09-4812-pr
Jenkins v. Brown

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 8th day of March, two thousand eleven.

Present:   AMALYA L. KEARSE,
           ROBERT D. SACK,
           ROBERT A. KATZMANN,
                           Circuit Judges.

____________________________________________________________

NORI JENKINS,

                            Petitioner-Appellant,

                            - v. -                       No. 09-4812-pr

DAWSON BROWN, Superintendent Sing Sing
Correctional Facility,

                            Respondent-Appellee.

____________________________________________________________

For Petitioner-Appellant:                 Stephen N. Dratch, Franzblau Dratch, P.C., New York,
                                          N.Y.

For Respondent-Appellee:                  Leonard Joblove, Assistant District Attorney (Victor
                                          Barall, Thomas M. Ross, Assistant District Attorneys,
                                          of counsel), for Charles J. Hynes, District Attorney,
                                          Kings County, Brooklyn, N.Y.
       Appeal from the United States District Court for the Eastern District of New York
(Block, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Nori Jenkins appeals from a judgment dated September 10, 2009,

by the United States District Court of the Eastern District of New York (Block, J.), denying

Jenkins’ petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). On February 4,

2005, Jenkins was convicted, following a jury trial, of burglary in the second degree pursuant to

New York Penal Law § 140.25[2]. He was sentenced to the maximum term of fifteen years’

imprisonment. After exhausting his appeals in state court, on February 25, 2009, Jenkins

brought this petition for a writ of habeas corpus. After the district court denied the petition and a

certificate of appealability, Jenkins moved in this Court for a certificate of appealability, which

we granted on the sole issue of “whether Appellant was unconstitutionally deprived of his right

to testify in his own defense.” U.S.C.A. dkt. sht. No. 09-4812-pr, Entry Mar. 24, 2010 (granting

motion for certificate of appealability on right to testify and denying motion and dismissing

appeal in all other respects). We assume the parties’ familiarity with the remaining facts and the

procedural history of the case, which we reference only as necessary to explain our decision.

       We review a district court’s denial of a petition for a writ of habeas corpus de novo, and

its findings of fact for clear error. Mannix v. Phillips, 619 F.3d 187, 195 (2d Cir. 2010).

Because the New York Appellate Division’s ruling indicated that Jenkins’ claim that he was

deprived of his constitutional right to testify was “without merit,” Resp’t-Appellee Br. 27, this

case falls under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See

McKethan v. Mantello, 522 F.3d 234, 237-38 (2d Cir. 2008) (per curiam) (finding that Appellate


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Division’s conclusion that the claims were “either without merit or involve[d] matters outside

the record which cannot be considered on direct appeal from the judgment of conviction” to

constitute adjudication on the merits (alteration in original) (internal quotation marks omitted)).

Under the amendment to federal habeas corpus relief enacted as part of AEDPA,

        An application for a writ of habeas corpus on behalf of a person in custody pursuant to
        the judgment of a State court shall not be granted with respect to any claim that was
        adjudicated on the merits in State court proceedings unless the adjudication of the claim--
        (1) resulted in a decision that was contrary to, or involved an unreasonable application of,
        clearly established Federal law, as determined by the Supreme Court of the United States;
        or
        (2) resulted in a decision that was based on an unreasonable determination of the facts in
        light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

        On appeal, Jenkins argues principally that the trial court erred in construing Jenkins’

requests for competency evaluations during the state court proceedings and his claimed inability

to testify on his own behalf as deliberate efforts to impede the trial. Accordingly, he argues that

the trial judge’s refusal to grant him a continuance to testify on his own behalf unfairly deprived

him of his constitutional right to testify.

        The first issue we consider is whether the trial court’s determination that Jenkins was

attempting to delay the trial was an “unreasonable determination of the facts” under AEDPA.

State court factual findings are presumed to be correct, and the petitioner “shall have the burden

of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1). On February 4, 2005, petitioner was called to the stand, and, when questioned by

his counsel, he complained of nausea and indicated his unwillingness to proceed. Viewing

Jenkins’ behavior as a tactical maneuver to delay the trial and garner sympathy with the jury, the

trial court dismissed Jenkins as a witness and ordered defense counsel to begin summations.


