Ramos v. Racette, No. 12-256 (2d Cir. 2013)
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Petitioner, convicted of first-degree rape, first-degree sodomy, and second-degree burglary, appealed the district court's denial of his petition for a writ of habeas corpus. After petitioner was charged, petitioner elected to represent himself pro so. The trial judge introduced petitioner's standby counsel to the jury as his attorney and later corrected the mischaracterization by reintroducing him as a "legal advisor." On appeal, petitioner challenged the judge's introduction, arguing that it violated his Sixth Amendment right to self-representation. The court concluded that the state proceeding did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Further, McKaskle v. Wiggins did not support petitioner's position because standby counsel's extremely limited participation was simply not substantial or frequent enough to have seriously undermined petitioner's appearance before the jury in the status of one representing himself. Accordingly, the court affirmed the judgment.
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12-256-cv Ramos v. Racette 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: June 24, 2013 Decided: August 9, 2013) Docket No. 12-256 - - - - - - - - - - - - - - - - - - - -x RAMON RAMOS, Petitioner-Appellant, - v.- 12-256 STEVEN RACETTE, Respondent-Appellee. - - - - - - - - - - - - - - - - - - - -x 25 26 Before: JACOBS, Chief Judge, CARNEY and DRONEY, Circuit Judges. 27 28 During his trial for multiple rape-related crimes, 29 Ramon Ramos elected to appear pro se and to absent himself 30 from the proceedings. 31 standby counsel to the voir dire panel as Ramos s lawyer. 32 After a recess, the court attempted to correct the 33 mischaracterization by reintroducing counsel as Ramos s 34 legal advisor. The trial judge introduced Ramos s Following his conviction, Ramos filed for 1 a writ of habeas corpus in the United States District Court 2 for the Eastern District of New York (Gleeson, J.), arguing 3 that the brief introduction violated his Sixth Amendment 4 right to self-representation. 5 writ because there is no clear Supreme Court precedent 6 controlling this case, and because the introduction did not 7 substantially impair his right to self-representation. 8 9 10 11 12 13 14 15 16 17 18 19 We affirm the denial of the SALLY WASSERMAN, New York, NY, for Appellant. JOHNNETTE G. A. TRAILL (John M. Castellano, on the brief), Queens County District Attorney s Office, Kew Gardens, NY, for Appellee. DENNIS JACOBS, Chief Judge: Ramon Ramos appeals from the judgment of the United 20 States District Court for the Eastern District of New York 21 (Gleeson, J.) denying his petition for a writ of habeas 22 corpus. 23 sodomy, and second-degree burglary in state court, Ramos 24 elected to forego counsel and to absent himself from the 25 proceedings in protest. 26 introduced Ramos s standby counsel to the jury as his 27 attorney--a mischaracterization that the court attempted to 28 correct by reintroducing him as a legal advisor. Charged with first-degree rape, first-degree Shortly thereafter, the trial judge 2 Ramos 1 argues that this violated his Sixth Amendment right to self- 2 representation. 3 not result in a decision that was contrary to, or involve[] 4 an unreasonable application of, clearly established Federal 5 law, as determined by the Supreme Court of the United 6 States. 7 on which Ramos relies, McKaskle v. Wiggins, fairly read, 8 does not support his position because standby counsel s 9 extremely limited participation was simply not substantial We affirm because the state proceeding did 28 U.S.C. § 2254(d). And the Supreme Court case 10 or frequent enough to have seriously undermined [Ramos s] 11 appearance before the jury in the status of one representing 12 himself. 13 affirmed. 465 U.S. 168, 187 (1984). The judgment is 14 15 16 BACKGROUND In July 1993, a young woman reported to police that she 17 had been raped. A sexual assault kit was used to collect 18 evidence at the local hospital in Queens. 19 cold for some time. 20 burglary, also in Queens. 21 involvement in the rape, the victim was unable to identify 22 him in multiple photo arrays and lineups, and the case went 23 cold again. The case went In March 1994, Ramos was arrested for Although police suspected his 3 1 That changed in October 2001, when state officials 2 procured a DNA sample from Ramos, who was then serving time 3 for a third-degree robbery conviction. 