The opinion of the court was delivered by: John Gleeson, United States District Judge:
Ramon Ramos, who is currently incarcerated at Elmira Correctional Facility, petitions this court, pro se, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Ramos was convicted after a jury trial of one count of rape in the first degree, two counts of sodomy in the first degree, and one count of robbery in the second degree. He was sentenced as a persistent felony offender to concurrent, indeterminate prison terms of 25 years to life on each conviction. He now brings this petition for habeas corpus, alleging that his conviction was obtained in violation of his due process and Sixth Amendment rights, and that his sentence violates his due process and double jeopardy rights. For the reasons explained below, the petition is denied.
BACKGROUND A. The Offense Conduct
The facts of the offense were recounted by the victim at Ramos's trial.*fn1 On July 8, 1993, the victim, A.V.,*fn2 then 25 years old, went to visit her friend in the Forest Hills section of Queens (239-41). When she entered the elevator of her friend's building, the elevator went to the basement instead of to the floor she had pressed (245). There, a man opened the elevator door and grabbed A.V. and covered her face (246). He pulled her out by her neck and threatened to kill her if she made any noise (247). He took her into a small room in the basement and asked for any money or valuables she had (248). She complied and gave him her money (248). Then he instructed her not to look at him and he removed her shorts and underwear (250-51). He put his penis in her anus, which was very painful (251). He then put his mouth on her vagina (252). After that, he put his penis inside her vagina (252-53). When he stopped, A.V. was crying, asking "Why, why, why?" and he said he was sorry, and that "I know this is going to scar you for the rest of your life, but just think of it as just sex that we both enjoyed and had together" (253-54). Then he kissed her on her face or head and threw her shorts behind a laundry machine (254). He warned her to give him time to leave the building or he would kill her (254).
A.V. then took the elevator up to her friend's apartment and told her friend she had been raped (256). Her friend called the police, and A.V. was taken to the hospital by ambulance (257-58). At the hospital, A.V. was examined and a sexual assault kit was completed (260-61). Although the police examined the basement where the rape had occurred and dusted for fingerprints, no prints could be found.
Almost nine months later, on March 30, 1994, Ramos was arrested for a burglary in Queens. At that time, investigators interrogated him about the rape of A.V., as well as two other rapes they believed were related, which had occurred on February 3, 1994, and February 23, 1994*fn3 (11/28/05 at 19-20*fn4 ). However, after A.V. was unable to identify Ramos in multiple photo arrays and lineups,*fn5 the police did not pursue Ramos as a suspect in A.V.'s rape any further (11/28/05 at 20-21). Eventually, the case became "cold."
On October 26, 2001, state officials obtained a DNA sample from Ramos, who was incarcerated pursuant to a 1997 third-degree robbery conviction for which he was serving a term of imprisonment of 15 years to life.*fn6 On July 2, 2002, A.V.'s rape kit was sent to a laboratory for DNA testing, in conjunction with a police "backlog project" to test more than 16,000 old rape kits being held in storage (305-10). The examiner who performed the analysis testified that Ramos's DNA matched the DNA from the semen in A.V.'s rape kit (316). Ramos was indicted for the crimes on May 29, 2003. Reply Br. at 45.
B. Mistrial, Retrial, and Conviction
Ramos's first trial, scheduled to begin November 28, 2005, ended in a mistrial prior to the jury's being sworn because the trial prosecutor had fallen ill (12/1/05 at 2). Ramos was retried on January 3, 4, 5, 9, and 10, 2006. The jury convicted him on all counts.
1. Ramos's Election to Proceed Pro Se and Absent Himself in the First Trial Although Ramos had apparently already elected to proceed pro se, the trial judge,
Justice Arthur J. Cooperman, conducted an additional colloquy with Ramos on November 28, 2005, to ascertain whether he wanted to continue to waive his right to counsel (11/28/05 at 2-8). The court asked, "[A]re you still asking to proceed in this case, in this trial without the benefit of an attorney?" Ramos responded, "[W]ith the exception of the argument for the DNA evidence," which he wanted his legal advisor, John Scarpa, to make. "I understand that," the court said, but "[o]therwise you wish to represent yourself?" "Yes, I do," Ramos answered (11/28/05 at 3). After being warned of the dangers and disadvantages of proceeding without an attorney, the court again asked, "But you still wish to proceed without the benefit of an attorney?" and Ramos answered, "Yes, sir" (11/28/05 at 8). The court then ruled that "under those circumstances we will continue to proceed" (11/28/05 at 8).
