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A trial court’s failure to explicitly warn a defendant about the risks of proceeding pro se did not undermine a conviction for murder, the 2nd U.S. Circuit Court of Appeals has ruled. Finding such warnings are not required by “clearly established federal law,” the 2nd Circuit upheld a district judge’s refusal to grant a petition for a writ of habeas corpus in Dallio v. Spitzer, 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 Antiterrorism 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 he murdered a Forest Hills woman in her apartment in 1986. Dallio had already been through one lawyer and was on his second when he informed the trial judge 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 Appellate Division, 2nd Department. Eastern District of New York Judge Frederic Block 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. He also found that the 2nd Department’s rejection of Dallio’s Sixth Amendment right to counsel claim was “an unreasonable application of clearly established federal law.” But Block found further that Dallio had not been denied assistance of counsel altogether, and that the failure to warn Dallio was harmless error. The 2nd Circuit upheld Block, but on different grounds. WAIVER ISSUE 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.” Dallio had cited the U.S. Supreme Court case Faretta v. California, 422 U.S. 806 (1975), which said that courts should warn potential pro se defendants of “dangers and disadvantages of self-representation.” Raggi, however, said that the quotation was not part of the holding of Faretta and was merely dictum. “The Sixth Amendment violation specifically identified by the Supreme Court in Faretta derived from the state’s refusal to allow the defendant to waive his right to counsel, not from any defect in his particular waiver,” she said. “In any event, we note that Faretta‘s use of the word ‘should’ in identifying warnings relevant to waivers of counsel itself cautions against interpreting the quoted language as clear establishment of a federal mandate.” Raggi said that the 2nd Circuit has “strongly endorsed Faretta warnings as a factor important to the knowing and intelligent waiver of counsel,” but that the validity of the waiver should be evaluated on the “totality of the circumstances.” Block’s conclusion that Faretta warnings were a “minimum” requirement is a “cautionary” approach that would be “understandable, even laudable” were the court itself dealing with a criminal defendant who wants to proceed pro se, Raggi said. But the focus here, she said, “is only on whether a state court’s contrary ruling falls within the narrow scope” of habeas review. CONCURRING OPINION Judge Robert Katzmann issued a concurring opinion in which he agreed Dallio’s habeas petition should be denied, but concluded that his Sixth Amendment right to counsel was violated. Nonetheless, Katzmann believed that “any constitutional violation endured by Dallio was harmless.” Judge Jon O. Newman joined in the majority opinion. William B. Carney of the Legal Aid Society’s Criminal Appeals Bureau in Brooklyn represented Dallio. Assistant District Attorneys Lisa Drury and John M. Castellano represented the state.

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