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July 9, 2003


The opinion of the court was delivered by: Shira Scheindlin, United States District Judge


I have reviewed the attached Report and Recommendation ("R&R") of United States Magistrate Judge Douglas F. Eaton, dated June 3, 2003, recommending that the above captioned petition, brought pursuant to section 2254, Title 28 of the United States Code ("section 2254"), be dismissed. Respondent has objected to Judge Eaton's "failure to find that petitioner's right-to-be-absent argument is unexhausted." Objections to the Magistrate's Report and Recommendation ("Objections") ¶ 2. Petitioner has not filed any objections. Accordingly, I have reviewed de novo that portion of the Report and Recommendation discussing this issue and hereby modify the recommended decision of Judge Eaton.

The first ground of the petition asserts that the trial judge wrongfully refused to permit petitioner to waive his right to be present at robing room conference with prospective jurors. On appeal, the Appellate Division, First Department, decided this issue as follows:

The record fails to support defendant's contention that the court improvidently and of his right to be present at robing room conferences with prospective jurors. Unlike the situation in People v. Janvier, (92 N.Y.2d 993), the court did not foreclose the possibility of a waiver of the right to be present, but merely expressed its strong opinion that it would be in defendant's best interests to attend the conferences, whereupon defendant acquiesced in the court's position (cf., People v. Pressley, 216 A.D.2d 202, lv denied 86 N.Y.2d 800).
People v. De La Rosa, 735 N.Y.S.2d 104, 105 (1st Dep't 2001).

Judge Eaton interpreted the appellate court ruling as a factual determination entitled to a presumption of correctness under section 2254(e)(1).*fn1 See R&R at 5. Judge Eaton found that petitioner "has not offered any `clear and convincing' evidence to rebut the Appellate Division's determination." Id. at 6. Judge Eaton concluded that this Court "must presume the correctness of the Appellate Division's determination that De La Rosa `acquiesced' and that the Judge did not refuse to permit him to waive his right to be present." Id.

The question here is whether the state court's determination that petitioner voluntarily acquiesced to attending the robing room conferences with prospective jurors is a finding of fact entitled to a presumption of correctness. The Seventh Circuit has explained the law/fact distinction within the context of a waiver of Miranda rights as follows:

The ultimate issues of whether a confession is voluntary and whether a waiver of Miranda rights is voluntary are issues of law reviewed de novo. The determination of the historical facts is the proper domain of the trial court. As we said in Henderson [v. DeTella, 97 F.3d 942 (7th Cir. 1996)], frequently the State and the petitioner offer conflicting testimony as to what the historical facts were. Thus, even though the ultimate issue of voluntariness is a question of law, the state court's determination regarding factual issues are presumed correct under 28 U.S.C. § 2254[e].
Everett v. Barnett, 162 F.3d 498, 500 (7th Cir. 1998) (emphasis added, citations omitted). Under this logic, factors such as the length and circumstances of an interrogation fall within the ambit of section 2254(e)(1) but the ultimate question of voluntariness does not. But see Reyes v. Mantello, No. 00 Civ. 8936, 2003 WL 76997, at *1 (S.D.N.Y. Jan. 9, 2003) (according the presumption of correctness to the Appellate Division's determination that petitioner had made "a voluntary, knowing and intelligent waiver of his right to appeal"). For the reason explained below, however, these conflicting precedents need not be reconciled.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), modified section 2254 and created a new standard of review for federal courts to apply when reviewing habeas corpus petitions. See Williams v. Taylor, 529 U.S. 362, 404-14 (2000); Whittman v. Sabourin, No. 00 Civ. 2867, 2001 WL 687369, at *2 (S.D.N.Y. June 18, 2001).

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.
28 U.S.C. § 2254(d). A state court decision is "contrary to" clearly established federal law if: (1) the state court reaches a different result than that mandated by the Supreme Court when presented with facts that are "materially indistinguishable from a relevant Supreme Court precedent;" or (2) the state court "applies a rule that contradicts the governing law set forth in Supreme Court cases." Williams, 529 U.S. at 404-05. See also Whittman, 2001 WL 687369, at *2. Furthermore, a state court's decision is not an "unreasonable application" of federal law if the state court's application of federal law was merely "erroneous" or "incorrect." See Williams, 529 U.S. at 405-06, 412-13; see also Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). Rather, the state court's application of federal law must be "objectively unreasonable" in order to justify habeas relief under section 2254. See Williams, 529 U.S. at 405-06, 412-13.

The federal constitutional right to be present at all stages of a trial is rooted in the Confrontation Clause of the Sixth Amendment. See Illinois v. Allen, 397 U.S. 337, 338 (1970). This right includes the right to be present at voir dire. See United States v. Hernandez, 873 F.2d 516, 519 (2d Cir. 1989). As with most constitutional rights, however, the right to be present can be waived. See United States v. Gagnon, 470 U.S. 522, 529 (1985). Before proceeding in a defendant's absence, the trial judge must satisfy herself that the defendant knowingly and voluntarily waived his right to be present. See Hernandez, 873 F.2d at 519.