The court then conducted a Sandoval hearing to determine which of Ramos's prior crimes and bad acts would be admissible if he were to testify at trial. Ramos represented himself during this hearing. However, in responding to the government's recitation of his prior arrests and convictions, Ramos became upset, seemingly because he believed the police officers did not pursue the investigation into the rape of A.V. with proper diligence. He also contended that the DNA evidence in this case was taken from his bathroom by police officers who illegally entered his home in 1996 by impersonating parole officers (11/28/05 at 15-29).
When the court told him that these issues would not be explored by the court, Ramos declared:
I will not sit here and have this court convict me for wrongs done by the police. Whenever the DNA was taken out on this case, the statute of limitations had also expired on this and I will not be made a farce in my career. I will not have this be made a farce in my career. I do not wish to attend this trial. Whatever they wish to do in this case let them do it. I respectfully say I am sorry for acting in this way but there is no way I am going to come and be made a subject of this farce in my career.
If this is clear, I would like to go back now. . . . . . . . I am a minority and I cannot afford a lawyer -- it seems the system would like to take advantage but after being convicted here and serving 15 to life based on the fact that the court protected a police officer from having perjured himself, I am not going to go through it and I respectfully refuse to attend any further of my trial and conviction. Let it go on without me.
I want to make it clear that I do not wish an attorney for me. What I feel is happening, there is corruption going on in the system, corruption going on. I have been convicted where the system helped a cop and erased the minutes from him having perjured himself. I have a decision where the statute of limitations is not opposed by the D.A. and a judge came in and became an advocate for the D.A. and denied my motions. Yes, I feel there is corruption and my question is who polices the courts? (11/28/05 at 29-32). When the court asked Ramos, "Are you saying each and every one of these convictions was tainted by corruption[?]" Ramos responded,
No, sir[,] but there is corruption. My last 2 convictions yes, they had been doing what they wanted to. Why? Because I am a career criminal and they feel they can treat me like this or because I am in the minority. Yes, it is upsetting, Your Honor. Okay, right now Your Honor, yes, I feel a little sad. I do not wish to be present here no more. (11/28/05 at 33). The court informed Ramos that he was waiving his right to be present and participate in his trial, but that he would be kept "close enough" so that he would have the opportunity to change his mind each day of trial (11/28/05 at 36).
The court then instructed John Scarpa, Ramos's appointed legal advisor, to act as Ramos's counsel in his absence, saying, "[W]e can't have an empty defense chair and table, so it's a good thing that you are advisory counsel because now you are back in the box . . . . So from this point on, you are the attorney for the defendant" (11/28/05 at 38).*fn7 Scarpa then acted as Ramos's attorney during jury selection. However, the trial prosecutor did not appear in court on the next two days because she was ill (12/1/05 at 6-7). On the third day, the court ordered a mistrial because of the trial prosecutor's prolonged illness (12/1/05 at 1-3). The court indicated that a new trial would commence January 3, 2006.
2. The Court's Dismissal of Scarpa
When the court indicated the new trial would commence January 3, 2006, Scarpa said that he would be unavailable on January 3rd, but could be available beginning January 4th, "unless you want to relieve me now" (12/1/05 at 3). He went on, "I am not sure why I am this defendant's attorney at this point other than the fact that the court directed me to be his attorney but I would be happy to be relieved, let me put my voucher in and let this defendant represent himself as he's always asked to. I can be shadow counsel again" (12/1/05 at 3). The court responded:
He is no longer representing himself because he took himself out of the case. He may change his mind from now until the next time and maybe with a different advisor he may be more inclined to come back into the courtroom although he didn't say he wasn't happy with any attorney, as they are all corrupt as is the system according to him, but I think probably no useful purpose would be served by having you here as a disinclined attorney in terms of this particular case and since it really makes no difference who is here as long as they are familiar with the case and somebody would have an opportunity to familiarize themselves with the case between now and January, I have no problem doing that, so we will relieve you from further activity. (12/1/05 at 4).
