United States District Court, W.D. New York
June 10, 2005.
RICHARD CURTIS, Petitioner,
BRIAN FISCHER, Superintendent, Respondent.
The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
DECISION AND ORDER
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 life; you understand that?
THE DEFENDANT: Yes, I do.
THE COURT: Does that change your mind in any way in
wanting to plead guilty?
THE DEFENDANT: No, it don't [sic].
Transcript of October 25, 1999 Plea Hearing at 8-10. Curtis then
indicated his desire to enter a guilty plea, and the court
On November 30, 1999, the parties appeared for sentencing at
which time the prosecutor informed Curtis, his standby counsel,
and the court that the state had prepared a second felony
offender statement. Neither Curtis nor standby counsel registered
any objection. Before the second felony offender issue could be
addressed, however, Curtis became extremely agitated upon hearing
that the mother of one of his victims wished to address the
court. Curtis burst into the following tirade:
THE DEFENDANT: I don't want to hear anything from
her, not nothin' [sic]. If she says anything, I'm
going to call her every name in the book, so you
better not say anything[,] bitch. You don't want to
hear what I've gotta say about your bastard son. Your
bastard son turned me in for something I didn't do.
THE COURT: If you act out of line I will have to have
you removed from
THE DEFENDANT: You can do whatever you want. I don't
care. Go ahead and
THE COURT: You understand I will have to remove you
back outside but you still
THE DEFENDANT: Remove me then.
THE COURT: will have to be sentenced.
THE DEFENDANT: That's fine with me.
THE COURT: I'm still going to proceed with the
sentence. Okay. You want to have your victim say whatever she wants to
THE DEFENDANT: I have nothing to say to her and I'm
not staying here.
Transcript of November 30, 1999 Sentencing Hearing at 4-5. As
Curtis began to leave the courtroom, the deputies attempted to
stop him, whereupon Curtis became "physically combative." It took
five court deputies to restrain him, handcuff him, and remove him
from the courtroom. Id. at 6.
When the prosecutor raised the issue concerning the second
felony offender statement later during the sentencing hearing,
the court declared that Curtis had consented to be treated as a
second felony offender as part of the October 25, 1999 plea
negotiations. The court noted that the record from the plea
colloquy "clearly indicate[d]" that Curtis was going to be
treated as a second felony offender. Id. at 7; see Transcript
of October 25, 1999 Plea Hearing at 8-10. Curtis accordingly was
sentenced to 3½ to 7 years on the burglary charge; 1 year on the
petit larceny charge; and 1 year on the making a false written
statement charge.*fn5 All sentences were to be served
On September 28, 2001, the Appellate Division, Fourth
Department, modified the judgment by reversing the conviction of
making a punishable false written statement, vacating the
sentence imposed thereon, and dismissing that count of the
indictment. People v. Curtis, 286 A.D.2d 900 (4th Dept.
2001). The convictions on the remaining two counts were
unanimously affirmed. Id. The New York Court of Appeals denied
leave to appeal on February 23, 2002. People v. Curtis,
97 N.Y.2d 728 (2002). Curtis filed a collateral motion to vacate the judgment, the
substance and outcome of which are not relevant here. This habeas
petition pursuant to 28 U.S.C. § 2254 followed. For the reasons
set forth below, Curtis's petition is denied.
A petitioner must exhaust all available state remedies either
on direct appeal or through a collateral attack of his conviction
before he may seek a writ of habeas corpus in federal court.
28 U.S.C. § 2254(b)(1); Bossett v. Walker, 41 F.3d 825, 828 (2d
Cir. 1994), cert. denied, 514 U.S. 1054 (1995). The exhaustion
of state remedies requirement means that the petitioner must have
presented his constitutional claim to the highest state court
from which a decision can be obtained. See Morgan v. Bennett,
204 F.3d 360, 369 (2d Cir. 2000) (citing Grey v. Hoke,
933 F.2d 117, 119 (2d Cir. 1991)). A claim is properly exhausted when the
state court is fairly apprised of the claim's federal nature and
of the factual and legal premises underlying the claim. Grey,
933 F.2d at 119-20.
A habeas petitioner has a number of ways to fairly present a
claim in state court without citing "chapter and verse" of the
Constitution, including "(a) reliance on pertinent federal cases
employing constitutional analysis, (b) reliance on state cases
employing constitutional analysis in like fact situations, (c)
assertion of the claim in terms so particular as to call to mind
a specific right protected by the Constitution, and (d)
allegation of a pattern of facts that is well within the
mainstream of constitutional litigation." Daye v. Attorney
General of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en
banc); accord, e.g., Strogov v. Attorney General,
191 F.3d 188, 191 (2d Cir. 1999). Respondent asserts that Curtis's sentencing claim is
unexhausted because he only asserted it as a state law claim and
did not argue that any Federal constitutional rights were
violated. Respondent's Memorandum of Law at 3-4 (Docket #5). On
direct appeal, counsel argued that Curtis's sentence was illegal
because the court failed to follow the procedures set forth in
New York Criminal Procedure Law ("C.P.L.") § 400.21 for
determining whether a defendant should be adjudicated as a second
felony offender. Section 400.21(3) provides for a hearing to be
held at which time the defendant must be given a copy of the
statement prepared by the prosecutor setting for the predicate
felonies to be used and must be asked whether he controverts any
of the felony accusations made in the application. See N.Y.
