                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 07 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JUANARD D. ROBINSON,                             No. 07-16623

              Petitioner - Appellant,            D.C. No. CV-03-05684-TAG

  v.
                                                 MEMORANDUM *
A W CRAWFORD,

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Eastern District of California
                  Theresa A. Goldner, Magistrate Judge, Presiding

                            Submitted October 5, 2010 **
                             San Francisco, California

Before: FERNANDEZ and SILVERMAN, Circuit Judges, and DUFFY, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
                                          -2-

      Petitioner Juanard Robinson appeals the denial of his petition for writ of

habeas corpus, filed pursuant to 28 U.S.C. § 2254. We 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 twice removed from

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

affirm.

      The right to be present applies “in proceedings where the defendant is

confronting witnesses and evidence against him,” United States v. Gagnon, 470

U.S. 522, 526 (1985) (per curiam), or to “any stage of the criminal proceeding that

is critical to its outcome if [the defendant’s] presence would contribute to the

fairness of the procedure,” Kentucky v. Stincer, 482 U.S. 730, 745 (1987). In this

case, the California Court of Appeal determined that the trial court attempted to

warn Petitioner that his disruptive behavior could result in his removal, but the

judge was prevented from doing so by Petitioner’s obstreperous behavior.

Moreover, the California Court of Appeal ruled that Petitioner had no right to be

present at the proceedings surrounding his first removal because “no substantive

proceedings ensued in his absence.” These rulings are not contrary to, and do not

involve an unreasonable application of, the clearly established law of the U.S.

Supreme Court, see 28 U.S.C. § 2254(d)(1), nor are they “based on an
                                          -3-

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding,” id. § 2254(d)(2).

      Petitioner had a right to be present at the proceedings surrounding his second

removal, during which the state presented its case in chief. However, Petitioner

lost that right 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.” Illinois v. Allen, 397 U.S. 337, 343 (1970). The California Court of

Appeal’s determination that Petitioner’s first removal served as the constitutionally

required warning for his second removal—and therefore that no constitutional

violation occurred—comports with Allen. See id. at 340–41, 343. Furthermore,

Petitioner was allowed to return a few hours later when he promised to conduct

himself properly; thereafter the trial went forward without incident.

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

based on the trial court’s purported failure to provide him with adequate time to

prepare for trial, this claim was not raised below. See Poland v. Stewart, 169 F.3d

573, 576 n.4 (1999). We decline to issue a certificate of appealability.

      AFFIRMED.
