                           NOT FOR PUBLICATION
                                                                        FILED
                    UNITED STATES COURT OF APPEALS
                                                                         DEC 03 2014
                            FOR THE NINTH CIRCUIT                    MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS




CARL HENRY,                                      No. 12-56417

            Petitioner - Appellant,              D.C. No. 2:09-cv-07297-ODC-JC

  v.
                                                 MEMORANDUM*
FREDERICK B. HAWS, Warden,

            Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Otis D. Wright, II, District Judge, Presiding

                    Argued and Submitted November 18, 2014
                              Pasadena, California

Before: W. FLETCHER and BYBEE, Circuit Judges, and SETTLE, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **
            The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
      Petitioner Carl Henry appeals the denial of his petition for a writ of habeas

corpus, filed pursuant to 28 U.S.C. § 2254. The district court granted a certificate

of appealability on a single issue: whether the trial court violated Petitioner’s Sixth

and Fourteenth Amendment rights to be present when he was removed from the

courtroom. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We

affirm.

      The Supreme Court has clearly established that “[o]ne of the most basic of

the rights guaranteed by the Confrontation Clause is the accused’s right to be

present in the courtroom at every stage of his trial.” Illinois v. Allen, 397 U.S. 337,

338 (1970) (citing Lewis v. United States, 146 U.S. 370 (1892)). But contrary to

Petitioner’s contention, the Court has not clearly established that it is a

constitutional violation to remove an unruly defendant from the courtroom without

issuing the defendant a warning regarding the consequences of his actions.

Reflecting the lack of guidance from the Court, lower courts have diverged on this

issue. Compare Jones v. Murphy, 694 F.3d 225, 242 n.9 (2d Cir. 2012), cert.

denied, 133 S. Ct. 1247 (2013) (warning not mandatory), with Gray v. Moore, 520

F.3d 616, 624 (6th Cir. 2008), cert. denied, 555 U.S. 894 (2008) (warning

mandatory). Even if more circuits had weighed in on this particular issue, the


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Court has held that an appellate panel “may not canvass circuit decisions to

determine whether a particular rule of law is so widely accepted among the Federal

Circuits that it would, if presented to this Court, be accepted as correct.” Marshall

v. Rodgers, 133 S. Ct. 1446, 1451 (2013). Therefore, in the absence of clearly

established law on this specific issue, the question presented is whether the

California Court of Appeal’s decision is contrary to or an unreasonable application

of the more general rule that removal is within the sound discretion of the trial

court. Cf. Knowles v. Mirzayance, 556 U.S. 111, 122–23 (2009).

      When a fact-specific standard of review is viewed through the additionally

“deferential lens of § 2254(d),” id. at 121 n.2, the bar to relief is a high one. See

Renico v. Lett, 559 U.S. 766, 778 (2010) (noting the “dual layers of deference

required by AEDPA” and the abuse-of-discretion standard of review). According

the California Court of Appeal the deference it deserves, we conclude that it was

not an unreasonable application of federal law to hold that Petitioner lost his right

to be present by “conducting himself in a manner so disorderly, disruptive, and

disrespectful of the court that his trial [could not] be carried on with him in the

courtroom.” Allen, 397 U.S. at 343. Therefore, Petitioner is not entitled to relief

under § 2254.


                                            3
      Finally, to the extent that Petitioner asserts an uncertified claim on appeal

that he was incompetent to knowingly waive his right to confrontation, this claim

was not raised below. See Poland v. Stewart, 169 F.3d 573, 576 n.4 (9th. Cir.

1999). We decline to issue a certificate of appealability.

      AFFIRMED.




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