McKethan v. Mantello
| Decision Date | 09 April 2008 |
| Docket Number | Docket No. 05-0731-pr. |
| Citation | 522 F.3d 234 |
| Parties | William McKETHAN, Petitioner-Appellant, v. Dominic MANTELLO, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
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 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:
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 McKethan that once he got a new lawyer, he was "going to trial." McKethan protested that he had not rested on the suppression motion. The judge refused to listen to McKethan, saying McKethan, however, persisted, and Judge Hanophy had him removed from the courtroom.
On March 31, 1993, McKethan's new lawyer, Stephen Siegel, appeared in court. The court noted that McKethan had met with Siegel, and stated that the parties had agreed to adjourn once more to April 20. Judge Hanophy then sought to determine the next stage in the proceedings; the court clerk, attempting to assist the judge, stated that "both sides rested" on December 16. Siegel, however, told the court that he had learned from McKethan that the evidentiary part of the suppression hearing had not yet ended. Seeking to clear up the confusion, Judge Hanophy proceeded to read from the minutes of the December 16 proceedings, where Cohen had said that he wanted an adjournment for the purposes of argument McKethan then repeatedly sought to interrupt despite the court's instruction that his position be stated only by counsel, and Judge Hanophy again ordered him removed from the courtroom, saying "I'm trying to read here and he's talking."
With McKethan gone, Judge Hanophy continued to review the December 16 minutes. Unfortunately, the judge seems not to have had the transcript of the February 26 hearing before him. He concluded that the evidentiary phase of the hearing had ended, overlooking his February 26 statement that he would allow McKethan to take the stand: Siegel replied: "We'll argue on the 20th and you decide."
On April 20, 1993, Siegel submitted a series of applications to the court. Siegel did not, however, seek to introduce evidence in support of the suppression motion or state that McKethan wished to testify. Instead, he commenced argument on the motion's merits. He contended that the use of a single photograph to identify McKethan was improperly suggestive, because Jones and McLendon did not know McKethan sufficiently well. McKethan, Siegel said, "had not lived in the community for quite sometime and I believe had moved out before he was 15." But Judge Hanophy accepted McNulty's testimony, and found that the photo IDs by McLendon and Jones were not subject to suppression "for any possible suggestiveness, since the witnesses had been acquainted with defendant for several years prior to the indictment."
At trial, Jones and McLendon testified that McKethan was the killer. On June 15, 1993, the jury convicted McKethan on all counts. Judge Hanophy sentenced McKethan to twenty-five years to life in prison for the murder.
McKethan appealed his conviction to the New York Appellate Division with the aid of counsel. In addition, McKethan filed a supplemental pro se brief, in which he argued, among many other things, that the trial court deprived him of his constitutional rights to be present and to testify at the suppression hearing when it removed him from the courtroom on March 31, 1993. The Appellate Division denied the appeal, holding that "[t]he defendant's ... contentions in his supplemental pro se brief are either without merit or involve matters outside the record which cannot be considered on direct appeal from the judgment of conviction." People v. McKethan, 225 A.D.2d 800, 640 N.Y.S.2d 570, 571 (App. Div.1996). Leave to bring a further appeal to the New York Court of Appeals was denied. People v. McKethan, 88 N.Y.2d 938, 647 N.Y.S.2d 172, 670 N.E.2d 456 (1996). In addition, McKethan filed several post-judgment motions challenging his conviction, and sought a writ of error coram nobis, alleging manifold errors in the trial, including the March 31, 1993 exclusion. These motions, too, were denied by the New York courts.
On October 4, 1999, McKethan filed a petition for habeas corpus in the Eastern District of New York. Judge Weinstein initially dismissed the petition, after deciding that it contained unexhausted claims. This Court reversed the dismissal, finding that "[a]ll the issues raised in McKethan's petition are exhausted because they were either resolved by the New York courts or are now procedurally barred for not having been asserted in a timely fashion." McKethan v. Mantello, 292 F.3d 119, 122 (2d Cir.2002).
On remand, Judge Weinstein denied the petition on the merits. The district court, however, granted a certificate of appealability "on the issue of petitioner's exclusion from the courtroom on March 31, 1993 and any attendant consequences preventing him from testifying at the pretrial hearing." Dist. Ct. Mem. at 58. McKethan's motion to expand the scope of the certificate of appealability was denied by this Court. This appeal followed.
We review de novo the district court's decision to...
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