Clark v. Perez, No. 06-5340 (2d Cir. 2008)
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06-5340-pr Clark v. Perez 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2006 (Argued: February 26, 2007 Decided: January 3, 2008) Docket No. 06-5340-pr - - - - - - - - - - - - - - - - - - - -X JUDITH CLARK, Petitioner-Appellee, - v.ADA PEREZ, Superintendent, Bedford Hills Correctional Facility, ANDREW CUOMO,* Attorney General, State of New York, Respondents-Appellants. - - - - - - - - - - - - - - - - - - - -X Before: JACOBS, Chief Judge, LEVAL, and SOTOMAYOR, Circuit Judges. Respondents appeal from a judgment of the United States 32 District Court for the Southern District of New York 33 (Scheindlin, J.), granting Petitioner-Appellee s petition * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), New York Attorney General Andrew Cuomo is substituted for his predecessor, Eliot Spitzer. 1 for a writ of habeas corpus. 2 Clark s failure to take any direct appeal from her 3 conviction constituted an inadequate state procedural 4 default; reaching the merits, it held that the trial judge 5 violated Clark s Sixth Amendment rights. 6 7 8 9 10 11 12 13 14 15 16 17 18 The district court held that We reverse. LAWRENCE LEDERMAN, Milbank, Tweed, Hadley & McCloy, New York, NY, and LEON FRIEDMAN, New York, NY, for Petitioner-Appellee. MICHAEL E. BONGIORNO, District Attorney, Rockland County (Ann C. Sullivan, Special Assistant District Attorney, on the brief), New City, NY, for Respondents-Appellants. DENNIS JACOBS, Chief Judge: Respondent officials of the State of New York (the 19 State ), appeal from the 2006 grant by the United States 20 District Court for the Southern District of New York 21 (Scheindlin, J.) of Judith Clark s petition for a writ of 22 habeas corpus, which challenged a 1983 judgment of the New 23 York Orange County Court convicting Clark of three counts of 24 Murder in the Second Degree under New York Penal Law 25 § 125.25, six counts of Robbery in the First Degree under 26 New York Penal Law § 160.15, and other lesser crimes. 27 her criminal trial, the trial court permitted Clark to 28 defend herself pro se after an inquiry into whether her 2 At 1 election to do so was competent, knowing and intelligent; 2 but in an act of political protest, Clark and her co- 3 defendants absented themselves from the courtroom through 4 nearly all of the pre-trial proceedings and the trial 5 itself, listening to the proceedings through a speaker in 6 their holding cells. 7 state court. 8 to appeal her convictions under the circumstances was an 9 inadequate state procedural bar to federal review, and that Clark never filed a direct appeal in The district court ruled that Clark s failure 10 the trial court violated Clark s Sixth Amendment right to 11 counsel by allowing her trial to proceed without either 12 appointing stand-by counsel or terminating Clark s pro se 13 representation altogether. 14 First, we hold that Clark s failure to timely appeal 15 her conviction was an adequate state procedural bar 16 foreclosing federal review of the merits of her Sixth 17 Amendment claim absent a showing of cause and prejudice, and 18 there was no prejudice. 19 Amendment claim is without substantive merit. 20 without certain protections guaranteed by the Constitution, 21 that was because she knowingly and intelligently exercised 22 her constitutional right to make those choices. Second, we hold that Clark s Sixth 3 If Clark was The 1 district court s ruling on the merits conflicts with this 2 Court s holding in Torres v. United States, 140 F.3d 392 (2d 3 Cir. 1998), and with the Supreme Court s holding in McKaskle 4 v. Wiggins, 465 U.S. 168 (1984). 5 The judgment of the district court is reversed. 6 BACKGROUND 7 8 9 10 The facts of this case are set forth more fully in the district court opinion. Clark v. Perez, 450 F. Supp. 2d 396, 402-13 (S.D.N.Y. 2006). 11 A 12 At the time of the underlying offenses, Petitioner- 13 Appellee Judith Clark was a member of a radical leftist 14 revolutionary group calling itself the Weather Underground. 15 On October 20, 1981, a group of heavily armed men--some or 16 all of whom were members of the Black Liberation Army 17 revolutionary organization--robbed an armored truck in 18 Nyack, New York. 19 security guards, killing one and severely wounding the 20 other. In a surprise assault, they shot two The robbers also shot and killed two policemen who 4 1 attempted to stop the getaway vehicles on the highway. 2 Clark was a driver of one of the getaway vehicles; she and 3 two of her co-conspirators were captured after she crashed. 4 In the moments before her capture, police saw Clark reach 5 for a nine-millimeter pistol on the floor of the car. 6 appeal focuses not on the details of Clark s involvement in 7 the robbery but on the events at her trial in 1983 alongside 8 co-defendants Kuwasi Balagoon and David Gilbert. This 9 B 10 11 At a pretrial conference on June 2, 1983, Judge Ritter 12 of the Orange County Court considered applications to appear 13 pro se made by Clark, Balagoon and Gilbert. 14 of the hearing, the three, who were then represented by 15 counsel, protested that their supporters in the audience had 16 been assaulted and arrested by security personnel, and 17 announced to the court that they would proceed no further 18 until their supporters were freed and brought back into the 19 courtroom. 20 the hearing and conform themselves to rules of courtroom At the outset The judge asked the defendants to proceed with 5 1 decorum. 2 from the courtroom, as a contingent in the audience rose, 3 chanted slogans, and marched out, accompanied by the 4 defendants lawyers (who had no permission from the court to 5 leave). 6 Clark and the others refused and were escorted Later that day, the defendants returned to the 7 courtroom for the purpose of pressing their applications to 8 defend themselves pro se. 9 she would be allowed to remain in the courtroom only if she The court instructed Clark that 10 observed rules of courtroom decorum and agreed to refrain 11 from disrupting the proceedings. 