4 Ramos s DNA was matched to the semen from the victim s 5 sexual assault kit. 6 2003. 7 In July 2002, Ramos was indicted for the rape in May Ramos s first trial in New York Supreme Court ended in 8 a mistrial when the prosecutor took ill. During those 9 truncated court proceedings in 2005, Ramos evinced a desire 10 to represent (and eventually absent) himself. 11 the court that he would appear pro se, except for certain 12 challenges to DNA evidence, which he wanted his standby 13 counsel, John Scarpa, to make. 14 hearing,1 Ramos expressed disgust with the court and the 15 proceedings, and a distrust of lawyers based in part on his 16 perception that unchallenged police perjury had led to a 17 prior conviction. 18 19 20 21 I will wrongs attend afford Ramos advised However, during the Sandoval He refused counsel and refused to stay: not sit here and have this court convict me for done by the police. . . . I do not wish to this trial. . . . I am a minority and I cannot a lawyer it seems the system would like to take 1 In New York, a Sandoval hearing is held, upon a defendant s request, to determine the extent to which he will be subject to impeachment by cross-examination about prior bad acts if he testifies. Grayton v. Ercole, 691 F.3d 165, 173 (2d Cir. 2012) (quotation marks omitted). 4 1 2 3 4 5 6 7 8 9 10 11 Ramos v. Racette, No. 11-CV-1412, 2012 WL 12924, at *2-3 12 (E.D.N.Y. Jan. 4, 2012) (quoting the trial transcript). 13 court then instructed Scarpa to act as counsel in Ramos s 14 absence, explaining, [w]e can t have an empty defense chair 15 and table, so it s a good thing that you are advisory 16 counsel because now you are back in the box . . . . 17 this point on, you are the attorney for the defendant. 18 at *3. 19 consecutive days with illness before the jury was sworn in, 20 and the court declared a mistrial. 21 advantage but after being convicted here and serving 15 to life based on the fact that the court protected a police officer from having perjured himself, I am not going to go through it and I respectfully refuse to attend any further of my trial and conviction. Let it go on without me. . . . I want to make it clear that I do not wish an attorney for me. What I feel is happening, there is corruption going on in the system, corruption going on. The [F]rom Id. However, the trial prosecutor missed three The retrial was held over five days from January 3 to 22 10, 2006. On the first day, Ramos indicated that he was 23 unhappy with the new legal advisor assigned to his case, 24 Russell Rothberg. 25 Scarpa s replacement when it occurred, he now insisted that 26 he wanted Scarpa back. 27 Rothberg . . . has been on the case for the past Although Ramos had not objected to The court informed him that Mr. 5 1 month . . . and you, frankly, don t have a say in the 2 matter. 3 the trial if Rothberg were involved, and the court allowed 4 Ramos to leave the courtroom. 5 Id. at *4. Ramos made clear that he would protest After Ramos went to his cell, Rothberg asked the court 6 to clarify his role: Judge, just so the record is 7 absolutely clear, I know that the Court has made the inquiry 8 of the defendant who has voluntarily absented himself from 9 the courtroom, so again my status now changes from legal 10 advisor to counsel for the defendant? 11 court confirmed that [f]or the purposes of the trial, and 12 for the jury s edification, obviously you have to be 13 referred to as the defendant s attorney, yes, or you are 14 representing the defendant. 15 the courtroom, and the court introduced Rothberg to the jury 16 as the attorney for the defendant. 17 Id. Id. at *5. The The jury was brought into Id. The prosecutor returned from the lunch break worried, 18 and suggested to the court that a defendant had a 19 constitutional right both to appear pro se and to absent 20 himself from trial without representation. 21 advised that the court could not force [Ramos] to have Mr. 22 Rothberg represent him merely because he [wanted] to go pro 23 se and absent himself. Id. at *6. 6 The prosecutor 1 After this exchange, the court ordered Ramos returned 2 to court. 