Dallio v. Spitzer

• Citation: 343 F.3d 553
• Decision Date: 09 September 2003
• Docket Number: Docket No. 01-2718.
• Parties: Thomas DALLIO, Petitioner-Appellant, v. Eliot L. SPITZER, New York State Attorney General, Michael McGinnis, Superintendent, Southport Correctional Facility, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

343 F.3d 553

Thomas DALLIO, Petitioner-Appellant, v. Eliot L. SPITZER, New York State Attorney General, Michael McGinnis, Superintendent, Southport Correctional Facility, Respondents-Appellees.

Docket No. 01-2718.

United States Court of Appeals, Second Circuit.

Argued: January 21, 2003.

Decided: September 9, 2003.

William B. Carney, Legal Aid Society, Criminal Appeals Bureau, Brooklyn, New York, for Petitioner-Appellant.

Lisa Drury, Assistant District Attorney, for Richard A. Brown, District Attorney for Queens County (John M. Castellano, Assistant District Attorney, of counsel), Kew Gardens, New York, for Respondents-Appellees.

Before: NEWMAN, KATZMANN, and RAGGI, Circuit Judges.

Judge KATZMANN concurs with a separate opinion.

REENA RAGGI, Circuit Judge.

Petitioner-Appellant Thomas Dallio is a New York State prisoner, serving a term of twenty-two years to life imprisonment as a result of his November 13, 1995 guilty plea to two counts of murder in the second degree, one for intentional murder, N.Y. Penal Law § 125.25[1], and one for felony murder, N.Y. Penal Law § 125.25[3]; one count of robbery in the first degree, N.Y. Penal Law § 160.15[2]; and one count of criminal weapon possession in the second degree, N.Y. Penal Law § 265.03. Dallio appeals from the November 1, 2001 judgment of the United States District Court for the Eastern District of New York (Frederick Block, Judge) denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. See Dallio v. Spitzer, 170 F.Supp.2d 327 (E.D.N.Y.2001).

In his petition, Dallio asserted that his Sixth Amendment right to counsel was violated at a pre-trial suppression hearing when the trial court permitted him to proceed pro se without first giving him explicit warnings about the "dangers and disadvantages" of self-representation as required by Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The district court agreed that the lack of such warnings violated the Sixth Amendment but concluded that the error was harmless. Dallio v. Spitzer, 170 F.Supp.2d at 336-38. We affirm the district court's judgment without reaching the question of harmless error. See Boule v. Hutton, 328 F.3d 84, 92 (2d Cir. 2003) (noting our ability to affirm a judgment on any ground appearing in the record, whether or not relied on by the district court). Although explicit warnings as to the dangers and disadvantages of self-representation are certainly advisable to ensure knowing and intelligent waivers of the right to counsel, see Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (holding that accused must "competently and intelligently" waive the right to counsel), we conclude that it is not clearly established federal law as determined by the Supreme Court, see 28 U.S.C. § 2254(d)(1), that such warnings are a constitutionally mandated prerequisite to every knowing and intelligent waiver of the right. Because Dallio does not assert that his waiver of counsel was not otherwise valid, nor would the record support such a conclusion, see infra at note 4, he fails to establish a right to habeas relief.

I. Background

A. Dallio Admits Murdering Loni Berglund

On January 10, 1986, in an apartment in Forest Hills, Queens, a young woman named Loni Berglund was killed by one gunshot wound to her chest and three to her head in the course of a robbery that netted its perpetrator fifty dollars. For more than five years, the crime went unsolved when, in May 1991, new computer technology matched fingerprints lifted from the murder scene to those of petitioner Thomas Dallio.

On October 15, 1991, two New York City police detectives, Timothy Copeland and Raymond Pierce, interviewed Dallio, who was then incarcerated on a 1988 New York State robbery conviction. After waiving his Miranda rights, Dallio agreed to speak with the officers and, over the course of several hours, made a series of inculpatory audiotaped and videotaped statements. For example, in a 12:30 p.m. statement apparently addressed to Ms. Berglund's mother, Dallio said:

I'm very sorry what happened to Loni. She was a beautiful person who reached out to me.... We were in the apartment.... She said um it's getting late. I thought about going back out there into the street with no money, no drugs no place to stay. So I pulled out the gun and I asked her to sit on the couch and I asked her where the money was. She couldn't believe, she couldn't believe that I was serious. She says is this for real ... she said she didn't have any money. Then she got up like she was goin' for the door. She was goin' for the alarm and I fired first one time. She said something, she said okay, okay. I don't know, I just fired again and again and again.... I know that I can't bring her back. But I'm sorry an[d] I hope that you will forgive me, just like I ask God to forgive me.