12 equivocal: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Clark s response was We have conducted ourselves and we continue to conduct ourselves with all the respect that revolutionaries and freedom fighters will always conduct themselves, respect for ourselves. . . . I have no reason to be disruptive in this situation. My purpose to be here at all was to fight for my right to represent myself because I am a freedom fighter. . . . Because I am the only one who can speak for myself. . . . I am very much hoping that the Court does not create a provocative situation and unprovoked, I have no intention of disrupting the situation. The judge warned the defendants about the perils of 6 1 self-representation by a layman, and told them that he 2 considered it unwise for them to conduct their own defense 3 in so complicated a case. 4 decision to represent themselves would in no way relieve 5 them from the obligation to observe decorum, and warned them 6 that if he was forced to remove them from the courtroom, 7 they would have no representation whatsoever. He reminded them that their 8 Turning to Clark, the trial judge asked whether she 9 understood the implications of her decision, whether she 10 suffered from any mental or physical impairments that would 11 make it difficult for her to understand the proceedings, and 12 whether she had reflected upon her decision. 13 asserted: 14 fighter I am the only one who can speak for myself and I can 15 definitely not be represented by an officer of the court. 16 Clark s then-attorney, Susan Tipograph, offered her opinion 17 that Clark was fully competent to make the decision to 18 represent herself pro se. I wish to represent myself because as a freedom 19 20 Clark C 7 1 After Clark was no longer represented by Tipograph, the 2 court granted Clark s request to retain Tipograph as a legal 3 advisor. 4 counsel, Judith Holmes, acted as legal advisors to all three 5 defendants (the co-defendants having waived any potential 6 conflicts). 7 Ultimately, both Tipograph and Balagoon s former At voir dire, the defendants protested the limitations 8 on their opportunity to confer with each other and their 9 legal advisors about their collective strategy. Clark 10 announced to the judge on the first day of jury selection 11 (July 20, 1983) that she and her co-defendants would not 12 attend voir dire unless they could meet regularly. 13 judge told Clark that they had an absolute right to be 14 present at all stages of their trial, but that they could 15 waive that right by refusing to attend. 16 of voir dire, they showed up only briefly to protest the 17 lack of arrangements for defendants meetings; they were 18 removed from the courtroom. The On the second day They attended court on the 8 1 third day. 1 2 the anonymity of the juror panel and the judge s 3 restrictions on the defendants questioning of prospective 4 jurors, much of which focused on the jurors knowledge of 5 New Afrika and other leftist revolutionary doctrine. 6 defendants refused to attend the remaining seven days of 7 voir dire. 8 9 The following day, they left early, protesting The When they absented themselves, the defendants were able to listen to proceedings over a speaker in their holding 10 cells, and every morning the judge announced on the record 11 that the defendants had elected to absent themselves, but 12 could return whenever they wished. 13 D 14 15 Balagoon s opening statement focused on political 1 At one point on the third day of voir dire, in Clark s presence, legal advisor Judith Holmes sought to make an argument to the court about the circumstances under which the legal meetings were being conducted. Pursuant to the defendants decision to represent themselves pro se, the judge did not permit Holmes to speak on the defendants behalf, telling her that her role as a legal advisor was to offer advice and not act as an advocate or spokesperson. 9 1 ideology, his background as a revolutionary, and his belief 2 that the United States was a fascist and racist nation. 3 After multiple objections from the prosecution, the trial 4 judge ordered Balagoon to confine his comments to what would 5 be proven at trial; Balagoon left in protest. 6 Gilbert announced they were likewise unwilling to continue. 7 Clark explained her decision to leave in the presence of the 8 jury: 9 10 11 12 13 14 15 16 17 Clark and Number one, I am an anti-imperialist freedom fighter. I don t recognize the legitimacy of this Court. Second of all, I am not going to continue here just as though everything was just proper when what s obvious is obvious, which is, that the truth about the question of New Afrika is not allowed to be spoken in this courtroom. The trial judge advised the defendants (outside the 18 jury s presence) that he would allow them to withdraw and 19 listen in from their holding cells because that was their 20 choice to make, but that they could come back whenever they 21 chose, provided that they would observe the rules of the 22 court. 23 24 The prosecution put on its case in the defendants absence; the defense table was empty throughout the 10 1 prosecution s case and no objections were interposed by the 2 defense. 3 record that the defendants were electing to stay away, that 4 they could return when they wished, that the speakers were 5 activated, and that the defendants could inform the judge 6 anytime they wished to return. 7 At the start of each day, the trial judge made a On two occasions, the defendants entered the courtroom 8 (with their legal advisors), seeking prisoner-of-war status, 9 the production of incarcerated witnesses who were New 10 Afrikan prisoners of war, and (presumably in the 11 alternative) change of venue to a friendly country. 12 Relief was denied, except that the government was ordered to 13 produce incarcerated Black Liberation Army member Sekou 14 Ondinga to testify for the defense. 