522 F.3d 234 (2nd Cir. 2008), 05-0731, McKethan v. Mantello

Docket Nº:05-0731-pr
Citation:522 F.3d 234
Party Name:William McKETHAN, Petitioner-Appellant, v. Dominic MANTELLO, Respondent-Appellee.
Case Date:April 09, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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522 F.3d 234 (2nd Cir. 2008)

William McKETHAN, Petitioner-Appellant,


Dominic MANTELLO, Respondent-Appellee.

No. 05-0731-pr

United States Court of Appeals, Second Circuit.

April 9, 2008

Argued: Feb. 21, 2008.

Appeal from a judgment entered in the United States District Court for the Eastern District of New York (Weinstein, J.), denying Petitioner-Appellant's petition for habeas corpus.

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Donna R. Newman, New York, N.Y., for Petitioner-Appellant.

Emil Bricker, Assistant District Attorney, for Richard A. Brown, District Attorney, Queens County (John M. Castellano, on the brief), Kew Gardens, N.Y., for Respondent-Appellee.

Before: KEARSE, CALABRESI, and SACK, Circuit Judges.


Petitioner-Appellant William McKethan appeals from a decision of the United States District Court for the Eastern District of New York (Weinstein,J.) denying his petition for habeas corpus. We find that the New York courts did not unreasonably apply clearly established Supreme Court precedent in rejecting McKethan's claim that his exclusion from the courtroom during a pre-trial conference violated his constitutional rights. Accordingly, we affirm the judgment of the district court.


On November 16, 1991, at approximately 9:15 p.m., a man named Anthony Mabry was murdered in Far Rockaway, Queens. Eyewitnesses later testified they saw William McKethan chase Mabry and shoot him three or four times. McKethan, according to these witnesses, then stood over Mabry, punching and kicking him, before seizing Mabry's distinctive green, brown, and burgundy suede coat, and fleeing. Mabry later died from his wounds. The next day, McKethan was arrested outside Port Authority Bus Terminal, wearing the dead man's coat. The coat bore a bloodstained bullet-hole. Subsequently, McKethan was charged in state court with Murder in the Second Degree, Robbery in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of Stolen Property in the Fifth Degree.

Before the trial, McKethan moved to suppress the identification evidence of two eyewitnesses, Vance Jones (the victim's

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half-brother) and Daniel McClendon, each of whom had identified McKethan as the culprit from a single photograph, rather than from a photo-array. The trial court conducted a suppression hearing. Opposing the motion, the state presented the testimonial evidence of police officers involved in the investigation and arrest. One officer, Detective Brian McNulty, testified that Jones and McLendon each told police that they had known McKethan for several years. The state rested its case on the suppression issue on December 16, 1992. McKethan's lawyer, a Mr. Cohen, then obtained an adjournment, stating: "I would like to reserve my opportunity to argue until I have the minutes and can discuss it with Mr. McKethan."

At the next court proceeding, on February 26, 1993, Cohen asked for another adjournment "so that I could speak to Mr. McKethan as to whether he intends to possibly testify at this hearing." This statement surprised Judge Hanophy, who thought both sides had rested. The judge nevertheless acquiesced, saying: "If you want to, I will not at this time say you can't put your client on the stand. I hate it to deprive a complainant, at any time, of taking a stand. You are going to make up your mind. When I say you I mean your client."

On March 19, 1993, Cohen appeared in court and asked to be relieved as McKethan's counsel. The judge allowed Cohen to withdraw, and told...

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