 11-1205-pr
 Eubanks v. Lempke

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                  AMENDED 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 18th day of May, two thousand twelve.

 Present:
          JOSEPH M. McLAUGHLIN,
          ROBERT A. KATZMANN,
                      Circuit Judges,
          JOHN F. KEENAN,
                      District Judge.*
 _____________________________________________________________________

 ISAAC EUBANKS,

                             Petitioner-Appellant,

                             - v. -                         No. 11-1205-pr

 JOHN LEMPKE, Superintendent, Five Points Correctional Facility,

                             Respondent-Appellee.

 ____________________________________________________________

 For Petitioner-Appellant:                   STEVEN BERKO, The Legal Aid Society, Criminal
                                             Appeals Bureau, New York, N.Y.

 For Respondent-Appellee:                    HANNAH STITH LONG, Assistant Attorney General
                                             (Barbara D. Underwood, Solicitor General, Roseann B.
                                             MacKechnie, Deputy Solicitor General, Alyson J. Gill,


         *
           The Honorable John F. Keenan, of the United States District Court for the Southern
 District of New York, sitting by designation.
                                            Lea La Ferlita, Assistant Attorney Generals, on the
                                            brief), for Eric T. Schneiderman, Attorney General of
                                            the State of New York, New York, N.Y.

       Appeal from the United States District Court for the Southern District of New York
(Duffy, J.).

          ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

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

          Petitioner-Appellant Isaac Eubanks appeals from a final judgment entered on March 1,

2011 by the United States District Court for the Southern District of New York (Duffy, J.),

following a February 22, 2011 Opinion and Order, denying Eubanks’s petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. The district court issued a certificate of

appealability on the question of whether petitioner’s waiver of his right to be present for the

jury’s verdict was knowing and voluntary. We assume the parties’ familiarity with the facts and

the record of prior proceedings, which we reference only as necessary to explain our decision to

affirm.

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

Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006). Pursuant to the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), when a federal claim has been adjudicated on

the merits in state court, a federal court may overrule the state court only where its decision was

“contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or 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)(1) & (2). “[C]learly established Federal law” in § 2254(d)(1) “refers to the

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

state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000) (internal quotation marks

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omitted). In order to prevail under the “unreasonable application” clause, petitioner must

demonstrate that while the state court identified the correct governing legal principle from

Supreme Court precedent, it “unreasonably applie[d] that principle to the facts” of his case. Id.

at 413.

          The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the

right to be present at all stages of trial, Illinois v. Allen, 397 U.S. 337, 338 (1970), including the

return of the verdict, Diaz v. United States, 223 U.S. 442, 456 (1912) (“It is the right of the

defendant in cases of felony . . . to be present at all stages of the trial, [] especially at the

rendition of the verdict . . . .” (internal quotation marks omitted)). The Due Process Clause of

the Fourteenth Amendment also guarantees defendants the right to be present for trial

proceedings “to the extent that a fair and just hearing would be thwarted by his absence, and to

that extent only.” Snyder v. Massachusetts, 291 U.S. 97, 108 (1934). “Thus, a defendant is

guaranteed the right to be present at any stage of the criminal proceeding that is critical to its

outcome if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer,

482 U.S. 730, 745 (1987). A criminal defendant, however, may waive his right to be present.

See, e.g., Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (“No constitutional error results

if a defendant knowingly and voluntarily waives his right to be present at trial.”). Waiver can be

implied from the defendant’s conduct, see Taylor v. United States, 414 U.S. 17, 20 (1973) (per

curiam) (holding that defendant’s failure to return to court after lunch recess implied waiver of

right to be present); Allen, 397 U.S. at 342-43 (“[A] defendant can lose his right to be present at

trial if . . . he . . . 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.”), and, in

certain circumstances, a defendant may waive his right to be present by failing to assert it, see


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United States v. Gagnon, 470 U.S. 522, 529 (1985) (per curiam) (“[R]espondents’ total failure to

assert their rights to attend the conference with the juror sufficed to waive their rights under

[Fed. R. Crim. P.] 43.”); Cohen v. Senkowski, 290 F.3d 485, 492 (2d Cir. 2002) (“[W]hen a

defendant is fully apprised of the nature of the pre-screening [voir dire] procedure, makes no

objection to the procedure, and has counsel present for the duration of the pre-screening, a

knowing waiver of the right to be present occurs.”).

