06-5340-pr
Clark v. Perez

 1                       UNITED STATES COURT OF APPEALS
 2                           FOR THE SECOND CIRCUIT
 3
 4                             August Term, 2006
 5
 6
 7    (Argued: February 26, 2007            Decided: January 3, 2008)
 8
 9                           Docket No. 06-5340-pr
10
11   - - - - - - - - - - - - - - - - - - - -X
12
13   JUDITH CLARK,
14
15                   Petitioner-Appellee,
16
17               - v.-
18
19   ADA PEREZ, Superintendent, Bedford
20   Hills Correctional Facility, ANDREW
21   CUOMO,* Attorney General, State of New
22   York,
23
24                   Respondents-Appellants.
25
26   - - - - - - - - - - - - - - - - - - - -X
27

28        Before:    JACOBS, Chief Judge, LEVAL, and SOTOMAYOR,
29                   Circuit Judges.
30
31        Respondents appeal from a judgment of the United States

32   District Court for the Southern District of New York

33   (Scheindlin, J.), granting Petitioner-Appellee’s petition


           *
            Pursuant to Federal Rule of Appellate Procedure
     43(c)(2), New York Attorney General Andrew Cuomo is
     substituted for his predecessor, Eliot Spitzer.
1    for a writ of habeas corpus.   The district court held that

2    Clark’s failure to take any direct appeal from her

3    conviction constituted an inadequate state procedural

4    default; reaching the merits, it held that the trial judge

5    violated Clark’s Sixth Amendment rights.   We reverse.

 6                          LAWRENCE LEDERMAN, Milbank, Tweed,
 7                          Hadley & McCloy, New York, NY, and
 8                          LEON FRIEDMAN, New York, NY, for
 9                          Petitioner-Appellee.
10
11                          MICHAEL E. BONGIORNO, District
12                          Attorney, Rockland County (Ann C.
13                          Sullivan, Special Assistant District
14                          Attorney, on the brief), New City,
15                          NY, for Respondents-Appellants.
16
17   DENNIS JACOBS, Chief Judge:

18       Respondent officials of the State of New York (the

19   “State”), appeal from the 2006 grant by the United States

20   District Court for the Southern District of New York

21   (Scheindlin, J.) of Judith Clark’s petition for a writ of

22   habeas corpus, which challenged a 1983 judgment of the New

23   York Orange County Court convicting Clark of three counts of

24   Murder in the Second Degree under New York Penal Law

25   § 125.25, six counts of Robbery in the First Degree under

26   New York Penal Law § 160.15, and other lesser crimes.     At

27   her criminal trial, the trial court permitted Clark to

28   defend herself pro se after an inquiry into whether her

                                    2
1    election to do so was competent, knowing and intelligent;

2    but in an act of political protest, Clark and her co-

3    defendants absented themselves from the courtroom through

4    nearly all of the pre-trial proceedings and the trial

5    itself, listening to the proceedings through a speaker in

6    their holding cells.   Clark never filed a direct appeal in

7    state court.   The district court ruled that Clark’s failure

8    to appeal her convictions under the circumstances was an

9    inadequate state procedural bar to federal review, and that

10   the trial court violated Clark’s Sixth Amendment right to

11   counsel by allowing her trial to proceed without either

12   appointing stand-by counsel or terminating Clark’s pro se

13   representation altogether.

14       First, we hold that Clark’s failure to timely appeal

15   her conviction was an adequate state procedural bar

16   foreclosing federal review of the merits of her Sixth

17   Amendment claim absent a showing of cause and prejudice, and

18   there was no prejudice.   Second, we hold that Clark’s Sixth

19   Amendment claim is without substantive merit.     If Clark was

20   without certain protections guaranteed by the Constitution,

21   that was because she knowingly and intelligently exercised

22   her constitutional right to make those choices.     The


                                   3
1    district court’s ruling on the merits conflicts with this

2    Court’s holding in Torres v. United States, 140 F.3d 392 (2d

3    Cir. 1998), and with the Supreme Court’s holding in McKaskle

4    v. Wiggins, 465 U.S. 168 (1984).

5        The judgment of the district court is reversed.

6


7                              BACKGROUND

8        The facts of this case are set forth more fully in the

9    district court opinion.   Clark v. Perez, 450 F. Supp. 2d

10   396, 402-13 (S.D.N.Y. 2006).

11                                  A

12       At the time of the underlying offenses, Petitioner-

13   Appellee Judith Clark was a member of a radical leftist

14   revolutionary group calling itself the Weather Underground.

15   On October 20, 1981, a group of heavily armed men--some or

16   all of whom were members of the Black Liberation Army

17   revolutionary organization--robbed an armored truck in

18   Nyack, New York.   In a surprise assault, they shot two

19   security guards, killing one and severely wounding the

20   other.   The robbers also shot and killed two policemen who


                                    4
1    attempted to stop the getaway vehicles on the highway.

2    Clark was a driver of one of the getaway vehicles; she and

3    two of her co-conspirators were captured after she crashed.

4    In the moments before her capture, police saw Clark reach

5    for a nine-millimeter pistol on the floor of the car.     This

6    appeal focuses not on the details of Clark’s involvement in

7    the robbery but on the events at her trial in 1983 alongside

8    co-defendants Kuwasi Balagoon and David Gilbert.

9

10                                 B

11       At a pretrial conference on June 2, 1983, Judge Ritter

12   of the Orange County Court considered applications to appear

13   pro se made by Clark, Balagoon and Gilbert.   At the outset

14   of the hearing, the three, who were then represented by

15   counsel, protested that their supporters in the audience had

16   been assaulted and arrested by security personnel, and

17   announced to the court that they would proceed no further

18   until their supporters were freed and brought back into the

19   courtroom.   The judge asked the defendants to proceed with

20   the hearing and conform themselves to rules of courtroom


                                   5
1    decorum.     Clark and the others refused and were escorted

2    from the courtroom, as a contingent in the audience rose,

3    chanted slogans, and marched out, accompanied by the

4    defendants’ lawyers (who had no permission from the court to

5    leave).