Later, Ramos was produced in court and the judge informed him that he had declared a mistrial and relieved Scarpa. The court explained his dismissal of Scarpa by saying, "I felt that, number 1, you had no faith in him, in any event and he was assigned and you weren't here so that you weren't representing yourself, so as the legal advisor I allowed him to represent your interests but with this lapse in time I am in a position to appoint new counsel and I don't know how you feel about that person but it won't make a difference, as long as you are not here. If you were here, then of course you were pro se" (12/1/05 at 7).
Ramos did not object to the removal of Scarpa at that time.
3. Ramos's Refusal To Accept a New Legal Advisor and His Decision To Absent Himself From the Retrial At the beginning of the retrial on January 3, 2006, Ramos indicated that he still wanted to proceed pro se, but that he was unhappy with the new lawyer, Russell Rothberg, who had been appointed to advise him. Ramos requested "that Mr. Scarpa be put back on the case based on the fact that he is already familiar with the case" (3).*fn8 When the court explained that Mr. Scarpa had been replaced by Mr. Rothberg, the following exchange occurred:
RAMOS: Mr. Rothberg is not familiar with the case. THE COURT: . . . .
Mr. Rothberg . . . has been on the case for the past month . . . , and you, frankly, don't have a say in the matter.
RAMOS: I don't have a say in the matter?
RAMOS: I'm the one on trial.
THE COURT: Yes, but you are not going to be here. Are you going to be here?
RAMOS: Well, I want Mr. Scarpa representing me. I do not want him [Mr. Rothberg] to represent me. I had told the Court previously that I would like my lawyer to come see me at Rikers Island. I had told the Court to order the attorney to come see me to review the records.
They expect me to go to trial without a lawyer having reviewed the records with me. I cannot say it would be a fair trial if I'm not familiar with certain parts of the records. . . .
. . . Now you just want me to take anybody. I'm not taking him.
THE COURT: Nobody is telling you to take anybody. You have no choice in who the legal advisor is.
RAMOS: . . . If you want a trial, hold it without me, but I will not participate in a trial where I have no assistance in this case.
THE COURT: You are going to do the same thing you did last time.
RAMOS: Mr. Scarpa was supposed to argue the DNA part of the case. He was familiar with the case.
[In the last trial] Mr. Scarpa told me on each and every occasion that you refused to even speak to Mr. Scarpa, so your posture here is of no merit, simply stated.
RAMOS: Then I do not wish to participate in the trial again if Scarpa can't participate. Let them convict me. I rather do that instead of you dictating the trial telling me what I can't do when I'm the defendant in this case.
I do not wish for this lawyer, I don't even know his name.
I do not wish him to represent me. I want Mr. Scarpa.
So you wish not to participate in the trial as you did before?
RAMOS: Not with this attorney.
Mr. Scarpa had an idea and eager to go ahead and present the idea, and I wish him to present his strategy how he wanted to defend the case.
THE COURT: The fact of the matter is you wanted nothing to do with Mr. Scarpa when he was here.
RAMOS: That is not true. Originally I had not wanted him to represent me. The court decided that he would act as my shadow counsel. I accepted him as shadow counsel.
RAMOS: Excuse me. I want to ask my present attorney how familiar is he with my case.
THE COURT: Sufficiently familiar and competent to the best of his ability.
RAMOS: I would like to question him for the record, for the record to see if he is familiar with them. THE COURT: The Court does not necessarily need that. RAMOS: I thought so.
THE COURT: The Court makes the determination whether the attorney is capable. I assure you that he is.
RAMOS: I don't feel that he is familiar with the records. THE COURT: You may say what you wish, but you may now leave if that's your choice.
RAMOS: I want to put the present attorney who I do not know his name representing me, and I wish Mr. Scarpa representing me. If you wish for me to participate in this trial, then it will be with Mr. Scarpa.
THE COURT: Well, you are not going to dictate that. It's not your choice.
RAMOS: Two and a half years it's been the courts dictating this case. I have not ...