3 pro se without any representation from Rothberg. 4 declared that he wanted to take [his] chances with appeal, 5 and voluntarily returned to his cell. 6 Ramos confirmed, again, that he wished to appear He Id. The prosecutor asked the court to clarify for the jury 7 that Ramos was actually representing himself, but the 8 request strangely was denied. 9 informed the jury that Mr. Rothberg has been appointed by Instead, the court obliquely 10 the Court to be available to serve as a legal advisor to Mr. 11 Ramos. 12 Id. Jury selection continued. Before each day of trial, Ramos was asked whether he 13 would like to participate in the proceedings. 14 Ramos elected to remain in the holding cell. 15 prosecution rested, the court charged the jury, including an 16 instruction to draw no inference from the defendant s 17 absence. 18 of guilty on all counts. 19 Each day, After the On January 10, 2006, the jury returned a verdict Ramos appealed through the state court system, arguing 20 that his right to self-representation had been abrogated. 21 The Second Department denied the appeal: Contrary to the 22 defendant s contention, he was not denied [his] right [to 7 1 self-representation] when the court appointed a new attorney 2 to act as standby counsel. 3 177, 178 (2d Dep t 2009). 4 granted Ramos leave to appeal, People v. Ramos, 13 N.Y.3d 5 748 (2009), but subsequently affirmed the Second 6 Department s order without taking up the Sixth Amendment 7 issue. 8 Reargument and reconsideration were denied. 9 Ramos, 14 N.Y.3d 794 (2010). 10 People v. Ramos, 877 N.Y.S.2d The New York Court of Appeals People v. Ramos, 13 N.Y.3d 881, 881-82 (2009). People v. On March 10, 2011, Ramos petitioned pro se for a writ 11 of habeas corpus in the United States District Court for the 12 Eastern District of New York (Gleeson, J.), presenting six 13 claims for relief. 14 denied the petition. 15 judgment. 16 Sixth Amendment right to self-representation was violated in 17 the state trial. Ramos, 2012 WL 12924, at *9. Id. at *29. The court Ramos appeals from that The only question now before us is whether his 18 19 DISCUSSION 20 I 21 We review the denial of a habeas petition de novo. 22 Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003). 8 An 1 application for a writ of habeas corpus on behalf of a 2 person in custody pursuant to the judgment of a State court 3 shall not be granted with respect to any claim that was 4 adjudicated on the merits in State court proceedings unless 5 the adjudication of the claim [either] (1) resulted in a 6 decision that was contrary to, or involved an unreasonable 7 application of, clearly established Federal law, as 8 determined by the Supreme Court of the United States; or (2) 9 resulted in a decision that was based on an unreasonable 10 determination of the facts in light of the evidence 11 presented in the State court proceeding. 12 § 2254(d). 13 28 U.S.C. A state court s determination that a claim lacks merit 14 precludes federal habeas relief so long as fairminded 15 jurists could disagree on the correctness of the state 16 court s decision. 17 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 18 664 (2004)). 19 federal habeas review upon both the States sovereign power 20 to punish offenders and their good-faith attempts to honor 21 constitutional rights. 22 omitted); see id. at 786 ( If this standard is difficult to 23 meet, that is because it was meant to be. ). Harrington v. Richter, 131 S. Ct. 770, This standard protects against intrusion of Id. at 787 (internal quotations 9 1 Ramos s primary argument on appeal is that his Sixth 2 Amendment right to self-representation was violated when the 3 2006 trial court initially disregarded his request to appear 4 pro se, assigned counsel during voir dire, and introduced 5 Rothberg to the jury as Ramos s counsel. 6 The fleeting imposition of counsel upon a pro se 7 defendant who has elected to abstain from participating at 8 trial is a matter of first impression in this Court. 9 Critically, the Supreme Court has not specifically addressed 10 it, either. [I]t is not an unreasonable application of 11 clearly established Federal law for a state court to decline 12 to apply a specific legal rule that has not been squarely 13 established by [the Supreme] Court. 14 556 U.S. 111, 122 (2009) (quotation marks omitted); see 28 15 U.S.C. § 2254(d). 