15 present, Balagoon conducted a direct examination of Ondinga, 16 which concerned the notion of New Afrika, the history of 17 slavery in the United States, Ondinga s work as a freedom 18 fighter with the Black Liberation Army, torture he suffered 19 at the hands of American police, and his contention that he 20 was a prisoner of war. With legal advisors Clark herself asked Ondinga a single 11 1 question, relating to what responsibilities white Americans 2 had to assist New Afrikans in their freedom fight. 3 defense called no other witness. 4 The Clark s ten-page summation was a revolutionary 5 political statement. 6 that she wished to make 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Among other things, Clark told jurors [j]ust a few remarks about what has happened during this trial to give you a different p[er]spective . . . on what has gone on here. And while the p[er]spective represented by the Judge and D.A. is one that holds power and therefore determines what happens here, we are struggling to bring to light a radically different p[er]spective on the facts and fictions presented here. Perhaps it will not change your minds, those of you who sit in the jury box, but perhaps it will shed new light on some[]things now as well. . . . One way that it was apparent was by our absence because we did not want to lend credence to this ritual, because this Court is a tool of imperialist rule. It is not here to protect the interests of working people, but to protect the property rights in control by the rich and to repress oppressed peoples and dissidents when they rise up. . . . The D.A. calls what happened on October 20, 1981, a robbery and murder. We say it was an attempted expropriation because revolutionary forces must take from the powers that be to build their capabilities to struggle against this system. . . . The D.A. says this isn t a political case. We say and I contend that political considerations have determined the actions of the State just as much as they have 12 1 2 3 4 5 6 7 8 9 determined our conduct during this trial. . . . Revolutionary violence is necessary and it is a liberating force. . . . Soon this charade they call a trial will be done. The Judge will charge and tell you to do your duty as a juror as they tell you as marines in Lebanon to do their duty. The defendants declined to submit jury charges. Defendant Gilbert explained that, as they consider[ed] the 10 proceedings illegitimate, they had no interest about 11 getting into arguments with you about how you charge the 12 jury, as you would do in your own purposes in any case. 13 The jury returned a guilty verdict on September 14, 1983. 14 At the sentencing, Clark and her co-defendants left the 15 courtroom before the court pronounced the sentences; the 16 court instructed the clerk to inform the defendants of their 17 right to direct appeal. 18 Clark, however, never took one. 19 E 20 21 In December 2002, nineteen years later, Clark moved to 22 vacate her convictions under New York Criminal Procedure Law 23 section 440.10. Her motion recited regret for her actions 13 1 and repudiated the choices she had made as a younger woman. 2 Statements from psychologists advanced the argument that for 3 years, she had been incapable of taking the necessary steps 4 to appeal her case due to her initial depression in 5 confinement, as well as her psychological inability to let 6 go of her revolutionary belief system and to defy the 7 expectations of her associates. 8 As to the merits, Clark argued that the trial judge had 9 violated her constitutional rights by (1) allowing her to 10 appear pro se notwithstanding her obvious unwillingness to 11 obey the court s rules, (2) failing to appoint stand-by 12 counsel once it became obvious that she would need to be 13 removed from the courtroom, and (3) allowing the proceedings 14 to continue when no one was left in the courtroom to 15 represent her. 16 Rockland County Supreme Court denied her motion in 17 September 2003. The court explained that the trial judge 18 acted properly in accepting Clark s valid decision to 19 represent herself and her voluntary decision to absent 20 herself from trial, and had done everything that the 14 1 Constitution required by assuring that Clark (1) had access 2 to legal advisors, (2) could listen to the proceedings, and 3 (3) could return to the court whenever she wished. 4 state court added: [W]ere the court to consider defendant s 5 claim of a deprivation of her constitutional right, it would 6 find the claim completely meritless. 7 The At the same time, the court made clear that it was 8 denying Clark s motion to vacate because she had 9 unjustifiably failed to raise the issue on appeal--a failure 10 that mandated denial of the motion to vacate under New York 11 Criminal Procedure Law section 440.10(2)(c) because her 12 claim was based on facts contained in the trial record. 13 court rejected the notion that the petitioner s 14 psychological inability to retreat from her political belief 15 system was a valid justification for her failure to take an 16 appeal. The 17 Clark s motion for leave to appeal in the New York 18 Appellate Division was summarily denied on January 20, 2004. 19 Clark filed a habeas petition in the United States 20 District Court for the Southern District of New York on 15 1 January 20, 2005, which was granted by Judge Scheindlin on 2 September 22, 2006. 3 appeal followed. 4 rulings as they become relevant in the course of this 5 opinion. See Clark, 450 F. Supp. 2d 396. This We discuss the district court s various 6 7 DISCUSSION 8 The grant or denial of habeas corpus is reviewed de 9 novo, and the underlying findings of fact are reviewed for 10 clear error. 11 Jackson v. Edwards, 404 F.3d 612, 618 (2d Cir. 2005). 