The opinion of the court was delivered by: EDWARD R. KORMAN
Petitioner, Michael James Boothe, was convicted of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03) in February, 1985. The Appellate Division affirmed his conviction in August 1990, People v. James, 164 A.D.2d 921, 559 N.Y.S.2d 755 (App. Div. 1990), and leave to appeal to the New York Court of Appeals was denied in February, 1991, People v. James, 77 N.Y.2d 878, 568 N.Y.S.2d 921, 571 N.E.2d 91 (1991). Boothe was sentenced as a persistent violent felony offender pursuant to N.Y. Penal Law § 70.08 and is currently serving a term of fifteen years to life in prison.
Of the six claims Boothe presents in support of his petition for a writ of habeas corpus, only one merits discussion here. This claim does not arise out of his trial for the above crime, but rather out of a prior conviction that was used to enhance the sentence he is currently serving. Specifically, Boothe alleges that because he was bound and gagged during the jury selection of a 1974 trial for robbery, the ensuing conviction should not have been used to enhance a later sentence. See Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970). Such a claim, if valid, would justify a vacatur of the enhanced sentence Boothe received following his 1985 conviction. See United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972).
This claim arrives here with a long and scrutinized history, triggered by events that occurred during the jury selection of Boothe's 1974 trial for robbing a Brooklyn grocery store and assaulting its owner and his employee. During those proceedings, Boothe, although represented by counsel, personally objected to the prosecutor's use of peremptory challenges. Justice Kern, the trial judge, instructed him to remain silent, but almost immediately, Boothe began to object to a court officer standing behind him. Justice Kern then called a side bar to tell Boothe and his attorney that he would not permit the trial to "degenerate into a three-ring circus" and that, unless Boothe agreed to behave, he would consider invoking one of the techniques outlined in Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970) for dealing with unruly defendants. Justice Kern also advised the jury panel to disregard Boothe's conduct and to draw no adverse inference from it.
Before the proceedings could recommence, however, Boothe demanded to see a psychiatrist. At this point, the judge excused the jury panel and reiterated his intention to employ one of the Allen approved methods -- specifically binding and gagging -- if Boothe remained disruptive. Justice Kern asked Boothe for assurance that he would behave when the jury was readmitted. When he refused to give such assurance, Justice Kern extended the recess to investigate whether the courthouse was equipped with equipment with which Boothe could listen to his trial from outside the courtroom.
Upon learning that the courthouse did not have such equipment, the judge again attempted to proceed with the voir dire. This proved impossible, however, for he soon learned that during the recess Boothe had threatened to kill anyone who tried to touch him. The judge gave Boothe a final warning that any future outbursts would result in him being bound and gagged. When he then accused the judge of "forcing [him] to trial with a man that's not representing [him]," Justice Kern excused the jury and ordered him handcuffed and gagged. Before the jurors were recalled, Boothe rejected yet another opportunity to agree to behave and be released from the shackles.
Justice Kern attempted to give the jurors additional limiting instructions when they returned, but was repeatedly interrupted by Boothe who remained provocative despite the physical restraints. Managing stifled comments through the gag, he called the judge a liar, criticized his lawyer and pushed the counsel table at which he was seated forward with his feet. He remained bound and gagged until the jury was empaneled and opening statements were about to begin. At this point, Boothe agreed to behave, the shackles and gag were removed and the rest of the proceedings passed without incident. Boothe was found guilty of robbery, assault, grand larceny and possession of a weapon. The Appellate Division affirmed his conviction, People v. Boothe, 56 A.D.2d 657, 392 N.Y.S.2d 47 (App. Div. 1977), and leave to appeal to the Court of Appeals was denied.
Boothe's petition for a writ of habeas corpus, however, met with success. Concluding that the trial judge's discretion in deciding whether to bind and gag the petitioner was "impermissibly frustrated by the state's refusal to supply the necessary equipment," United States ex. rel. Boothe v. Superintendent, 506 F. Supp. 1337, 1345 (E.D.N.Y. 1981), Judge Weinstein held that the 1974 conviction violated due process. Although Boothe did not specifically raise this issue, Judge Weinstein found it to be "implicit" in Boothe's four other claims. Boothe v. Superintendent, 656 F.2d 27, 29 (2d Cir. 1981). The Court of Appeals for the Second Circuit, however, reversed on procedural grounds, finding that Boothe had not "fairly presented" his due process claim to the state courts, and therefore had not exhausted his state remedies. Id. at 31.