6        Later that day, the defendants returned to the

7    courtroom for the purpose of pressing their applications to

8    defend themselves pro se.     The court instructed Clark that

9    she would be allowed to remain in the courtroom only if she

10   observed rules of courtroom decorum and agreed to refrain

11   from disrupting the proceedings.     Clark’s response was

12   equivocal:

13              We have conducted ourselves and we continue to
14              conduct ourselves with all the respect that
15              revolutionaries and freedom fighters will always
16              conduct themselves, respect for ourselves. . . .
17              I have no reason to be disruptive in this
18              situation. My purpose to be here at all was to
19              fight for my right to represent myself because I
20              am a freedom fighter. . . . Because I am the only
21              one who can speak for myself. . . . I am very much
22              hoping that the Court does not create a
23              provocative situation and unprovoked, I have no
24              intention of disrupting the situation.
25
26       The judge warned the defendants about the perils of



                                     6
1    self-representation by a layman, and told them that he

2    considered it unwise for them to conduct their own defense

3    in so complicated a case.   He reminded them that their

4    decision to represent themselves would in no way relieve

5    them from the obligation to observe decorum, and warned them

6    that if he was forced to remove them from the courtroom,

7    they would have no representation whatsoever.

8        Turning to Clark, the trial judge asked whether she

9    understood the implications of her decision, whether she

10   suffered from any mental or physical impairments that would

11   make it difficult for her to understand the proceedings, and

12   whether she had reflected upon her decision.    Clark

13   asserted:   “I wish to represent myself because as a freedom

14   fighter I am the only one who can speak for myself and I can

15   definitely not be represented by an officer of the court.”

16   Clark’s then-attorney, Susan Tipograph, offered her opinion

17   that Clark was fully competent to make the decision to

18   represent herself pro se.

19

20                                 C


                                   7
1        After Clark was no longer represented by Tipograph, the

2    court granted Clark’s request to retain Tipograph as a legal

3    advisor.   Ultimately, both Tipograph and Balagoon’s former

4    counsel, Judith Holmes, acted as legal advisors to all three

5    defendants (the co-defendants having waived any potential

6    conflicts).

7        At voir dire, the defendants protested the limitations

8    on their opportunity to confer with each other and their

9    legal advisors about their collective strategy.   Clark

10   announced to the judge on the first day of jury selection

11   (July 20, 1983) that she and her co-defendants would not

12   attend voir dire unless they could meet regularly.   The

13   judge told Clark that they had an absolute right to be

14   present at all stages of their trial, but that they could

15   waive that right by refusing to attend.   On the second day

16   of voir dire, they showed up only briefly to protest the

17   lack of arrangements for defendants’ meetings; they were

18   removed from the courtroom.   They attended court on the




                                   8
1    third day. 1   The following day, they left early, protesting

2    the anonymity of the juror panel and the judge’s

3    restrictions on the defendants’ questioning of prospective

4    jurors, much of which focused on the jurors’ knowledge of

5    “New Afrika” and other leftist revolutionary doctrine.     The

6    defendants refused to attend the remaining seven days of

7    voir dire.

8         When they absented themselves, the defendants were able

9    to listen to proceedings over a speaker in their holding

10   cells, and every morning the judge announced on the record

11   that the defendants had elected to absent themselves, but

12   could return whenever they wished.

13

14                                  D

15        Balagoon’s opening statement focused on political



          1
            At one point on the third day of voir dire, in
     Clark’s presence, legal advisor Judith Holmes sought to make
     an argument to the court about the circumstances under which
     the legal meetings were being conducted. Pursuant to the
     defendants’ decision to represent themselves pro se, the
     judge did not permit Holmes to speak on the defendants’
     behalf, telling her that her role as a legal advisor was to
     offer advice and not act as an advocate or spokesperson.

                                    9
1    ideology, his background as a revolutionary, and his belief

2    that the United States was a fascist and racist nation.

3    After multiple objections from the prosecution, the trial

4    judge ordered Balagoon to confine his comments to what would

5    be proven at trial; Balagoon left in protest.   Clark and

6    Gilbert announced they were likewise unwilling to continue.

7    Clark explained her decision to leave in the presence of the

8    jury:

 9            Number one, I am an anti-imperialist freedom
10            fighter. I don’t recognize the legitimacy of this
11            Court. Second of all, I am not going to continue
12            here just as though everything was just proper
13            when what’s obvious is obvious, which is, that the
14            truth about the question of New Afrika is not
15            allowed to be spoken in this courtroom.
16
17       The trial judge advised the defendants (outside the

18   jury’s presence) that he would allow them to withdraw and

19   listen in from their holding cells because that was their

20   choice to make, but that they could come back whenever they

21   chose, provided that they would observe the rules of the

22   court.

23       The prosecution put on its case in the defendants’

24   absence; the defense table was empty throughout the


                                  10
1    prosecution’s case and no objections were interposed by the

2    defense.   At the start of each day, the trial judge made a

3    record that the defendants were electing to stay away, that

4    they could return when they wished, that the speakers were

5    activated, and that the defendants could inform the judge

6    anytime they wished to return.

7        On two occasions, the defendants entered the courtroom

8    (with their legal advisors), seeking prisoner-of-war status,

9    the production of incarcerated witnesses who were “New

10   Afrikan prisoners of war,” and (presumably in the

11   alternative) change of venue “to a friendly country.”