12 The State challenges the district court s decision on 13 the grounds that (1) even though the State failed to raise 14 as a defense the statute of limitations set forth in the 15 Antiterrorism and Effective Death Penalty Act ( AEDPA ), 28 16 U.S.C. § 2244(d)(1), the district court should have 17 dismissed the petition as untimely, either sua sponte or by 18 the granting of the State s motion for leave to amend; (2) 19 Clark s failure to take a timely appeal constituted an 20 adequate and independent state procedural bar to post- 16 1 conviction relief under New York Criminal Procedure Law 2 section 440.10(2)(c); (3) as a matter of federal law, Clark 3 failed to exhaust the available remedies by raising her 4 claim in a timely appeal; (4) AEDPA deference should have 5 been afforded because the state courts denied Clark relief 6 on the merits; (5) the petition was barred by laches; and 7 (6) the trial court did not violate Clark s Sixth Amendment 8 right to counsel. 9 We sustain the State s appeal because the district 10 court erred in holding that Clark s failure to appeal 11 constituted an inadequate state procedural default. 12 Moreover, it appears that, on remand, the district court 13 would excuse Clark s procedural default under a theory of 14 cause and prejudice, and so we reach the merits. 15 Sixth Amendment claim is defeated by Torres v. United 16 States, 140 F.3d 392 (2d Cir. 1998). 17 who has competently invoked the right to appear pro se may 18 mount a defense consisting of nothing more than a protest 19 against the court s legitimacy and a refusal to attend 20 trial, and has no Sixth Amendment right to be protected from 17 Clark s A criminal defendant 1 the prejudice that may result. 2 2 I 3 4 The district court held that: 5 6 7 8 9 10 11 12 13 Clark, 450 F. Supp. 2d at 428. 14 claim in terms of ineffective assistance of counsel , 15 reasoning that New York courts do not apply the procedural 16 bar regularly to ineffective assistance claims, which often 17 depend on extrinsic evidence and therefore must be brought 18 through collateral attack rather than by direct appeal. 19 Given the lack of representation in the courtroom during critical portions of petitioner s criminal trial, . . . the application of [New York s requirement that issues arising from the face of the record be raised on direct appeal] was not demanded in these particular circumstances and is not adequate to prevent federal habeas review. The court thus cast the That, however, is not the case here. Direct appeal was 20 available to Clark because her claim is based on facts 21 visible on the face of the trial record. 22 chief justification for failing to appeal was her continued 2 Indeed, Clark s Because we hold that the district court erred on the above-described grounds, we find it unnecessary to reach the State s additional challenges. 18 1 boycott of the judicial system--not the need for extrinsic 2 evidence. 3 application of the requirement that claims be raised on 4 direct appeal can hardly be described as exorbitant. 5 v. Kemna, 534 U.S. 362, 376 (2002). 6 to hold that the state procedural rule was not adequate to 7 bar federal review of Clark s petition. Under these circumstances, the state court s Lee It was therefore error 8 A 9 10 Ordinarily, a federal habeas court may not reach the 11 merits if the state court s rejection of a federal claim 12 rests on a state law ground that is independent of the 13 federal question and adequate to support the judgment. 14 Coleman v. Thompson, 501 U.S. 722, 729 (1991). 3 15 procedural default also bears on the federal exhaustion 16 requirement for habeas petitions. 17 (b)(1)(A) ( An application for a writ of habeas corpus . . . 18 shall not be granted unless it appears that . . . the 3 State See 28 U.S.C. § 2254 The parties do not dispute that section 440.10(2)(c) was an independent state bar to review of the merits. The issue is solely its adequacy under the circumstances. 19 1 applicant has exhausted the remedies available in the courts 2 of the State. ). 3 exhaust state remedies and the court to which the petitioner 4 would be required to present his claims in order to meet the 5 exhaustion requirement would now find the claims 6 procedurally barred, the federal habeas court should 7 consider the claim to be procedurally defaulted. 8 501 U.S. at 735 n.1. 9 procedural default rules in the first instance, pursuant to Specifically, when a petitioner failed to Coleman, We have thus applied New York s 10 the exhaustion requirement for federal habeas. See, e.g., 11 Jimenez v. Walker, 458 F.3d 130, 148-49 (2d Cir. 2006); St. 12 Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004) (per 13 curiam); Sweet v. Bennett, 353 F.3d 135, 139-40 (2d Cir. 14 2003). 15 default rules we so apply. Section 440.10(2)(c) is one of the procedural 16 To determine whether a state procedural bar is 17 adequate to support the judgment, Coleman, 501 U.S. at 18 729, a federal habeas court should look to whether the 19 state rule at issue . . . is firmly established and 20 regularly followed. Garvey v. Duncan, 485 F.3d 709, 714 20 1 (2d Cir. 2007). This inquiry focuses on whether the case 2 before the court fits within the limited category of 3 exceptional cases in which exorbitant application of a 4 generally sound rule renders the state ground inadequate to 5 stop consideration of a federal question, Lee, 534 U.S. at 6 376. 7 433 F.3d 236, 241 (2d Cir. 2006). See also Garvey, 485 F.3d at 718; Monroe v. Kuhlman, 8 We look to several guideposts in measuring the state 9 interest in a procedural rule against the circumstances of a 10 particular case. Lee, 534 U.S. at 386-87. 11 Those guideposts, or Cotto factors, are: 12 13 14 15 16 17 18 19 20 21 22 23 24 Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (citing 25 Lee, 534 U.S. at 381-85). 26 (1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court s decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had substantially complied with the rule given the realities of trial, and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest. These considerations are obviously rooted in the 21 1 context of procedural defaults at trial, and are so 2 formulated. 