Gilchrist v. O'Keefe

• Decision Date: 18 April 2001
• Docket Number: RESPONDENT-APPELLEE,PETITIONER-APPELLANT,Docket No. 00-2466
• Parties: (2nd Cir. 2001) GREGORY GILCHRIST,, v. JOHN R. O'KEEFE, SUPERINTENDENT, Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 87

260 F.3d 87 (2nd Cir. 2001)

GREGORY GILCHRIST, PETITIONER-APPELLANT, v. JOHN R. O'KEEFE, SUPERINTENDENT, RESPONDENT-APPELLEE.

Docket No. 00-2466

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: April 18, 2001

Decided: Aug. 2, 2001

[Copyrighted Material Omitted]

Gail Jacobs, Great Neck, Ny, for petitioner-appellant.

David Axinn, Assistant Solicitor General, for Eliot Spitzer, Attorney General of the State of New York, (Michael S. Belohlavek, Deputy Solicitor General and Marion R. Buchbinder, Assistant Solicitor General, on the brief), New York, Ny, for respondent-appellee.

Before: Leval, Sack and Sotomayor, Circuit Judges.

Sotomayor, Circuit Judge

Petitioner Gregory Gilchrist appeals from a judgment of the United States District Court for the Southern District of New York (Martin, J.) denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner claims that he was unconstitutionally deprived of counsel during his sentencing proceeding when the state trial court refused to appoint a new attorney for him after he had punched his appointed trial counsel in the head, causing that attorney to withdraw from representing him. Although, of course, under no circumstances do we condone a defendant's use of violence against his attorney, had this been a direct appeal from a federal conviction we might well have agreed with petitioner that the constitutional interests protected by the right to counsel prohibit a finding that a defendant forfeits that right based on a single incident, where there were no warnings that a loss of counsel could result from such misbehavior, where there was no evidence that such action was taken to manipulate the court or delay proceedings, and where it was possible that other measures short of outright denial of counsel could have been taken to protect the safety of counsel. Nevertheless, we cannot say, under the deferential standard applied in habeas review, that the state courts here acted in a manner that was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1). Accordingly, we affirm the judgment of the district court.

BACKGROUND

On March 5, 1995, petitioner was found guilty after a jury trial in New York Supreme Court, New York County, of robbery in the second degree. Shortly before sentencing, the Legal Aid Society moved to withdraw as petitioner's counsel. Defense counsel Neville Ross informed the trial judge that on April 5, 1995, petitioner had punched him in the ear and ruptured his eardrum during a pre-sentencing meeting in a courthouse holding cell. At a hearing on April 13, 1995, at which petitioner was provided the opportunity to offer an explanation for his assault on his attorney and during which he suggested that he was simply responding to threats made against him by defense counsel, the judge granted the Legal Aid Society's motion to withdraw. In doing so, the trial court commented on the severity of the attack by noting that it had personally observed petitioner's attorney outside the courtroom very shortly after the attack and that he had seemed "disoriented" and that there was "a large red mark visible" near his ear.

The court not only granted the motion to withdraw, but then refused to appoint a new attorney for petitioner, stating:

The defendant's behavior in this case is totally inexcusable, totally without [ ]provocation, totally inexplicable. I should amend that. There is one explanation and it becomes apparent when one considers the facts of the case itself. It seems to me based upon the credible evidence in the case that when things don't go quite well for the defendant, the defendant acts in a violent way. We had an example of that testified to by the complaining witness. Another person of slight stature who when he saw the defendant stealing matters - stealing materials from his store and protested about that, was met with a solid punch in the nose by the defendant which caused him physical injury.

We have now not just one example. We have two examples of it. I really don't see - I really don't see any reason to subject any other member of the bar of this state to the assaultive conduct by the defendant. I have a real concern that any other attorney who is representing this defendant will be met or potentially met with the same assaultive behavior that the defendant used against Mr. Ross.

The court concluded:

One has a right to counsel but one can waive and one can forfeit certain rights, sir, and it seems to me in this particular case that's what's happened.

