412 F.3d 292 (2nd Cir. 2005), 03-2670, Serrano v. Fischer

Docket Nº:03-2670.
Citation:412 F.3d 292
Party Name:Alfredo SERRANO, Petitioner-Appellant, v. Brian FISCHER, Superintendent, Sing Sing Correctional Facility, Respondent-Appellee.
Case Date:June 20, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 292

412 F.3d 292 (2nd Cir. 2005)

Alfredo SERRANO, Petitioner-Appellant,


Brian FISCHER, Superintendent, Sing Sing Correctional Facility, Respondent-Appellee.

No. 03-2670.

United States Court of Appeals, Second Circuit

June 20, 2005

Argued: Jan. 4, 2005.

Page 293

Georgia J. Hinde, New York, NY, for petitioner-appellant.

Emil Bricker, Assistant District Attorney for Queens County (Richard A. Brown, District Attorney, John M. Castellano, Assistant District Attorney, on the brief), Kew Gardens, NY, for respondent-appellee.

Before: WINTER, SOTOMAYOR and B.D. PARKER, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Petitioner-appellant Alfredo Serrano ("petitioner" or "Serrano") appeals from a judgment of the United States District Court for the Eastern District of New York (Trager, J.) denying a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner claims that the state trial judge violated petitioner's Sixth Amendment right to counsel when he issued orders barring all attorney-client communications during two midday recesses from petitioner's testimony. Applying the deferential standard of review required by 28 U.S.C. § 2254(d)(1), we hold that the state court decisions rejecting petitioner's claim were not contrary to clearly established Supreme Court precedent and did not unreasonably apply that precedent. Accordingly, we affirm the district court's denial of the writ.


On the evening of May 9, 1993, petitioner stabbed and killed Miriam Molina, the mother of his young daughter. Soon

Page 294

thereafter, New York state authorities charged him with two counts of Murder in the Second Degree under New York Penal Law § 125.25(1) and (2), respectively. After rejecting an opportunity to plead guilty to first-degree manslaughter in exchange for a sentence of eight and one-third to twenty-five years' imprisonment, petitioner proceeded to a jury trial in the Supreme Court of the State of New York in Queens County. A jury convicted petitioner of one count of second degree murder, and on April 27, 1995, the court sentenced him to twenty-five years to life in prison.

At trial, petitioner's counsel repeatedly clashed with the judge over a variety of matters, including the judge's rulings on certain lines of questioning and argument, the alleged bias of the judge against petitioner, and the judge's imposition of limitations on communications between petitioner and his attorney. During the testimony of various witnesses, defense counsel persisted in asking the same question multiple times even after the judge had sustained objections to the question's form or substance. Defense counsel complained several times in the presence of the jury that the prosecution was receiving favored treatment, and declared at one point, "This is not a trial, this is a tag team."

The trial judge did not conceal his exasperation with defense counsel's contumacious behavior. At one sidebar conference, the judge stated that he was "sick and tired of [defense counsel] telling [him] what the law is," and that he had "tried 17,000 more cases than [counsel] ha[d]." On another occasion, the judge told defense counsel that he was "acting like a clown," and that his actions were "abominable." At least three of defense counsel's outbursts resulted in the imposition of a $250 fine for contempt.

The dispute now before us stems from two of the many heated exchanges that took place between defense counsel and the trial judge. The first of these two exchanges occurred shortly after defense counsel had requested a five minute restroom break during his direct examination of petitioner. After defense counsel returned to the courtroom--but before the jury returned--defense counsel began to confer with petitioner while petitioner was on the stand. The judge interrupted, instructing defense counsel not to speak with his client. Counsel protested the court's order, claiming that "[t]he defendant always has a right to counsel" and that counsel did not need the court's "permission" to confer with his client. The trial judge responded by imposing a $250 fine for contempt.