3 preserve an issue for review through a contemporaneous 4 objection at trial); Lee, 534 U.S. at 381-85 (concerning 5 denial of a trial continuance where petitioner ignored the 6 applicable state procedural rule). 7 little or no bearing when the procedural bar arises after 8 trial, as when no appeal is taken. 9 least one case, we consulted the Cotto factors in reviewing See id. at 240-42 (concerning a failure to The trial record has Nevertheless, in at 10 a state court s decision that rejected a federal claim on 11 collateral review because it was not raised on direct 12 appeal. 13 2007). 14 they are guideposts to aid inquiry, see Monroe v. Kuhlman, 15 433 F.3d 236, 242 (2d Cir. 2006); so there is no need to 16 force square pegs into round holes. 17 of the Cotto guideposts is germane to a state court s denial 18 of collateral review on the basis that a petitioner failed 19 to file any direct appeal whatsoever. 4 See Murden v. Artuz, 497 F.3d 178, 192-93 (2d Cir. But the Cotto factors are not a three-prong test: 4 Here, only the second The first guidepost has no bearing here because the failure altogether to raise an issue cannot be actually 22 1 2 3 B The second Cotto factor considers whether state case 4 law indicates that compliance with a procedural rule was 5 required under the specific circumstances of the case. 6 course, state courts will usually be best positioned to 7 answer this question; but our independent review of state 8 case law is needed to ensure that the application of a state 9 procedural rule to bar federal review of the merits in a 10 Of particular case is not an arid ritual that would further no relied on because no court has been notified that the issue even exists. The district court analysis focused on the state court that decided Clark s motion to vacate. See Clark, 450 F. Supp. 2d at 426. But that decision is irrelevant to the first Cotto guidepost, which looks to the decision of the judge before whom the procedural violation occurred, not the decision of the last state court to deny relief because of an earlier procedural default. As to the third guidepost, the district court reasoned that what it perceived to be a constitutional violation impacted the realities of trial to such a degree that Clark s failure to appeal constituted substantial compliance with state procedural rules. Clark, 450 F. Supp. 2d at 428 (quoting Cotto, 331 F.3d at 240). This was erroneous because Clark s failure to file any appeal constituted total noncompliance with the requirement that issues arising from the face of the trial record be raised by direct appeal. By definition, total noncompliance cannot also be substantial compliance. 23 1 perceivable state interest. 2 212, 218 (2d Cir. 2007) (internal quotation marks and 3 formatting omitted). 4 Richardson v. Greene, 497 F.3d New York law provides that a notice of appeal from a 5 conviction must be filed within thirty days of judgment, 6 N.Y. Crim. Proc. Law § 460, and that a motion to vacate 7 based on facts visible on the trial record must be dismissed 8 where the defendant unjustifiably failed to raise the issue 9 on direct appeal. N.Y. Crim. Proc. Law. § 440.10(2)(c) (the 10 text is in the margin). 5 11 440.10(2)(c) to Clark s motion to vacate, determining that 12 her failure to raise her Sixth Amendment claim on direct 13 appeal was unjustifiable because the facts relevant to that The state court applied section 5 N.Y. Crim. Proc. Law. § 440.10(2)(c) provides in relevant part: the court must deny a motion to vacate a judgment when: . . . Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant s unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him . . . . 24 1 claim appeared on the face of the trial record. 2 The district court concluded that the state court s 3 application of section 440.10(2)(c) was not adequate to 4 support the judgment against Clark because Clark s failure 5 to appeal was not unjustifiable. 6 729. 7 deem justified the failure to raise ineffective assistance 8 of appellate counsel on direct appeal, and reasoned that 9 this justification exists a fortiori where defendant had no 10 trial counsel at all combined with an obvious unwillingness 11 to represent herself in accordance with court rules and 12 procedures. 13 this idea, the district court cited two aged New York cases 14 and one statutory provision. 15 65 (1962), the New York Court of Appeals noted in dicta that 16 where a defendant has actually been deprived of the right 17 to counsel at trial, the failure to take an appeal would not 18 bar the grant of coram nobis because the defendant s right 19 to appeal may be less than real if counsel is not at hand to 20 advise him of that right or to take the necessary steps to Coleman, 501 U.S. at The district court observed that New York State courts Clark, 450 F. Supp. 2d at 427. To support In People v. Howard, 12 N.Y.2d 25 1 perfect and prosecute the appeal. Id. at 67. Here, Clark 2 does not claim that she misunderstood her right to appeal, 3 or that legal advisors were unavailable to her -and in any 4 event, a lawyer cannot force a client to appeal, even if 5 Clark were open to suggestions and advice. 6 Silverman, 3 N.Y.2d 200 (1957), a hearing on a petition for 7 coram nobis was granted where a lawyer was forced on an 8 unwilling client, an issue that the defendant did not raise 9 on appeal. In People v. Silverman does not support the inadequacy 10 determination here for two reasons: Silverman s claim was 11 not based solely on matters appearing in the trial record; 12 and Silverman was represented on his direct appeal by the 13 same lawyers forced on him at trial. 