11-783-pr
Rush v. Lempke

                            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 11th day of October, two thousand twelve.

Present: ROBERT A. KATZMANN,
         RICHARD C. WESLEY,
         PETER W. HALL,
                     Circuit Judges.
____________________________________________________________

EDDIE RUSH,

                            Petitioner-Appellant,


                            -v-                           No. 11-783-pr

JOHN B. LEMPKE,

                     Respondent-Appellee.
____________________________________________________________

For Petitioner-Appellant:          ROBERT A. CULP, Law Office of Robert A. Culp, Garrison,
                                   N.Y.

For Respondent-Appellee:           JOANNA HERSHEY (Tammy J. Smiley, Judith R. Sternberg, on
                                   the brief), Assistant District Attorneys, of counsel for Kathleen
                                   M. Rice, District Attorney, Nassau County, Mineola, N.Y.
       Appeal from the United States District Court for the Eastern District of New York
(Bianco, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

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

       Petitioner-Appellant Eddie Rush (“Rush”) appeals from a February 2, 2011 memorandum

opinion and order (the “February 2011 Opinion”) of the United States District Court for the

Eastern District of New York (Bianco, J.) denying his petition for a writ of habeas corpus as

untimely and, in the alternative, on the merits. Rush v. Lempke, No. 09-CV-3464(JFB), 2011

WL 477807, at *1 (E.D.N.Y. Feb. 2, 2011). In the February 2011 Opinion, the district court

denied petitioner a certificate of appealability. Id. at *20. However, on August 18, 2011, this

Court issued a certificate of appealability on the following issues: whether petitioner was

entitled to equitable tolling of the limitations period; whether the commencement of the

limitations period was governed by 28 U.S.C. § 2244(d)(1)(B); and whether petitioner’s right to

self-representation was violated by the court’s denial of his initial request to proceed pro se on

January 10, 2003, and its restriction of his movement within the courtroom. Because we find

that neither of Rush’s Sixth Amendment claims have merit, we need not address the issues

relating to the timeliness of his petition. We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

       This Court reviews the district court’s denial of a 28 U.S.C. § 2254 petition de novo. See

Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002). To determine whether a petitioner is

entitled to a writ of habeas corpus, federal courts must apply the standard of review set forth in

the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d).

Accordingly, an application for a writ of habeas corpus shall not be granted unless a state court’s

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adjudication on the merits

       (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)(1)-(2); Williams v. Taylor, 529 U.S. 362, 411 (2000) (O’Connor, J.) (“[A]

federal habeas court may not issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied clearly established federal

law erroneously or incorrectly. Rather, that application must also be unreasonable.”).

       First, we consider Rush’s claim that the Supreme Court of the State of New York

Appellate Division, Second Department, unreasonably applied clearly established federal law

when it concluded that the trial court “properly denied his initial request to proceed pro se, as the

initial request was only to proceed pro se temporarily until his new counsel arrived . . . and was

not clear and unequivocal.” People v. Rush, 843 N.Y.S.2d 392, 393 (App. Div. 2007). It is well-

established that the Sixth Amendment grants a criminal defendant the right to represent himself

at trial. Faretta v. California, 422 U.S. 806, 819-21 (1975). The right “may be exercised by all

criminal defendants who knowingly, voluntarily, and unequivocally waive their right to

appointed counsel.” Johnstone v. Kelly, 808 F.2d 214, 216 (2d Cir. 1986). “Once asserted,

however, the right to self-representation may be waived through conduct indicating that one is

vacillating on the issue or has abandoned one’s request altogether.” Williams v. Bartlett, 44 F.3d

95, 100 (2d Cir. 1994). “Equivocation, which sometimes refers only to speech, is broader in the

context of the Sixth Amendment, and takes into account conduct as well as other expressions of

intent.” Id.


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       Like the district court, we find that the Appellate Division’s rejection of Rush’s first self-

representation claim was eminently reasonable. Petitioner’s initial statement that he would

proceed pro se “if [he had] to” was not unequivocal, but part of a transparent effort to obtain an

adjournment and substitution of counsel. J.A. 62. As soon as it became clear that Rush intended

to proceed pro se irrespective of whether he would be able to obtain new counsel, the trial court

granted his application. See J.A. 70-71(“Just so the record is clear . . . up until this point the

Court finds there has been no unequivocal waiver on [Rush’s] part to go pro se. Rather, it was

defendant’s indication to the Court that he was going to be retaining new counsel.”). And, from

that point forward, it is undisputed that Rush put on his own defense.

