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June 10, 2005.

BRIAN FISCHER, Superintendent, Respondent.

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).


  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 Curtis.

  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 following colloquy:
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 that?
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 COURT: Now, he is being treated as a second felony offender;*fn4 is that correct, Mr. Moran?
THE COURT: You will be treated as a second felony offender.
. . . 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 ...

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