12   Relief was denied, except that the government was ordered to

13   produce incarcerated Black Liberation Army member Sekou

14   Ondinga to testify for the defense.   With legal advisors

15   present, Balagoon conducted a direct examination of Ondinga,

16   which concerned the notion of New Afrika, the history of

17   slavery in the United States, Ondinga’s work as a “freedom

18   fighter” with the Black Liberation Army, torture he suffered

19   at the hands of American police, and his contention that he

20   was a prisoner of war.   Clark herself asked Ondinga a single


                                   11
1    question, relating to what responsibilities white Americans

2    had to assist New Afrikans in their freedom fight.   The

3    defense called no other witness.

4        Clark’s ten-page summation was a revolutionary

5    political statement.   Among other things, Clark told jurors

6    that she wished to make

 7            [j]ust a few remarks about what has happened
 8            during this trial to give you a different
 9            p[er]spective . . . on what has gone on here.
10            And while the p[er]spective represented by the
11            Judge and D.A. is one that holds power and
12            therefore determines what happens here, we are
13            struggling to bring to light a radically different
14            p[er]spective on the facts and fictions presented
15            here. Perhaps it will not change your minds,
16            those of you who sit in the jury box, but perhaps
17            it will shed new light on some[]things now as
18            well. . . . One way that it was apparent was by
19            our absence because we did not want to lend
20            credence to this ritual, because this Court is a
21            tool of imperialist rule. It is not here to
22            protect the interests of working people, but to
23            protect the property rights in control by the rich
24            and to repress oppressed peoples and dissidents
25            when they rise up. . . . The D.A. calls what
26            happened on October 20, 1981, a robbery and
27            murder. We say it was an attempted expropriation
28            because revolutionary forces must take from the
29            powers that be to build their capabilities to
30            struggle against this system. . . . The D.A. says
31            this isn’t a political case. We say and I contend
32            that political considerations have determined the
33            actions of the State just as much as they have


                                   12
1             determined our conduct during this trial. . . .
2             Revolutionary violence is necessary and it is a
3             liberating force. . . . Soon this charade they
4             call a trial will be done. The Judge will charge
5             and tell you to do your duty as a juror as they
6             tell you as marines in Lebanon to do their duty.
7
8        The defendants declined to submit jury charges.

9    Defendant Gilbert explained that, as they “consider[ed] the

10   proceedings illegitimate,” they had “no interest about

11   getting into arguments with you about how you charge the

12   jury, as you would do in your own purposes in any case.”

13   The jury returned a guilty verdict on September 14, 1983.

14       At the sentencing, Clark and her co-defendants left the

15   courtroom before the court pronounced the sentences; the

16   court instructed the clerk to inform the defendants of their

17   right to direct appeal.

18       Clark, however, never took one.

19

20                                 E

21       In December 2002, nineteen years later, Clark moved to

22   vacate her convictions under New York Criminal Procedure Law

23   section 440.10.   Her motion recited regret for her actions



                                   13
1    and repudiated the choices she had made as a younger woman.

2    Statements from psychologists advanced the argument that for

3    years, she had been incapable of taking the necessary steps

4    to appeal her case due to her initial depression in

5    confinement, as well as her psychological inability to let

6    go of her revolutionary belief system and to defy the

7    expectations of her associates.

8        As to the merits, Clark argued that the trial judge had

9    violated her constitutional rights by (1) allowing her to

10   appear pro se notwithstanding her obvious unwillingness to

11   obey the court’s rules, (2) failing to appoint stand-by

12   counsel once it became obvious that she would need to be

13   removed from the courtroom, and (3) allowing the proceedings

14   to continue when no one was left in the courtroom to

15   represent her.

16       Rockland County Supreme Court denied her motion in

17   September 2003.   The court explained that the trial judge

18   acted properly in accepting Clark’s valid decision to

19   represent herself and her voluntary decision to absent

20   herself from trial, and had done everything that the


                                   14
1    Constitution required by assuring that Clark (1) had access

2    to legal advisors, (2) could listen to the proceedings, and

3    (3) could return to the court whenever she wished.   The

4    state court added: “[W]ere the court to consider defendant’s

5    claim of a deprivation of her constitutional right, it would

6    find the claim completely meritless.”

7        At the same time, the court made clear that it was

8    denying Clark’s motion to vacate because she had

9    unjustifiably failed to raise the issue on appeal--a failure

10   that mandated denial of the motion to vacate under New York

11   Criminal Procedure Law section 440.10(2)(c) because her

12   claim was based on facts contained in the trial record.    The

13   court rejected the notion that the petitioner’s

14   psychological inability to retreat from her political belief

15   system was a valid justification for her failure to take an

16   appeal.

17       Clark’s motion for leave to appeal in the New York

18   Appellate Division was summarily denied on January 20, 2004.

19       Clark filed a habeas petition in the United States

20   District Court for the Southern District of New York on


                                  15
1    January 20, 2005, which was granted by Judge Scheindlin on

2    September 22, 2006.   See Clark, 450 F. Supp. 2d 396.    This

3    appeal followed.   We discuss the district court’s various

4    rulings as they become relevant in the course of this

5    opinion.

6

7                              DISCUSSION

8        The grant or denial of habeas corpus is reviewed de

9    novo, and the underlying findings of fact are reviewed for

10   clear error.   Jackson v. Edwards, 404 F.3d 612, 618 (2d Cir.

11   2005).