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       Jenkins has not provided clear and convincing evidence that his behavior was not an

effort to delay the proceedings, and we agree with the district court that “[t]he trial judge was in

a superior position to observe Jenkins’s demeanor.” Jenkins v. Brown, No. 09-CV-828 (FB),

2009 WL 2957316, at *5 (E.D.N.Y. Sept. 15, 2009). Although the initial two competency

evaluations pursuant to New York Criminal Procedure § 730.30 found defendant unfit to

proceed, a later evaluation by another physician from Kirby Forensic Psychiatric Center found

him fit to proceed and suggested Jenkins was malingering, and, furthermore, that Jenkins had an

incentive to delay the trial in order to obtain a better resolution in his case. Throughout the case,

Jenkins repeatedly requested additional § 730.30 competency examinations, which the trial court

granted and which also found him fit to proceed. Hence, the trial court stated on the record on

several occasions that defense counsel and defendant had engaged in tactics designed to disrupt

the trial. Accordingly, we find that the trial court’s determination that Jenkins’ behavior on the

witness stand was another instance in a long-standing pattern to delay the trial was not

unreasonable.

       We next consider whether the trial judge’s refusal to grant a continuance under these

circumstances was “an unreasonable application of” Supreme Court law regarding the right to

testify. Where “a state court fails to articulate the rationale underlying its rejection of a

petitioner’s claim, and when that rejection is on the merits,” a habeas court must “focus its

review on whether the state court’s ultimate decision was an unreasonable application of clearly

established Supreme Court precedent.” Wilson v. Mazzuca, 570 F.3d 490, 499 (2d Cir. 2009)

(quoting Eze v. Senkowski, 321 F.3d 110, 125 (2d Cir. 2003)) (internal quotation marks omitted).




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          To determine whether the state court engaged in an unreasonable application of Supreme

Court law, we must first ascertain whether there was “clearly established” law. Under 28 U.S.C.

§ 2254(d)(1), “clearly established Federal law” as determined by the Supreme Court “refers to

the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the

relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A court reviewing

a habeas petition looks for “the governing legal principle or principles set forth by the Supreme

Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72

(2003).

          It is clearly established federal law that a criminal defendant has a constitutional right to

testify at trial. Rock v. Arkansas, 483 U.S. 44 (1987). The Supreme Court has located this right

in the Due Process Clause of the Fifth and Fourteenth Amendments, and the Compulsory Process

Clause of the Sixth Amendment. Id. at 51-52; see also Brown v. Artuz, 124 F.3d 73, 76-79 (2d

Cir. 1997) (summarizing development of right to testify). Although few Supreme Court

decisions have elucidated the contours of the right to testify, the right to testify is not absolute

and may “bow to accommodate other legitimate interests in the criminal trial process.” Rock,

483 U.S. at 55 (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)) (internal quotation

marks omitted). However, “restrictions of a defendant’s right to testify may not be arbitrary or

disproportionate to the purposes they are designed to serve.” Id. at 55-56.

          Since the right to testify is clearly established federal law, we next consider whether there

was an unreasonable application of that law in the particular circumstances of this case. If the

state court relies on the correct law or legal standard but “unreasonably applies it to the facts of

the particular state prisoner’s case,” Williams, 529 U.S. at 407, the writ may be granted. As the

Supreme Court stated in Yarborough v. Alvarado, 541 U.S. 652 (2004),

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       [t]he term “‘unreasonable’” is “a common term in the legal world and, accordingly,
       federal judges are familiar with its meaning.” At the same time, the range of reasonable
       judgment can depend in part on the nature of the relevant rule. If a legal rule is specific,
       the range may be narrow. Applications of the rule may be plainly correct or incorrect.
       Other rules are more general, and their meaning must emerge in application over the
       course of time. Applying a general standard to a specific case can demand a substantial
       element of judgment. As a result, evaluating whether a rule application was
       unreasonable requires considering the rule’s specificity. The more general the rule, the
       more leeway courts have in reaching outcomes in case-by-case determinations.

Id. at 663-64 (citation omitted) (quoting Williams, 529 U.S. at 410). Furthermore, “[f]or a state

court to unreasonably apply clearly established federal law under AEDPA, it is not enough that a

federal court concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly. Rather, some increment beyond error

is required.” Eze, 321 F.3d at 125 (internal quotation marks and citations omitted).

       We conclude that it was not an unreasonable application of clearly established federal

law for the state trial court to refuse to grant Jenkins a continuance, where Jenkins had

repeatedly attempted to delay the proceedings or to force a mistrial. Where the Supreme Court’s

cases “give no clear answer to the question presented, . . . ‘it cannot be said that the state court

“unreasonabl[y] appli[ed] clearly established Federal law.”’” Wright v. Van Patten, 552 U.S.

120, 126 (2008) (per curiam) (alterations in original) (quoting Carey v. Musladin, 549 U.S. 70,

77 (2006) (quoting 28 U.S.C. § 2254(d)(1))).

       We have considered Jenkins’ remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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