14 The district court also relied on New York Criminal 15 Procedure Law, reasoning that, because section 440.10 was 16 designed to incorporate the common law writ of coram nobis, 17 and because section 440.10(3)(a) and coram nobis case law 18 make particular exceptions to procedural default where a 19 claim is based on a deprivation of the right to counsel, the 20 link between coram nobis and section 440.10 could also be 26 1 relevant to the requirement that a timely appeal be taken 2 where a claim appears on the face of the record. 3 F. Supp. 2d at 427-28 n.218. 4 happens when the reason a ground for appeal does not appear 5 on the face of the trial record is the defendant s failure 6 to make the record, and provides that denial of the writ on 7 that basis is impermissible where the claim is based on a 8 deprivation of the right to counsel. 9 categorically irrelevant here: Clark s claim is based on 10 11 Clark, 450 Section 440.10(3)(a) says what This provision is matters that appear all over the face of the trial record. We conclude that the district court erred in holding 12 that the state court s application of section 440.10(2)(c) 13 did not constitute an adequate state procedural bar to 14 Clark s federal habeas petition. 15 court had applied section 440.10(2)(c) to Clark s claim, the 16 district court itself should have done so in the first 17 instance pursuant to the exhaustion requirement for federal 18 habeas. 19 section 440.10(2)(c) to claims raised for the first time in 20 federal habeas petition). See, e.g., Sweet, 353 F.3d at 140 (applying 21 22 Moreover, even if no state C 27 1 Where a defendant has procedurally defaulted a claim 2 by failing to raise it on direct review, the claim may be 3 raised in habeas only if the defendant can first demonstrate 4 either cause and actual prejudice, or that he is actually 5 innocent. 6 (1998) (citations and internal quotation marks omitted), 7 quoted in DiSimone v. Phillips, 461 F.3d 181, 190 (2d Cir. 8 2006). 9 prejudice analysis is the only route to the merits. Bousley v. United States, 523 U.S. 614, 622 Actual innocence is not in issue here; so cause and [T]he 10 existence of cause for a procedural default must ordinarily 11 turn on whether the prisoner can show that some objective 12 factor external to the defense impeded . . . efforts to 13 comply with the State s procedural rule. 14 Carrier, 477 U.S. 478, 488 (1986). 15 court had no occasion to consider whether any objective 16 factor external to Clark impeded her appeal, we could remand 17 for such a determination. 18 292 F.3d 119 (2d Cir. 2002) (holding that claims were 19 procedurally barred through improper exhaustion and 20 remanding for the district court to dismiss on the merits or 21 apply cause and prejudice analysis). 22 court s conclusion that, under state law, Clark was 23 justified in her failure to appeal makes plain that any Murray v. Because the district See, e.g., McKethan v. Mantello, 28 But the district 1 cause and prejudice inquiry on remand would be bound up in 2 the merits of Clark s claim. 3 the purported constitutional violation itself--allowing 4 Clark to act pro se without appointed or stand-by counsel-- 5 was the primary reason Clark failed to timely appeal; this 6 would be an external factor only if it were truly a 7 violation. 8 at Clark s trial gave rise to no violation of the right to 9 counsel; we dispose of the remainder of the appeal on the 10 In the district court s view, As we discuss infra, however, the circumstances merits because a remand would be futile. 11 II 12 13 Clark argues that the trial court violated her Sixth 14 Amendment right to counsel by (1) allowing her to represent 15 herself when it was clear that she would not abide by 16 courtroom protocol and (2) allowing her to represent herself 17 without stand-by counsel after she absented herself from the 18 courtroom as a political protest against the trial court s 19 legitimacy. 20 21 The district court accepted Clark s argument. We rejected an identical claim in Torres v. United States, 140 F.3d 392 (2d Cir. 1998). 22 A 23 29 1 Before turning to the merits of Clark s claims, we 2 resolve the threshold issue of whether the district court 3 erroneously withheld AEDPA deference from the state court 4 decision. 5 deference, habeas courts examine (1) the face of the 6 state-court opinion, (2) whether the state court was aware 7 of a procedural bar, and (3) the practice of state courts in 8 similar circumstances, and then decide whether the state 9 court s decision was (1) fairly appearing to rest primarily In order to determine whether to apply AEDPA 10 on federal law or to be interwoven with federal law or (2) 11 fairly appearing to rest primarily on state procedural law. 12 Jimenez, 458 F.3d at 145 & n.16 (2d Cir. 2006). 13 court looks to the last state court decision rendering a 14 judgment on the petitioner s federal claim. 15 Duncan, 435 F.3d 186, 195 (2d Cir. 2006). 16 decision clearly relies on a state procedural ground, the 17 claim was decided on the merits and AEDPA deference applies. 18 Id. 19 The habeas See Messiah v. Unless this last Here, we have two state court decisions. First, the 20 Rockland County Supreme Court opinion cited Clark s 21 unjustifiable failure to take an appeal under section 22 440.10(2)(c) as a procedural bar to the review of the merits 23 of her claim. That court did discuss the merits in detail, 30 1 but the discussion was by way of explanation for the 2 statement that were the court to consider defendant s claim 3 of a deprivation of her constitutional right, it would find 4 the claim completely meritless . 5 therefore, the Rockland County Supreme Court announced that 6 it was not basing its judgment on the merits of Clark s 7 federal claim, but on a state procedural bar. 8 9 By its own terms, The Appellate Division then denied Clark leave to appeal, without comment. The State argues that this was the 10 decision that disposed of Clark s claim. 11 leave to appeal does not speak directly to the soundness of 12 any particular reasoning below; even if leave to appeal were 13 granted, the court might deny relief on the merits. 