The opinion of the court was delivered by: Gershon, United States District Judge:
Petitioner Keith Knight, through counsel,*fn1
petitions this court for writs of habeas corpus under 28 U.S.C. §
2254, challenging his September 28, 1995 and December 7, 1995
convictions in New York State Supreme Court, Kings County.*fn2
At his first trial, petitioner was convicted by a jury of one
count of first-degree burglary, one count of first degree robbery, and
one count of second degree burglary. At his second trial, petitioner
was convicted of one count of first degree burglary.
Petitioner now contends that he is being held in custody in violation of the Constitution and laws of the United States. For the reasons stated below, petitioner's applications are denied.
I. The State Court Proceedings
Unless otherwise noted, the facts below either are taken from the state court record or are undisputed.
The charges relevant to the instant petitions stem from separate incidents that occurred on April 9, 1994 and July 25, 1994, respectively. With regard to the April 9 incident, the State charged that petitioner broke into a Brooklyn home, stole cash and property, and assaulted the owners of the home with a weapon while attempting to escape. When police arrived at the scene of the robbery, they found a jacket that contained petitioner's wallet. On May 31, petitioner was arrested after police obtained information as to his whereabouts. At the time of his arrest, the police found stolen jewelry, from an unrelated incident, on petitioner's person.
With regard to the July 25 incident, the State charged that petitioner broke into another Brooklyn home, where he proceeded to steal certain personal property of the owner. Upon finding petitioner in his home, the home's owner struggled with petitioner, and petitioner briefly absconded. However, the home's owner, with two of his friends, pursued petitioner, apprehended him, and detained him until police arrived.
On the basis of the above events, petitioner was indicted by a grand jury on a twenty count indictment, charging four counts of Burglary in the First Degree, one count of Burglary in the Second Degree, two counts of Robbery in the First Degree, two counts of Robbery in the Second Degree, four counts of Assault in the Second Degree, two counts of Criminal Possession of a Weapon in the Fourth Degree, three counts of Criminal Possession of Stolen Property in the Fifth Degree, and two counts of Petit Larceny. Prior to any pre-trial proceedings, petitioner successfully moved to have the charges severed, for purposes of trial, into three phases: one phase for the April 9 incident, one phase for the July 25 incident, and one phase for the charges resulting from his possession of stolen property at the time of his May 1994 arrest. Although the state court severed the charges for purposes of trial, the charges remained consolidated for the purposes of pre-trial proceedings such as the suppression hearings.
B. The Pre-Trial and Trial Proceedings
Prior to arraignment, the state court, pursuant to N.Y. County Law § 722, appointed Michael Horn, Esq., from the New York Legal Aid Society ("Legal Aid"), to represent petitioner.*fn3 Horn represented petitioner through numerous pre-trial motions, including a motion, pursuant to N.Y. Crim. Proc. Law § 190.50, to dismiss the indictment for failure to afford petitioner an opportunity to testify in front of the grand jury. In no fewer than three motions (including at least one pro se motion filed without Horn's consent), petitioner argued principally that the State enhanced the severity of the charges without giving petitioner adequate notice. Petitioner argued that had adequate notice been provided, he would have exercised his right to testify. None of petitioner's motions were timely under the five-day limitations period specified in § 190.50. Each of petitioner's motions to dismiss was denied by the state court. Petitioner and Horn maintained a contentious attorney-client relationship, with petitioner frequently speaking at length in court, against Horn's advice, and filing pro se motions without Horn's consent. See, e.g., 12/2/94 Calendar Call Tr. at 4--13; 2/16/95 Calendar Call Tr. at 2; 2/22/95 Calendar Call Tr. at 5--15. Largely because of Knight's perception that Horn failed to protect his right to testify in front of the grand jury, Knight wrote a letter to the court asking that Horn be relieved.*fn4
In March 1995, the court relieved Horn as Knight's attorney and appointed Peter Birkett, Esq., to represent petitioner. Between Birkett's first appearance as Knight's attorney, in April 1995, and the beginning of the pre-trial suppression hearing in September 1995, Birkett requested several adjournments, purportedly as a result of other matters Birkett was actively trying. Knight asserts that Birkett neglected his case because Birkett was giving a preference to his paying clients. Nevertheless, Birkett did appear before the state court on several occasions, reviewed and adopted certain pro se motions petitioner wished to file, and obtained an investigator to look into the State's allegations.*fn5 See 4/25/95 Calendar Call Tr. at 1--4; 6/1/95 Calendar Call Tr. at 2; 6/22/95 Calendar Call Tr. at 1. At one point, after Knight complained about the number of adjournments, the court asked him if he wanted new counsel. He did not respond. 5/25/95 Calendar Call Tr. at 4.