       Next, we turn to Rush’s allegation that his right to self-representation was violated by the

trial court’s restriction of his movement within the courtroom. We granted Rush a certificate of

appealability as to this claim based on a footnote in the district court’s decision, holding that

       [T]o the extent petitioner argues that his shackles impeded him from representing
       himself because he was not free to move around the courtroom like the
       prosecutor, that argument is . . . without merit because any error committed by the
       trial judge in preventing petitioner from moving around the courtroom was
       harmless.

Rush, 2011 WL 477807, at *13 n.5 (citation omitted). After additional review, however, we find

that this claim is exhausted, but procedurally defaulted.

       AEDPA provides that federal courts may not grant a petition for habeas corpus unless

“the applicant has exhausted the remedies available in the courts of the State” or “there is an

absence of available State corrective process.” 28 U.S.C. § 2254(b)(1)(A), (B)(i). “[E]xhaustion

of state remedies requires that [a] petitioner fairly present federal claims to the state courts in

order to give the [s]tate the opportunity to pass upon and correct alleged violations of its


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prisoners’ federal rights.” Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (alterations in

original and citation omitted). “In order to have fairly presented his federal claim to the state

courts the petitioner must have informed the state court of both the factual and the legal premises

of the claim he asserts in federal court.” Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir.

1982) (en banc). “If 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,” federal habeas courts “must deem the claim[] procedurally defaulted.”

Carvajal, 633 F.3d at 104 (alteration in original).

        During his trial, Rush objected that the shackles he was required to wear interfered with

his ability to represent himself. J.A. 93-94 (during voir dire regarding self-representation, the

trial court told Rush that he would remain shackled and Rush responded “Isn’t fair to me that I

can’t be able to walk around.”). But in his appeal to the Appellate Division, Rush asked the

court only to consider, inter alia: (1) if he “[s]hould . . . be granted a new trial because,

notwithstanding an unequivocal pre-trial request to proceed pro se, the County Court summarily

denied his Faretta request, and thus precluded [h]im from picking his own jury”; and,

(2) whether “the County Court abused its discretion, and committed reversible error, when it

declined to hold a hearing, at [which] testimony could be taken, on Rush’s claimed flight risk,

before shackling [h]im during trial, in violation of his Due Process right to a fair trial?” Supp.

App. 1055. Significantly, Rush’s appellate brief failed to assert or imply that the trial court’s

restriction of Rush’s movement affected his right to self-representation. Thus, the state court

was not given an opportunity to review this claim.




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          Further, Rush cannot return to New York state court to raise this issue. Rush has already

directly appealed his conviction to the Appellate Division and applied for review of the

Appellate Division’s decision by the New York Court of Appeals. Accordingly, under New

York law, further direct review is no longer available. The petitioner’s failure to raise the claim

on direct review also forecloses collateral review in state court. See Spence v. Superintendent,

Great Meadow Corr. Facility, 219 F.3d 162, 170 (2d Cir. 2000) (citing N.Y. Rules of Court,

Court of Appeals, § 500.10(a) (McKinney 1999), and N.Y. Crim. Proc. Law § 440.10(2)(c)

(McKinney 1994)).

          In a Rule 28(j) letter submitted to this Court two days after oral argument, Rush requests

that we hold this appeal in abeyance to allow him to file a coram nobis petition in state court. In

the petition, he would claim ineffective assistance of state appellate counsel for failure to raise

on direct appeal the Sixth Amendment issue before us today. He contends that filing the coram

nobis petition in state court would allow this Court to reach the issue subsequently on habeas

review.

          Rush misconstrues the nature of a coram nobis proceeding. “The only constitutional

claim [a petitioner is] permitted to raise in seeking a writ of error coram nobis [is] ineffective

assistance of appellate counsel, a claim that is distinct from” the Sixth Amendment claim he

raises here. Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001). Filing a coram nobis petition

would not “fairly present[] his federal claim to the state courts.” Daye, 696 F.2d at 191.

Consequently, a coram nobis proceeding would not resolve Rush’s procedural default.

          When a petitioner “has defaulted his federal claims in state court pursuant to an

independent and adequate state procedural rule, federal habeas review of the claims is barred



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unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Rush

makes no demonstration with respect to a potential fundamental miscarriage of justice. The only

cause that he identifies for the procedural default is the ineffective assistance of state appellate

counsel. However, as he acknowledges in his 28(j) letter, “the exhaustion doctrine . . . generally

requires that a claim of ineffective assistance be presented to the state courts as an independent

claim before it may be used to establish cause for a procedural default.” Murray v. Carrier, 477

U.S. 478, 488-89 (1986). Federal habeas review of Rush’s Sixth Amendment claim with respect

to the restriction of his movement in the courtroom is therefore barred.

       We have considered Rush’s remaining arguments and find them to be without

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

AFFIRMED.

                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, CLERK




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