While the Supreme Court has recognized that in certain situations, a criminal defendant may waive the right to be present during trial, see, e.g., Diaz v. United States, 223 U.S. 442, 451 (1912), it has never recognized a constitutional right to be absent. See Copeland v. Walker, 258 F. Supp.2d 105, 139 (E.D.N.Y. 2003). As explained by Chief Judge Edward R. Korman,

[t]he circuit courts that have addressed this issue have also declined to identify a constitutional right for a defendant to absent himself from his criminal trial. In United States v. Moore, 466 F.2d 547 (3d Cir. 1972), the Third Circuit specifically addressed the claim that Fed.R.Crim.Pro. 43 enabled a defendant in a felony case to expressly waive his presence at trial. The court found that Rule 43 was "simply a codification of the existing law that a felony defendant shall be present at every stage of the trial." Id. at 548 (citing Lewis v. United States, 146 U.S. 370, 372 (1892); Diaz v. United States, 223 U.S. 442, 455 (1912)). Accordingly, the court held that "[w]hile Rule 43 does permit the court to continue the trial when the defendant absents himself, it does not, concomitantly, vest a right of absence in a defendant. Moreover, there is no perceptible due process violation by demanding that the defendant attend trial, even where such identification is an integral part of the issues before the jury." Moore, 466 F.2d at 548 (emphasis in original). See also Swingle v. United States, 151 F.2d 512, 513 (10th Cir. 1945) ("A defendant, lawfully charged, may be compelled to present himself for trial"); United States v. Fitzpatrick, 437 F.2d 19, 27 (2d Cir. 1970) (defendant's contention that it was reversible error for the district court to deny his motion to waive his presence in the courtroom "finds no support either in Rule 43 or in the case law. Rule 43 permits a felony defendant whose trial has begun in his presence to be tried even though the defendant absconds. It does not give a defendant a right to absent himself from the courtroom, especially when his identification is the focal point of his trial.").
While declining to go as far as the Third Circuit, the Second Circuit has stated that "[n]ormally a judge can and should compel a defendant to be present at all stages of a felony trial pursuant to Rule 43(a)." United States v. Cannatella, 597 F.2d 27 (2d Cir. 1979). The court recognized that "exceptional circumstances" might permit trial courts some discretion in permitting a defendant to voluntarily opt out of appearing at trial, but agreed that generally "there is a duty on the part of a defendant in a felony trial to be present." Id. at 28. . . . Moreover, the narrow waiver contemplated by the Second Circuit in Cannatella encompassed a defendant's complete absence from trial, not a selective waiver whereby the defendant could appear and disappear at will, whenever he decided he might garner some tactical advantage by doing so.
In sum, petitioner has not demonstrated that the Appellate Division's decision to uphold the trial court's denial of petitioner's request to absent himself from the courtroom for selected parts of the trial was contrary to or involved an unreasonable application of Supreme Court precedent. No federal court has permitted a defendant to selectively waive his appearance on the basis asserted by petitioner. Indeed, the Supreme Court has explicitly permitted trial courts to compel a defendant's presence in the courtroom. Thus, petitioner's claim cannot be granted without recognizing a new constitutional rule — an action expressly prohibited by the Supreme court. Teague v. Lane, 489 U.S. 288, 301 (1989).
Copeland, 258 F. Supp.2d at 139-40 (parallel citations omitted).

Because a defendant has no constitutional right to absent himself from trial, the first ground raised in the petition is not subject to federal habeas review and must be dismissed. See Lurie v. Wittner, 228 F.3d 113, 133 (2d Cir. 2000) ("Because there is no Supreme Court rule that mandates the admission of the type of evidence in dispute here, it cannot be said that the state-court decision is `contrary to' clearly established Federal law as determined by the Supreme Court.") (internal quotation marks omitted). See also Anderson v. Mullin, 327 F.3d 1148, 1155 (10th Cir. 2003) ("`If no Supreme Court precedent is dispositive of a petitioner's claim, then, a fortiori, there is no specific rule to which the state court's decision can be contrary.'") (quoting Vieux v. Pepe, 184 F.3d 59, 63 (1st Cir. 1999) (emphasis in original) (internal quotation marks and citation omitted)).

For this very reason, respondent's objection to Judge Eaton's failure to find petitioner's waiver issue unexhausted must also be dismissed. Although respondent recognizes that the Second Circuit has held that "if a petitioner cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court," Davis v. Strack, 270 F.3d 111 (2d Cir. 2001), he argues that petitioner should have "done more than make a perfunctory reference to the federal constitution because the New York courts have specifically held that the right to be present at sidebar conferences with jurors is derived exclusively from New York State law and does not implicate the federal constitution."*fn2 Objections ΒΆ 2. Because there is no federal constitutional right to absent ...

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