Birkett continued to represent petitioner through the commencement of
the suppression hearing on September 7, 1995. The suppression hearings
included both Wade and Mapp/Dunaway hearings for all three trials. See
Wade, 388 U.S. 218 (1967); Dunaway v. New York, 442
U.S. 200 (1979); Mapp v. Ohio, 367 U.S. 643 (1961). At the outset of
the hearing, Birkett informed the court that he was not receiving full
cooperation from petitioner and that petitioner was refusing to
disclose the name of a certain witness who
petitioner thought might be useful to the case. Tr. at 35.*fn6
After petitioner informed the court that he believed that
Birkett had not met with him a sufficient number of times, the court
instructed petitioner that it believed Birkett to be a "top rate
attorney" who was "bright on the law" and who "fight[s] like hell
for [his] clients." Tr. at 38.
During the hearing, Birkett questioned several witnesses at length, both on direct and cross examination, made arguments to the court about the relevance of certain questions and evidence, obtained relevant evidence the State had not yet turned over, and subpoenaed additional witnesses. See, e.g., Tr. at 44--59, 129--132, 148, 152--64. At one point during the hearing, Knight complained that Birkett had not asked a witness any questions outside the scope of the questions suggested by Knight. The court responded that it would not have allowed Birkett to ask any questions outside the scope of those he in fact asked and that the court had actually allowed Birkett to ask questions that were "on the line" with regard to relevance. Tr. at 86.
After adjourning for the weekend, the suppression hearing was scheduled to resume on Monday, September 11. Birkett, however, was ill on that day. After the hearing resumed the following morning, Birkett informed the court that one of petitioner's witnesses, Robert Newman, who was scheduled to testify the previous day, had become unavailable. After informing Birkett that it was not inclined to adjourn the hearing because the witness's unavailability was due to Birkett's absence, the court requested a proffer as to what the witness would testify. After Birkett informed the court of the substance of Newman's expected testimony, i.e., testimony regarding the identification lineup that occurred in relation to the April 9 incident, the court found that the testimony was not substantially probative and therefore denied the request to adjourn. The court did inform petitioner, however, that if Newman became available and had relevant testimony, it would reopen the suppression hearing at any time, even after the trial had started. (In fact, Newman became available later that same afternoon, and petitioner had a full opportunity to examine him. See Tr. at 219--40.)
Upon being informed that the court would not adjourn the hearing to give petitioner a chance to examine Mr. Newman, petitioner informed Birkett that he wished to proceed pro se. Birkett relayed this to the court and stated that, "I believe he has an absolute constitutional right to do so." The district attorney asked if it was "for the entire hearing." Birkett responded, "I believe for the entire trial. I don't think he's allowed to pick and choose." Tr. at 183. After Birkett's statement, the court responded as follows:
Court: Fine, you can sit next to him and advise him. . . . The defendant is articulate, he is respectful.
Birkett: He's also very intelligent.
Court: He demonstrated that he understands court procedures and the rules of the court. He may not be as skilled as you are, but he does understand what's going on. . . .
Court: And I see no reason he can't represent himself. Except at a hearing there are certain inherent problems in representing oneself when one is going to be the witness.
Birkett: Well, I think he's prepared to deal with those. We discussed this on and off for some time. I can only state up to this minute as his lawyer . . . I see no impediment of his proceeding pro se . . . . I believe he's done it before. . . . . . .
Court: I want to make sure of one thing, Mr. Knight, you understand the risks?
Court: I will not in any way be emotional swayed [sic] by you representing yourself. By you asking questions. That's not going to affect me because I'm a judge. During the course of trial, for the jury you'll never know how they act. There's a risk.
During voir dire individual personal questioning of the jurors could lead to all sorts of complications and problems. Many times attorneys ask me to ask certain questions and I'll give you an example. You're black. How old are you?