14 is no reason to assume that leave to appeal was denied for 15 any reason other than agreement with the lower court s 16 application of the state procedural bar. 17 18 But the denial of There Accordingly, we review the merits of Clark s habeas petition de novo. 19 20 21 22 B The [Sixth Amendment] right to counsel is a fundamental right of criminal defendants; it assures the 31 1 fairness, and thus the legitimacy, of our adversary 2 process. 3 The Sixth Amendment does not provide merely that a defense 4 shall be made for the accused; it grants to the accused 5 personally the right to make his defense. 6 California, 422 U.S. 806, 819 (1975). 7 to counsel does not generally empower courts to force 8 counsel upon a criminal defendant. 9 contemplate[s] that counsel . . . shall be an aid to a 10 willing defendant--not an organ of the State interposed 11 between an unwilling defendant and his right to defend 12 himself personally. 13 a constitutional right to waive the right to assistance of 14 counsel and present her own defense pro se, if the decision 15 is made knowingly and intelligently. 16 quotation marks omitted). 17 the choice was made with an aware[ness] of the dangers and 18 disadvantages of self-representation. 19 Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). Id. at 820. Faretta v. The defendant s right The Sixth Amendment A defendant therefore has Id. at 835 (internal The record should reflect that Id. The right to self-representation may tend to run at 20 cross-purposes to the right to effective assistance of 21 counsel. 22 caution when called upon to establish per se rules that 23 might overprotect either of these rights. 32 See id. at 832. For this reason, we exercise 1 As it stands, the right to self-representation is not 2 without limits. 3 dignity of the courtroom. 4 may deny the right to act pro se where the defendant 5 deliberately engages in serious and obstructionist 6 misconduct, id., or is not able and willing to abide by 7 rules of procedure and courtroom protocol. 8 Wiggins, 465 U.S. 168, 173 (1984). 9 The right is not a license to abuse the Id. at 834 n.46. A trial court McKaskle v. Even if the right has been validly invoked, a judge may 10 qualify it by appointing stand-by counsel, with or without 11 the defendant s consent, to aid the accused if and when the 12 accused requests help, and to be available to represent the 13 accused in the event that termination of the defendant s 14 self-representation is necessary, Faretta, 422 U.S. at 834 15 n.46, or to relieve the judge of the need to explain and 16 enforce basic rules of courtroom protocol or to assist the 17 defendant in overcoming routine obstacles that stand in the 18 way of the defendant s achievement of [her] own clearly 19 indicated goals. 20 Wiggins, 465 U.S. at 184. Stand-by counsel s participation is limited in two 21 ways: (1) the defendant has the right to preserve actual 22 control over the content of the case presented to the jury, 23 and so standby counsel is not allowed to make or 33 1 substantially interfere with any significant tactical 2 decisions, or to control the questioning of witnesses, or to 3 speak instead of the defendant on any matter of importance ; 4 and (2) standby counsel s participation must not be allowed 5 to destroy the jury s perception that the pro se defendant 6 is representing herself. 7 ( [T]he right to appear pro se can lose much of its 8 importance if only the lawyers in the courtroom know that 9 the right is being exercised. ). Wiggins, 465 U.S. at 178-79 In addition, there is no 10 constitutional right to hybrid representation, Schmidt v. 11 United States, 105 F.3d 82, 90 (2d Cir. 1997), whereby a 12 defendant who represents herself can choreograph special 13 appearances by [standby] counsel. 14 183. 15 representation lies solely within the discretion of the 16 trial court. 17 (2d Cir. 1989) (internal quotation marks omitted). 18 Wiggins, 465 U.S. at Instead, [t]he decision to grant or deny hybrid United States v. Tutino, 883 F.2d 1125, 1141 Clark also raises issues in connection with her absence 19 from trial. A defendant has the right under the 20 Confrontation Clause to be present when evidence is 21 introduced against her, as well as a due process right to 22 be present at any stage of the criminal proceeding that is 23 critical to its outcome if his presence would contribute to 34 1 the fairness of the procedure. Kentucky v. Stincer, 482 2 U.S. 730, 745 (1987). 3 obstructionist conduct that may justify revocation of pro 4 se status also serves as a constructive waiver of the right 5 to be present at trial, provided that the trial judge warns 6 the defendant that she will be removed if she persists and 7 that the defendant is permitted to return to the courtroom 8 at such time as she agrees to behave. 9 Allen, 397 U.S. 337 (1970). The same disruptive and See Illinois v. 10 11 C 12 The district court held that the state trial court 13 violated Clark s Sixth Amendment rights by accepting Clark s 14 application to appear pro se, notwithstanding clear 15 indications that Clark had no intention of following the 16 trial court s rules; and by allowing the trial to continue 17 without revoking Clark s pro se status (or appointing stand- 18 by counsel) after Clark refused to participate in or attend 19 her trial. 20 a waiver of right to counsel is constitutionally infirm 21 where the record indicates that the defendant was unwilling 22 to abide by courtroom protocol. 23 trial court must, as a constitutional matter, construe a pro 35 The district court s first holding implies that The second implies that a 1 se defendant s waiver of the right to be present at trial as 2 invalidating her waiver of the right to counsel. 3 We decline to adopt any such per se rules, and hold 4 that there was no constitutional violation because Clark 5 knowingly and intelligently waived her right to counsel, 6 unequivocally asserted her right to self-representation, 7 made a conscious strategic choice to waive her right to be 8 present in the courtroom as part of a de facto political 9 protest defense, and was afforded the opportunity to return 10 11 whenever she chose. 