Oct. 15, 1991 Tape Trans. at 13-14.

Approximately six months later, on April 8, 1992, Dallio volunteered further inculpatory statements. While being transported from prison to a police station where he would formally be charged with Ms. Berglund's murder, Dallio asked Detective Copeland about the likelihood of capital punishment in his case. When Copeland replied that petitioner could receive the death penalty, Dallio stated, "I killed her in a drug-crazed state. I didn't mean to do it. I think I should get manslaughter not murder." June 10, 1993 Hearing Trans. at 44. He further stated that his prior confession had been for the benefit of the victim's mother, "nobody else," and that but for his "confession and the prints," the police would have no case against him. Id. at 45.

B. The Hearing to Suppress Dallio's Inculpatory Statements

1. Representation by Defense Attorneys DiBlasi and O'Grady

After indictment, Dallio moved to suppress his admissions to the police as involuntary custodial statements made in violation of his right to counsel. A seven-day hearing was conducted over the course of almost two years. On the first four hearing days, June 9-10, 1993, and September 14 and 16, 1993, Detective Copeland testified and was extensively cross-examined by Dallio's then-assigned counsel, Joseph V. DiBlasi. Dissatisfied with DiBlasi's performance, Dallio filed a pro se formal motion in 1994 for new counsel, whereupon John J. O'Grady was assigned responsibility for the defense.

When the suppression hearing resumed on March 30, 1995, O'Grady cross-examined Detective Pierce. An issue then arose about Dallio's desire to have Copeland recalled for further cross-examination. Addressing the court directly, Dallio cogently explained that he intended to testify at the hearing, that he understood that his credibility vis-à-vis the police officers would be critical to the court's decision, and that, for this reason, he deemed it imperative that Copeland be impeached with various inconsistent prior statements. The court agreed to have Detective Copeland recalled.

2. Dallio Concludes the Hearing Pro Se

On April 19, 1995, before Copeland resumed the witness stand, O'Grady advised the court that Dallio had advised him, after an "in-depth conversation," that he wished "to go pro se on this hearing." Apr. 19, 1995 Hearing Trans. at 63. O'Grady explained that Dallio felt "very familiar with the manner in which to proceed on this hearing, and how he want[ed] to handle Detective Copeland." Id. Acknowledging that Dallio might not have the competence of an attorney in conducting the hearing, counsel nevertheless voiced his opinion that Dallio was "competent to make [the] decision" to proceed pro se. Id. Dallio also addressed the court, reiterating his concern about the adequacy of prior counsel's cross-examination of Copeland and questioning present counsel's familiarity with certain materials and some of his strategic decisions. Id. at 65-67. The prosecution accused Dallio of seeking to delay the case, whereupon the court inquired, "Are you ready to proceed now?" Id. at 68. When Dallio replied that he was, the court, without further discussion, permitted Dallio to proceed pro se with O'Grady serving as stand-by counsel.

Immediately, Dallio submitted a supplemental suppression motion to the court, explaining that he wished to ensure that "all grounds for suppression with particular specificity [were] raised and reserved on the record." Id. at 68. O'Grady noted that Dallio was acting against his advice, which petitioner confirmed. Dallio then proceeded to cross-examine Copeland, consulting with O'Grady from time to time, but nevertheless drawing frequent objections for interspersing his questions about the witness's prior statements with arguments about their inconsistency. Although the prosecution occasionally displayed exasperation, see id. at 76-77 ("Again, your Honor, this is not a proper line of questioning. The prior transcript is part of the record. And I think the questions that the defendant is asking illustrates his inability to go pro se in this matter."), the court did not, patiently listening as Dallio explained his theory of cross-examination, and even telling him to "[t]ake your time," id. at 88, until Dallio reported that he had no further questions for the witness.

Through O'Grady, Dallio requested and obtained court permission to take the stand and "testify in a narrative form," id. at 92, to the circumstances under which he had made incriminating statements to police authorities, an account that covers fifty pages of transcript. At the conclusion of Dallio's direct testimony, as well as at the conclusion of his cross-examination, the court asked O'Grady if he wished to pose any questions. Although counsel replied that he did not, O'Grady did ensure that Dallio had nothing more to say to the court before leaving the witness stand. Counsel also noted (and the trial court acknowledged) that "during the course of the proceeding that my client went pro se, I was available to him[. W]hen he questioned...