12       The State challenges the district court’s decision on

13   the grounds that (1) even though the State failed to raise

14   as a defense the statute of limitations set forth in the

15   Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28

16   U.S.C. § 2244(d)(1), the district court should have

17   dismissed the petition as untimely, either sua sponte or by

18   the granting of the State’s motion for leave to amend; (2)

19   Clark’s failure to take a timely appeal constituted an

20   adequate and independent state procedural bar to post-


                                   16
1    conviction relief under New York Criminal Procedure Law

2    section 440.10(2)(c); (3) as a matter of federal law, Clark

3    failed to exhaust the available remedies by raising her

4    claim in a timely appeal; (4) AEDPA deference should have

5    been afforded because the state courts denied Clark relief

6    on the merits; (5) the petition was barred by laches; and

7    (6) the trial court did not violate Clark’s Sixth Amendment

8    right to counsel.

9        We sustain the State’s appeal because the district

10   court erred in holding that Clark’s failure to appeal

11   constituted an inadequate state procedural default.

12   Moreover, it appears that, on remand, the district court

13   would excuse Clark’s procedural default under a theory of

14   cause and prejudice, and so we reach the merits.   Clark’s

15   Sixth Amendment claim is defeated by Torres v. United

16   States, 140 F.3d 392 (2d Cir. 1998).   A criminal defendant

17   who has competently invoked the right to appear pro se may

18   mount a defense consisting of nothing more than a protest

19   against the court’s legitimacy and a refusal to attend

20   trial, and has no Sixth Amendment right to be protected from


                                  17
1    the prejudice that may result. 2

2

3                                  I

4        The district court held that:

 5            Given the lack of representation in the courtroom
 6            during critical portions of petitioner’s criminal
 7            trial, . . . the application of [New York’s
 8            requirement that issues arising from the face of
 9            the record be raised on direct appeal] was not
10            demanded in these particular circumstances and is
11            not adequate to prevent federal habeas review.
12
13   Clark, 450 F. Supp. 2d at 428.     The court thus cast the

14   claim in terms of ineffective assistance of counsel ,

15   reasoning that New York courts do not apply the procedural

16   bar regularly to ineffective assistance claims, which often

17   depend on extrinsic evidence and therefore must be brought

18   through collateral attack rather than by direct appeal.

19       That, however, is not the case here.     Direct appeal was

20   available to Clark because her claim is based on facts

21   visible on the face of the trial record.     Indeed, Clark’s

22   chief justification for failing to appeal was her continued



          2
            Because we hold that the district court erred on the
     above-described grounds, we find it unnecessary to reach the
     State’s additional challenges.
                                   18
1    boycott of the judicial system--not the need for extrinsic

2    evidence.   Under these circumstances, the state court’s

3    application of the requirement that claims be raised on

4    direct appeal can hardly be described as “exorbitant.”       Lee

5    v. Kemna, 534 U.S. 362, 376 (2002).     It was therefore error

6    to hold that the state procedural rule was not “adequate” to

7    bar federal review of Clark’s petition.

8

9                                  A

10       Ordinarily, a federal habeas court may not reach the

11   merits if the state court’s rejection of a federal claim

12   “rests on a state law ground that is independent of the

13   federal question and adequate to support the judgment.”

14   Coleman v. Thompson, 501 U.S. 722, 729 (1991). 3   State

15   procedural default also bears on the federal exhaustion

16   requirement for habeas petitions.     See 28 U.S.C. § 2254

17   (b)(1)(A) (“An application for a writ of habeas corpus . . .

18   shall not be granted unless it appears that . . . the


          3
            The parties do not dispute that section 440.10(2)(c)
     was an independent state bar to review of the merits. The
     issue is solely its adequacy under the circumstances.
                                   19
1    applicant has exhausted the remedies available in the courts

2    of the State.”).   Specifically, when a “petitioner failed to

3    exhaust state remedies and the court to which the petitioner

4    would be required to present his claims in order to meet the

5    exhaustion requirement would now find the claims

6    procedurally barred,” the federal habeas court should

7    consider the claim to be procedurally defaulted.     Coleman,

8    501 U.S. at 735 n.1.   We have thus applied New York’s

9    procedural default rules in the first instance, pursuant to

10   the exhaustion requirement for federal habeas.     See, e.g.,

11   Jimenez v. Walker, 458 F.3d 130, 148-49 (2d Cir. 2006); St.

12   Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004) (per

13   curiam); Sweet v. Bennett, 353 F.3d 135, 139-40 (2d Cir.

14   2003).   Section 440.10(2)(c) is one of the procedural

15   default rules we so apply.

16       To determine whether a state procedural bar is

17   “adequate to support the judgment,” Coleman, 501 U.S. at

18   729, a federal habeas court should look to whether “the

19   state rule at issue . . . is firmly established and

20   regularly followed.”   Garvey v. Duncan, 485 F.3d 709, 714


                                   20
1    (2d Cir. 2007).     This inquiry focuses on whether the case

2    before the court fits within the limited category of

3    “exceptional cases in which exorbitant application of a

4    generally sound rule renders the state ground inadequate to

5    stop consideration of a federal question,” Lee, 534 U.S. at

6    376.    See also Garvey, 485 F.3d at 718; Monroe v. Kuhlman,

7    433 F.3d 236, 241 (2d Cir. 2006).

8           We look to several “guideposts” in measuring “the state

9    interest in a procedural rule against the circumstances of a

10   particular case.”     Lee, 534 U.S. at 386-87.   Those

11   guideposts, or Cotto factors, are:

12              (1) whether the alleged procedural violation was
13              actually relied on in the trial court, and whether
14              perfect compliance with the state rule would have
15              changed the trial court’s decision; (2) whether
16              state caselaw indicated that compliance with the
17              rule was demanded in the specific circumstances
18              presented; and (3) whether petitioner had
19              “substantially complied” with the rule given “the
20              realities of trial,” and, therefore, whether
21              demanding perfect compliance with the rule would
22              serve a legitimate governmental interest.
23
24   Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (citing

25   Lee, 534 U.S. at 381-85).

26          These considerations are obviously rooted in the


                                     21
1    context of procedural defaults at trial, and are so

2    formulated.    See id. at 240-42 (concerning a failure to

3    preserve an issue for review through a contemporaneous

4    objection at trial); Lee, 534 U.S. at 381-85 (concerning

5    denial of a trial continuance where petitioner ignored the

6    applicable state procedural rule).    The trial record has

7    little or no bearing when the procedural bar arises after

8    trial, as when no appeal is taken.    Nevertheless, in at

9    least one case, we consulted the Cotto factors in reviewing

10   a state court’s decision that rejected a federal claim on

11   collateral review because it was not raised on direct

12   appeal.    See Murden v. Artuz, 497 F.3d 178, 192-93 (2d Cir.