6 This conclusion flows directly from Torres, 140 F.3d 12 392, which held that near-identical facts did not give rise 13 to a Sixth Amendment violation. 14 Puerto Rican nationalist revolutionary group FALN, was 15 indicted in connection with a 1977 bombing in New York City. 16 See 140 F.3d at 395. 17 freedom fighter and a prisoner of war. 18 She refused to follow the court s rules, waived her right to 19 counsel, and declined to participate in her own trial, 20 choosing to withdraw to a holding cell where she listened to 6 Torres, a member of the Torres characterized herself as a Id. at 395-96. The record suggests that the trial judge conducted himself admirably, handling the seriously disruptive and obstructionist conduct of Clark and her co-defendants with endless patience. 36 1 the proceedings on a speaker. See generally id. at 395-400. 2 She called no witnesses and instead relied on her own 3 political rhetoric challenging the court s illegitimacy. 4 Her trial tactics . . . included leading courtroom 5 demonstrations of political supporters in the gallery, and 6 [t]hroughout the proceedings, Torres spoke frequently, 7 often restating her political beliefs. 8 received assistance from legal advisors at various stages 9 of the proceedings, id. at 396 n.3, 397, but when she Id. at 402. 10 walked out during jury selection, her legal advisor 11 She followed. 7 12 In short, the facts in Torres closely mirror the 13 circumstances of Clark s trial, as well as the procedural 14 context: 15 brought a federal habeas petition claiming that the trial 16 court violated her Sixth Amendment rights by failing to 17 revoke her pro se status (and appoint standby counsel) after 18 she refused to follow the court s rules or appear at trial. 19 She argued that as a result of that failure, her conviction 7 Almost two decades after her conviction, Torres The trial judge in Torres appointed amicus counsel to argue defendant s side of a particular sentencing issue; that argument took place outside of the presence of the jury. Torres, 140 F.3d at 397-98. At no point was Torres represented by counsel in the presence of the jury, even after she retreated to her holding cell. 37 1 was entered pursuant to a non-adversarial proceeding, in 2 violation of the Constitution. 3 Id. at 402. We observed that, [b]y not participating in her trial, 4 she was clearly trying not only to challenge the 5 jurisdiction of the court, but also to incur political 6 sympathy for her position. 7 that Torres decision not to participate in the proceedings 8 did not undermine her knowing and intelligent waiver. 9 Indeed, it is clear that she exercised her right to defend 10 herself so that she could further her political objectives 11 as a Puerto Rican freedom fighter. 12 Id. Accordingly, we concluded Id. Torres emphasized that the Sixth Amendment right to 13 waive counsel, like all procedural protections for a 14 criminal defendant, stems in part from the sanctity of 15 freedom of choice. 16 should not compel a defendant to accept a lawyer she does 17 not want, they should not interfere with the defendant s 18 chosen method of defense. 19 quotation marks omitted). Id. Thus, [j]ust as district courts Id. (internal citations and 20 Clark does not allege that her waiver of counsel was 21 anything less than knowing, intelligent, and unequivocal. 22 Rather, like Torres, she complains that the trial judge 23 violated her Sixth Amendment rights when he allowed her to 38 1 appear pro se--without invalidating or qualifying her waiver 2 of the right to counsel--after she had given ample notice of 3 her intention to use a disruptive, political defense, 4 including an unwillingness to be present at trial. 5 Br. at 5. 6 Appellee At oral argument, Clark s counsel conceded that Clark 7 adopt[ed] a conscious strategy to use [her] trial to 8 further [her] political objectives and to challenge the 9 jurisdiction of the court and win political sympathy. Oral 10 Arg. Tr., February 26, 2007. The record confirms that 11 Clark s trial was intensely adversarial. 12 herself to the jury as an anti-imperialist freedom fighter 13 who refused to recognize the legitimacy of this Court. 14 She then left the courtroom in protest. 15 court for prisoner-of-war status. 16 for the government to produce an incarcerated witness whom 17 she identified as a New Afrikan prisoner of war, and 18 conducted direct examination--albeit brief--of that witness. 19 Clark s lengthy closing statement explained to the jurors Clark introduced She petitioned the She moved (successfully) 20 that she was struggling to bring to light a radically 21 different p[er]spective on the facts and fictions presented 22 at trial. While noting that [p]erhaps it will not change 39 1 your minds, Clark said that [o]ne way that it was apparent 2 was by our absence because we did not want to lend credence 3 to this ritual. 4 absence was a tactic to influence the jury in her favor. 5 In conclusion, we hold that Clark s Sixth Amendment Thus Clark openly conceded that her 6 claims fail on the merits. She complains that the judge 7 conducted the trial in a manner that violated her 8 constitutional rights. 9 conduct her trial in that manner, and she made the choice in It was, however, her choice to 10 part to achieve what she perceived as tactical advantages, 11 rejecting the trial judge s warnings of the risks involved. 12 If she faced trial without advantages guaranteed by the 13 Sixth Amendment, that was not by the trial judge s 14 imposition, but by her own informed choice, which the trial 15 judge was bound to respect. 16 constitutional rights has no merit whatsoever. Her claim of violation of her 17 18 CONCLUSION 19 For the foregoing reasons, the judgment of the district 20 court is REVERSED. 21 40
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