Knight: I'm 38 years old.
Court: You're a black male, 38 years old. I don't know if that will affect a particular jury, your age, your race. I don't know if race could come into this at all in any way.
Many attorneys, if they feel it could be a possibility, prefer me to ask those questions in a way the jury doesn't feel it's coming from that table or that table. My services are available to you as well.
. . . Is [voir dire] good for you to do it or is it better for a lawyer to do it? I can't answer the question. You have to think it through.
Personally, I think voir dire is better left in the hands of a lawyer because he is once removed from you. You're not personally involved. You're sitting there. Are you following?
Court: Suppose a juror-they're telling you about themselves and a little something comes up that should be discussed, a lawyer can go into it, he's a neutral person, you 're still the defendant and you're wearing two hats . . . . And let's say a particular juror really shouldn't sit . . . me doing it, your attorney doing it is one thing, you doing it, I don't know if the question gets hot and heavy with respect to other jurors. . . .
[Y]ou have a stake in this case, you're the defendant, and you can get convicted and go to jail for a long time. . . . If you feel you can handle all of this yourself, fine, or if you feel that the insulation of a lawyer would be better, that's something that you should go through very carefully in your mind. You're competent as far as I can see, at handling your own case. I can't see any reason to legally deny you to represent yourself, but there are all these things to consider.
They say that he who has himself for a lawyer has a fool for a client. That's not always true, but the point is the insulation factor isn't there. The jury can get mad at him for asking questions but not mad at you. That can get bored at his questions but not by you. . . . They can get turned off. You are sitting there, you're the person the People have to prove guilty beyond a reasonable doubt. . . .
But once you assume both roles, you're dealing now with people and the risks of people. And you can become part of the interplay between yourself and the jury, not with me, because you've been very respectful . . . . I have no problem with you representing yourself, but I'm trying to point out the pitfalls. I can't help you if you put your foot in your mouth.
Tr. at 185--89. The court went on to admonish petitioner that, "There are legal issues you may not be aware of, and Mr. Birkett will assist you." Tr. at 190.
After the court so advised petitioner, petitioner advised the court that the decision to go pro se was "not an overnight decision" and that it was a decision he had been "contemplating since the opening of the case." Tr. at 192. He informed the court that he felt that Birkett was not "zealously into the case like he should [be]." Petitioner then listed the specific shortcomings he objected to. At that point, the court allowed petitioner to proceed pro se. Petitioner, frequently with Birkett's help, represented himself through the remainder of the suppression hearing. The final warning that the court gave petitioner, prior to trial, was to "make sure the questions you ask are not evidence." He gave as an example, "When I held you up, what were you wearing." Tr. at 292. Petitioner indicated that he understood.
Petitioner represented himself at trial, although Birkett was allowed to make objections and otherwise assist petitioner whenever petitioner so chose.*fn7 On September 28, 1995, the jury, after a short deliberation, found petitioner guilty of one count of first-degree burglary, one count of first degree robbery, and one count of second degree burglary. On October 31, 1995, defendant was sentenced to twenty-five years to life imprisonment.
After petitioner's sentencing, the State proceeded to the second of petitioner's trials. The first calendar call for petitioner's second trial occurred on Thursday, November 30, 1995.*fn8 At the beginning of the conference, at which Birkett was present, the court asked petitioner if Birkett was his counsel. Knight responded, "I was going pro se by Judge Pincus, and I would like to maintain that right until further notice, your Honor." Tr. at 2.*fn9 Knight went on to say that proceeding pro se was his "wish right now until further notice," but stated that he did "have the right to change [his] mind." Id. At that point, Birkett proceeded to provide the court with the status of the case. He informed that court that
Mr. Knight and I have not spoken since he was sentenced. There have been a series of problems in terms of our getting together since he was sentenced on the other trial. . . . He has advised me as standby counsel that there are certain things he wishes the investigator to do regarding this second case. . . . The investigator . . . is available to do whatever has to be done over the weekend. . . . In addition, we have not had an opportunity . . . to discuss this case in terms of actually having it ready for trial.
Tr. at 3. Birkett went on to request that the court adjourn jury selection (which was to start that afternoon) until the following week. Knight then informed that court that he had "not even heard the 911 tape" and that there were "a lot of things I don't know about this case . . . ...