Boothe has now served the full sentence that was imposed for the 1974 conviction and is no longer "in custody" with respect to that sentence. See Maleng v. Cook, 490 U.S. 488, 492, 104 L. Ed. 2d 540, 109 S. Ct. 1923 (1989). Because the 1974 sentence was used as a predicate for enhancing the 1985 sentence for which Boothe is now in custody, he may challenge the prior conviction on the ground that Judge Weinstein first raised on his behalf. See id. at 492-93; Crank v. Duckworth, 905 F.2d 1090 (7th Cir. 1990), cert. denied, 112 L. Ed. 2d 701, 111 S. Ct. 712 (1991); Gamble v. Parsons, 898 F.2d 117 (10th Cir.), cert. denied, 112 L. Ed. 2d 172, 111 S. Ct. 212 (1990); Feldman v. Perrill, 902 F.2d 1445 (9th Cir. 1990). This claim was raised in Boothe's appeal to the Appellate Division from his 1985 conviction, see People v. James, 164 A.D.2d 921, 559 N.Y.S.2d 755 (App. Div. 1990), and in his application for leave to appeal to the Court of Appeals, see People v. James, 77 N.Y.2d 878, 568 N.Y.S.2d 921, 571 N.E.2d 91 (1991). Thus, while Boothe never exhausted his state remedies with respect to the claim raised by Judge Weinstein following his 1974 conviction, he has done so with respect to the enhanced sentence he is now serving, and may raise the claim in support of a writ of habeas corpus. See Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Twitty v. Smith, 614 F.2d 325, 331 (2d Cir. 1979); Daye v. Attorney General of New York, 696 F.2d 186, 190 n.3 (2d Cir. 1982) (en banc).
In Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970), the Supreme Court held that it was not unconstitutional per se for a trial judge to handcuff and gag a defendant at trial. Id. at 343-44. Rather, the Court recognized that a trial judge must retain "sufficient discretion" to make such a decision if, after being warned of the possible consequences of his actions, the defendant continues to "[conduct] himself in a manner so disorderly, disruptive and disrespectful of the court that his trial cannot be carried on with him in the courtroom." Id. at 343. When the defendant agrees to behave, he may immediately reclaim his right to appear before the jury free of restraints. Id.
Because of its concern that shackling could unduly prejudice the defendant, as well as interfere with his right to counsel, the Supreme Court concluded that "no person should be tried while shackled and gagged except as a last resort." Id. at 344. From this language, courts have read an additional calculation into the shackling decision. It is now widely recognized that trial judges must consider whether a technique less prejudicial than shackling would accomplish the same result. See Woodard v. Perrin, 692 F.2d 220, 221 (1st Cir. 1982); Elledge v. Dugger, 823 F.2d 1439, 1451 (11th Cir.), modified and reh'g denied, 833 F.2d 250 (11th Cir. 1987), cert. denied, 485 U.S. 1014, 99 L. Ed. 2d 715, 108 S. Ct. 1487 (1988); Kennedy v. Cardwell, 487 F.2d 101, 111 (6th Cir. 1973), cert. denied, 416 U.S. 959, 94 S. Ct. 1976, 40 L. Ed. 2d 310 (1974); Jones v. Meyer, 899 F.2d 883, 885 (9th Cir.), cert. denied, 112 L. Ed. 2d 67, 111 S. Ct. 95 (1990).
The decision to shackle a defendant is subject to "close judicial scrutiny," Elledge, 823 F.2d at 1451 (quoting Estelle v. Williams, 425 U.S. 501, 504, 48 L. Ed. 2d 126, 96 S. Ct. 1691 (1976)), but is reversible only for an abuse of discretion by the trial judge. Jones, 899 F.2d at 884; Kennedy, 487 F.2d at 110. The petitioner does not allege such abuse here. Indeed, Judge Lasker's thoughtful opinion in Bass v. Scully, ...