We have not simply a case where a threat has been made against an attorney or where something happened in the defendant's long past that one might make - might make one a little bit nervous. Rather we have assaultive conduct during the course of a criminal case against an attorney by the defendant who that very attorney is representing. That is inexcusable and it leaves me without any reason whatsoever to appoint a new counsel to represent you and I am not going to do it.

The court adjourned sentencing for one week to allow petitioner time to review the presentence report and prepare to proceed without an attorney.

On April 19, 1995, despite having been relieved as counsel, petitioner's former attorney filed a motion on petitioner's behalf to set aside the verdict or for a new trial, and a pre-sentence memorandum "to assist the Court with the disposition in the case of Gregory Gilchrist." On April 24, 1995, petitioner appeared without counsel at sentencing. Despite his official withdrawal from representing petitioner, petitioner's attorney entered the courtroom early on in the proceeding and was present for the remainder thereof. The court reiterated its refusal to appoint counsel for petitioner during sentencing, and noted that: "I denied before trial and also during trial your request to relieve [defendant's attorney] because he was doing a good job for you. I saw no reason to give you a fifth lawyer to represent you on the case; and due to your conduct, I ultimately had to relieve him after the trial was concluded when you slugged him."¹

Petitioner's former attorney spoke at various points "as a friend of the Court or in some similar capacity" and urged the trial judge not to penalize the petitioner for his attack on him. He explained that "I think that Mr. Gilchrist was simply very stressed at the time" and that the hole in his eardrum had "closed itself." He asked the court to sentence defendant to the minimum term of imprisonment of one and one half to four and one half years.

After petitioner continued to complain that he had been denied representation, the court stated:

You have had several attorneys on the case. Mr. Ross represented you and represented you well and then again you had this terrible incident that occurred in the pen area when Mr. Ross was going to talk to you about sentencing. You attacked him. It was a totally unprovoked attack and as you caused him physical injury - although Mr. Ross apparently forgives you; that's entirely his right; that's his own business - but... given this violence that you showed here and given the violence that you showed in the case itself, I am not going to put another attorney by court order in [a] position of danger.

The court then sentenced petitioner to an indeterminate prison term of four to twelve years, noting that while it could not "overlook the incident involving your attorney," it was imposing its sentence based primarily on the facts of the case and petitioner's prior criminal record. The proceeding concluded with petitioner's former attorney putting on the record his view that petitioner "should have had a new lawyer appointed and your Honor declined to do that; and for th[at] reason... I made myself available as a friend of the Court to be here during the sentence." The prosecutor also made a brief statement, declaring that "[the] People join in that application for a counsel to be appointed for sentence." Apparently, the sentencing hearing ended without further comment.

On May 2, 1995, the trial court issued a written opinion in support of its decision not to appoint counsel for petitioner during sentencing, holding that "the right to counsel, though fundamental, is not absolute. It is a qualified right. Just as is true of other rights, the right to counsel may be restricted or lost due to the misconduct of the defendant." While the court's earlier oral statements had suggested that it viewed the violent nature of petitioner's crime of conviction as evidence of a recurring pattern of violence by the defendant, the court's written opinion emphasized that the nature of petitioner's criminal behavior made it clear that Ross's account of petitioner's attack on him as unprovoked was more believable than petitioner's claim that Ross had first threatened him. The court reiterated that it believed that any new appointed attorney would be in danger and that it was that danger, and petitioner's lying about what had occurred, that formed the bases for his decision not to appoint another attorney. The opinion cited several New York state cases in support of its holding, including Legal Aid Soc'y v. Rothwax, 69 A.D.2d 801, 415 N.Y.S.2d 432 (1st Dep't 1979), and also cited Diaz v. United States, 223 U.S. 442, 458 (1912), for the general proposition that "[n]either in criminal nor in civil cases will the law allow a person to take advantage of his own wrong."²

The Appellate Division, First Department, affirmed, finding that petitioner had forfeited his right to representation at sentencing. People v. Gilchrist, 239 A.D.2d 306, 307, 658 N.Y.S.2d 269, 269 (1st Dep't 1997). To support its finding of forfeiture, the Appellate Division cited to both state and federal appellate and trial court cases involving violence or threats of violence against attorneys - Rothwax, United States v. McLeod, 53 F.3d...