     12-256-cv
     Ramos v. Racette

 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                             August Term, 2012
 6
 7
 8        (Argued: June 24, 2013          Decided: August 9, 2013)
 9
10                             Docket No. 12-256
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   RAMON RAMOS,
15
16                      Petitioner-Appellant,
17
18               - v.-                                      12-256
19
20   STEVEN RACETTE,
21
22                      Respondent-Appellee.
23
24   - - - - - - - - - - - - - - - - - - - -x

25         Before:          JACOBS, Chief Judge, CARNEY and DRONEY,
26                          Circuit Judges.

27
28         During his trial for multiple rape-related crimes,

29   Ramon Ramos elected to appear pro se and to absent himself

30   from the proceedings.       The trial judge introduced Ramos’s

31   standby counsel to the voir dire panel as Ramos’s lawyer.

32   After a recess, the court attempted to correct the

33   mischaracterization by reintroducing counsel as Ramos’s

34   “legal advisor.”       Following his conviction, Ramos filed for
1    a writ of habeas corpus in the United States District Court

2    for the Eastern District of New York (Gleeson, J.), arguing

3    that the brief introduction violated his Sixth Amendment

4    right to self-representation.       We affirm the denial of the

5    writ because there is no clear Supreme Court precedent

6    controlling this case, and because the introduction did not

7    substantially impair his right to self-representation.

 8                                 SALLY WASSERMAN, New York, NY,
 9                                 for Appellant.
10
11                                 JOHNNETTE G. A. TRAILL (John M.
12                                 Castellano, on the brief),
13                                 Queens County District
14                                 Attorney’s Office, Kew Gardens,
15                                 NY, for Appellee.
16
17   DENNIS JACOBS, Chief Judge:
18
19       Ramon Ramos appeals from the judgment of the United

20   States District Court for the Eastern District of New York

21   (Gleeson, J.) denying his petition for a writ of habeas

22   corpus.   Charged with first-degree rape, first-degree

23   sodomy, and second-degree burglary in state court, Ramos

24   elected to forego counsel and to absent himself from the

25   proceedings in protest.   Shortly thereafter, the trial judge

26   introduced Ramos’s standby counsel to the jury as his

27   attorney--a mischaracterization that the court attempted to

28   correct by reintroducing him as a “legal advisor.”      Ramos

                                     2
1    argues that this violated his Sixth Amendment right to self-

2    representation.   We affirm because the state proceeding did

3    not result “in a decision that was contrary to, or involve[]

4    an unreasonable application of, clearly established Federal

5    law, as determined by the Supreme Court of the United

6    States.”    28 U.S.C. § 2254(d).    And the Supreme Court case

7    on which Ramos relies, McKaskle v. Wiggins, fairly read,

8    does not support his position because standby counsel’s

9    extremely limited participation was “simply not substantial

10   or frequent enough to have seriously undermined [Ramos’s]

11   appearance before the jury in the status of one representing

12   himself.”    465 U.S. 168, 187 (1984).   The judgment is

13   affirmed.

14

15                               BACKGROUND

16       In July 1993, a young woman reported to police that she

17   had been raped.   A sexual assault kit was used to collect

18   evidence at the local hospital in Queens.     The case went

19   cold for some time.   In March 1994, Ramos was arrested for

20   burglary, also in Queens.    Although police suspected his

21   involvement in the rape, the victim was unable to identify

22   him in multiple photo arrays and lineups, and the case went

23   cold again.

                                     3
1        That changed in October 2001, when state officials

2    procured a DNA sample from Ramos, who was then serving time

3    for a third-degree robbery conviction.   In July 2002,

4    Ramos’s DNA was matched to the semen from the victim’s

5    sexual assault kit.   Ramos was indicted for the rape in May

6    2003.

