10-3997-pr
Jones v. Murphy



                             UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT


                                          August Term, 2011

                       (Argued: June 21, 2012       Decided: August 29, 2012 )

                                        Docket No. 10-3997-pr


                                           JERMAINE JONES,

                                                                      Petitioner-Appellant,

                                               — v. —

                                      PETER MURPHY, Warden,

                                                                      Respondent-Appellee.*


B e f o r e:

                             POOLER, RAGGI, and LYNCH, Circuit Judges.

                                        __________________

          Petitioner Jermaine Jones, a state prisoner, appeals the district court’s denial of a

writ of habeas corpus with respect to his 2004 Connecticut murder conviction. Jones

argues that the state trial court’s decision to exclude him from the courtroom violated his

federal constitutional right to be present at his trial and that police interrogation violated

his Miranda rights. Neither argument can surmount the high barriers to the grant of


          *
              The Clerk of Court is respectfully requested to amend the caption as set forth above.
habeas relief, and we therefore affirm the district court’s denial of the writ.

       AFFIRMED.

       Judge POOLER dissents in part in a separate opinion.



              RANDOLPH Z. VOLKELL, Merrick, New York, for Petitioner-Appellant.

              MARJORIE ALLEN DAUSTER, Senior Assistant State’s Attorney, Rocky Hill,
                   Connecticut, for Respondent-Appellee.



GERARD E. LYNCH, Circuit Judge:

       Petitioner-appellant Jermaine Jones was convicted of murder by a Connecticut jury

in 2004. The Connecticut Supreme Court affirmed his conviction by opinion in 2007. In

2010, Jones filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the

United States District Court for the District of Connecticut. That court (Janet C. Hall,

Judge) denied the petition, and this Court granted a certificate of appealability as to some

of his claims. Jones argues that the state trial court’s decision to exclude him from the

courtroom violated his federal constitutional right to be present at his trial, and that police

interrogation shortly after the murder violated his Miranda rights.

       We find that any error in initially excluding Jones was harmless because he did not

miss any critical stage of the trial as a result of that exclusion. Furthermore, because the

subsequent decision to continue Jones’s exclusion was attributable to his own violent

conduct, the Connecticut Supreme Court reasonably applied United States Supreme Court


                                               2
precedent in upholding the trial court’s decision. Jones’s two claims of improper police

procedure in his interrogation are also meritless. One claim misapprehends Supreme

Court precedent; the other was never raised in state court and is thus unavailable for

review in federal court. We therefore affirm the denial of the writ.

                                    BACKGROUND

I.     The Crime

       The facts of the underlying crime are essentially undisputed. A more detailed

recitation is available in the Connecticut Supreme Court’s opinion. See State v. Jones,

916 A.2d 17, 21-22 (Conn. 2007).

       In June 2001, Jones lived with his then girlfriend, Erica Minnifield, in Hartford,

Connecticut. On June 22, 2001, Jones and Minnifield traveled to Waterbury to visit

friends and family. Minnifield, without Jones, then went to a shopping mall with Thomas

Williams, the victim, and purchased clothing. Later that evening, Jones saw Minnifield

wearing new clothing and suspected that another man had purchased it for her. While

being driven back to Hartford together later that night by a friend, Jones confronted

Minnifield about the new clothing. During the confrontation, Jones threatened Minnifield

with a knife and cut her on the arm. When the couple arrived at home, Minnifield ran

into a neighbor’s yard, but Jones found her and dragged her back into the house. He then

cut her pants from her body using the same knife. Minnifield fled the next morning.

       Later that day, Jones saw Minnifield driving with Williams and became enraged.

Jones went with a friend to look for Williams. When they found him, Jones approached

                                             3
Williams and cocked a handgun hidden in his jacket. Jones then asked Williams, “[Y]o,

you gonna stop fucking around with my girl?” Williams laughed and asked Jones what

he meant. Jones told him that he would kill Williams if he saw him again with

Minnifield. Jones then removed the handgun from his jacket and shot Williams four

times. Williams died shortly thereafter.

II.    Police Investigation and Jones’s Confession

       Jones was arrested at his home on June 27, 2001, between 9:00 and 10:00 a.m.

Scott Stevenson, a detective with the Waterbury Police Department, executed the arrest

warrant and, after searching the home, brought Jones back to the police station, where he

was to be interviewed by detectives assigned to the case, between noon and 1:00 p.m.

Because those detectives were not available, Stevenson was assigned to guard Jones in

the interview room, the door of which did not lock. Stevenson was not instructed to

interview Jones or ask him any questions.

       Because it was lunchtime, Stevenson ordered food for himself and Jones, and the

two men had a long conversation on various topics unrelated to the arrest. Eventually,

Jones, unprompted, said that he hadn’t killed anyone. Stevenson ignored the statement,

but shortly thereafter, Jones said, “I know you guys think it’s about the girl.” According

to the Connecticut Supreme Court, “Stevenson then asked the defendant if he had known

the victim. The defendant responded by placing his head in his hands and stating, ‘He did

not deserve to have happen what I did to him.’” State v. Jones, 916 A.2d at 40

(alterations omitted).

                                             4
       Following that statement, Stevenson left the room to ask how to proceed; he was

instructed to deliver Miranda warnings and then seek a confession. Stevenson advised

Jones of his rights, and Jones then provided an oral confession. After signing an

acknowledgment that he knew his rights, Jones signed a written confession as well. Jones

also helped the police to find the murder weapon by telling police to speak to his brother,

who knew the weapon’s whereabouts. When his brother was initially unwilling to aid

police, Jones spoke to him on the phone, after which his brother led police to the weapon.

III.   Pretrial Proceedings and Trial

       On January 27, 2004, the trial court held a hearing on Jones’s motion to suppress

his confession. The court also heard arguments about whether and to what extent the

prosecution would be permitted to discuss Jones’s threats to Minnifield and Minnifield’s

knife injuries. The parties agreed, and the court ruled, that Minnifield’s “injuries [could]

be noted,” since they were relevant to understanding the sequence of events, but that the

knife should not be mentioned as the source, as Jones was not charged with assaulting

Minnifield.

       On January 30, the court denied the motion to suppress the confession. Jones

attempted personally to dispute the court’s ruling, but the court told Jones that he could

appeal the ruling later. On the way back to jail that evening, Jones, angry at the ruling,

punched his hand through a Plexiglas window. The trial court learned of this incident

during pretrial proceedings on February 2, 2004, the first day of trial.



                                              5
       The prosecution called Minnifield as one of its first few witnesses on February 2.

During the course of Minnifield’s testimony, the assistant state’s attorney asked

Minnifield several questions that went beyond the scope of the court’s order concerning

Jones’s possession and use of the knife. Defense counsel did not object. During a recess,

the court admonished the assistant state’s attorney. Defense counsel explained that he

had not objected at the time because he did not want to draw the jury’s attention to the

testimony, but he requested a cautionary instruction. The court agreed that such an

instruction was the proper remedy and subsequently delivered it.

       At the beginning of proceedings on February 3, before the jury entered the

courtroom, defense counsel alerted the court that Jones would like to seek a mistrial on

the basis of Minnifield’s testimony. Defense counsel then informed the court that

although counsel was satisfied that the court had adequately resolved the issue, Jones was

not, and “as a result of what [Jones] considered to be [] the prejudicial impact of []

Minnifield’s testimony,” Jones “would choose personally at this point not to go further

with the proceedings.”

       To the extent there was any ambiguity about the meaning of counsel’s statement,

Jones himself made clear that he wanted leave the courtroom. Jones addressed the court

himself, stating that in light of the court’s rulings, “I don’t even want to be here then.” A

colloquy ensued between the court and Jones. The court warned Jones that “[t]he case is

going to proceed, you know, without you” and that Jones was “going to be prejudiced by



                                              6
this.” The court also repeatedly asked if Jones understood what he was doing. The

colloquy culminated in the following exchange:

              THE COURT: Mr. Jones, you understand that you’re going to
              be prejudicing yourself by leaving today; you understand that?
              Do you understand that?
              THE DEFENDANT: Well, I want to – I’m going to put a
              motion in to dismiss counsel, then.
              THE COURT: No, it’s –
              THE DEFENDANT: For the record.
              THE COURT: No, Mr. Jones, we’re proceeding –
              THE DEFENDANT: And I’ll take my case myself.
              THE COURT: – we are proceeding –
              THE DEFENDANT: I’ll take my case myself, Your Honor.
              THE COURT: – that’s denied, Mr. Jones.
              THE DEFENDANT: I have a right, Your Honor. That’s my
              Constitutional right.
              THE COURT: All right.
              THE DEFENDANT: You’re laughing, but I’m serious.
              THE COURT: Marshals, remove Mr. Jones.
              A MARSHAL: Let’s go, Mr. Jones.
              THE DEFENDANT: I’m not going nowhere, man.
              A MARSHAL: Come on.
              THE DEFENDANT: No, I’m not going nowhere.

A “scuffle ensued” in the courtroom. With order restored, the trial court stated that “Mr.

Jones had to be physically restrained by a number of marshals. I guess to say Mr. Jones is

a violent man is understating the obvious.” The court ordered a three-hour recess for

Jones to calm down and consult with defense counsel.

       After the recess, and after a further discussion with counsel, the court excused the

jury for the remainder of the day. The court also had a discussion with the chief marshal,

Anthony Candido, about Jones’s behavior. Candido informed the court that after he was

                                             7
removed, Jones had made threatening comments that he would “continue to fight” and

would “bring you people down” and had refused to place his hands behind his back.

Candido also noted that one marshal had to be sent to the hospital as a result of injuries

sustained in attempting to restrain Jones. Candido recommended that Jones be kept in full

restraints if he returned.

       The court stated:

               I’m very concerned, having observed . . . the defendant over the
               course of jury selection, especially after ruling on his motions,
               his reaction thereto, and it just appears every time the defendant
               gets an adverse ruling, he reacts and reacts violently at times,
               including breaking his hand after . . . what he viewed as losing
               on the motion to suppress.

The court also stated that it was “not at all sure that this trial could proceed in an orderly

fashion with Mr. Jones in the courtroom,” and that it was “concerned, as is Marshal

Candido, about the safety of people in the courtroom. That includes the prosecutors, the

other court personnel, the jury and his own counsel.” The court concluded that Jones had

“forfeited his right to . . . be in the courtroom by his engaging in this disruptive and

volatile, disorderly, disrespectful conduct.” Furthermore, the court was

               not optimistic that, despite what he says or may say down the
               road – and I haven’t heard anything yet – but even if he were to
               promise to try to behave, based on having observed him over the
               course of the last two weeks or so, I am very concerned for the
               court personnel, who will be closer to him than I[,] for their
               safety because he just does not control himself and does not
               appear to want to control himself, more importantly.




                                               8
       The court then engaged counsel in a discussion of how to proceed. Defense

counsel stated that Jones no longer wished even to be brought to the courthouse but

suggested that Jones be given the option each day of coming to the courthouse or

remaining at the jail. The court adopted this suggestion and noted that a holding cell

adjacent to the courtroom was equipped with a monitor and speaker system which would

permit Jones to monitor the trial. The court also said, however, that it wouldn’t “force

him” to attend if he “does not want to come to court.” The court again expressed concern

about the “personal safety of court personnel, attorneys, and correctional personnel,” and

that “based on everything the Court has observed and stated today and heard today,” it

would “not [] bring [Jones] into the courtroom unless he is highly restrained.” The court

noted, however, that it would leave the decision to defense counsel and Jones and that it

would “listen to any other requests.”