CRIM. PROC. LAW § 400.21(3). Here, however, Curtis was not
present for most of the sentencing procedure. In rejecting this
claim, the Appellate Division stated,
[D]efendant was properly sentenced in absentia as a
second felony offender. The record establishes that
the People filed a predicate felony statement before
sentence was imposed, in compliance with CPL
400.21(2). Before the court could comply with the
remaining procedures set forth in CPL 400.21,
however, defendant engaged in highly disruptive
conduct and, after being warned by the court, was
removed from the courtroom. "The conduct of defendant
at sentencing was sufficiently `obstreperous' to
effect a forfeiture of his right to be present"
(People v. Fulton, 202 A.D.2d 1042,
610 N.Y.S.2d 109, lv. denied 83 N.Y.2d 910, 614 N.Y.S.2d 392,
637 N.E.2d 283; see also, People v. Stroman,
36 N.Y.2d 939, 940, 373 N.Y.S.2d 548, 335 N.E.2d 853),
and the court therefore properly sentenced him in
absentia as a second felony offender (see, People v.
Hooper, 133 A.D.2d 347, 348, 519 N.Y.S.2d 247).
People v. Curtis, 286 A.D.2d at 901.
After reviewing Curtis's appellate brief, I conclude that
counsel fairly presented the substance of Curtis's constitutional
claim to the state court. At the outset, I note that "[o]ne of
the most basic of the rights guaranteed by the Confrontation
Clause is the accused's right to be present in the courtroom at every stage of his trial." Illinois
v. Allen, 397 U.S. 337, 338 (1970) (citing Lewis v.
United States, 146 U.S. 370 (1892)). Thus, Curtis's claim that he was
improperly sentenced in absentia certainly alleges a pattern of
facts that is "well within the mainstream of constitutional
litigation," Daye, 696 F.2d at 194.
Although appellate counsel did not cite any Supreme Court
cases in his brief, he relied upon People v. Seppini,
119 Misc. 2d 125, 128 (N.Y. Sup. Ct. 1983), which observed that "[i]t is
well established that a defendant has an absolute right to be
present at trial," but that this "constitutional right may be
waived by the voluntary absence from the trial." Id. (citing,
inter alia, U.S. CONST. amend. VI; N.Y. CONST. art. I, § 6;
Diaz v. United States, 223 U.S. 442, 445 (1912); Snyder v
Massachusetts, 291 U.S. 97, 106 (1934)). Thus, by relying upon
state cases which employed Federal constitutional analysis,
appellate counsel also fulfilled the second method set forth in
Daye for exhausting habeas claims. See Daye, 696 F.2d at 194.
Finally, I note that the Appellate Division cited People v.
Stroman, 36 N.Y.2d 939, supra, which in turn relied upon
Illinois v. Allen, 397 U.S. 337, supra, for the proposition
that a defendant, by his obstreperous conduct, may waive his
right to be present when sentenced is pronounced. Thus, it
appears that the state appellate court was aware of the
constitutional dimension of Curtis's claim. Accordingly, I find
that the claim has been fully exhausted and is properly before me
on habeas review.
Merits of the Petition
Claim I: Petitioner was illegally sentenced
A. Court failed to follow statutory procedures
To the extent that Curtis claims that the court failed to
follow the procedures set forth in C.P.L. § 400.21 for sentencing second felony offenders, he
alleges violations of state statutory law which are not
cognizable on habeas review. See Estelle v. McGuire,
502 U.S. 62, 67-68 (1991) (a federal habeas court "is limited to deciding
whether a conviction violated the Constitution, laws, or treaties
of the United States;" it is not the province of a federal habeas
court to reexamine state court determinations of state law). In
any event, it appears that the court "substantially complied"
with the purposes of C.P.L. § 400.21. See, e.g., People v.