13   2007).    But the Cotto factors are not a three-prong test:

14   they are guideposts to aid inquiry, see Monroe v. Kuhlman,

15   433 F.3d 236, 242 (2d Cir. 2006); so there is no need to

16   force square pegs into round holes.    Here, only the second

17   of the Cotto guideposts is germane to a state court’s denial

18   of collateral review on the basis that a petitioner failed

19   to file any direct appeal whatsoever. 4

          4
            The first guidepost has no bearing here because the
     failure altogether to raise an issue cannot be “actually

                                    22
1

2                                 B

3        The second Cotto factor considers whether state case

4    law indicates that compliance with a procedural rule was

5    required under the specific circumstances of the case.     Of

6    course, state courts will usually be best positioned to

7    answer this question; but our independent review of state

8    case law is needed to ensure that the application of a state

9    procedural rule to bar federal review of the merits in a

10   particular case is not “an arid ritual that would further no

     relied on” because no court has been notified that the issue
     even exists. The district court analysis focused on the
     state court that decided Clark’s motion to vacate.
     See Clark, 450 F. Supp. 2d at 426. But that decision is
     irrelevant to the first Cotto guidepost, which looks to the
     decision of the judge before whom the procedural violation
     occurred, not the decision of the last state court to deny
     relief because of an earlier procedural default.
          As to the third guidepost, the district court reasoned
     that what it perceived to be a constitutional violation
     impacted the “realities of trial” to such a degree that
     Clark’s failure to appeal constituted substantial compliance
     with state procedural rules. Clark, 450 F. Supp. 2d at 428
     (quoting Cotto, 331 F.3d at 240). This was erroneous
     because Clark’s failure to file any appeal constituted total
     noncompliance with the requirement that issues arising from
     the face of the trial record be raised by direct appeal. By
     definition, total noncompliance cannot also be “substantial
     compliance.”


                                  23
1    perceivable state interest.”    Richardson v. Greene, 497 F.3d

2    212, 218 (2d Cir. 2007) (internal quotation marks and

3    formatting omitted).

4        New York law provides that a notice of appeal from a

5    conviction must be filed within thirty days of judgment,

6    N.Y. Crim. Proc. Law § 460, and that a motion to vacate

7    based on facts visible on the trial record must be dismissed

8    where the defendant unjustifiably failed to raise the issue

9    on direct appeal.   N.Y. Crim. Proc. Law. § 440.10(2)(c) (the

10   text is in the margin). 5   The state court applied section

11   440.10(2)(c) to Clark’s motion to vacate, determining that

12   her failure to raise her Sixth Amendment claim on direct

13   appeal was unjustifiable because the facts relevant to that


          5
            N.Y. Crim. Proc. Law. § 440.10(2)(c) provides in
     relevant part:

         the court must deny a motion to vacate a judgment when:
         . . . Although sufficient facts appear on the record of
         the proceedings underlying the judgment to have
         permitted, upon appeal from such judgment, adequate
         review of the ground or issue raised upon the motion,
         no such appellate review or determination occurred
         owing to the defendant’s unjustifiable failure to take
         or perfect an appeal during the prescribed period or to
         his unjustifiable failure to raise such ground or issue
         upon an appeal actually perfected by him . . . .

                                    24
1    claim appeared on the face of the trial record.

2           The district court concluded that the state court’s

3    application of section 440.10(2)(c) was not “adequate to

4    support the judgment” against Clark because Clark’s failure

5    to appeal was not “unjustifiable.”    Coleman, 501 U.S. at

6    729.    The district court observed that New York State courts

7    deem justified the failure to raise ineffective assistance

8    of appellate counsel on direct appeal, and reasoned that

9    this justification exists a fortiori “where defendant had no

10   trial counsel at all combined with an obvious unwillingness

11   to represent herself in accordance with court rules and

12   procedures.”    Clark, 450 F. Supp. 2d at 427.   To support

13   this idea, the district court cited two aged New York cases

14   and one statutory provision.    In People v. Howard, 12 N.Y.2d

15   65 (1962), the New York Court of Appeals noted in dicta that

16   where a defendant has “actually” been deprived of the right

17   to counsel at trial, the failure to take an appeal would not

18   bar the grant of coram nobis because “the defendant’s right

19   to appeal may be less than real if counsel is not at hand to

20   advise him of that right or to take the necessary steps to


                                    25
1    perfect and prosecute the appeal.”     Id. at 67.   Here, Clark

2    does not claim that she misunderstood her right to appeal,

3    or that legal advisors were unavailable to her–-and in any

4    event, a lawyer cannot force a client to appeal, even if

5    Clark were open to suggestions and advice.     In People v.

6    Silverman, 3 N.Y.2d 200 (1957), a hearing on a petition for

7    coram nobis was granted where a lawyer was forced on an

8    unwilling client, an issue that the defendant did not raise

9    on appeal.   Silverman does not support the inadequacy

10   determination here for two reasons: Silverman’s claim was

11   not based solely on matters appearing in the trial record;

12   and Silverman was represented on his direct appeal by the

13   same lawyers forced on him at trial.