       On the morning of February 4, defense counsel told the trial court that Jones had

come to court and wished to be present in the courtroom, though he had not agreed to

wear full restraints. The trial court then asked the advice of the deputy chief marshal,

Gino DiMauro, about whether it would be safe to permit Jones back in the courtroom.

DiMauro initially indicated that he felt the marshals would be able to “handle” Jones, but

he left to speak to Jones and assess the situation. During DiMauro’s absence, the court

expressed further concern about the safety of courtroom personnel and Jones’s ability to

keep himself under control. The court also suggested that having Jones absent might be

less prejudicial than having the jury see him in full restraints.

                                               9
       When DiMauro returned, he reported to the court that Jones was being “somewhat

confrontational” toward the marshals, and that in his “better judgment” he “[could not]

say that the defendant should be present in court during the proceedings.” DiMauro also

said that he could not guarantee that another outburst would not occur, and that he did not

“believe that Mr. Jones should be in these proceedings while they’re going on for the

safety of everybody involved.” In discussion with the court, the marshal confirmed that

Jones was agitated and was “still talking about yesterday.” In light of the earlier events

and DiMauro’s assessment, the court then reconsidered its ruling and found that Jones

had “by his disruptive behavior, waived any right to be present during the proceedings.”

The court reiterated its concerns that bringing Jones back would be unsafe and disruptive.

       After consulting Jones about his options, defense counsel informed the court that

Jones wanted a new attorney and that Jones wished to be returned to the jail rather than sit

in the holding cell. The court stated that it saw “no reason to force Mr. Jones to listen to

the proceedings” and that Jones had rejected “the most viable option,” which was “to

have Mr. Jones be able to listen to the proceedings, participate to a limited extent.” The

court also noted that after his removal the previous day, Jones could be heard in the

courtroom “kicking or pounding walls,” so that “it might be better” for him not to be

present. But the court stated again that “we’ll treat the future proceedings on a day-by-

day basis.” The record is unclear as to whether Jones returned to the holding cell or chose

to remain at the jail for the remainder of the trial. At any rate, his counsel never again

raised the question of his return to the courtroom, nor did the judge, and Jones did not

                                             10
return to the courtroom until his sentencing. See State v. Jones, 916 A.2d at 30-31. He

was sentenced to sixty-five years in prison.

III.   Subsequent Procedural History

       Jones appealed his conviction to the Connecticut Supreme Court and argued that

the trial court had erred in initially excluding him and then in keeping him out of the

courtroom, that he was improperly denied his right to proceed pro se, and that the trial

court had erred in rejecting his argument that his confession had been obtained illegally.

The Connecticut Supreme Court rejected these arguments and affirmed his conviction,

State v. Jones, 916 A.2d 17 (Conn. 2007), and the United States Supreme Court denied

certiorari, Jones v. Connecticut, 552 U.S. 868 (2007). Jones then sought state habeas

relief, claiming that he had been denied effective assistance of counsel. Following an

evidentiary hearing, the state court denied the writ. Jones v. Comm’r of Corr., No.

CV044001435, 2007 WL 1976664 (Conn. Super. Ct. June 15, 2007). The state Appellate

Court summarily dismissed his appeal from that denial, Jones v. Comm’r of Corr., 971

A.2d 97 (Conn. App. Ct. 2009), and the state high court denied a petition for certification

to appeal, Jones v. Comm’r of Corr., 978 A.2d 1109 (Conn. 2009).

       Jones, proceeding pro se, then sought federal habeas corpus review before the

United States District Court for the District of Connecticut, arguing that his constitutional

rights were violated by his absence from the trial, the admission of his confession, and the

denial of his request to proceed pro se. The district court denied the petition and denied a

certificate of appealability. Jones v. Murphy, No. 3:10-CV-49(JCH), 2010 WL 3829129

                                               11
(D. Conn. Sept. 21, 2010). A panel of this Court, however, granted a certificate of

appealability on July 13, 2011, as to four issues:

              (1) whether, before removing the Appellant from the courtroom,
              the trial court should have warned the Appellant that he would
              be removed if he continued his disruptive behavior; (2) whether
              the Appellant “reclaimed” his right to be present at trial. See
              Illinois v. Allen, 397 U.S. 337, 343 (1970); (3) whether the
              Appellant was interrogated within the meaning of Rhode Island
              v. Innis, 446 U.S. 291 (1980) and, (4) if so, whether his
              subsequent, post-Miranda statements are admissible consistent
              with Oregon v. Elstad, 470 U.S. 298 (1985), and Missouri v.
              Seibert, 542 U.S. 600 (2004)?

                                       DISCUSSION

I.     Standard of Review

       Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. No. 104-132, 110 Stat. 1214 (1996), a state prisoner may seek federal collateral

review of a state court conviction “only on the ground that he is in custody in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

       AEDPA “imposes a highly deferential standard for evaluating state-court rulings

and demands that state-court decisions be given the benefit of the doubt.” Hardy v.

Cross, 132 S. Ct. 490, 491 (2011) (per curiam) (internal quotation marks omitted). When

a petitioner “in custody pursuant to the judgment of a State court” advances “any claim

that was adjudicated on the merits in State court proceedings” as a basis for federal

habeas relief, a federal court may grant relief only if the “adjudication of the claim . . .

resulted in a decision that was contrary to, or involved an unreasonable application of,


                                              12
clearly established Federal law, as determined by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d), (d)(1), or “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,” id. § 2254(d)(2). As we have stated, under § 2254(d)(1),

              for a state court decision to be “contrary to,” or an
              “unreasonable application of,” that Supreme Court precedent,
              the decision must: (1) “arrive[ ] at a conclusion opposite to that
              reached by [the Supreme Court] on a question of law”; (2)
              “decide[ ] a case differently than [the Supreme Court] on a set
              of materially indistinguishable facts”; or (3) “identif[y] the
              correct governing legal principle . . . but unreasonably appl[y]
              that principle to the facts of the prisoner’s case.”

Portalatin v. Graham, 624 F.3d 69, 79 (2d Cir. 2010) (alterations in original), quoting

Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (opinion for the Court by O’Connor, J.).

       However, “[w]e apply AEDPA deference only if the state court has disposed of a

claim on the merits.” Watson v. Greene, 640 F.3d 501, 508 n.7 (2d Cir. 2011) (internal

quotation marks omitted); see also, e.g., Cone v. Bell, 556 U.S. 449, 472 (2009);

Rompilla v. Beard, 545 U.S. 374, 390 (2005).

II.    Exclusion Claims

       Jones argues that both his initial exclusion from the courtroom and the trial court’s

subsequent refusal to allow him to return to the courtroom violated clearly established

Supreme Court precedent under Illinois v. Allen, 397 U.S. 337 (1970). The Connecticut

Supreme Court adjudicated these questions on the merits. See State v. Jones, 916 A.2d at

32-34 (initial exclusion); id. at 34-37 (subsequent exclusion). Thus, our first task is


                                             13
determining whether either of the state court’s rulings “was contrary to, or involved an

unreasonable application of,” Allen or other “clearly established Federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or

whether either determination “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding,” id. § 2254(d)(2).

       A. Initial Exclusion

       The Connecticut Supreme Court held that the trial court’s initial order to exclude

Jones did not violate Allen because Jones had voluntarily consented to removal. See

State v. Jones, 916 A.2d at 32-34. We find that this holding rests on an “unreasonable

determination of the facts” within the meaning of § 2254(d)(2), but that any Allen error in

excluding Jones was nonetheless harmless. This claim therefore provides no basis for

granting the writ.

       The Connecticut Supreme Court determined that the trial court had ordered Jones

removed because Jones had requested to leave, and not because he was disruptive. Id.

With respect, we find that this holding cannot reasonably be reconciled with the trial

transcript.1

       On the morning of February 3, before the jury arrived, Jones’s counsel indicated

that Jones disputed the court’s ruling of the previous day regarding Minnifield’s

       1
         The trial transcript is the same evidence upon which the state supreme court relied.
See 28 U.S.C. § 2254(d)(2) (providing that a writ “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 . . . 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” (emphasis added)).

                                             14
testimony. After the court declined to reconsider the ruling and Jones had a chance to

consult with his counsel, counsel stated:

              Mr. Jones is indicating to me, Your Honor – and I’ve tried to
              explain to him that as a result of what he considered to be this –
              the prejudicial impact of Miss Minnifield’s testimony that as a
              result of that he would choose personally at this point not to go
              further with the proceedings.

Counsel also indicated that he had told Jones that there was “no legal way to interrupt,

continue, stop the proceedings.” Jones interrupted, stating, “Your Honor, I – I don’t even

want to be here then.”

       The court then engaged Jones in a discussion about whether he actually wished to

remove himself from the courtroom. The court warned Jones that “[t]he case is going to

proceed, you know, without you,” that Jones was “going to be prejudiced by this,” and

repeatedly asked if Jones understood what he was doing. The colloquy, which spans

more than four transcript pages, culminated in the following exchange, which we quote

again in full due to its importance:

              THE COURT: Mr. Jones, you understand that you’re going
              to be prejudicing yourself by leaving today; you understand
              that? Do you understand that?
              THE DEFENDANT: Well, I want to – I’m going to put a
              motion in to dismiss counsel, then.
              THE COURT: No, it’s –
              THE DEFENDANT: For the record.
              THE COURT: No, Mr. Jones, we’re proceeding –
              THE DEFENDANT: And I’ll take my case myself.
              THE COURT: – we are proceeding –
              THE DEFENDANT: I’ll take my case myself, Your Honor.
              THE COURT: – that’s denied, Mr. Jones.
              THE DEFENDANT: I have a right, Your Honor. That’s my

                                             15
              Constitutional right.
              THE COURT: All right.
              THE DEFENDANT: You’re laughing, but I’m serious.
              THE COURT: Marshals, remove Mr. Jones.
              A MARSHAL: Let’s go, Mr. Jones.
              THE DEFENDANT: I’m not going nowhere, man.
              A MARSHAL: Come on.
              THE DEFENDANT: No, I’m not going nowhere.
              A MARSHAL: Let’s go.
              THE DEFENDANT: Don’t touch me.

       The transcript then breaks off as a “scuffle ensued” in the courtroom. After order

was restored, the trial court made a record that “Mr. Jones had to be physically restrained

by a number of marshals.”

       Reviewing the transcript, the Connecticut Supreme Court found that “it was not

the defendant’s conduct that precipitated his removal,” but rather that “the trial court

ordered the defendant’s removal because the defendant had requested that he be permitted

to leave the courtroom, which, although inadvisable, was the defendant’s right.” State v.

Jones, 916 A.2d at 32. The high court noted that Jones “never explicitly stated that he

had changed his mind about absenting himself from the courtroom,” and observed in a

footnote that “it does not appear that the trial court perceived the defendant’s request to

dismiss counsel and represent himself to be a sincere one.” Id. at 33 & n.17.