7        Ramos’s first trial in New York Supreme Court ended in

8    a mistrial when the prosecutor took ill.   During those

9    truncated court proceedings in 2005, Ramos evinced a desire

10   to represent (and eventually absent) himself.   Ramos advised

11   the court that he would appear pro se, except for certain

12   challenges to DNA evidence, which he wanted his standby

13   counsel, John Scarpa, to make.    However, during the Sandoval

14   hearing,1 Ramos expressed disgust with the court and the

15   proceedings, and a distrust of lawyers based in part on his

16   perception that unchallenged police perjury had led to a

17   prior conviction.   He refused counsel and refused to stay:

18       I will   not sit here and have this court convict me for
19       wrongs   done by the police. . . . I do not wish to
20       attend   this trial. . . . I am a minority and I cannot
21       afford   a lawyer—it seems the system would like to take

          1
            In New York, “a Sandoval hearing is held, upon a
     defendant’s request, to determine the extent to which he
     will be subject to impeachment by cross-examination about
     prior bad acts if he testifies.” Grayton v. Ercole, 691
     F.3d 165, 173 (2d Cir. 2012) (quotation marks omitted).
                                   4
 1       advantage but after being convicted here and serving 15
 2       to life based on the fact that the court protected a
 3       police officer from having perjured himself, I am not
 4       going to go through it and I respectfully refuse to
 5       attend any further of my trial and conviction. Let it
 6       go on without me. . . . I want to make it clear that I
 7       do not wish an attorney for me. What I feel is
 8       happening, there is corruption going on in the system,
 9       corruption going on.
10
11   Ramos v. Racette, No. 11-CV-1412, 2012 WL 12924, at *2-3

12   (E.D.N.Y. Jan. 4, 2012) (quoting the trial transcript).     The

13   court then instructed Scarpa to act as counsel in Ramos’s

14   absence, explaining, “[w]e can’t have an empty defense chair

15   and table, so it’s a good thing that you are advisory

16   counsel because now you are back in the box . . . .   [F]rom

17   this point on, you are the attorney for the defendant.”     Id.

18   at *3.   However, the trial prosecutor missed three

19   consecutive days with illness before the jury was sworn in,

20   and the court declared a mistrial.

21       The retrial was held over five days from January 3 to

22   10, 2006.   On the first day, Ramos indicated that he was

23   unhappy with the new legal advisor assigned to his case,

24   Russell Rothberg.   Although Ramos had not objected to

25   Scarpa’s replacement when it occurred, he now insisted that

26   he wanted Scarpa back.   The court informed him that “Mr.

27   Rothberg . . . has been on the case for the past



                                   5
1    month . . . and you, frankly, don’t have a say in the

2    matter.”   Id. at *4.   Ramos made clear that he would protest

3    the trial if Rothberg were involved, and the court allowed

4    Ramos to leave the courtroom.

5        After Ramos went to his cell, Rothberg asked the court

6    to clarify his role: “Judge, just so the record is

7    absolutely clear, I know that the Court has made the inquiry

8    of the defendant who has voluntarily absented himself from

9    the courtroom, so again my status now changes from legal

10   advisor to counsel for the defendant?”    Id. at *5.   The

11   court confirmed that “[f]or the purposes of the trial, and

12   for the jury’s edification, obviously you have to be

13   referred to as the defendant’s attorney, yes, or you are

14   representing the defendant.”    Id.   The jury was brought into

15   the courtroom, and the court introduced Rothberg to the jury

16   as “the attorney for the defendant.”    Id.

17       The prosecutor returned from the lunch break worried,

18   and suggested to the court that a defendant had a

19   constitutional right both to appear pro se and to absent

20   himself from trial without representation.    The prosecutor

21   advised that the court could not “force [Ramos] to have Mr.

22   Rothberg represent him merely because he [wanted] to go pro

23   se and absent himself.”   Id. at *6.


                                     6
1        After this exchange, the court ordered Ramos returned

2    to court.    Ramos confirmed, again, that he wished to appear

3    pro se without any representation from Rothberg.      He

4    declared that he wanted to “take [his] chances with appeal,”

5    and voluntarily returned to his cell.      Id.

6        The prosecutor asked the court to clarify for the jury

7    that Ramos was actually representing himself, but the

8    request strangely was denied.       Instead, the court obliquely

9    informed the jury that “Mr. Rothberg has been appointed by

10   the Court to be available to serve as a legal advisor to Mr.