       In a federal habeas proceeding, the petitioner bears the burden of proving the absence of

a knowing and voluntary waiver. Polizzi v. United States, 926 F.2d 1311, 1321 (2d Cir. 1991).

Additionally, “[w]hether or not the state trial court properly balanced the defendant’s interest in

being present at his trial against the state’s interest in proceeding without him is not a matter of

constitutional dimension and thus is not cognizable in [a] habeas corpus proceeding.” Smith v.

Mann, 173 F.3d 73, 77 (2d Cir. 1999).

       Here, while there is no dispute that the verdict was read in petitioner’s absence, Eubanks

contends that the Appellate Division erred in concluding that Eubanks “waived his presence for

all purposes, including a possible verdict, for the entire day and that defendant knew that the trial

would proceed if he chose to be absent.” People v. Eubanks, 41 A.D.3d 241, 242 (N.Y. App.

Div. 1st Dep’t 2007) (internal citation omitted). In reaching its decision, the Appellate Division

noted that after the jury began deliberations on Thursday, the trial court “inquired as to

[petitioner’s] wishes in the event that deliberations continued into Friday,” and, in response,

petitioner’s counsel said that petitioner “ha[d] decided that he is going to exercise his religion

tomorrow,’” but that he elected to remain “on the list of inmates to be produced for trial” so that

he would have the option of coming to court. Id. at 241. On Friday, petitioner “was absent, and

the court placed on the record a communication from the Department of Correction stating that


                                                  4
[petitioner] did not wish to be produced.” Id. The Appellate Division concluded that “[u]nder

all the circumstances of the case, there was no need for the court to make [further] inquiry” about

defendant’s absence because “[t]he reason for defendant’s absence was obvious from the chain

of events, and was not a matter of ‘conjecture.’” Id. at 242.

       While petitioner maintains that the trial court erred in failing to place on the record the

reason for petitioner’s absence, he cannot demonstrate that the Appellate Division’s decision is

contrary to, or an unreasonable application of, clearly established Supreme Court precedent. The

trial court made it clear that it would proceed with trial the next day and that it would put

petitioner’s name on the trial list so that petitioner could choose whether to attend. While the

trial court did not place into the record a written statement from the warden’s office regarding

petitioner’s absence, it nonetheless made a clear finding that “someone from the warden[’]s

office . . . has confirmed from Mr. Eubanks that Mr. Eubanks does not want to be here.” Pet’r’s

Br. 32 (quoting Tr. 767). This finding was also consistent with petitioner’s counsel’s previous

statement that petitioner intended “to exercise his religion” on Friday rather than be present in

court. See Eubanks, 41 A.D.3d at 241. Thus, viewing the record in context, the Appellate

Division did not contradict or misapply clearly established law in concluding that petitioner

waived his right to be present.

       Petitioner next argues that even if he did waive his right to be present during the reading

of the verdict, the trial court coerced his waiver by forcing him to choose between attending

religious services and appearing at trial. “The First Amendment, applicable to the States by

reason of the Fourteenth Amendment, prohibits government from making a law ‘prohibiting the

free exercise (of religion).’” Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam) (internal

citation omitted). “[R]easonable op[p]ortunities must be afforded to all prisoners to exercise the


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religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty.”

Id. at 322 n.2. However, under the Free Exercise Clause, “[n]ot all burdens on religion are

unconstitutional . . . . The state may justify a limitation on religious liberty by showing that it is

essential to accomplish an overriding governmental interest.” Bob Jones Univ. v. United States,

461 U.S. 574, 603 (1983) (internal quotation marks omitted). The governmental interest must be

“compelling” and there must be no “less restrictive means . . . available to achieve” it. Id. at 604

(internal citations and quotation marks omitted). While Eubanks’s coercion argument presents a

somewhat closer issue, in this particular case, we need not decide the weighty question, whether,

as a general matter, a trial court is obligated to make an effort to accommodate a criminal

defendant’s religious obligations during a trial. Because Eubanks never objected to the trial

court's decision to proceed with trial on Friday and never even requested an adjournment or other

accommodation, we cannot conclude that the trial court “coerced” him into waiving his right to

be present at the reading of the verdict.

       We have considered Eubanks’s 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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