       Respectfully, we find the Connecticut Supreme Court’s finding of fact

unreasonable.2 When Jones asserted that he would like to leave, the trial court did not

       2
         The Connecticut Supreme Court characterized its holding on this point as a finding
of fact based on the transcript. See State v. Jones, 916 A.2d at 32 (“We reject this claim
because it is predicated on a faulty factual premise. The record reflects that the trial court
did not warn the defendant that he would be removed from the courtroom if he persisted in

                                             16
accede to that request. Rather, it engaged him in a discussion of the consequences of a

decision to absent himself from the trial. That was entirely proper, and indeed necessary,

since a waiver of the right to be present at trial, “as the waiver of any constitutional right

in a criminal proceeding, must be knowing and voluntary.” Polizzi v. United States, 926

F.2d 1311, 1319 (2d Cir. 1991); see also United States v. Tureseo, 566 F.3d 77, 88 (2d

Cir. 2009) (at least in federal cases, “[t]o establish waiver, the District Court must

conduct a record inquiry to determine whether the defendant’s absence was ‘knowing and

voluntary’”). A criminal defendant, who is not an expert in criminal procedure or

constitutional law, must generally be advised of the consequences of waiving his rights,

and be found by the court to have made a knowing and voluntary waiver, before being

permitted to waive such an important right as presence at trial. See, e.g., Johnson v.

Zerbst, 304 U.S. 458, 464 (1938) (“[C]ourts indulge every reasonable presumption

against waiver of fundamental constitutional rights and [] we do not presume

acquiescence in the loss of fundamental rights. A waiver is ordinarily an intentional

relinquishment or abandonment of a known right or privilege.”) (internal quotation marks

and citation omitted, emphasis added); cf. Brookhart v. Janis, 384 U.S. 1, 4 (1966) (citing

Zerbst and holding that a waiver of constitutional confrontation rights must be knowing




misbehaving for the simple reason that it was not the defendant’s conduct that precipitated
his removal.”).

                                              17
and voluntary); see also Schriro v. Landrigan, 550 U.S. 465, 484-87 (2007) (Stevens, J.,

dissenting) (collecting cases holding that waiver must be knowing and voluntary).3

       If the trial court had concluded its colloquy, and Jones had still wished to leave the

courtroom after understanding the consequences, the state supreme court’s reading of the

situation would be correct. But the transcript indicates that the colloquy instead caused

Jones to rethink his decision to leave the trial. Indeed, reconsideration was the intended

effect of the colloquy. The trial court was correct that leaving would have prejudiced

Jones by, for example, preventing him from participating in his own defense, and the

entire point of advising a defendant about the consequences of a waiver is to give him the

opportunity to decide whether, in light of those consequences, he persists in his desire to

waive. Once the warnings had their intended effect, Jones indicated he wanted to fire his

attorney and represent himself, a desire plainly inconsistent with waiving his presence in

court. At a minimum, the record does not indicate that Jones had made any final decision

to waive his right to be present at trial at the time the court ordered the marshals to

“remove Mr. Jones.”

       Although the Connecticut Supreme Court correctly noted that Jones “never

explicitly stated that he had changed his mind about absenting himself from the

courtroom,” State v. Jones, 916 A.2d at 33, that observation cannot reasonably support a


       3
         Indeed, even a constructive waiver of the right to be present through disruptive
behavior must in effect be knowing; in Allen, the Supreme Court held that a defendant must
ordinarily be “warned by the judge that he will be removed if he continues his disruptive
behavior” before he may be removed. 397 U.S. at 343.

                                              18
finding that Jones’s departure was voluntary. Indeed, to require the defendant expressly

to revoke his earlier request, at least on the facts presented here, puts the burden in the

wrong place. For Jones’s attempted waiver to be valid, the trial court was required to

make sure that he understood the consequences of his decision, and that his waiver was

knowing and intelligent. Polizzi, 926 F.2d at 1319; Zerbst, 304 U.S. at 464. The trial

court clearly understood this obligation, and proceeded to ask Jones whether he did

indeed understand what he was doing. Since there is no indication that Jones’s initial

request was knowing and intelligent, a voluntary waiver could not be sustained unless

Jones reiterated his request after he was properly advised by the court. He never made

such a request.

       To the contrary, Jones’s words and actions made clear that he did not wish to leave

the courtroom. Jones’s comment about proceeding pro se, whether or not it was a

“serious” request that could not be summarily denied without further inquiry, see Faretta

v. California, 422 U.S. 806 (1975), at a minimum indicated that Jones had rethought his

decision to leave the courtroom. And certainly, the circumstances surrounding his exit do

not show a man voluntarily departing. The immediate cause of his exit was the trial

court’s order to the marshals, the execution of which Jones violently resisted. We

therefore hold that the state supreme court’s decision was based on an unreasonable

determination of the facts.4

       4
         The Supreme Court has not yet clarified the precise relationship between
§ 2254(d)(2), which provides that relief is only available if the state court decision “was
based on an unreasonable determination of the facts in light of the evidence presented in the

                                              19
       That Jones did not expressly waive his right to be present, however, does not

dispose of the case. In addition to express waiver, a defendant may constructively waive

his rights to be present at trial by disruptive behavior. Allen, 397 U.S. at 343. But the

record here presents difficulties in assessing any contention that Jones was properly

removed on that basis. The transcript shows a defendant who insisted on speaking

personally with the court despite being represented by counsel and who persisted in

arguing with the court about its rulings – behavior that, while contentious and improper,

would not in itself warrant the extreme response of involuntary exclusion. Nevertheless,

caution is appropriate in assessing the trial judge’s response to the interaction. Absent

specific record findings by the judge about what occurred in the courtroom, a cold

transcript provides no insight into tone of voice, body language, or possible overtly

threatening behavior that might cast mere spoken words in a different light. The actual

situation facing a judge in the real world is not limited to the words that a court reporter

can transcribe. Cf. Harris v. Kuhlmann, 346 F.3d 330, 354 (2d Cir. 2003). In any event,



State court proceeding,” and § 2254(e)(1), which provides that “a determination of a factual
issue made by a State court shall be presumed to be correct.” See Wood v. Allen, 130 S. Ct.
841, 848-49 (2010) (declining to reach the question). Our Circuit has also not yet decided
the question. See Green v. Travis, 414 F.3d 288, 298 n.6 (2d Cir. 2005), citing Channer v.
Brooks, 320 F.3d 188, 194 (2d Cir. 2003).
       We assume, without deciding, that § 2254(d)(2)’s unreasonableness standard is the
proper one for review of this claim. We may so assume because even if “presumed to be
correct” consistent with § 2254(e)(1), the state court’s conclusion cannot be supported by the
transcript, which we find to be “clear and convincing evidence,” 28 U.S.C. § 2254(e)(1),
contrary to the state court’s conclusion. Moreover, as we also hold, any error is harmless.
Thus, the standard under which the state court’s findings are reviewed does not decide this
case.

                                              20
Jones’s violent resistance to the court’s removal order also supported a decision to

continue the exclusion at least until he could comport himself appropriately, which

purpose is implicit in the trial judge’s decision to declare a three-hour recess.

       It is not necessary, however, for us to decide whether AEDPA deference applies to

our review of the trial court’s decision to exclude Jones5 or whether the exclusion was

proper, because any error in the initial decision to remove Jones from the courtroom was

harmless.6 See Lucky, 569 F.3d at 108 (stating that harmless error applies to erroneous

       5
          It is not clear that the trial court’s decision would receive heightened AEDPA
deference, since it was not the final state adjudication of the exclusion claim on the merits.
See Stenhouse v. Hobbs, 631 F.3d 888, 894-95 (8th Cir. 2011) (“Our court has not directly
addressed whether, if the reasoning of the state appellate court cannot pass muster under
AEDPA, the rationale of the state trial court also merits deference under § 2254(d).”), cert.
denied, 132 S. Ct. 308 (2011) . The usual rule, as stated by the Ninth Circuit, is that “[w]hen
more than one state court has adjudicated a claim, we analyze the last reasoned decision,”
Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005), and also defer only to that last
reasoned decision, see id. at 1092-93 (declining to consider an intermediate state appellate
court’s decision). See also Brian R. Means, Postconviction Remedies § 29:4 (2011); cf.
Greene v. Fisher, 132 S. Ct. 38, 44-45 (2011) (for retroactivity purposes, relevant state
decision is the ultimate merits determination by a state court). We have previously discussed
and deferred to both a state trial court’s initial decision and an appellate court’s affirmance
thereof, see McKinney v. Artuz, 326 F.3d 87, 89, 100-01 (2d Cir. 2003), but that was in a
case where, under the Ninth Circuit’s taxonomy, “the last reasoned decision adopted or
substantially incorporated the reasoning from a previous decision and, as a result, it was
reasonable for the reviewing court to look at both decisions to fully ascertain the reasoning
of the last decision,” Barker, 423 F.3d at 1093. Nonetheless, because of our harmless error
determination, we do not decide this question today. We note, however, that even on direct
review, “a district court’s determination of whether the defendant waived his right to be
present at a particular stage of trial is reviewed for abuse of discretion.” Tureseo, 566 F.3d
at 83. Thus, even without AEDPA deference, we would review the trial court’s decision here
under a deferential standard.
       6
         Our finding of harmless error obviates the need to decide the first question in the
certificate of appealability, i.e., whether Jones should have been warned before he was
excluded.

                                              21
exclusion from the courtroom); cf. Spears v. Greiner, 459 F.3d 200, 204 (2d Cir. 2006)

(declining to decide whether to apply AEDPA deference because claim failed even

without deference).

       Under the Sixth Amendment’s Confrontation Clause, a defendant has the right to

be present at trial to confront the witnesses against him. See, e.g., Faretta, 422 U.S. at

816; Allen, 397 U.S. at 338. This right extends as a matter of due process to “critical

stages” of the trial beyond the presentation of evidence when the defendant’s “presence

has a relation, reasonably substantial, to the fulness of his opportunity to defend against

the charge.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (internal quotation marks

omitted); accord Tureseo, 566 F.3d 77 at 83.

       No further trial proceedings occurred on February 3 after Jones was excluded.

Immediately after the exclusion, the trial court ordered a three-hour recess to permit Jones

to cool off and discuss his situation with defense counsel. After a colloquy with both the

prosecution and the defense about how to proceed in light of Jones’s behavior, the trial

court decided to dismiss the jury for the rest of the day and resume proceedings on the

following day. The minimal proceedings conducted in Jones’s absence on February 3 did

not bear on Jones’s “opportunity to defend against the charge,” Stincer, 482 U.S. at 745,

but only on the entirely collateral issue of how the court should deal with Jones’s own

dangerous and disruptive behavior. This was not a critical stage of the trial: the jury did

not hear evidence, no motions were argued, jurors were not selected. Any argument that

Jones had a right to be present during the discussion of the consequences of his own

                                             22
violent and disruptive behavior would be circular, and would imply that a court could

never exclude a defendant under Allen.

       In sum, Jones’s exclusion for the remainder of February 3 was not an exclusion

from a critical stage and did not prejudice Jones. Jones’s initial exclusion thus provides

no basis for federal habeas corpus relief.

       B. Subsequent Exclusion

       Jones was also absent from the courtroom on February 4. We must therefore

decide whether this continued exclusion was proper, particularly in light of any efforts by

Jones to reclaim his right to be present.7 The Connecticut Supreme Court held that even

if Jones did attempt to return to the courtroom, the trial court’s subsequent exclusion of

Jones on February 4 was not an abuse of its discretion under Allen.

       We hold that the high court’s conclusion did not represent an unreasonable

application of Allen. Even if the trial court erroneously removed Jones on February 3,

Jones’s own violent and disruptive actions thereafter prevented him from returning on

February 4. Cf. Norde v. Keane, 294 F.3d 401, 413 (2d Cir. 2002) (“The fact that [the

§ 2254 petitioner’s] conduct may have been based on what he believed to be a compelling

reason . . . does not excuse his misconduct. Allen makes clear that a defendant does not

have the right to disrupt the trial proceedings.”).