Polanco, 232 A.D.2d 674, 675 (3d Dept. 1996). Moreover, Curtis
has not shown that he suffered any prejudice or surprise as a
result of the way that the sentencing proceeding was conducted;
he has never claimed that he was unaware of the court's intention
to sentence him as a second felony offender. Curtis admitted at
his plea colloquy, in open court and under oath, to the felony
which formed the basis of his enhanced sentence. In fact, Curtis
had notice of the prosecutor's intent to seek second felony
offender status as early as November 19, 1998, since the
prosecutor attached to the back of the indictment a statement
alleging that on August 21, 1991, Curtis had been convicted after
a guilty plea of the crime of second degree sodomy and sentenced
accordingly. See Transcript of November 19, 1998 Appearance at
3. Finally, I note that it was Curtis who, by his disruptive
behavior, prevented the court from strictly complying with the
B. Sentencing in absentia
The Confrontation Clause of the Sixth Amendment of the
Constitution guarantees to criminal defendants the right to be
present in court during every phase of their trial. Illinois v.
Allen, 397 U.S. at 338. In the usual case, the court "must
indulge every reasonable presumption against the loss of
constitutional rights." Id. (citing Johnson v. Zerbst,
304 U.S. 458, 464 (1938)). However, the Supreme Court in Allen
"explicitly" held that "a defendant can lose his right to be present at trial if, after he has been warned by the
judge that he will be removed if he continues his disruptive
behavior, he nevertheless insists on conducting himself in a
manner so disorderly, disruptive, and disrespectful of the court
that his trial cannot be carried on with him in the courtroom."
In the instant case, Curtis not only was verbally abusive to
the court and to the victim's mother who was present in court, he
also was physically combative; no fewer than five courtroom
deputies were required restrain him. The court warned Curtis
twice that if he continued to act out of line, he would have to
be removed. Despite these admonitions, Curtis continued to
conduct himself in a belligerent manner and ultimately became
physically aggressive toward court personnel. By his actions in
court, Curtis knowingly cost himself his right to be present at
his sentencing. On the facts before me, I see no constitutional
violation in the court's sentencing of Curtis in absentia. The
Appellate Division's rejection of this claim was neither
"contrary to," nor an "unreasonable application of," governing
Supreme Court precedent.
Claim II. Improper introduction of exculpatory evidence
Curtis contends that his exculpatory statement, which the court
held was inadmissible with respect to the burglary charge because
it was given in the absence of Miranda warnings, should not
have been admitted for the limited purpose of proving the false
statement charge. On direct appeal, the Appellate Division agreed
that the statement should not have been introduced as
evidence-in-chief that Curtis made a punishable false written
Although a statement obtained in violation of a
defendant's Miranda rights may be used to impeach a
defendant who takes the stand and whose testimony is
inconsistent with his illegally obtained statement,
such a statement is not admissible as
evidence-in-chief. Any prejudice with respect to the
burglary and larceny charges, however, was alleviated
by the court's limiting instruction, which the jury is presumed to have followed.
People v. Curtis, 286 A.D.2d at 901 (internal citations
omitted). Accordingly, the court vacated the conviction of making
a punishable false written statement and dismissed that count of
the indictment. Id.
The sole issue before the Court on habeas review is whether
admission of the Curtis's exculpatory statement violated Federal
constitutional guarantees of due process. Because the Federal
courts have no authority to review issues of state law, erroneous
application of state evidentiary rules alone does not merit
habeas relief. See Estelle v. McGuire, 502 U.S. at 67-68;
Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998). "The
introduction of improper evidence against a defendant does not
amount to a violation of due process unless the evidence `is so
extremely unfair that its admission violates fundamental
conceptions of justice.'" Dunnigan, 137 F.3d at 125 (quoting
Dowling v. United States, 493 U.S. 342, 352 (1990) (internal
quotation marks omitted in original).
Although the trial court's initial admission of Curtis's
statement was improper, it plainly did not amount to reversible
prejudicial error. I note that the statement was exculpatory,
rather than inculpatory, and it was consistent with Curtis's
testimony at trial. Moreover, the trial court's limiting
instruction was sufficient to dispel any minimal prejudice that
might have arisen. See Greer v. Miller, 483 U.S. 756, 766 n. 8
(1987) ("We normally presume that a jury will follow an
instruction to disregard inadmissible evidence inadvertently
presented to it. . . .")); see also United States v. Nixon,
779 F.2d 126, 133 (2d Cir. 1985) (cited in United States v. Rondon,
205 F.3d 1326, 2000 WL 232274, at *3 (2d Cir. Feb. 28, 2000)
(unpublished opinion)). Consequently, I cannot find that the
introduction of Curtis's exculpatory statement resulted in fundamental unfairness with regard to the jury's consideration of
the burglary and larceny charges. Thus, habeas relief is not
For the reasons stated above, Richard Curtis's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the petition is dismissed. Because Curtis has failed to make a
substantial showing of a denial of a constitutional right, I
decline to issue a certificate of appealability. See
28 U.S.C. § 2253.
IT IS SO ORDERED