14       The district court also relied on New York Criminal

15   Procedure Law, reasoning that, because section 440.10 was

16   designed to incorporate the common law writ of coram nobis,

17   and because section 440.10(3)(a) and coram nobis case law

18   make particular exceptions to procedural default where a

19   claim is based on a deprivation of the right to counsel, the

20   link between coram nobis and section 440.10 “could also be


                                   26
1    relevant” to the requirement that a timely appeal be taken

2    where a claim appears on the face of the record.    Clark, 450

3    F. Supp. 2d at 427-28 n.218.    Section 440.10(3)(a) says what

4    happens when the reason a ground for appeal does not appear

5    on the face of the trial record is the defendant’s failure

6    to make the record, and provides that denial of the writ on

7    that basis is impermissible where the claim is based on a

8    deprivation of the right to counsel.    This provision is

9    categorically irrelevant here: Clark’s claim is based on

10   matters that appear all over the face of the trial record.

11       We conclude that the district court erred in holding

12   that the state court’s application of section 440.10(2)(c)

13   did not constitute an adequate state procedural bar to

14   Clark’s federal habeas petition.    Moreover, even if no state

15   court had applied section 440.10(2)(c) to Clark’s claim, the

16   district court itself should have done so in the first

17   instance pursuant to the exhaustion requirement for federal

18   habeas.   See, e.g., Sweet, 353 F.3d at 140 (applying

19   section 440.10(2)(c) to claims raised for the first time in

20   federal habeas petition).

21

22                                  C


                                    27
1        “Where a defendant has procedurally defaulted a claim

2    by failing to raise it on direct review, the claim may be

3    raised in habeas only if the defendant can first demonstrate

4    either cause and actual prejudice, or that he is actually

5    innocent.”   Bousley v. United States, 523 U.S. 614, 622

6    (1998) (citations and internal quotation marks omitted),

7    quoted in DiSimone v. Phillips, 461 F.3d 181, 190 (2d Cir.

8    2006).   Actual innocence is not in issue here; so cause and

9    prejudice analysis is the only route to the merits.       “[T]he

10   existence of cause for a procedural default must ordinarily

11   turn on whether the prisoner can show that some objective

12   factor external to the defense impeded . . . efforts to

13   comply with the State’s procedural rule.”     Murray v.

14   Carrier, 477 U.S. 478, 488 (1986).     Because the district

15   court had no occasion to consider whether any objective

16   factor external to Clark impeded her appeal, we could remand

17   for such a determination.   See, e.g., McKethan v. Mantello,

18   292 F.3d 119 (2d Cir. 2002) (holding that claims were

19   procedurally barred through improper exhaustion and

20   remanding for the district court to dismiss on the merits or

21   apply cause and prejudice analysis).     But the district

22   court’s conclusion that, under state law, Clark was

23   justified in her failure to appeal makes plain that any
                                   28
1    cause and prejudice inquiry on remand would be bound up in

2    the merits of Clark’s claim.    In the district court’s view,

3    the purported constitutional violation itself--allowing

4    Clark to act pro se without appointed or stand-by counsel--

5    was the primary reason Clark failed to timely appeal; this

6    would be an “external” factor only if it were truly a

7    violation.    As we discuss infra, however, the circumstances

8    at Clark’s trial gave rise to no violation of the right to

9    counsel; we dispose of the remainder of the appeal on the

10   merits because a remand would be futile.

11

12                                  II

13       Clark argues that the trial court violated her Sixth

14   Amendment right to counsel by (1) allowing her to represent

15   herself when it was clear that she would not abide by

16   courtroom protocol and (2) allowing her to represent herself

17   without stand-by counsel after she absented herself from the

18   courtroom as a political protest against the trial court’s

19   legitimacy.    The district court accepted Clark’s argument.

20       We rejected an identical claim in Torres v. United

21   States, 140 F.3d 392 (2d Cir. 1998).

22

23                                       A
                                    29
1          Before turning to the merits of Clark’s claims, we

2    resolve the threshold issue of whether the district court

3    erroneously withheld AEDPA deference from the state court

4    decision.   In order to determine whether to apply AEDPA

5    deference, habeas courts examine “(1) the face of the

6    state-court opinion, (2) whether the state court was aware

7    of a procedural bar, and (3) the practice of state courts in

8    similar circumstances,” and then decide whether the state

9    court’s decision was “(1) fairly appearing to rest primarily

10   on federal law or to be interwoven with federal law or (2)

11   fairly appearing to rest primarily on state procedural law.”

12   Jimenez, 458 F.3d at 145 & n.16 (2d Cir. 2006).      The habeas

13   court looks to the last state court decision rendering a

14   judgment on the petitioner’s federal claim.      See Messiah v.

15   Duncan, 435 F.3d 186, 195 (2d Cir. 2006).     Unless this last

16   decision clearly relies on a state procedural ground, the

17   claim was decided on the merits and AEDPA deference applies.

18   Id.

19         Here, we have two state court decisions.    First, the

20   Rockland County Supreme Court opinion cited Clark’s

21   unjustifiable failure to take an appeal under section

22   440.10(2)(c) as a procedural bar to the review of the merits

23   of her claim.   That court did discuss the merits in detail,
                                   30
1    but the discussion was by way of explanation for the

2    statement that “were the court to consider defendant’s claim

3    of a deprivation of her constitutional right, it would find

4    the claim completely meritless .”   By its own terms,

5    therefore, the Rockland County Supreme Court announced that

6    it was not basing its judgment on the merits of Clark’s

7    federal claim, but on a state procedural bar.