11   Ramos.”    Id.   Jury selection continued.

12       Before each day of trial, Ramos was asked whether he

13   would like to participate in the proceedings.      Each day,

14   Ramos elected to remain in the holding cell.      After the

15   prosecution rested, the court charged the jury, including an

16   instruction to draw no inference from the defendant’s

17   absence.    On January 10, 2006, the jury returned a verdict

18   of guilty on all counts.

19       Ramos appealed through the state court system, arguing

20   that his right to self-representation had been abrogated.

21   The Second Department denied the appeal: “Contrary to the

22   defendant’s contention, he was not denied [his] right [to



                                     7
1    self-representation] when the court appointed a new attorney

2    to act as standby counsel.”    People v. Ramos, 877 N.Y.S.2d

3    177, 178 (2d Dep’t 2009).    The New York Court of Appeals

4    granted Ramos leave to appeal, People v. Ramos, 13 N.Y.3d

5    748 (2009), but subsequently affirmed the Second

6    Department’s order without taking up the Sixth Amendment

7    issue.   People v. Ramos, 13 N.Y.3d 881, 881-82 (2009).

8    Reargument and reconsideration were denied.       People v.

9    Ramos, 14 N.Y.3d 794 (2010).

10       On March 10, 2011, Ramos petitioned pro se for a writ

11   of habeas corpus in the United States District Court for the

12   Eastern District of New York (Gleeson, J.), presenting six

13   claims for relief.   Ramos, 2012 WL 12924, at *9.      The court

14   denied the petition.   Id. at *29.       Ramos appeals from that

15   judgment.   The only question now before us is whether his

16   Sixth Amendment right to self-representation was violated in

17   the state trial.

18

19                               DISCUSSION

20                                   I

21       We review the denial of a habeas petition de novo.

22   Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003).       “An


                                     8
1    application for a writ of habeas corpus on behalf of a

2    person in custody pursuant to the judgment of a State court

3    shall not be granted with respect to any claim that was

4    adjudicated on the merits in State court proceedings unless

5    the adjudication of the claim [either] (1) resulted in a

6    decision that was contrary to, or involved an unreasonable

7    application of, clearly established Federal law, as

8    determined by the Supreme Court of the United States; or (2)

9    resulted in a decision that was based on an unreasonable

10   determination of the facts in light of the evidence

11   presented in the State court proceeding.”   28 U.S.C.

12   § 2254(d).

13       “A state court’s determination that a claim lacks merit

14   precludes federal habeas relief so long as ‘fairminded

15   jurists could disagree’ on the correctness of the state

16   court’s decision.”   Harrington v. Richter, 131 S. Ct. 770,

17   786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,

18   664 (2004)).   This standard protects against intrusion of

19   federal habeas review upon “both the States’ sovereign power

20   to punish offenders and their good-faith attempts to honor

21   constitutional rights.”   Id. at 787 (internal quotations

22   omitted); see id. at 786 (“If this standard is difficult to

23   meet, that is because it was meant to be.”).

                                   9
1        Ramos’s primary argument on appeal is that his Sixth

2    Amendment right to self-representation was violated when the

3    2006 trial court initially disregarded his request to appear

4    pro se, assigned counsel during voir dire, and introduced

5    Rothberg to the jury as Ramos’s counsel.

6        The fleeting imposition of counsel upon a pro se

7    defendant who has elected to abstain from participating at

8    trial is a matter of first impression in this Court.

9    Critically, the Supreme Court has not specifically addressed

10   it, either.   “[I]t is not an unreasonable application of

11   clearly established Federal law for a state court to decline

12   to apply a specific legal rule that has not been squarely

13   established by [the Supreme] Court.”   Knowles v. Mirzayance,

14   556 U.S. 111, 122 (2009) (quotation marks omitted); see 28

15   U.S.C. § 2254(d).   Ramos can point to no Supreme Court case

16   analyzing whether the unwanted participation of standby

17   counsel violated the Sixth Amendment rights of a pro se

18   defendant asserting an absentee protest defense.   In Davis

19   v. Grant, we called for further guidance from the Supreme

20   Court on appointment of counsel for pro se defendants who

21   are forcibly absented, 532 F.3d 132, 149-50 (2d Cir. 2008);

22   the same gap exists with respect to pro se defendants like



                                   10
1    Ramos who voluntarily absent themselves, and who thus (as it

2    were) “disappear” pro se.

