The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
Petitioner, Richard Curtis ("Curtis"), filed this pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his 1999 conviction in Livingston County Court on
burglary and other charges. Curtis alleges the following grounds
for relief: (1) he was not present in court to controvert the
second felony offender statement used to enhance his sentence,
and therefore he was illegally sentenced in absentia; and (2)
his exculpatory statement, given in the absence of Miranda
warnings, was improperly admitted at trial. The parties have
consented to disposition of this matter by the undersigned
pursuant to 28 U.S.C. § 636(b).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The conviction at issue in the instant petition arose from the
June 17, 1998 burglary of a vacant two-family house located at 29
Leonard Street in the Village of Dansville; this house was
immediately next door to Curtis's residence at 27 Leonard Street.
At about 3:30 a.m. on June 17th, Curtis's housemate,
Kenneth Donohue ("Donohoue"), observed Curtis back his truck up
to the house and, with the help of "another young man," load a vacuum cleaner, cabinets and various small tools into the bed of
his pick-up truck. Not wanting to cause a row with his housemate,
Kenneth Donohoue contacted his brother, who in turn anonymously
called the owner of the house, Kevin Laursen ("Laursen"). Laursen
was told that "there was something going on at his property and
[he]'d better check it out." When he arrived at 29 Leonard
Street, Laursen discovered a number of items missing: eight wall
cabinets and doors, a palm sander, a shop-vac, a drywall gun, and
some small tools.
On June 19, 1998, Officer Faugh of the Dansville Police
Department spied Curtis on the front porch of his home at 27
Leonard Street and asked to speak with him. Curtis voluntarily
came to the police station and met with Officer Faugh in the
station's main. Curtis was not restrained and was told several
times that he could leave if he did not want to talk to the
police. Although the police considered Curtis to be a suspect
and informed him of that fact Officer Faugh did not take Curtis
into custody or administer the Miranda warnings at that time.
Nevertheless, Curtis gave a signed written statement denying any
involvement in the burglary.*fn1
On October 7, 1998, a Livingston County Grand Jury returned an
unrelated a sixteen-count count indictment (No. 98-181) charging Curtis with, inter alia,
third degree criminal sale of a controlled substance and third
degree sodomy, which arose from conduct unrelated to the Leonard
Street crimes. These charges related to Curtis's alleged actions
in June 1998 involving three male complainants.*fn2 On
November 18, 1998, Curtis was charged with the June 17th
robbery? burglary of 29 Leonard Street by Indictment No.
98-202 containing three counts: third degree burglary, fourth
degree grand larceny, and making a punishable false written
statement. A third indictment (No. 98-206) also was filed on
November 18, 1998, charging Curtis with one count of third degree
criminal possession of a weapon; the conduct at issue therein was
unrelated to the Laursen burglary.
Curtis was arraigned on Indictment Nos. 98-202 and 98-206 on
November 19, 1998. At the pre-trial suppression hearing held on
February 23, 1999, County Court Judge Ronald Cicoria ruled that
Curtis's voluntary exculpatory statement was inadmissible in the
prosecution's case-in-chief on the burglary charge because
Miranda warnings only were given after defendant's statement
was reduced to a writing. However, the court ruled that the
statement could be used as direct evidence with regard to the
making a false written statement charge. See Transcript of
February 23, 1999 Hearing at 43-44. Defense counsel sought to
sever the false statement charge from the remaining counts, but
this application was denied.
Curtis was tried before a jury on March 9 to March 10, 1999.
The voluntary exculpatory statement was admitted without
objection from defense counsel or defendant. Following the reading of the statement into evidence, the court issued a
limiting instruction to the jury.*fn3
Curtis testified in his own behalf at trial. He admitted that
he had been in the house at 29 Leonard Street on one occasion in
May 1998. At the time, he was unemployed and doing odd jobs to
support himself. According to Curtis, Kenneth Donohue told him
that the house at 29 Leonard Street needed a lot of work and
suggested that he could do some repairs for the owner. Curtis
related that Donohue jimmied open a window with a knife and they
went into the house to look around. See Trial Tr. at 126-27.
Curtis claimed at trial that Donohue informed that he could
have anything he wanted from the shed in the backyard at 29
Leonard Street. Curtis testified that Donohue said that he had
been given the items by Laursen for helping to clean up the yard.
Curtis stated that he took a sander and a shop-vac from the shed
and sold them to John Caito ("Caito"), a contractor for whom he
was working. Curtis denied taking any items from inside the
house. See id. Donohue denied all of Curtis's allegations.
Caito confirmed that he had bought the items in question from
Curtis for $30.
On March 10, 1999, the jury returned a verdict convicting
Curtis of third degree burglary, petit larceny as a lesser
included offense of grand larceny, and making a punishable false
written statement. Curtis was acquitted of the grand larceny
count. The court adjourned sentencing pending the disposition of the other two indictments against
On May 11, 1999, Curtis pled guilty to the charge of third
degree criminal possession of a weapon contained in Indictment
No. 98-206. Dissatisfied with his trial attorney, Curtis moved
for, and was assigned, new counsel on June 22, 1999. On October
25, 1999, prior to jury selection for trial on Indictment No.
99-061, Curtis chose to avail himself of a negotiated plea
bargain in which he would plead guilty to one count of third
degree criminal sale of a controlled substance and one count of
third degree sodomy in full satisfaction of the fifteen-count
indictment. In return, Curtis would receive a recommended
sentence of 10 to 20 years to run concurrently with all of his
other charges pending in Livingston County Court.
By this time, Curtis had discharged his second attorney;
however, the court asked the attorney to remain as standby
counsel. At the plea hearing, the court engaged Curtis in the
THE COURT: Now, Mr. Curtis, you do understand you
have a right to a jury trial or a trial in front of a
judge and you are waiving that right by pleading to
two counts of this indictment; do you understand
THE DEFENDANT: Yes, I do.
THE COURT: And specifically you would be pleading to
sodomy in the third degree, it is an E felony
punishable up to four years and I am looking at Count
Fourteen, criminal sale of a controlled substance in
the third degree, a B felony, punishable up to 25
years; do you understand that?
THE DEFENDANT: Yes, I do.
THE COURT: Now, he is being treated as a second
felony offender;*fn4 is that correct, Mr. Moran?
THE PROSECUTOR: Correct.
THE COURT: You will be treated as a second felony
. . . THE COURT: Now, there is a persistent felony offender
statute in New York State which basically says that
if you are convicted of more than two felonies in
your lifetime and now we are talking about the
future, not talking about these charges, if you get
another felony in your lifetime you could be treated
as a persistent felony offender and the sentence
could be up to ...