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New York-A trial court failure to warn a defendant explicitly about the risks of proceeding pro se did not fatally undermine his murder conviction, the 2d U.S. Circuit Court of Appeals has ruled. Finding such warnings are not required by “clearly established federal law,” the court upheld a district judge’s refusal to grant a petition for a writ of habeas corpus. Dallio v. Spitzer, No. 01-2718. The appeal concerned the defendant’s Sixth Amendment right to counsel and the limitations on federal habeas review of state convictions imposed by the Anti-terrorism and Effective Death Penalty Act of 1996. Defendant Thomas Dallio had opted to represent himself during a 1995 hearing in Queens, N.Y., Supreme Court, where he was seeking the suppression of statements he made to the police admitting that he murdered a Queens woman in her apartment in 1986. Dallio had already been through one lawyer and was on his second when he informed the trial judge that he wished to cross-examine police witnesses himself. His lawyer, John J. O’Grady, told the court that he opposed his client’s decision, but that Dallio was competent to proceed on his own. Dallio was allowed to question a police detective, and then take the stand himself to testify in “narrative form” about his version of events. Throughout the hearing, O’Grady was present in the courtroom. Once his suppression motion was denied, Dallio obtained the appointment of a third lawyer and elected to plead guilty to two counts of second-degree murder. He was sentenced to 22 years in prison. The conviction was upheld by the intermediate-level state Appellate Division. Federal Judge Frederic Block of the Eastern District of New York rejected Dallio’s petition for a writ of habeas corpus. Block found that the “record is devoid of any indication that Dallio understood the dangers and disadvantages” of his decision to proceed pro se. But Block found further that Dallio had not been denied assistance of counsel altogether, and that the failure to warn Dallio was a harmless error. The 2d Circuit upheld Block, but on different grounds. The issue “is whether clearly established federal law dictates as a minimum constitutional prerequisite to a knowing and intelligent waiver of counsel that a court explicitly warn a defendant of the dangers and disadvantages of proceeding pro se,” Judge Reena Raggi said. “We conclude that it does not.”

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