3        Given the lack of Supreme Court guidance in this area,

4    “fairminded jurists” could reasonably support the state

5    court judgment.   See Harrington, 131 S. Ct. at 786.    We

6    decline to grant a writ of habeas corpus in the absence of

7    “clearly established Federal law” that requires it.    The

8    Supreme Court authority on which Ramos relies does not

9    support his claim, let alone do so with the requisite

10   clarity.

11

12                                 II

13       Ramos argues that McKaskle v. Wiggins, 465 U.S. 168

14   (1984), constitutes the Supreme Court precedent he needs.

15   However, analysis of that case confirms that Ramos’s self-

16   representation was not substantially disturbed by the

17   court’s brief introduction of counsel.

18       The Supreme Court has instructed that a pro se

19   defendant has a right to maintain control over the case that

20   the defendant wants to present to the jury personally.

21   McKaskle, 465 U.S. at 178.   “[O]nce a defendant has

22   knowingly and intelligently waived her right to counsel, a


                                   11
1    [trial] court should not interfere with the defendant’s

2    choice, even though it ‘may sometimes seem woefully foolish

3    to the judge.’”   Torres v. United States, 140 F.3d 392, 402

4    (2d Cir. 1998) (quoting United States v. Curcio, 694 F.2d

5    14, 25 (2d Cir. 1982)).   “[P]articipation by standby counsel

6    without the defendant’s consent should not be allowed to

7    destroy the jury’s perception that the defendant is

8    representing himself.”    McKaskle, 465 U.S. at 178.

9          However, a pro se defendant’s control over the defense

10   is not limitless.   In McKaskle, the Supreme Court considered

11   whether unsolicited participation of standby counsel

12   violated a defendant’s right to defend pro se.    Although the

13   trial court permitted the defendant to appear pro se, it

14   also allowed standby counsel an occasional interjection.

15   Standby counsel “made motions, dictated proposed strategies

16   into the record, registered objections to the prosecution’s

17   testimony, urged the summoning of additional witnesses, and

18   suggested questions that the defendant should have asked of

19   witnesses”--over the explicit objections of the defendant.

20   Id.   The Court held that the intrusions of the standby

21   counsel “were simply not substantial or frequent enough to

22   have seriously undermined [the defendant’s] appearance



                                    12
1    before the jury in the status of one representing himself.”

2    465 U.S. at 187.

3        Here, the court introduced Rothberg to the jury as “the

4    attorney for the defendant” notwithstanding that Ramos

5    expressly asked to appear pro se and without Rothberg’s

6    participation.   Ramos, 2012 WL 12924, at *5.    The court’s

7    brief statement was alarming enough that the state

8    prosecutor soon after asked the court to limit Rothberg to

9    an observer’s role, with a clarifying instruction for the

10   jury.   The instruction given was that Rothberg was acting as

11   the defendant’s “legal advisor.”   Id., at *6.    Although it

12   would have been best if the court had not made the initial

13   introduction, the mischaracterization did not cross

14   McKaskle’s “substantial” interruption threshold for a

15   constitutional violation.

16       Ramos argues that the momentary introduction crossed

17   the line.   He cites a footnote from McKaskle: “[s]ince the

18   right of self-representation is a right that when exercised

19   usually increases the likelihood of a trial outcome

20   unfavorable to the defendant, its denial is not amenable to

21   ‘harmless error’ analysis.   The right is either respected or

22   denied; its deprivation cannot be harmless.”     465 U.S. at



                                   13
1    177 n.8.    Ramos similarly points to United States v.

2    Gonzalez-Lopez, which instructed that structural errors

3    “defy analysis by harmless error standards because they

4    affect the framework within which the trial proceeds and are

5    not simply an error in the trial process itself.”    548 U.S.

