing the merits of this habeas claim, stated that
"petitioner did not request to proceed pro se at any
time. . . ." (State's Memorandum at 14.) Issue seems
to have been squarely joined. However, the district
court adopted the reasons proffered in the State's
Memorandum without explanation. The court made no
finding that there had been no such request by
Miranda; nor did it make any statement that it relied
on some other ground for dismissal that made findings
on this question unnecessary.
Miranda, 322 F.3d at 179-80.
A review of the trial record leaves no doubt that petitioner
did not request to proceed pro se. Petitioner's statement that he
requested to represent himself refers to a statement by his
lawyer to the court that "after conferring with Mr. Miranda, he
has advised me that he wishes to represent himself and does not
want me to represent him." (Tr. 651). However, when the court
followed up by asking the defendant if he wanted to represent
himself, defendant stated that he wanted a new attorney:
THE COURT: Mr. Miranda, I want to put some questions
to you, sir. I want you to know that we are in the
middle of the People's case. They have already
presented 3 witnesses. They are going to present
additional witnesses.
If I understand your application, you wish to
continue the trial and represent yourself; is that
correct?
THE DEFENDANT MIRANDA: I need an attorney to
represent me.
THE COURT: You don't want to represent yourself, you
need another attorney? This is what I need to know,
Mr. Miranda.
THE DEFENDANT MIRANDA: Can you let me speak, please?
THE COURT: Sure.
THE DEFENDANT MIRANDA: Say what you got to say and I
want to be able to make my point across.
THE COURT: Thank you, Mr. Miranda. Let me say this to
you: I don't understand the nature of your
application, so I am going to put a question to you
and then I think you can answer the question yes or
no.
. . .
[T]he question I want to ask you is, are you asking
me to appoint another attorney for you or are you
asking me to allow you to represent yourself and be
your own lawyer? Which of the two? Is it the first,
do you want me to appoint a different attorney for
you or do you want to represent yourself and be your
own attorney?
THE DEFENDANT MIRANDA: I asked you to appoint another
attorney for me before the trial started, before the
trial began. I told you that the attorney that I had
is not doing anything. . . .
. . .
THE COURT: . . . I most respectfully, Mr. Miranda,
deny your application to change lawyers at this stage
of the proceeding and I direct that Mr. Schwed
continue to represent you. . . .
(Tr. 651-58).
The record very clearly reveals that after petitioner's
attorney indicated that petitioner wanted to represent himself,
the judge asked the petitioner three separate times whether he in
fact wanted to represent himself. After the first time the judge
asked this question, the petitioner said "I need an attorney to
represent me." When the court asked the question again to clarify
petitioner's intention, petitioner still did not indicate that he
wanted to represent himself. Therefore, there can be no doubt
that petitioner did not request to proceed pro se despite several
opportunities to do so, but ...