       Although Allen permits a court to find that a defendant has constructively waived

his right to be present at his own trial, the Supreme Court also expressly made clear that

       7
           This is the second question referred to in the certificate of appealability.

                                                23
“[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.” 397 U.S. at 343. Thus, Jones is correct that

once the trial court excluded Jones on February 3, it was required to permit him to return

– but only if Jones satisfactorily demonstrated that he would not be violent or disruptive.

The record shows not only that Jones failed to do so, but also that he engaged in further

violent behavior that independently supported his exclusion from the courtroom, without

regard to whether the initial removal was proper.

       On the morning of February 4, the court specifically cited Allen and noted that it

believed it was permissible to exclude Jones based on his intervening misconduct. But as

the Connecticut Supreme Court noted, the trial court was initially ready to permit Jones’s

return on the morning of February 4. See State v. Jones, 916 A.2d at 35.

       However, after assessing Jones in person, a marshal reported to the court that

Jones was being “somewhat confrontational toward” the marshals, and that in his “better

judgment” the marshal “[could not] say that the defendant should be present in court

during the proceedings.” The marshal also said that he could not “guarantee that a

possible outburst won’t happen again” and that he did not “believe that Mr. Jones should

be in these proceedings while they’re going on for the safety of everybody involved.” In

discussion with the court, the marshal confirmed that Jones was agitated and was “still

talking about yesterday.” In light of the earlier events and the marshal’s assessment, the

court then “reconsider[ed]” its ruling and found that Jones, “by his disruptive behavior,

                                             24
[had] waived any right to be present during the proceedings.” The court reiterated its

concerns that bringing Jones back would be unsafe and disruptive.

       The Connecticut Supreme Court found that the trial court did not abuse its

discretion in excluding Jones, and we cannot find that conclusion unreasonable.8 Initially,

we are mindful of the Supreme Court’s guidance that “evaluating whether a rule

application was unreasonable [under AEDPA] requires considering the rule’s specificity,”

and that “[t]he more general the rule, the more leeway courts have in reaching outcomes

in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

Although the right to be present at one’s own trial is a right of paramount importance,

appellate courts – let alone courts considering a case on collateral review many years later

– lack the direct perception of the situation that informs the trial court’s judgment. This

distance from courtroom realities explains why we review decisions to exclude a

defendant for abuse of discretion. When that fact-specific standard of review is viewed

through the additionally “deferential lens of § 2254(d),” Knowles v. Mirzayance, 556

U.S. 111, 121 n.2 (2009), the bar to relief is a high one. See Renico v. Lett, 130 S. Ct.



       8
        The Connecticut Supreme Court’s decision is the “last reasoned decision,” Barker,
423 F.3d at 1091, on the question of Jones’s subsequent exclusion, and we therefore review
whether the high court’s affirmance of the trial court was unreasonable. Of course, the
Connecticut Supreme Court’s ruling necessarily depended in large part on facts found and
judgments made in the first instance by the trial court. Thus, the instant case presents a
scenario in which “the last reasoned decision adopted or substantially incorporated the
reasoning from a previous decision and, as a result, it [is] reasonable for the reviewing court
to look at both decisions to fully ascertain the reasoning of the last decision,” id. at 1093,
even while we formally review only the final determination. See note 5, supra.

                                              25
1855, 1865 (2010) (noting the “dual layers of deference required by AEDPA” and an

underlying standard asking “whether the [trial] judge exercised sound discretion”).

       Applying that deferential standard to this case, we conclude that the state high

court reasonably determined that the trial court had a valid basis to exclude Jones on

February 4, even if he wished to return. The Connecticut Supreme Court offered three

reasonable considerations to support its conclusion. See State v. Jones, 916 A.2d at 35-

36. First, and most importantly, it noted that Jones had reacted with serious physical

violence to the court’s previous exclusion order on February 3. Id. at 35. In addition to

its personal observations of Jones’s violence on the previous day, the trial court was also

aware that after a previous adverse pretrial ruling, Jones had punched his hand through a

Plexiglas window. Though Jones had been placed in restraints on February 4, we do not

think the trial court’s concern for the safety of the lawyers, jurors, and witnesses was

misguided. Second, the Connecticut Supreme Court noted that Jones had demonstrated

no ability to control his temper and seemed unwilling to comply with court rulings or

orders from the marshals. Id. at 35-36. This conclusion was supported by the marshal’s

observation that Jones remained agitated and “confrontational,” and by the marshal’s

concern that he could not guarantee the safety of courtroom personnel. Third, the

Connecticut Supreme Court noted that the alternative – permitting Jones in the courtroom

only in full-body restraints – presented its own difficulties. Id. at 36. As the Allen Court

held, the “sight of shackles and gags might have a significant effect on the jury’s feelings

about the defendant.” 397 U.S. at 344. Moreover, contrary to Jones’s argument in our

                                             26
Court, it was not clear that Jones had consented to being shackled; his attorney had

reported to the court that Jones ignored the “issue of restraints” in his discussions with

counsel that morning.

       We conclude that the Connecticut high court’s decision was reasonable under

§ 2254(d). The trial court was faced with a violent and unpredictable defendant. Putting

aside the evidence that he had violently assaulted Minnifield and shot Williams to death,

Jones had reacted violently (albeit outside the courtroom) to one adverse ruling, and had

in the court’s presence violently resisted the removal order, requiring numerous marshals

to restrain him, at least one of whom was injured in the fray. He then continued his

obstreperous behavior once removed, threatening the marshals and “kicking or pounding

[the] walls.”

       Jones manifestly waived his right to be present based on the extraordinary violence

he had displayed during the preceding removal. Even if the court had erred in ordering

that Jones be removed from the courtroom, Jones’s proper recourse was to comply with

the order and seek his return through legal argument, not to offer violent resistance. Cf.

Norde, 294 F.3d at 413 (“The fact that [the § 2254 petitioner’s] conduct may have been

based on what he believed to be a compelling reason . . . does not excuse his

misconduct.”). All of the behavior related above was either known to, or had been

personally observed by, the trial judge. Moreover, the court was entitled to rely on the

marshal’s assessment that, whatever Jones might say, he remained volatile and

confrontational, and continued to present a danger to persons in the courtroom. On this

                                             27
record, we cannot say that the Connecticut Supreme Court unreasonably applied Allen in

affirming the trial court.9

       The case on which Jones principally relies, United States v. Ward, 598 F.3d 1054

(8th Cir. 2010), is not to the contrary. During pretrial proceedings in that case, the

defendant expressed a wish to speak for himself and speak with his lawyer aloud, rather

than communicate with the court through counsel and with counsel through written notes,

as the court had asked him to do. Id. at 1057. The court ordered him involuntarily

removed. Id. He was then excluded for the rest of his trial because defense counsel could

not guarantee to the court that the defendant would remain quiet. Id. The Eighth Circuit

vacated the conviction and remanded for a new trial, finding problematic both the

defendant’s initial exclusion and the trial court’s reliance on the representations of

       9
          In her thoughtful dissent, Judge Pooler argues that the Supreme Court’s statement
in Allen that a disruptive defendant can be removed from the courtroom if he continues to
misbehave after being warned creates an absolute requirement of a warning. As she
acknowledges, however, this Court has already held that it does not. Norde, 294 F.3d at 413;
Gilchrist v. O’Keefe, 260 F3.d 87, 97 (2d Cir. 2001). We respectfully disagree with her
contention that these cases do not bind us in habeas. First, these cases were themselves
habeas cases. Second, the habeas statute provides that the writ may only be granted when
the state court’s decision “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1). It most certainly does not say that Circuit precedent is irrelevant in
deciding that the state court’s decision was not such an “unreasonable application.” Indeed,
it is difficult to see how we could hold that the Connecticut courts unreasonably applied
Supreme Court precedent in not finding a warning an absolute prerequisite to continued
exclusion from the courtroom, when we ourselves have read Allen exactly the same way.
Finally, we agree with the Gilchrist panel’s conclusion that Allen need not be read to create
an absolute warning requirement. As that Court correctly stated, “while Allen stated that a
defendant could be removed from the courtroom ‘after he has been warned by the judge,’ it
did not indicate whether such a warning was a requirement in every situation.” 260 F.3d at
96.

                                             28
counsel, rather than the defendant himself, about the defendant’s willingness to comport

himself properly and reclaim his right to be present. Id. at 1058-60.

       The facts of Ward differ significantly from this case. Critically, the Ward court

noted that

              [u]nlike many reported exclusion cases, including Allen . . . ,
              Ward’s presence at trial did not pose an apparent risk of physical
              injury to anyone. For example, he did not threaten the judge or
              anyone else involved in the trial, he had not assaulted anyone
              outside the courtroom, and he was not charged with a crime of
              violence. A trial judge with a legitimate concern for safety in
              the courtroom faces a very different situation and clearly has
              discretion to take firm action.

Id. at 1059. By contrast, Jones, who was charged with murder, was violent both within

the courtroom and without, had injured a marshal in resisting compliance with a court

order, and had expressly threatened further violence. Thus, the trial judge here had

precisely the “legitimate concern for safety in the courtroom” that was absent in Ward.

       Furthermore, although the Ward court was disturbed by the trial court’s reliance on

conversations with defense counsel rather than the defendant himself, the trial court in

this case relied on the marshal’s judgment about courtroom safety. Given the roles of

judges and marshals, we have held that a trial judge may rely on a marshal’s judgment

about safety. See United States v. Zuber, 118 F.3d 101, 103 (2d Cir. 1997) (rejecting, “as

a matter of law, the contention that the district court erred in deferring to the

recommendation of the Marshals Service on the need to restrain the defendant at his

sentencing hearing,” and distinguishing Allen). Finally, Ward was decided on direct


                                              29
review, not under the deferential AEDPA standard. Nothing in the Supreme Court's

decision in Allen clearly establishes a rule that a trial judge must converse a minimum

number of times in person with a removed criminal defendant regarding the right to return

before continuing the exclusion. Allen dictates only that a defendant be allowed to return

once “willing to conduct himself consistently with the decorum and respect inherent in

the concept of courts and judicial proceedings.” 397 U.S. at 343. It was not unreasonable

for Connecticut's Supreme Court to conclude that the trial court acted within its discretion

in finding that, through his words and conduct, Jones exhibited no such willingness.10

       10
           Judge Pooler takes a different view of the situation, contending that in the
circumstances of this case, Jones’s behavior did not warrant the conclusion that he was
unwilling to conduct himself properly in the courtroom. We do not suggest that her analysis
is unreasonable, and, at least based on the cold record available to us, we agree that a trial
judge could well have taken the view advanced by our dissenting colleague. But see supra
at 21 (recognizing the limits of a cold record in depicting the situation faced by the trial
judge). In any event, on habeas review, it is not for us to decide how we might have assessed
the situation. We must instead decide whether the state courts’ assessment was an
unreasonable one in light of Supreme Court precedent. Moreover, like any reviewing court,
we must give appropriate deference to the discretion of the trial judge, who was faced not
with a cold record, but with firsthand experience of a volatile defendant.
        We do disagree, however, with several of Judge Pooler’s conclusions. For example,
in assessing whether a defendant who has already engaged in violent behavior in the
courtroom will be able to conduct himself properly in the future, we do not believe it is
“completely irrelevant” that the defendant had very recently engaged in explosive, property-
damaging and self-injuring conduct in response to a judicial ruling, even if that particular
outburst took place outside the courtroom. Cf. Dissent at 11. And while we of course agree
that the right to presence extends to all defendants, whatever crimes they are charged with,
the issue here is the reasonableness of the trial court’s assessment of whether Jones was
willing and able to “conduct himself consistently with the decorum and respect” necessary
in judicial proceedings, Allen, 397 U.S. at 343, and indeed whether the safety of courtroom
personnel could be assured. The court was fully aware from the suppression hearing of
substantial evidence that Jones had not merely committed a serious violent crime, but had
engaged in a course of impulsive and volatile violent behavior. Such evidence was hardly
irrelevant to the assessment the court had to make.