16 analyzing whether the unwanted participation of standby 17 counsel violated the Sixth Amendment rights of a pro se 18 defendant asserting an absentee protest defense. 19 v. Grant, we called for further guidance from the Supreme 20 Court on appointment of counsel for pro se defendants who 21 are forcibly absented, 532 F.3d 132, 149-50 (2d Cir. 2008); 22 the same gap exists with respect to pro se defendants like Knowles v. Mirzayance, Ramos can point to no Supreme Court case 10 In Davis 1 Ramos who voluntarily absent themselves, and who thus (as it 2 were) disappear pro se. 3 Given the lack of Supreme Court guidance in this area, 4 fairminded jurists could reasonably support the state 5 court judgment. 6 decline to grant a writ of habeas corpus in the absence of 7 clearly established Federal law that requires it. 8 Supreme Court authority on which Ramos relies does not 9 support his claim, let alone do so with the requisite 10 See Harrington, 131 S. Ct. at 786. We The clarity. 11 12 II 13 Ramos argues that McKaskle v. Wiggins, 465 U.S. 168 14 (1984), constitutes the Supreme Court precedent he needs. 15 However, analysis of that case confirms that Ramos s self- 16 representation was not substantially disturbed by the 17 court s brief introduction of counsel. 18 The Supreme Court has instructed that a pro se 19 defendant has a right to maintain control over the case that 20 the defendant wants to present to the jury personally. 21 McKaskle, 465 U.S. at 178. 22 knowingly and intelligently waived her right to counsel, a [O]nce a defendant has 11 1 [trial] court should not interfere with the defendant s 2 choice, even though it may sometimes seem woefully foolish 3 to the judge. 4 (2d Cir. 1998) (quoting United States v. Curcio, 694 F.2d 5 14, 25 (2d Cir. 1982)). 6 without the defendant s consent should not be allowed to 7 destroy the jury s perception that the defendant is 8 representing himself. Torres v. United States, 140 F.3d 392, 402 [P]articipation by standby counsel McKaskle, 465 U.S. at 178. However, a pro se defendant s control over the defense 9 10 is not limitless. In McKaskle, the Supreme Court considered 11 whether unsolicited participation of standby counsel 12 violated a defendant s right to defend pro se. 13 trial court permitted the defendant to appear pro se, it 14 also allowed standby counsel an occasional interjection. 15 Standby counsel made motions, dictated proposed strategies 16 into the record, registered objections to the prosecution s 17 testimony, urged the summoning of additional witnesses, and 18 suggested questions that the defendant should have asked of 19 witnesses --over the explicit objections of the defendant. 20 Id. 21 counsel were simply not substantial or frequent enough to 22 have seriously undermined [the defendant s] appearance Although the The Court held that the intrusions of the standby 12 1 before the jury in the status of one representing himself. 2 465 U.S. at 187. 3 Here, the court introduced Rothberg to the jury as the 4 attorney for the defendant notwithstanding that Ramos 5 expressly asked to appear pro se and without Rothberg s 6 participation. 7 brief statement was alarming enough that the state 8 prosecutor soon after asked the court to limit Rothberg to 9 an observer s role, with a clarifying instruction for the Ramos, 2012 WL 12924, at *5. The court s 10 jury. 11 the defendant s legal advisor. 12 would have been best if the court had not made the initial 13 introduction, the mischaracterization did not cross 14 McKaskle s substantial interruption threshold for a 15 constitutional violation. 16 The instruction given was that Rothberg was acting as Id., at *6. Although it Ramos argues that the momentary introduction crossed 17 the line. He cites a footnote from McKaskle: [s]ince the 18 right of self-representation is a right that when exercised 19 usually increases the likelihood of a trial outcome 20 unfavorable to the defendant, its denial is not amenable to 21 harmless error analysis. 22 denied; its deprivation cannot be harmless. The right is either respected or 13 465 U.S. at 1 177 n.8. 2 Gonzalez-Lopez, which instructed that structural errors 3 defy analysis by harmless error standards because they 4 affect the framework within which the trial proceeds and are 5 not simply an error in the trial process itself. 