8        The Appellate Division then denied Clark leave to

9    appeal, without comment.   The State argues that this was the

10   decision that disposed of Clark’s claim.    But the denial of

11   leave to appeal does not speak directly to the soundness of

12   any particular reasoning below; even if leave to appeal were

13   granted, the court might deny relief on the merits.     There

14   is no reason to assume that leave to appeal was denied for

15   any reason other than agreement with the lower court’s

16   application of the state procedural bar.

17       Accordingly, we review the merits of Clark’s habeas

18   petition de novo.

19

20                                 B

21       “The [Sixth Amendment] right to counsel is a

22   fundamental right of criminal defendants; it assures the

                                   31
1    fairness, and thus the legitimacy, of our adversary

2    process.”    Kimmelman v. Morrison, 477 U.S. 365, 374 (1986).

3    “The Sixth Amendment does not provide merely that a defense

4    shall be made for the accused; it grants to the accused

5    personally the right to make his defense.”       Faretta v.

6    California, 422 U.S. 806, 819 (1975).     The defendant’s right

7    to counsel does not generally empower courts to force

8    counsel upon a criminal defendant.     The Sixth Amendment

9    “contemplate[s] that counsel . . . shall be an aid to a

10   willing defendant--not an organ of the State interposed

11   between an unwilling defendant and his right to defend

12   himself personally.”    Id. at 820.   A defendant therefore has

13   a constitutional right to waive the right to assistance of

14   counsel and present her own defense pro se, if the decision

15   is made “knowingly and intelligently.”     Id. at 835 (internal

16   quotation marks omitted).     The record should reflect that

17   the choice was made with an “aware[ness] of the dangers and

18   disadvantages of self-representation.”     Id.

19       The right to self-representation may tend to run at

20   cross-purposes to the right to effective assistance of

21   counsel.    See id. at 832.   For this reason, we exercise

22   caution when called upon to establish per se rules that

23   might overprotect either of these rights.
                                  32
1        As it stands, the right to self-representation is not

2    without limits.     The right “is not a license to abuse the

3    dignity of the courtroom.”     Id. at 834 n.46.    A trial court

4    may deny the right to act pro se where the defendant

5    “deliberately engages in serious and obstructionist

6    misconduct,” id., or is not “able and willing to abide by

7    rules of procedure and courtroom protocol.”       McKaskle v.

8    Wiggins, 465 U.S. 168, 173 (1984).

9        Even if the right has been validly invoked, a judge may

10   qualify it by appointing stand-by counsel, with or without

11   the defendant’s consent, to “aid the accused if and when the

12   accused requests help, and to be available to represent the

13   accused in the event that termination of the defendant’s

14   self-representation is necessary,” Faretta, 422 U.S. at 834

15   n.46, or “to relieve the judge of the need to explain and

16   enforce basic rules of courtroom protocol or to assist the

17   defendant in overcoming routine obstacles that stand in the

18   way of the defendant’s achievement of [her] own clearly

19   indicated goals.”     Wiggins, 465 U.S. at 184.

20       Stand-by counsel’s participation is limited in two

21   ways: (1) the defendant has the right to preserve actual

22   control over the content of the case presented to the jury,

23   and so standby counsel is not allowed to “make or
                                     33
1    substantially interfere with any significant tactical

2    decisions, or to control the questioning of witnesses, or to

3    speak instead of the defendant on any matter of importance”;

4    and (2) standby counsel’s participation must not be allowed

5    to destroy the jury’s perception that the pro se defendant

6    is representing herself.     Wiggins, 465 U.S. at 178-79

7    (“[T]he right to appear pro se can lose much of its

8    importance if only the lawyers in the courtroom know that

9    the right is being exercised.”).     In addition, “there is no

10   constitutional right to hybrid representation,” Schmidt v.

11   United States, 105 F.3d 82, 90 (2d Cir. 1997), whereby a

12   defendant who represents herself can “choreograph special

13   appearances by [standby] counsel.”     Wiggins, 465 U.S. at

14   183.    Instead, “[t]he decision to grant or deny hybrid

15   representation lies solely within the discretion of the

16   trial court.”     United States v. Tutino, 883 F.2d 1125, 1141

17   (2d Cir. 1989) (internal quotation marks omitted).

18          Clark also raises issues in connection with her absence

19   from trial.     A defendant has the right under the

20   Confrontation Clause to be present when evidence is

21   introduced against her, as well as a due process right “to

22   be present at any stage of the criminal proceeding that is

23   critical to its outcome if his presence would contribute to
                                     34
1    the fairness of the procedure.”   Kentucky v. Stincer, 482

2    U.S. 730, 745 (1987).   The same disruptive and

3    obstructionist conduct that may justify revocation of pro

4    se status also serves as a constructive waiver of the right

5    to be present at trial, provided that the trial judge warns

6    the defendant that she will be removed if she persists and

7    that the defendant is permitted to return to the courtroom

8    at such time as she agrees to behave.   See Illinois v.

9    Allen, 397 U.S. 337 (1970).

10

11                                 C

12       The district court held that the state trial court

13   violated Clark’s Sixth Amendment rights by accepting Clark’s

14   application to appear pro se, notwithstanding clear

15   indications that Clark had no intention of following the

16   trial court’s rules; and by allowing the trial to continue

17   without revoking Clark’s pro se status (or appointing stand-

18   by counsel) after Clark refused to participate in or attend

19   her trial.   The district court’s first holding implies that

20   a waiver of right to counsel is constitutionally infirm

21   where the record indicates that the defendant was unwilling

22   to abide by courtroom protocol.   The second implies that a

23   trial court must, as a constitutional matter, construe a pro
                                  35
1    se defendant’s waiver of the right to be present at trial as

2    invalidating her waiver of the right to counsel.