                                             30
       The trial court may (or may not) have acted precipitously in ordering Jones

removed from the courtroom on February 3. In any event, it would have been preferable

for the trial court to have recalled Jones to the courtroom, under restraint if necessary,

outside the presence of the jury, on February 4 to instruct Jones about the standard of

behavior that would be expected of him, question him about his commitment to comply

with that standard, and make its own assessment, with due regard to the marshal’s

opinion, about the reliability of whatever assurances Jones may have offered. We cannot

conclude, however, that Jones suffered any prejudice from his removal on February 3, or

that the Connecticut Supreme Court unreasonably determined that his continued

exclusion on February 4, in light of his extreme and violent actions the day before, was

consistent with United States Supreme Court precedent.11 The district court thus did not

err in denying the writ.



        Finally, we cannot agree that the passing comment in Allen, italicized in the dissent,
that a disruptive defendant may be removed from the courtroom “until he promises to
conduct himself properly,” Dissent at 17, quoting Allen, 397 U.S. at 344, establishes the
extraordinary principle that a defendant’s mere verbal pledge to behave – a promise that
Jones’s attorney never even suggested that Jones had proffered – triggers an absolute right
to return to the courtroom, regardless of the evidence that his word cannot be relied upon, or
of the record of prior misconduct he has compiled. Certainly Allen, which affirmed a
defendant’s exclusion from the courtroom, cannot be read to have held any such thing. See
Rodriguez v. Miller, 537 F.3d 102, 106 (2d Cir. 2008) (only the Supreme Court’s holdings,
and not its dicta, constitutes “clearly established federal law” under § 2254(d)(1)), citing
Taylor, 529 U.S. at 412 (opinion for the Court by O’Connor, J.) and Carey v. Musladin, 549
U.S. 70, 74-77 (2006).
       11
         Although the record is unclear about the remainder of trial proceedings after
February 4, Jones makes no further argument that he was improperly excluded after that
point.

                                              31
III.   Miranda Claims

       Jones also argues that the state courts failed to recognize that his interrogation

violated Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny. He makes two

distinct claims. First, he argues that because he was subjected to conduct that amounted

to interrogation without receiving a Miranda warning, his subsequent statements were

rendered involuntary and should not have been admitted under Rhode Island v. Innis, 446

U.S. 291 (1980), and Oregon v. Elstad, 470 U.S. 298 (1985). Second, he argues that the

police employed a deliberate two-step procedure to circumvent Miranda, in violation of

Missouri v. Seibert, 542 U.S. 600 (2004). Neither claim provides a basis for a grant of

the writ: The first misunderstands the relevant Supreme Court law, and the second was

never presented to any state court.

       A brief summary of the pertinent facts is required. See State v. Jones, 916 A.2d at

39-41. In a pretrial suppression hearing, the government presented evidence that after his

arrest, Jones had been placed in an interview room with a Detective Stevenson, who was

assigned to prevent Jones from leaving because the door did not lock. Stevenson was not

directed to take any statement or ask any questions of Jones. Because it was lunchtime,

Stevenson ordered food for both men, and they had an informal and wide-ranging

conversation. As stated by the Connecticut Supreme Court:

              Stevenson testified that, shortly after lunch, however, the
              defendant spontaneously stated something “along the lines of,
              I didn’t kill anybody.” According to Stevenson, he ignored the
              comment, but the defendant stated shortly thereafter, “I know
              you guys think it’s about the girl.” Stevenson then asked the

                                             32
              defendant if he had known the victim. The defendant responded
              by placing his head in his hands and stating, “[H]e did not
              deserve to have happen what I did to him.” Stevenson left the
              room to inform [his superior officer] O’Leary about the
              defendant’s statement. O’Leary asked Stevenson whether the
              defendant had been advised of his rights and, upon learning that
              he had not, instructed Stevenson to do so immediately and then
              to ask the defendant if he would be willing to speak to
              Stevenson about the victim’s murder.

Id. at 40. Thereafter, Stevenson returned and read Jones his rights. After Stevenson

asked Jones if he understood these rights, Jones replied that he did and signed a card

indicating that he had been advised of his rights. Jones then confessed to the murder.

After verifying again that he understood his rights, Jones also dictated a written

confession to Stevenson, which Jones signed.

       A. Innis and Elstad Arguments

       Jones argues first that the apparently informal discussion he had with Detective

Stevenson over lunch was actually an interrogation within the meaning of Miranda. He

relies on Innis, in which the Supreme Court held that

              the Miranda safeguards come into play whenever a person in
              custody is subjected to either express questioning or its
              functional equivalent. That is to say, the term “interrogation”
              under Miranda refers not only to express questioning, but also
              to any words or actions on the part of the police (other than
              those normally attendant to arrest and custody) that the police
              should know are reasonably likely to elicit an incriminating
              response from the suspect.

446 U.S. at 300-01 (footnote omitted).




                                             33
       Whether or not any of Stevenson’s conversation with Jones preceding Jones’s

apparently spontaneous statements that he didn’t kill anyone and that the police thought

“it’s about the girl,” we can assume for purposes of the argument that Stevenson’s direct

question to Jones whether he knew the victim Williams, which elicited the more

incriminating statement that Williams “did not deserve . . . what I did to him,” constituted

interrogation. None of these statements, however, were offered against Jones at trial.

Rather, the prosecutor offered into evidence only the full oral and written confessions that

were made after Stevenson advised Jones of his rights and began a formal interview.

       In Elstad, the Supreme Court held that even if a defendant is questioned without

Miranda warnings, rendering any statement made during such questioning coerced and

inadmissible, that violation does not automatically taint subsequent statements made after

he is advised of his rights. 470 U.S. at 318. “The relevant inquiry is whether, in fact, the

second statement was also voluntarily made.” Id. Thus, even assuming arguendo that the

pre-warning police conduct was “interrogation,” and that Jones’s pre-warning statements

were therefore not admissible, Jones’s post-warning statements – the only ones received

in evidence – were admissible unless they were involuntary.

       Here, the facts as reasonably found by the Connecticut Supreme Court – and which

Jones does not contest in this proceeding – demonstrate that Jones’s confession was

voluntary. See State v. Jones, 916 A.2d at 39-41. Indeed, the Connecticut Supreme

Court noted that Jones “does not dispute that the evidence adduced by the state, if

credited, was sufficient to establish that he confessed to the murder and revealed the

                                             34
whereabouts of the murder weapon only after a knowing and voluntary waiver of his

rights.” Id. at 42.

       According to the facts as found by the state courts, Detective Stevenson advised

Jones of his rights by reading aloud from a card and asked Jones if he understood; Jones

replied that he did. Id. at 40. After making an oral confession, but before making a

written one, Jones signed a card advising him of his rights, and two police witnesses

verified that Jones had “read aloud from a voluntary statement rights form and initial[ed]

each line.” Id. at 40-41. Later, Jones told the police that his brother would lead them to

the murder weapon; after his brother initially refused to cooperate, Jones spoke to him on

the phone, and his brother led officers to the weapon. Id. at 41. It is true that Jones

disputed this version of events at his suppression hearing, but the court found the officers

more credible, and the Connecticut Supreme Court found no clear error in that finding.

Id. at 42. Even if Jones attempted to challenge this credibility determination, under the

substantially more deferential standard of § 2254(d)(2) and (e),12 we cannot conclude that

the findings of the state courts were unreasonable.

       B. Seibert Claim

       Jones attempts to raise a second claim under Missouri v. Seibert. That case created

an exception to the Elstad rule, discussed above, by holding that police may not use a

deliberate two-step procedure to circumvent Miranda. See Seibert, 542 U.S. at 621

       12
         The precise relationship between § 2254(d)(2) and (e)(1) is an unresolved question.
See note 4, supra. On this point, Jones would not succeed under either standard, so we need
not decide the question.

                                             35
(Kennedy, J., concurring in the judgment) (“When an interrogator uses [a] deliberate,

two-step strategy, predicated upon violating Miranda during an extended interview,

postwarning statements that are related to the substance of prewarning statements must be

excluded absent specific, curative steps.”).13 Jones contends that the police employed

such a deliberate two-step procedure here, rendering his post-warning confessions

inadmissible. Because Jones did not present this argument to the state courts, however,

this Court may not consider it.14

       Under AEDPA, a prisoner in custody pursuant to a state court judgment must

generally exhaust state court remedies before seeking federal habeas corpus review. See

28 U.S.C. § 2254(b)(1); see also Carvajal v. Artus, 633 F.3d 95, 104-05 (2d Cir. 2011).

Moreover, “[i]f a habeas applicant fails to exhaust state remedies by failing to adequately

present his federal claim to the state courts so that the state courts would deem the claim

procedurally barred, we must deem the claim procedurally defaulted.” Carvajal, 633 F.3d

at 104 (internal quotation marks and brackets omitted); see also Aparicio v. Artuz, 269

F.3d 78, 90 (2d Cir. 2001) (“[W]hen the petitioner failed to exhaust state remedies and the

court to which the petitioner would be required to present his claims in order to meet the

exhaustion requirement would now find the claims procedurally barred, federal habeas
       13
          Seibert did not elicit a majority opinion. However, our Court has clarified that
Justice Kennedy’s opinion, which provided the fifth vote for the result in the case, is
controlling. See United States v. Carter, 489 F.3d 528, 535-36 (2d Cir. 2007) (joining
several Circuits in adopting this view); see also United States v. Capers, 627 F.3d 470, 475-
77 (2d Cir. 2010) (recounting evolution of Seibert claims within this Circuit).
       14
          Indeed, Jones did not raise this claim in his habeas petition to the district court,
alluding to it for the first time in an untimely reply brief below.

                                             36
courts also must deem the claims procedurally defaulted.” (internal quotation marks

omitted)). “An applicant seeking habeas relief may escape dismissal on the merits of a

procedurally defaulted claim only by demonstrating ‘cause for the default and prejudice’

or by showing that he is ‘actually innocent’ of the crime for which he was convicted.”

Carvajal, 633 F.3d at 104, quoting Aparicio, 269 F.3d at 90.

       Jones makes several arguments that his Seibert claim is not barred. The first and

most substantial is that he presented essentially the same claim in his Connecticut

Supreme Court appeal. Jones notes that “citing chapter and verse of the Constitution” is

not necessary to exhaust a claim before the state courts. Daye v. Att’y Gen. of State of

N.Y., 696 F.2d 186, 194 (2d Cir. 1982) (en banc). Jones argues that his Seibert claim was

“fairly presented,” Picard v. Connor, 404 U.S. 270, 275, 278 (1971), to the state courts

when Jones made other, similar arguments about his Miranda rights. We are not

persuaded.

