Appeal from the United States District Court for the Eastern District of New York (Block, J.).
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York, on the 8th day of March, two thousand eleven.
Present: AMALYA L. KEARSE, ROBERT D. SACK, ROBERT A. KATZMANN, Circuit Judges.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Nori Jenkins appeals from a judgment dated September 10, 2009, by the United States District Court of the Eastern District of New York (Block, J.), denying Jenkins' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). On February 4, 2005, Jenkins was convicted, following a jury trial, of burglary in the second degree pursuant to New York Penal Law § 140.25. He was sentenced to the maximum term of fifteen years' imprisonment. After exhausting his appeals in state court, on February 25, 2009, Jenkins brought this petition for a writ of habeas corpus. After the district court denied the petition and a certificate of appealability, Jenkins moved in this Court for a certificate of appealability, which we granted on the sole issue of "whether Appellant was unconstitutionally deprived of his right to testify in his own defense." U.S.C.A. dkt. sht. No. 09-4812-pr, Entry Mar. 24, 2010 (granting motion for certificate of appealability on right to testify and denying motion and dismissing appeal in all other respects). We assume the parties' familiarity with the remaining facts and the procedural history of the case, which we reference only as necessary to explain our decision. We review a district court's denial of a petition for a writ of habeas corpus de novo, and its findings of fact for clear error. Mannix v. Phillips, 619 F.3d 187, 195 (2d Cir. 2010). Because the New York Appellate Division's ruling indicated that Jenkins' claim that he was deprived of his constitutional right to testify was "without merit," Resp't-Appellee Br. 27, this case falls under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See McKethan v. Mantello, 522 F.3d 234, 237-38 (2d Cir. 2008) (per curiam) (finding that Appellate Division's conclusion that the claims were "either without merit or involve[d] matters outside the record which cannot be considered on direct appeal from the judgment of conviction" to constitute adjudication on the merits (alteration in original) (internal quotation marks omitted)). Under the amendment to federal habeas corpus relief enacted as part of AEDPA,
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 the State court proceeding.
On appeal, Jenkins argues principally that the trial court erred in construing Jenkins' requests for competency evaluations during the state court proceedings and his claimed inability to testify on his own behalf as deliberate efforts to impede the trial. Accordingly, he argues that the trial judge's refusal to grant him a continuance to testify on his own behalf unfairly deprived him of his constitutional right to testify.
The first issue we consider is whether the trial court's determination that Jenkins was attempting to delay the trial was an "unreasonable determination of the facts" under AEDPA. State court factual findings are presumed to be correct, and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). On February 4, 2005, petitioner was called to the stand, and, when questioned by his counsel, he complained of nausea and indicated his unwillingness to proceed. Viewing Jenkins' behavior as a tactical ...