6    140, 148-49 (2006) (quotation marks omitted).

7        However, “[i]t does not necessarily follow . . . that

8    every deprivation in a category considered to be

9    ‘structural’ constitutes a violation of the Constitution or

10   requires reversal of the conviction, no matter how brief the

11   deprivation or how trivial the proceedings that occurred

12   during the period of deprivation.”   Gibbons v. Savage, 555

13   F.3d 112, 120 (2d Cir. 2009), cert. denied, 558 U.S. 932

14   (2009).    The Gibbons court discussed (albeit in dicta) a

15   scenario similar to the one before us: a pro se defendant

16   “who, in spite of his demand to represent himself, was

17   required to be represented by counsel.”   Id.    The court

18   speculated that such an encroachment upon self-

19   representation would support a viable habeas claim if the

20   unwanted representation persisted “throughout the trial, or

21   for a substantial or important part of it.”     Id. (emphasis

22   added).    This notion of a “substantial” intrusion is


                                    14
1    consistent with McKaskle, which held that the standby

2    counsel’s comments made over the defendant’s protests were

3    not “substantial” or “frequent enough” to disrupt the jury’s

4    perception of his pro se defense.   465 U.S. at 187.     The

5    right of self-representation is not a matter of all or

6    nothing, especially in the context of a habeas review

7    following an adverse state court ruling.

8        It is true that a spectacle of total protest against

9    the proceedings could be undermined, slightly, by an

10   introduction of counsel to the jury.   Any presentation of a

11   defense at all, no matter how limited, inherently disrupts a

12   concerted refusal to participate.

13       Ramos made it plain enough that he wanted nothing to do

14   with the trial and wanted nothing done on his behalf.     But

15   it is not clear from his statement of position that the

16   absence of any defense effort was a strategic defense

17   measure to convey a protest to the jury.   Rather than

18   mounting a theatrical defense, Ramos could have simply been

19   quitting.2   But even assuming his absence was intended to

          2
            Ramos argues on appeal that he was hoping to
     “telegraph a message to the jury with both his self-
     representation and his absence.” Reply Br. at 13. But his
     behavior seems more like pure apathy. His declaration (made
     out of the presence of the jury) that he preferred to “take
     [his] chances with appeal” does not support his current
                                   15
1    somehow influence the jury to acquit, any impact of the

2    introduction on the jury’s perceptions was insubstantial,

3    checked by the prosecutor’s prompt intervention.    Rothberg’s

4    participation was limited to a three-word greeting, and that

5    was it.   After the lunch break, the trial court explained to

6    the jury that “Mr. Rothberg has been appointed by the Court

7    to be available to serve as a legal advisor to Mr. Ramos.”

8    Ramos, 2012 WL 12924, at *6.   Given that laymen might

9    consider availability to serve as legal advisor to be an

10   attorney’s function, an explicit clarification would

11   certainly have been preferable.     However, this statement

12   sufficiently indicated that Rothberg was not, in fact,

13   Ramos’s active counsel (an impression greatly reinforced

14   when Rothberg sat in the spectator section, rather than at

15   the counsel’s table, for the remainder of the trial).

16       More importantly, after the initial introductions,

17   Ramos was able to advance a strategy of boycott for the

18   duration of the trial.   Rothberg never presented any sort of

19   a defense to the jury whatsoever; indeed, he never uttered

20   another word.   Thus, “the intrusions by counsel at [Ramos’s]

21   trial were simply not substantial or frequent enough to have


     characterization that his absence was intended as a signal
     of injustice to the jury.
                                    16
1    seriously undermined [Ramos’s] appearance before the jury in

2    the status of one representing himself.”    McKaskle, 465 U.S.

3    at 187.   This was not a situation where “only the lawyers in

4    the courtroom” knew that Ramos was exercising his right to

5    pro se representation.   Id. at 179.   Ramos was therefore not

6    deprived of his right to self-representation, and his claim

7    for a writ of habeas corpus is denied.

8

9                              CONCLUSION

10       For the foregoing reasons, we affirm.

11




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