       In the Connecticut Supreme Court, Jones did argue that his confession was

involuntary. But his brief did not so much as cite Seibert, nor did he in any way articulate

the core of a Seibert claim – that the police had employed a deliberate two-step procedure

to circumvent Miranda. Instead, Jones contended that the trial court had erred in its

factual determinations, and, citing State v. Pinder, 736 A.2d 857, 878 (Conn. 1999),

requested that the high court conduct its own “scrupulous examination of the record.”

Furthermore, Jones’s failure to alert the government and the state courts to this claim is

not a mere technicality. This is not a case in which the habeas petitioner has simply

                                             37
applied a slightly different label to what is essentially the same claim. Adjudicating a

Seibert claim would require factual findings that were never made by the trial court,

based on evidence that was never adduced in the state courts – for example, evidence of

the subjective intent of the officers. See United States v. Williams, 681 F.3d 35, 43 (2d

Cir. 2012) (stating that in assessing a Seibert claim, “a court should review the totality of

the objective and subjective evidence surrounding the interrogations” (internal quotation

marks omitted)). Thus, Jones’s failure to raise the claim prevented the development of a

proper record for assessing it.

       Connecticut law is clear that “rights of constitutional magnitude may be waived,”

State v. Paige, 40 A.3d 279, 284 (Conn. 2012), and the Connecticut Supreme Court has

declined to consider similar arguments in similar procedural postures. Cf. State v.

Mullins, 952 A.2d 784, 795-97 (Conn. 2008) (declining to consider claim that confession

was coerced because defendant had not objected below and record was inadequate to

review the claim). We are confident that “the court to which the petitioner would be

required to present his claims in order to meet the exhaustion requirement would now find

the claims procedurally barred.” Aparicio, 269 F.3d at 90 (internal quotation marks

omitted). Because “the state courts would deem the claim procedurally barred, we must

deem the claim procedurally defaulted.” Carvajal, 633 F.3d at 104 (internal quotation

marks and brackets omitted).15

       15
        We note that Seibert had not been decided at the time of Jones’s pretrial suppression
hearing or his trial. However, because Seibert was decided before Jones’s appeal to the
Connecticut Supreme Court, the Seibert rule was retroactively applicable to his case under

                                             38
       Jones makes two additional arguments that his Seibert claim is preserved, but

neither is persuasive. First, he notes that although he did not raise the claim in his initial

§ 2254 petition below, he attempted to make the claim in a reply brief that the district

court rejected as untimely. This argument is irrelevant – it addresses a separate default,

namely Jones’s failure to raise the claim below, in the federal district court, to preserve it

for this federal appeal. Second, Jones notes that this Court’s certificate of appealability

mentioned Seibert. But the purpose of a certificate of appealability is only to provide

jurisdiction for appeal, see 28 U.S.C. § 2253(c), not to determine the merits of claims or

investigate whether those claims were properly presented in state proceedings.

       Finally, Jones does not attempt to show cause and prejudice or actual innocence,

which are necessary to raise a defaulted claim. See Carvajal, 633 F.3d at 104. Thus, we

cannot reach Jones’s argument that the police interrogation violated Seibert.

                                        CONCLUSION

       For the foregoing reasons, the judgment of the district court denying the petition

for a writ of habeas corpus is AFFIRMED.




Griffith v. Kentucky, 479 U.S. 314 (1986). The Connecticut Supreme Court has established
a test for review of constitutional errors not preserved at trial. See, e.g., State v. Fabricatore,
915 A.2d 872, 877 (Conn. 2007) (discussing test); Mullins, 952 A.2d at 795-97. Thus, Jones
could have raised his Seibert claim in the Connecticut Supreme Court. (Indeed, the
government’s opposition brief in that proceeding cited Seibert in passing.)

                                                39
POOLER, Circuit Judge, concurring in part and dissenting in part:

       I join the majority opinion fully as to Parts II.A and Part III. I respectfully dissent as to

Part II.B, denying Jones habeas relief for his unwarned and continued exclusion from trial. The

majority concludes that the state court’s decision that this exclusion did not deprive Jones of his

right to presence was a reasonable application of clearly established Supreme Court law. I

disagree.

                                           Background

       “‘A leading principle that pervades the entire law of criminal procedure is that, after

indictment found, nothing shall be done in the absence of the prisoner.’” United States v.

Canady, 126 F.3d 352, 360 (2d Cir. 1997) (quoting Lewis v. United States, 146 U.S. 370, 372

(1892)). The right to presence is “scarcely less important to the accused than the right of trial

itself.” Diaz v. United States, 223 U.S. 442, 455 (1912). It is “rooted to a large extent in the

Confrontation Clause of the Sixth Amendment,” United States v. Gagnon, 470 U.S. 522, 526

(1985) (per curiam), but due process also protects the right of a defendant to “be present in his

own person whenever his presence has a relation, reasonably substantial, to the fullness of his

opportunity to defend against the charge,” Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934),

overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 2 (1964).

       The right to presence, crucial though it is, can be constructively waived by misbehavior

in the courtroom. In Illinois v. Allen, the Supreme Court case which guides all analysis in this

area, the Court considered the appropriateness of removing a defendant from the courtroom who

had “argue[d] with the judge in a most abusive and disrespectful manner”; threatened the judge

by telling him “‘When I go out for lunchtime, you’re (the judge) going to be a corpse here’”; and


                                                  1
t[ore] up “the file which his attorney had and threw the papers on the floor.” 397 U.S. 337, 339-

340 (1970). The defendant continually interrupted voir dire, badgered prospective jurors and

was generally obstreperous. Id. The judge warned him that after another outbreak, he would be

removed. The defendant continued to make “abusive remarks” and was, indeed, removed from

the courtroom. The next day the defendant was returned to the courtroom. The judge admitted

him, but told him he would be only “would be permitted to remain in the courtroom if he

‘behaved (himself) and (did) not interfere with the introduction of the case.’” Id. In spite of this

second warning, the defendant again acted disruptively. Id. at 340-341. He was again removed;

during the intermittent time he was present, he “responded to one of the judge’s questions with

vile and abusive language.” Id. at 341. The judge still told him that “he could return to the court

room whenever he agreed to conduct himself properly.” Id. When the defendant eventually

gave such assurances, and ultimately complied with them, he “was permitted to be present

through the remainder of the trial, principally his defense.” Id. In considering whether such

“deplorable” removals, id. at 347, were constitutionally sound, the Court

       explicitly h[e]ld 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. Once 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.

Id. at 343. Allen thus sets forth two requirements for a constitutional removal from his trial.

First, it requires that a defendant be warned before he is removed. Id. Second, it requires that a

defendant who has previously lost the right to presence be able to reclaim it. These holdings

bound the Connecticut Supreme Court in analyzing Jones’s case, and now, in habeas, they bind

us.

                                                  2
                                             Analysis

       I. Allen Warnings

       This troubling case implicates both of Allen’s major holdings: the necessity of warning

and reclamation of right. Taking first the question of warning, the state court found that no

warning was required before Jones’s removal because he was taken from the courtroom only

upon his “own request that he be permitted to leave.” Jones, 281 Conn. at 638-39. I am in full

agreement with the majority opinion that such a conclusion based on the record was

unreasonable, as the record unmistakably reflects that Jones was not originally removed pursuant

to his request. Maj. Op. 17. The majority concludes that because the exclusion itself on

February 3rd was harmless, further warning analysis is obviated. Maj. Op. 22 fn. 6. I agree that

Jones’s removal that day was harmless, but even assuming the error in failure to warn on that

day was subsumed by the harmlessness of the exclusion itself, the majority inexplicably fails to

account for the fact that Jones was excluded again, without warning, on February 4 (and indeed,

every other day of the trial). If warning is required before a defendant loses his right to be

present, then a warning was required before Jones was deemed to have waived his right to be

present in the courtroom the day after his initial wrongful exclusion.

       This, of course, raises the question of whether warning is required—or to be more

precise, whether it has been clearly established by the Supreme Court that a defendant must be

warned that he may lose his right to be present if he fails to comport himself in an appropriate

manner. There is no doubt to my mind that it has. In Allen the Court “explicitly” held

       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.


                                                  3
397 U.S. at 343. This passage is completely unambiguous about what Allen requires in terms of

warning. There is no doubt about its force (“we explicitly hold”) or what is required from it

(“can lose his right to be present at trial, if, after he has been warned” (emphasis added)). A

defendant can lose his right to presence if he has been warned about the consequences of

inappropriate behavior. Jones never was.

       I am compelled, of course, to admit that our court has not always read Allen this way. In

two cases, Gilchrist v. O’Keefe, 260 F.3d 87, 97 (2d Cir. 2001) and Norde v. Keene, 294 F.3d

401, 413 (2d Cir. 2002), we indicated that Allen does not require a warning before removal. In

Gilchrist, we examined a state court’s determination that a defendant could “forfeit[] his right to

counsel based on a single, apparently spontaneous violent incident,” without warning that such

behavior might light to a loss of counsel. 260 F.3d at 97. We considered Allen in relationship to

the warning question, and found that “while [it] stated that a defendant could be removed from

the courtroom ‘after he has been warned by the judge,’ it did not indicate whether such a

warning was a requirement in every situation.” Id. at 96. We concluded that Allen “stand[s] for

the proposition” that “even absent a warning, a defendant may be found to have forfeited certain

trial-related constitutional rights based on certain types of misconduct,” id., and so denied the

petitioner relief. In Norde v. Keane, we cited to the “even absent warning” language in Gilchrist

and upheld a removal where the court did not “explain to [the defendant] the potential

ramifications of his removal” for misbehavior. 294 F.3d at 413. The judge in Norde did,

however, warn the defendant that “he would be removed if he did not remain quiet.” Id.

       As an initial matter, these cases do not bind us in habeas. “‘Clearly established federal

law’ refers only to the holdings of the Supreme Court.” Rodriguez v. Miller, 537 F.3d 102, 106

(2d Cir. 2008) (citing Williams v. Taylor, 529 U.S. 362 , 412 (2000)). Moreover, to the


                                                 4
extremely limited extent they are relevant, those precedents are themselves an unreasonable

application of Supreme Court law. 1 “[T]he warning requirement from Allen cannot be

interpreted in any non-mandatory way, lest we substitute our own judgment of what the rule

should be for that of the Court.” Gray v. Moore, 520 F.3d 616, 624 (6th Cir.), cert denied by

Gray v. Moore, 555 U.S. 894 (2008). There is no way to read the Supreme Court’s holding in

Allen as anything other than “requir[ing] a trial court to give the accused one last chance to

comply with courtroom civility before committing the ‘deplorable’ act—in the Allen Court’s

words—of removing that person from his own trial.” Id. Moreover, neither Norde nor

Gilchrist’s view of Allen constitutes their holdings. The language in Gilchrist is dicta, since the

question before the court was not whether warnings were required before a defendant was

removed for disruptive behavior, but whether the right to counsel could be forfeited absent

warning. Norde is also distinguishable by the crucial fact that the defendant there actually

received the only warning— that misbehavior would lead to removal— that Allen requires. The

majority opinion itself recognizes to some extent that warning is required prior to removal, Maj.