6 140, 148-49 (2006) (quotation marks omitted). 7 Ramos similarly points to United States v. 548 U.S. However, [i]t does not necessarily follow . . . that 8 every deprivation in a category considered to be 9 structural constitutes a violation of the Constitution or 10 requires reversal of the conviction, no matter how brief the 11 deprivation or how trivial the proceedings that occurred 12 during the period of deprivation. 13 F.3d 112, 120 (2d Cir. 2009), cert. denied, 558 U.S. 932 14 (2009). 15 scenario similar to the one before us: a pro se defendant 16 who, in spite of his demand to represent himself, was 17 required to be represented by counsel. 18 speculated that such an encroachment upon self- 19 representation would support a viable habeas claim if the 20 unwanted representation persisted throughout the trial, or 21 for a substantial or important part of it. 22 added). Gibbons v. Savage, 555 The Gibbons court discussed (albeit in dicta) a Id. The court Id. (emphasis This notion of a substantial intrusion is 14 1 consistent with McKaskle, which held that the standby 2 counsel s comments made over the defendant s protests were 3 not substantial or frequent enough to disrupt the jury s 4 perception of his pro se defense. 5 right of self-representation is not a matter of all or 6 nothing, especially in the context of a habeas review 7 following an adverse state court ruling. 8 9 465 U.S. at 187. The It is true that a spectacle of total protest against the proceedings could be undermined, slightly, by an 10 introduction of counsel to the jury. 11 defense at all, no matter how limited, inherently disrupts a 12 concerted refusal to participate. 13 Any presentation of a Ramos made it plain enough that he wanted nothing to do 14 with the trial and wanted nothing done on his behalf. But 15 it is not clear from his statement of position that the 16 absence of any defense effort was a strategic defense 17 measure to convey a protest to the jury. 18 mounting a theatrical defense, Ramos could have simply been 19 quitting.2 Rather than But even assuming his absence was intended to 2 Ramos argues on appeal that he was hoping to telegraph a message to the jury with both his selfrepresentation and his absence. Reply Br. at 13. But his behavior seems more like pure apathy. His declaration (made out of the presence of the jury) that he preferred to take [his] chances with appeal does not support his current 15 1 somehow influence the jury to acquit, any impact of the 2 introduction on the jury s perceptions was insubstantial, 3 checked by the prosecutor s prompt intervention. 4 participation was limited to a three-word greeting, and that 5 was it. 6 the jury that Mr. Rothberg has been appointed by the Court 7 to be available to serve as a legal advisor to Mr. Ramos. 8 Ramos, 2012 WL 12924, at *6. 9 consider availability to serve as legal advisor to be an Rothberg s After the lunch break, the trial court explained to Given that laymen might 10 attorney s function, an explicit clarification would 11 certainly have been preferable. 12 sufficiently indicated that Rothberg was not, in fact, 13 Ramos s active counsel (an impression greatly reinforced 14 when Rothberg sat in the spectator section, rather than at 15 the counsel s table, for the remainder of the trial). However, this statement 16 More importantly, after the initial introductions, 17 Ramos was able to advance a strategy of boycott for the 18 duration of the trial. 19 a defense to the jury whatsoever; indeed, he never uttered 20 another word. 21 trial were simply not substantial or frequent enough to have Rothberg never presented any sort of Thus, the intrusions by counsel at [Ramos s] characterization that his absence was intended as a signal of injustice to the jury. 16 1 seriously undermined [Ramos s] appearance before the jury in 2 the status of one representing himself. 3 at 187. 4 the courtroom knew that Ramos was exercising his right to 5 pro se representation. 6 deprived of his right to self-representation, and his claim 7 for a writ of habeas corpus is denied. This was not a situation where only the lawyers in Id. at 179. Ramos was therefore not 8 9 10 McKaskle, 465 U.S. CONCLUSION For the foregoing reasons, we affirm. 11 17
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