The second incident forming the basis of the instant appeal occurred during petitioner's cross-examination, specifically as he was questioned about whether he knew his daughter had had nightmares the night prior to the crime, a fact central to the defense's theory of justification due to the alleged abuse of the child when under the mother's care. Upon calling a lunch recess during the testimony, the judge directed defense counsel not to speak to petitioner during the recess. Counsel responded: "I will disobey that instruction, your Honor. I will speak to my client at any point in time." Counsel added that he had an "absolute right to speak to [his] client at any point in the proceedings." In response to this defiance, the judge ordered counsel taken to jail. The judge then indicated, however, that he might reconsider his ruling and limit the bar on communications to discussions of ongoing testimony. Counsel stated that he would not discuss petitioner's testimony and attempted to clarify that the "absolute right" to which he had referred was a right to speak about "other matters." The judge expressed doubt at counsel's representation,

Page 295

stating: "Counsel, I don't know whether I can trust you .... [b]ecause you refuse to follow my directions during the entire course of this trial. I've had to sanction you twice." Before finally ruling, however, the judge sought further assurance that counsel would not discuss the ongoing testimony during the recess. At that point, counsel gave only indirect and evasive responses. When, for example, the judge reminded counsel "not to discuss anything about [the] trial testimony," counsel responded: "I never said I would, Judge." The conversation concluded when counsel again declared that his client "ha[d] an absolute right to speak to counsel at any stage in the proceeding." The judge not only barred attorney-client communications during the recess, but also ordered defense counsel taken into custody. The lunch recess lasted approximately ninety minutes.

Serrano appealed his conviction to the Appellate Division, arguing, inter alia, that the trial court's orders barring his communications with counsel had deprived him of his constitutional right to an attorney. The Appellate Division rejected his appeal on the merits, see People v. Serrano, 253 A.D.2d 531, 676 N.Y.S.2d 882 (2d Dep't 1998), and the New York State Court of Appeals denied his request for leave to appeal, see 92 N.Y.2d 985, 683 N.Y.S.2d 767, 706 N.E.2d 755 (1998) (Bellacosa, J.). Petitioner also filed a motion with the Appellate Division for reargument, and a motion with the trial court to vacate the judgment, both of which were denied.

Proceeding pro se, Serrano filed a petition for habeas corpus in the United States District Court for the Eastern District of New York. The petition claimed that (1) the "circus atmosphere" created by the heated exchanges between his counsel and the court resulted in the denial of a fair trial in violation of the Due Process Clause; (2) the trial court deprived him of his right to confer with his attorney during trial; (3) he received ineffective assistance of counsel; and (4) the legislature violated the Constitution by failing to include extreme emotional distress as a defense to the crime for which petitioner was convicted. Adopting the report and recommendation of Magistrate Judge Robert M. Levy, District Judge David G. Trager denied the petition in its entirety on May 16, 2003. Judge Trager also denied petitioner's motion for a certificate of appealability, finding that petitioner "ha[d] not demonstrated a substantial showing of a constitutional violation." On appeal, however, this Court granted a certificate of appealability "limited to the issue of whether Serrano was denied his Sixth Amendment right to counsel by the trial court's refusal to permit him to consult with counsel during breaks that occurred during the prosecutor's cross-examination of Serrano." 1 We also appointed counsel pursuant to 18 U.S.C. § 3006A(a)(2)(B). We denied petitioner's appeal in all other respects.


I. Standard of Review

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

Page 296

Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir.2001). Because Serrano filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, both this Court and the district court must review his claim in accordance with AEDPA's deferential standard, as codified at 28 U.S.C. § 2254(d):

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.

See Rosa v. McCray, 396 F.3d 210, 219 (2d Cir.2005).

A state court adjudicates a claim "on the merits" for purposes of § 2254(d) when it "(1) disposes of the claim on the merits, and (2) reduces its disposition to judgment.... even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Gutierrez v. McGinnis, 389 F.3d 300, 304 (2d Cir.2004) (citation and internal quotation marks omitted). The instant case meets that standard. The trial court squarely addressed and rejected petitioner's claim that he had an absolute right to consult with his attorney during midday...

To continue reading