Op. 18 fn. 3, though it fails to apply that warning to second day of Jones’s exclusion.2



       1
          The majority suggests “it is difficult to see how we could hold that the Connecticut
courts unreasonably applied Supreme Court precedent in not finding a warning an absolute
prerequisite to continued exclusion from the courtroom, when we ourselves have read Allen
exactly the same way.” Maj. Op. 29 fn. 9. But such a position suggests that while state courts
might unreasonably apply Supreme Court law, this court never could— a statement with which,
deeply respectful of my colleagues though I am, I cannot agree. We, no less than state courts,
can and do make mistakes, including unreasonable ones.
       2
           It also misstates the Court’s decision in that case as holding “that a defendant must
ordinarily be ‘warned by the judge that he will be removed if he continues his disruptive
behavior’ before he may be removed.” Maj. Op. 18 fn. 3 (emphasis added). The Court in Allen,
it bears repeating, inserted no such qualifier, and instead “h[e]ld 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.” 397 U.S. at 343.

                                                 5
       Under the applicable Supreme Court precedent, a warning was required before Jones was

not allowed to return to court on the second day. The failure to warn is particularly disturbing

in the circumstances of this case. The record reflects that Jones’s behavior on February 4th

sprung in part from his anger at being excluded from court the previous day, as well as his

distress at the court’s (appropriate) refusal to let him proceed pro se without further discussion.

The marshal told the court that Jones was “still talking about yesterday” and that he was

“reliving the past.” The marshal further indicated that Jones did not think that he had done

anything wrong the day before and believed that he had been treated unjustly. I do not disagree

with the majority that “[t]he fact that [Jones’s] conduct may have been based on what he

believed to be a compelling reason . . . does not excuse his misconduct,” Norde, 294 F.3d at

413, Maj. Op. 24, though I note that we are not confronting Jones’s mere belief that he had a

compelling claim—this court apparently agrees with him that his initial removal was wrongful.

But what concerns me is not whether Jones’s behavior could be excused in light of the previous

day’s violation, but whether he had a right to be told that if he did not behave he would continue

to be excluded. Under Allen, he clearly did.3.




       3
          Even if the majority is correct that there are situations in which a warning preceding
removal is not required by Allen, nothing in this case after February 3 suggests it would be one.
Nor does the majority even attempt to explain why this particular case so qualified. I concede
that Jones’s behavior after the court’s initial wrongful removal of him may have necessitated an
immediate emergency removal, and I do not read Allen to say that the judge was required to
shout out a warning before safety could be restored to the courtroom. But once Jones was
secured or the courtroom otherwise made safe, the court was required to warn the him before
continuing to exclude him from the trial. Nothing in this case even remotely suggests that the
court’s failure to warn Jones on the second day was necessitated by exigent circumstances.
Accordingly, even if Allen does not, as the majority tells us, “create[] an absolute requirement of
warning,” Maj. Op. 29 fn. 9, a warning was required here.


                                                  6
       Allen warnings were not only required, but especially important in this case. Jones, who

wanted to attend court and whose misbehavior was occasioned in part by the court’s previous

initially wrongful removal, might have heeded the court’s warning that he had to behave

appropriately or risk further exclusion, had one been given. Moreover, given that Jones’s initial

removal was precipitated only by his “insist[ing] on speaking personally with the court despite

being represented by counsel and . . . [his] persist[ance] in arguing with the court about its

rulings,” Maj. Op. 21, Jones may not have made the connection between his violent behavior and

his exclusion. From his perspective, the court was liable to remove him simply for

insisting—correctly— that he had a right to represent himself. Maj. Op. 7-8. If he had been

warned, however, about what sort of behavior actually warranted removal, he might have

understood what was required of him to retain his right to presence, and the “deplorable” act of

“remov[ing] a man from his own trial,” Allen, 397 U.S. at 347, avoided.

       Warnings are not ancillary under Allen’s framework; they are crucial. First, as just noted,

warnings help prevent the loss of the right to presence where it can be avoided. Allen itself tells

us that “courts must indulge every reasonable presumption against the loss of constitutional

rights,” Id. at 343 (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Second, and most

importantly, warnings ensure a defendant’s implied waiver by misconduct is both knowing and

voluntary. As the majority notes

       a waiver of the right to be present at trial, “as the waiver of any constitutional right in a
       criminal proceeding, must be knowing and voluntary.” Polizzi v. United States, 926 F.2d
       1311, 1319 (2d Cir. 1991); see also United States v. Lucky, 569 F.3d 101, 107-08 (2d Cir.
       2009). A criminal defendant, who is not an expert in criminal procedure or constitutional
       law, must generally be advised of the consequences of waiving his rights, and be found
       by the court to have made a knowing and voluntary waiver, before being permitted to
       waive such an important right as presence at trial.

Maj. Op. 17-18. Allen’s warning requirement and its reliance on Zerbst, which established the


                                                  7
knowing and voluntary waiver standard, tell us that even an implied waiver of the right to

presence based on conduct must be knowing and voluntary— a contention with which the

majority agrees. Maj. Op. 18 fn. 3. See also Brookhart v. Janis, 384 U.S. 1, 4 (1966) (“There is

a presumption against the waiver of constitutional rights, and for a waiver to be effective it must

be clearly established that there was ‘an intentional relinquishment or abandonment of a known

right or privilege.’” (internal citation omitted)); United States v. Benabe, 654 F.3d 753, 768-69

(7th Cir. 2011) (noting that while a defendant can implicitly waive his right to presence based on

his conduct, under Allen, such a waiver must still be knowing and voluntary) (quoting Allen, 397

U.S. at 343); Proffitt v. Wainwright, 685 F.2d 1227, 1258 fn. 45 (11th Cir. 1982) (noting Allen

“supports retention of the knowing-and-voluntary waiver standard in right-to-presence cases”).

           If a defendant is warned that misconduct will lead to exclusion, and engages it in

anyway, he has waived his right to presence knowingly and voluntarily. Not so with a defendant

who has not been warned—especially one, like Jones, who was initially excluded wrongfully,

and who cannot have been expected to connect his behavior to the loss of the right. Under Allen,

as well as Zerbst and the Supreme Court’s continued jurisprudence on knowing and voluntary

waiver of rights, a defendant must be warned before he is excluded from his trial.4 He must be


       4
          I note that, as a technical matter, Jones was not “removed” from the courtroom on
February 4, but rather never allowed to enter. This distinction is completely irrelevant for Allen
purposes, however, as the only question is whether a defendant must be warned before his right
to be presence can be deemed waived and the trial continued in his absence. Whether the
defendant is technically inside or outside of the courtroom at this point is of no moment, as the
majority implicitly recognizes in finding that the marshal’s out-of-court assessment was
sufficient for the court’s determination that Jones could not return. Moreover, any distinction
between “removal” and “refusal to let enter” in this context would eviscerate Allen’s warning
requirement, for all a judge would need to do to avoid it is, as here, effectuate a wrongful, but
harmless removal and then refuse to let a defendant reenter the courtroom.
        I also note that the events of February 4th could to some extent be characterized as a
second exclusion, rather than a refusal to let reclaim, since the judge initially determined that
Jones could reenter, and then changed his mind based on Jones’s apparent change in behavior.

                                                  8
given an opportunity to comport himself appropriately, and more importantly, given the

opportunity to do so with the knowledge that a failure to behave will lead to the loss of his right

to be present. Without warning, we cannot say Jones’s misbehavior either on February 3rd in the

courtroom or the next day with the marshal constituted a knowing waiver of his right to be

present.

        The Supreme Court has clearly established that the right to presence cannot be implicitly

waived without warning. A defendant edging towards or having already crossing the line of

excludable behavior must be given a chance to step back—or if he fails to do so, knowingly and

voluntarily face the consequences of his actions. Jones faced the consequences of his misdeeds

without ever having been warned about what they would be. Continued trial in his absence

based on the lack of warning alone was a violation of his right to be present and a violation of

clearly established Supreme Court law.

        II. Reclamation

        Jones’s continued exclusion from trial also implicates Allen’s dictate that “[o]nce lost, the

right to be present can . . . 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.” 397 U.S. at 343.5 The Connecticut Supreme Court found no error in the trial

court’s refusal to let Jones come back to court on February 4, the day after this initial removal.



See infra fn. 3.
        5
           As noted supra fn. 4, the events of February 4 can be characterized to some extent as a
second exclusion, not just a continuation of the first, which implicates whether the second
removal was itself warranted rather than whether the refusal to let Jones reclaim was. As noted
infra, it would be hard to say that a second exclusion would be warranted based on Jones’s
interaction with the marshal alone, but given that Jones was never actually returned to court, and
thus never regained the right to presence, the better analysis is probably the reclamation analysis
undertaken by the majority.

                                                  9
The court wrote that it acknowledged that Jones

       originally had refused to return to court in full body restraints but thereafter
       agreed to do so. In other words, as between banishment from the courtroom and
       returning to the courtroom fully restrained, the defendant expressed a preference
       for the latter. Although it may be true that a court normally should defer to the
       preference of the accused in this regard, we are not persuaded that the court was
       required to do so in the present case. First, the court understandably was
       concerned that, due to the defendant's demonstrated propensity for violence, he
       posed a particular danger to the personnel responsible for transporting him to and
       from the courtroom. For those persons, even attempting to outfit the defendant
       with body restraints gave rise to a safety risk. Second, the court reasonably
       concluded that, under all of the circumstances, including the defendant's volatile
       temper, his habitual unwillingness to accept adverse court rulings, his
       confrontational attitude toward the marshals and his lack of contrition for his prior
       violent behavior, the defendant was very likely to engage in disruptive and
       obstreperous conduct if permitted to return to the courtroom. Finally, as the trial
       court observed, the need for and use of visible restraints undoubtedly would have
       prejudiced the defendant in the eyes of the jurors. In light of the relevant
       considerations, in particular, the nature and severity of the defendant's
       misconduct, his refusal to acknowledge the impropriety of that misconduct and
       his stubbornly antagonistic attitude, we cannot say that the trial court acted
       unreasonably in concluding that the defendant should not be allowed to return to
       the courtroom.

Jones, 281 Conn. at 642-44.

       The majority finds each of these conclusions reasonable applications of Allen. I disagree

entirely. Taking first the conclusion that the “nature and severity of” Jones’s misbehavior

allowed not just for his removal, but his permanent exclusion from the courtroom, I turn back to

Allen, which presented similar facts. The Allen defendant was extremely disruptive, even before

the jury, and continued to be despite multiple warnings and removals. He also threatened the

judge and made “abusive” and “vile” comments throughout the proceedings. And yet in

considering his case the Supreme Court still held that a defendant—previously engaged in vile,

abusive and threatening behavior—who promises to comport himself appropriately can reclaim

his right to be present. Such a conclusion is unsurprising. A defendant who is attempting to

reclaim his right to presence is, by definition, a person who has previously been so disruptive so

                                                10
as to have been removed. It would not only be circular to say that past disruption itself prevents

reclamation, but also a perversion of Allen, the holding of which would be made meaningless in

light of this circular logic.

        That Jones’s disruptions involved violent behavior does not change this conclusion. The

defendant in Allen was, if not violent, threatening, and yet he still was able to reclaim his right.

Even if that were not so, Allen does not limit its holding to any particular class of misbehavior.

The Court did not hold there that a defendant can reclaim his right unless he commits a violent

act or unless the court has “concern[s] for [] safety.” Maj. Op. 27. Rather, it tells us

unequivocally that “[o]nce lost, the right to be present can . . . 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.” 397 U.S. at 343. Neither the Connecticut Supreme

Court, nor we, have the right or the power to read in a limitation where none exists.