3        We decline to adopt any such per se rules, and hold

4    that there was no constitutional violation because Clark

5    knowingly and intelligently waived her right to counsel,

6    unequivocally asserted her right to self-representation,

7    made a conscious strategic choice to waive her right to be

8    present in the courtroom as part of a de facto political

9    protest defense, and was afforded the opportunity to return

10   whenever she chose. 6

11       This conclusion flows directly from Torres, 140 F.3d

12   392, which held that near-identical facts did not give rise

13   to a Sixth Amendment violation.    Torres, a member of the

14   Puerto Rican nationalist revolutionary group FALN, was

15   indicted in connection with a 1977 bombing in New York City.

16   See 140 F.3d at 395.    Torres characterized herself as a

17   “freedom fighter” and a “prisoner of war.”    Id. at 395-96.

18   She refused to follow the court’s rules, waived her right to

19   counsel, and declined to participate in her own trial,

20   choosing to withdraw to a holding cell where she listened to


          6
            The record suggests that the trial judge conducted
     himself admirably, handling the seriously disruptive and
     obstructionist conduct of Clark and her co-defendants with
     endless patience.
                                  36
1    the proceedings on a speaker.      See generally id. at 395-400.

2    She called no witnesses and instead relied on her own

3    political rhetoric challenging the court’s illegitimacy.

4    Her “trial tactics . . . included leading courtroom

5    demonstrations of political supporters in the gallery,” and

6    “[t]hroughout the proceedings, Torres spoke frequently,

7    often restating her political beliefs.”      Id. at 402.   She

8    received assistance from legal advisors “at various stages

9    of the proceedings,” id. at 396 n.3, 397, but when she

10   walked out during jury selection, her legal advisor

11   followed. 7

12        In short, the facts in Torres closely mirror the

13   circumstances of Clark’s trial, as well as the procedural

14   context:      Almost two decades after her conviction, Torres

15   brought a federal habeas petition claiming that the trial

16   court violated her Sixth Amendment rights by failing to

17   revoke her pro se status (and appoint standby counsel) after

18   she refused to follow the court’s rules or appear at trial.

19   She argued that as a result of that failure, her conviction


          7
            The trial judge in Torres appointed amicus counsel to
     argue defendant’s side of a particular sentencing issue;
     that argument took place outside of the presence of the
     jury. Torres, 140 F.3d at 397-98. At no point was Torres
     represented by counsel in the presence of the jury, even
     after she retreated to her holding cell.
                                  37
1    was “entered pursuant to a non-adversarial proceeding,” in

2    violation of the Constitution.        Id. at 402.

3        We observed that, “[b]y not participating in her trial,

4    she was clearly trying not only to challenge the

5    jurisdiction of the court, but also to incur political

6    sympathy for her position.”     Id.     Accordingly, we concluded

7    that “Torres’ decision not to participate in the proceedings

8    did not undermine her knowing and intelligent waiver.

9    Indeed, it is clear that she exercised her right to defend

10   herself so that she could further her political objectives

11   as a Puerto Rican freedom fighter.”        Id.

12       Torres emphasized “that the Sixth Amendment right to

13   waive counsel, like all procedural protections for a

14   criminal defendant, stems in part from the sanctity of

15   freedom of choice.”   Id.    Thus, “[j]ust as district courts

16   should not compel a defendant to accept a lawyer she does

17   not want, they should not interfere with the defendant’s

18   chosen method of defense.”     Id.     (internal citations and

19   quotation marks omitted).

20       Clark does not allege that her waiver of counsel was

21   anything less than knowing, intelligent, and unequivocal.

22   Rather, like Torres, she complains that the trial judge

23   violated her Sixth Amendment rights when he allowed her to
                                     38
1    appear pro se--without invalidating or qualifying her waiver

2    of the right to counsel--after she had given ample notice of

3    her intention to use a “disruptive, political defense,”

4    including an unwillingness to be present at trial.    Appellee

5    Br. at 5.

6        At oral argument, Clark’s counsel conceded that Clark

7    “adopt[ed] a conscious strategy to use [her] trial to

8    further [her] political objectives and to challenge the

9    jurisdiction of the court and win political sympathy.”     Oral

10   Arg. Tr., February 26, 2007.    The record confirms that

11   Clark’s trial was intensely adversarial.    Clark introduced

12   herself to the jury as “an anti-imperialist freedom fighter”

13   who refused to “recognize the legitimacy of this Court.”

14   She then left the courtroom in protest.    She petitioned the

15   court for prisoner-of-war status.    She moved (successfully)

16   for the government to produce an incarcerated witness whom

17   she identified as a “New Afrikan prisoner of war,” and

18   conducted direct examination--albeit brief--of that witness.

19    Clark’s lengthy closing statement explained to the jurors

20   that she was “struggling to bring to light a radically

21   different p[er]spective on the facts and fictions” presented

22   at trial.   While noting that “[p]erhaps it will not change
                                    39
1    your minds,” Clark said that “[o]ne way that it was apparent

2    was by our absence because we did not want to lend credence

3    to this ritual.”     Thus Clark openly conceded that her

4    absence was a tactic to influence the jury in her favor.

5        In conclusion, we hold that Clark’s Sixth Amendment

6    claims fail on the merits.     She complains that the judge

7    conducted the trial in a manner that violated her

8    constitutional rights.     It was, however, her choice to

9    conduct her trial in that manner, and she made the choice in

10   part to achieve what she perceived as tactical advantages,

11   rejecting the trial judge’s warnings of the risks involved.

12   If she faced trial without advantages guaranteed by the

13   Sixth Amendment, that was not by the trial judge’s

14   imposition, but by her own informed choice, which the trial

15   judge was bound to respect.     Her claim of violation of her

16   constitutional rights has no merit whatsoever.

17

18                                 CONCLUSION

19       For the foregoing reasons, the judgment of the district

20   court is REVERSED.

21




                                     40
