The opinion of the court was delivered by: Dearie, Chief Judge
On August 16, 2010, pursuant to an order of this Court extending his time to do so, petitioner Kareem Joyner filed objections to the Report and Recommendation of Magistrate Judge James Orenstein, issued April 23, 2010, recommending denial of petitioner's application for habeas relief under 28 U.S.C.§ 2254 (the "Recommendation" or the "R & R"). For the reasons set forth below, the Court adopts Magistrate Orenstein's Recommendation in its entirety, denies the application for habeas relief, and dismisses the petition.
Federal Rule of Civil Procedure 72(b)(3) provides that, when resolving objections to the report and recommendation of a magistrate judge, the Court "must determine de novo any part of the magistrate judge's disposition that has been properly objected to" and then either "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). Accord 28 U.S.C. § 636 ("[a] judge of the court shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge" or "may also receive further evidence or recommit the matter to the magistrate judge with instructions").
As the Supreme Court instructed some time ago,
It should be clear that . . . the statute calls for a de novo determination, not a de novo hearing. We find nothing in the legislative history of the statute to support the contention that the judge is required to rehear the contested testimony in order to carry out the statutory command to make the required "determination."
United States v. Raddatz, 447 U.S. 667, 674 (1980). Indeed, the phrase "de novo determination" in section 636 "permit[s] whatever reliance a district judge, in the exercise of sound judicial discretion, ch[ooses] to place on a magistrate's proposed findings and recommendation," provided the district court remains the ultimate decision-maker. Raddatz, 447 U.S. at 676.
II. PETITIONER'S OBJECTIONS
A. The Right to Be Present
Petitioner's narrow claim is that the Appellate Division unreasonably applied what he concedes is the correct controlling law, Illinois v. Allen, 397 U.S. 337 (1970), when concluding that his removal from the courtroom was not in violation of his constitutional rights.
In my de novo review I am in agreement with Magistrate Orenstein's analysis, which I adopt here. As petitioner himself recognizes, Allen holds that "a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting 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., 397 U.S. at 343. Allen also recognizes that "trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. . . [and n]o one formula for maintaining the appropriate courtroom atmosphere will be best in all situations." Id.
Petitioner concedes that he engaged in a pattern of disruptive outbursts and that the hearing court acted appropriately, under Allen, in having him removed from the proceedings. His complaint is that the trial court failed to offer him an opportunity, post-removal, to "reclaim" his right to be present by "inquir[ing] whether or not he would promise to conduct himself properly." Obj. at p. 3.
When rejecting this claim on petitioner's direct appeal, the Appellate Division, citing Allen, recognized that "[a] defendant's right to be present during trial is not absolute" and that "[t]he defendant may be removed from the courtroom if, after being warned by the trial court, the disruptive conduct continues." People v. Joyner, 303 A.D.2d 421 (2d Dep't 2003). The appellate court concluded that "[u]nder the circumstances of this case, the court's removal of [petitioner] from the courtroom after repeated warnings and renewed opportunities to be present, was proper." Id.
The Appellate Division, I conclude, did not unreasonably apply Allen within the meaning of the habeas statute.*fn1 To be sure, the Supreme Court recognizes that "[o]nce lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings." Allen, 397 U.S. at 343. But petitioner consistently showed himself to be resolutely unwilling to conduct himself in the manner that might have allowed him to return, despite repeated warnings about the consequences of his conduct.
Indeed, as the transcripts of the state court proceedings make abundantly clear, this is not a case of a troubled defendant who could not control himself but rather of one who determinedly would not. Magistrate Orenstein comprehensively chronicles this protracted chapter of the case, see R&R at 4-9, so I need not re-state the minutiae of each outburst. But I emphasize, as especially salient for Allen purposes, the fact that petitioner typically punctuated his verbal outbursts by removing himself from the courtroom, by threatening to do so, and by otherwise conveying his willingness to forego his right to be present, and that on each of these occasions he was amply warned about his options and their consequences. Each time petitioner threatened to or actually did leave the courtroom and then remained or returned, he was exercising the opportunity he contends was denied him to "reclaim" his right to be present. It was entirely reasonable for the Appellate Division to have concluded that the trial court did not abuse the broad discretion it was is afforded under Allen in arriving at the following realizations: first, by the time of his final in-court outburst, petitioner was fully aware of the consequences of his behavior and made a knowing choice to engage in it, thereby bringing to fruition the strategy of protest he had been pursuing from the outset of the proceedings; and second, further engagement with petitioner on the subject would have been futile.
In his objections, petitioner argues that because the trial court was focusing on the disruptive aspect of his behavior when ordering that he be removed from the courtroom, it failed to "give[ a] second thought [ ] to the importance of" other rights that his absence from the courtroom would necessarily impact, including his right to testify.
Petitioner's right to testify, however, was not ignored. At the time removal was ordered, petitioner's standby counsel interposed an objection based on the right to testify, alerting the court to the fact that petitioner might in fact elect to testify in support of his claim of self-defense. The trial court ruled that petitioner had "forfeited his right to testify by conducting himself in such a manner."
In undertaking a de novo determination, I begin with the fact that petitioner presented the claim that he was denied his right to testify in a pro se brief that he filed, with the Appellate Division's permission, as a supplement to the principal brief filed on his behalf by Appellate Advocates. Although the Appellate Division decision affirming petitioner's conviction does not make specific reference to the right-to-testify claim, the decision does contain language that is routinely understood to be an adjudication on the merits for purposes of section 2254. See Joyner, 303 A.D.2d at 421 (petitioner's "remaining contentions" are "either unpreserved or without merit"); Ryan v. Miller, 303 F.3d 231, 245-46 (2d Cir. 2002) (such silent, alternative adjudication counts as a determination on the merits for purposes of AEDPA). The narrow question I must decide, therefore, is whether the Appellate Division's silent adjudication is contrary to or an unreasonable application of the holdings of any Supreme Court case.
The answer is a straightforward no. As the R&R observes, there is no Supreme Court case addressing the question of whether the right to testify may be "forfeited" (as opposed to waived). I further conclude that, in its silent adjudication of petitioner's right-to-testify claim, the Appellate Division did not unreasonably apply the seminal Supreme Court right-to-testify decision, Rock v. Arkansas, 483 U.S. 44 (1987). In Rock, the Supreme Court reiterated that the fundamental right to testify "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." 483 U.S. at 55 (internal quotation and citation omitted). It would not have been an unreasonably application of Rock v. Arkansas for the Appellate Division to have concluded that the disruptive behavior ...