        To the extent Jones’s violent behavior was relevant, I am troubled by some of the

considerations made by the majority in its analysis. First, the majority notes that the trial court

was aware of the fact that “after a previous adverse pretrial ruling, Jones had punched his hand

through a Plexiglas window.” Maj. Op. 27. But that incident took place outside of the

courtroom, and thus is completely irrelevant to whether Jones could be excluded from his trial.

Allen, and the power it gives to courts to conduct proceedings in a defendant’s absence, is about

decorum in the courtroom, not about a defendant’s behavior outside of it. The Allen court

framed the “[t]he question presented [in that case] . . . [a]s whether an accused can claim the

benefit of this constitutional right to remain in the courtroom while at the same time he engages

in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult

or wholly impossible to carry on the trial.” 397 U.S. at 338 (emphasis added). Jones’s violent


                                                 11
out-of-court conduct cannot be excused nor condoned, and there are many punishments which

could have been constitutionally imposed in response. But exclusion from trial is simply not one

of them. Exclusion under Allen is simply not a punishment at all; it is a merely a means of

preventing defendants from disrupting trial proceedings, not a way of punishing them if they do.

         Likewise, I am concerned by the majority’s suggestion that Jones’s violent nature and

the crimes, which he was at the time accused and is now convicted of committing, are relevant to

the court’s decision to exclude him. The majority writes that

        [t]he trial court was faced with a violent defendant. Putting aside the evidence
        that he had violently assaulted Minnifield and shot Williams to death, Jones had
        reacted violently (albeit outside the courtroom) to one adverse ruling, and had in
        the court's presence violently resisted the removal order, requiring numerous
        marshals to restrain him, at least one of whom was injured in the fray . . .

Maj. Op. 28. See also Maj. Op. 30 (“Jones, who was charged with murder, was violent both

within the courtroom and without, had injured a marshal in resisting compliance with a court

order, and had expressly threatened further violence.”). The majority is almost certainly right

that Jones was a violent person, and probably even a bad one. But the right to presence belongs

to the peaceful and the pugnacious, as well as the murderous and the mad. This conclusion

should warrant no remark: Since anyone exercising his right to presence is, by default, a person

accused of a crime, the right would mean little if being accused, or even guilty of a crime, could

undermine it. Nothing in Allen even remotely suggests that a person’s character or their crimes

are appropriate to consider when determining whether he can reclaim his right to be present.

Contrary to the majority’s suggestion, Allen does not limit, qualify or otherwise constrain the

right to reclaim to those people who are not inherently violent or who have not been arrested for

violent crimes. No matter what Jones had done, no matter what his character, he had a right to

be present during his trial.


                                                12
        Even if we appropriately limit our analysis to Jones’s violent behavior inside the

courtroom, the majority still misreads Allen by suggesting that Jones could and forever waive his

right to return to court based on the incident of February 3. Maj. Op. 28 (“Jones manifestly

waived his right to be present based on the extraordinary violence he had displayed during the

preceding removal.”). But this is simply without any support from Allen. While Allen certainly

supports the notion that a defendant can waive his right to be present based on violent behavior,

in no sense does it support the proposition that there are some acts which might forever

disqualify a person from attending their trial. The whole of Allen’s framework of warning and

reclamation cuts against any such argument, and nothing in its holding on reclamation is in any

way qualified or limited. Perhaps there are some acts so heinous that once committed by a

defendant in court they have forever lost their right to presence, but if so, the Supreme Court has

yet to tell us what they are.

        That is not to say that safety in the courtroom is an irrelevant consideration; of course, it

is not. But that is why the Supreme Court has dictated alternative, constitutional means of

ensuring that safety—namely shackles and gags. The majority finds the state court did not err in

crediting the trial court’s refusal to allow Jones into the courtroom, even bound and gagged, but I

fail to see how this constitutes a reasonable application of Allen. It is right, as the majority notes,

to say that Allen indicates “that the sight of shackles and gags might have a significant effect on

the jury’s feelings about the defendant.” 397 U.S. at 344. But Allen also held that “bind[ing]

and gag[ging] [the defendant], thereby keeping him present” was a constitutional means for a

court “handle an obstreperous defendant.” Id. at 343-44. The Court additionally noted that

“binding and gagging might po[s]sibly be the fairest and most reasonable way” to handle such a

defendant. Id. at 344.


                                                  13
       Thus, while binding and gagging are certainly problematic, they are constitutional. What

is not constitutional is removal of a defendant without warning and without allowing him to

reclaim once he has made the required promise. It cannot fairly be said that it was more in

accord with Allen and the constitutional right to presence to have wrongfully excluded Jones,

failed to warn him that continued misbehavior would lead to further exclusion, and finally

refused to allow him to return after he promised to behave appropriately, than to have allowed

him to attend his trial in shackles. On this point, I note that the majority’s conclusion that “it

was not clear that Jones had consented to being shackled,” Maj. Op. 27-28, is unwarranted by the

trial record. While Jones’s counsel remarked that Jones “didn’t address the issue of restraints” in

his discussion with counsel, the Marshal indicated afterwards that Jones was “in agreement that

he [Jones] will still in full restraints.” Even after the marshal changed his assessment, he

indicated that the conversations with Jones took place “in the process of putting the restraints on

him.” Though the marshal ultimately concluded that Jones should not be brought to court, he

never indicated that Jones had refused in any way to be shackled, or that it was his assessment

that it was too dangerous for his deputies to attempt to do so. I find the majority’s analysis to be

thus factually and legally wrong.

       This leads to the state court’s error in confusing disruption with likelihood of disruption

and the majority’s adoption of that error. The Connecticut Supreme Court wrote that

       the [trial] court reasonably concluded that, under all of the circumstances,
       including the defendant’s volatile temper, his habitual unwillingness to accept
       adverse court rulings, his confrontational attitude toward the marshals and his
       lack of contrition for his prior violent behavior, the defendant was very likely to
       engage in disruptive and obstreperous conduct if permitted to return to the
       courtroom.’

Jones, 291 Conn. at 643. See also Maj. Op. 27.



                                                  14
       This statement, and the trial record it relies upon, constitutes an unreasonable reading of

Allen, which gives absolutely no succor to the proposition that the defendant’s likelihood of

reoffending is sufficient to deny him the chance to try to behave appropriately. The majority

does not argue that Jones’s behavior with the marshal was itself sufficient to exclude him;

indeed, it would be hard for such a conclusion to be warranted, given that the strongest statement

the marshal made about Jones’s behavior in the moment was that he was being “somewhat

confrontational.” The marshal’s view was clearly not that Jones was behaving too improperly to

be brought into court, which would present a different, and perhaps easier, question, but rather

that he was likely to misbehave if brought back. The marshal told the court that his “feeling

[was] [Jones] just wants to get in the courtroom to cause further discomfort,” and that he

couldn’t “guarantee that a possible outburst won’t happen again. I think it’s just a matter of time

before one does occur again. . . ” The trial court relied fully on this future likelihood: “I'll also

find that, based on the [marshal's] assessment ... were [the defendant] allowed into the

courtroom, it is very likely that he will cause additional disruptions before the jury . . . possibly

result[ing] in further injuries to either court personnel, the jury, witnesses or spectators for that

matter.” (emphasis added).

       I do not disagree that Jones was likely to continue misbehaving. He may even have been

especially likely to do so in light of the fact that he was never warned that such behavior would

lead to his exclusion. But the defendant in Allen, who was continually disruptive, even after two

removals from the courtroom and repeated warnings, could also be said to be likely to reoffend.

He, if anyone, was likely to “cause additional disruptions before the jury,” but the Supreme

Court still told us he could reclaim his right on his promise to comport himself appropriately.

The mere fact that we are considering a question of reclamation means we are considering a


                                                  15
defendant who has already been so disruptive that he has been removed from court. Such a

person is almost by definition likely to reoffend, or, in the words of the majority, be a person

“with no ability to control his temper and [an] unwilling[ness] to comply with court rulings or

orders from the marshals.” Maj. Op. 27. Yet Allen counsels us that even such a person is entitled

upon his promise to behave to return to court, despite the likelihood that will almost certainly

exist in any such case that he will not do so. There is simply no support in Allen for the

proposition that a defendant can either be excluded in the first instance or not allowed to reclaim

his right to presence based on what he is likely to do.

        I further note that the state court’s conclusion that exclusion was warranted because

Jones “refus[ed] to acknowledge the impropriety of that misconduct and his stubbornly

antagonistic attitude” is completely erroneous. In the first instance, Jones was never given the

chance to “acknowledge the impropriety of his misconduct,” at least before the court, since he

was never returned to court after the initial wrongful removal. And Allen in no sense supports

the notion that “a stubbornly antagonist attitude” undercuts the right to reclaim; it firmly stands

against it, given the defendant in that case’s behavior. Apologies or regret are not necessary

under Allen; only a promise to behave is required.

       That is perhaps the most crucial point the majority opinion elides. Allen refers to the

“constitutionally permissible” means for a trial judge to deal with a disorderly defendant as

“tak[ing] him out of the courtroom until he promises to conduct himself properly.” 397 U.S. at

344 (emphasis added).6 This language clearly posits the promise as the trigger point for the


       6
          The majority argues that this language is dicta because Allen “affirmed a defendant’s
exclusion from the courtroom.” Maj. Op. 32. fn. 10. But Allen affirmed the defendant’s removal
in part because when he promised that he would behave, he was allowed to return— despite the
“evidence his word [could not] be relied upon . . . [and] the record of prior misconduct he ha[d]
compiled,” id. This language about promise cannot then be passed off as dicta so easily.

                                                 16
defendant’s ability to return. Once the promise is made, the defendant can return, unless and

until he demonstrates that he will not conduct himself properly. That promise was made in this

case, because although Jones was never given the opportunity to make the required promise to

the trial judge himself, or to do so formally, he gave the marshal “his word” that there would be

“no further outbursts.” Once this was done, the state court was obligated to give Jones himself

the chance to show that he was “willing to conduct himself consistently with the decorum and

respect inherent in the concept of courts and judicial proceedings,” id. at 343. Only if and when

he failed to do so could he be constitutionally removed from court.

                                           Conclusion

       The clearly established law of the Supreme Court is that before a defendant can be

excluded from his trial, he must be warned “that he will be removed if he continues his

disruptive behavior.” Allen, 397 U.S. at 343. Even after he has been warned and removed, he

can reclaim his right to presence upon his promise to behave, without regard to his character or

to his crimes. Id. The Allen defendant was volatile, confrontational, destructive, and

threatening, and he continued to be despite two removals and repeated warnings. The Supreme

Court held that he was entitled to a second chance at exercising his fundamental rights. So too

was Jones, and failure to comprehend that constitutes an unreasonable application of clearly

established law. The sad history of this case represents failure upon failure to comport with

Allen. Jones was wrongfully removed from the courtroom in the first instance. He was given no

warning to make clear what was required of him and what the consequences would be if he

failed to meet the court’s expectations. And even after promising to comport himself

appropriately and complying with the application of full restraints, the court still excluded him.

Jones’s trial was conducted almost completely in his absence. This history represents the sort of


                                                17
“extreme malfunction[],” Harrington v. Richter, 131 S. Ct. 770, 786 (2011), that habeas is meant

to guard against. The profound failures of the trial court and the Connecticut Supreme Court to

understand and properly apply Allen compel my respectful dissent.




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