Davis v. Grant

• Decision Date: 08 July 2008
• Docket Number: Docket No. 06-2261-pr.
• Citation: 532 F.3d 132
• Parties: Carl DAVIS, Petitioner-Appellant, v. Leroy GRANT, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

532 F.3d 132

Carl DAVIS, Petitioner-Appellant, v. Leroy GRANT, Warden, Respondent-Appellee.

Docket No. 06-2261-pr.

United States Court of Appeals, Second Circuit.

Argued: November 14, 2007.

Decided: July 8, 2008.

Randa D. Maher, Great Neck, NY, for Petitioner-Appellant.

Ashlyn Dannelly, Assistant Attorney General of the State of New York (for Andrew M. Cuomo, Attorney General), New York, NY, for Respondent-Appellee.

Before: KATZMANN and WESLEY, Circuit Judges.¹

WESLEY, Circuit Judge:

The question before us today is: Was a New York court's holding that a pro se Petitioner was not deprived of his Sixth Amendment rights when he was removed from the courtroom for disruptive conduct with no standby counsel appointed to represent him in his absence "contrary to, or ... an unreasonable application of, clearly established" Supreme Court precedent? See 28 U.S.C. § 2254(d)(1). In light of this Court's decisions in Torres v. United States, 140 F.3d 392 (2d Cir.1998), and Clark v. Perez, 510 F.3d 382 (2d Cir.2008), we must conclude that it was not.

BACKGROUND

Petitioner-Appellant Carl Davis appeals from a December 22, 2005 judgment and order of the United States District Court for the Southern District of New York (Crotty, J.) dismissing his 28 U.S.C. § 2254 petition for a writ of habeas corpus. In his habeas petition, Davis challenged a judgment of conviction after a jury trial, entered against him on May 14, 1997 in the Supreme Court, New York County, convicting him of three counts of Assault in the Second Degree (N.Y. Penal Law § 120.05(3)), one count of Reckless Endangerment in the First Degree (N.Y. Penal Law § 120.25), and one count of Grand Larceny in the Fourth Degree (N.Y. Penal Law § 155.30(8)). The district court granted Davis a certificate of appealability with regard to his claim that "he was denied a fair trial and his Sixth Amendment right to confront witnesses when he was removed from the courtroom during the testimony of several of the prosecution's witnesses."

The crime. Davis's convictions stem from his theft of a livery cab owned by Andres Blanco on October 18, 1995. Blanco parked his car at a gas station on 155th Street in Manhattan, but left the keys in the ignition. When he returned from using the station's restroom, Blanco saw a man drive away in the car. Blanco flagged down a passing patrol car carrying police officers Alexandra Baez and Crystal Smith-Dixon, and reported the theft. Baez, Smith-Dixon and Blanco had just begun to search for the car when Blanco received a report from a taxi dispatcher that his cab had been spotted heading north on Broadway. Baez and Smith-Dixon headed towards Broadway and alerted police in the area.

Two officers — Ronald Kelly and William Domenech — spotted and pursued a car matching the description of the stolen cab as it sped through numerous red lights on Amsterdam Avenue, but eventually lost sight of the vehicle. A few minutes later, Officers Bomsik Kim and Sean Harris saw the cab crash into the back of a car stopped at a red light at the intersection of Broadway and St. Nicholas Avenue. As Kim approached the vehicle on foot, it sped off. Officers Thomas J. Keane and Edwin Ramos joined the pursuit of the cab after hearing radio transmissions regarding its route. As they passed 141st Street and St. Nicholas Avenue, Keane and Ramos saw the cab speeding towards them. The cab swerved to avoid their patrol car and collided with the police car behind them — occupied by Kim and Harris. Both Kim and Harris suffered substantial injuries in the collision.

Following the collision, a man fled from Blanco's cab; several officers — including Thomas Smith and James Scanlon — took up the chase on foot. Smith tackled the man on the sidewalk outside of St. Nicholas Park approximately 20 to 25 feet from the scene of the accident. The man — later identified as Davis — resisted Smith's efforts to handcuff him. Smith injured his ankle in the process. Davis was ultimately subdued and detained at St. Nicholas Park until Blanco, Baez, and Smith-Dixon arrived, approximately ten minutes after Blanco first reported that his cab had been stolen.

Pre-trial proceedings and voir dire.² On February 26, 1997, just before Davis's trial was scheduled to begin in the Supreme Court, New York County (Rothwax, J.), his assigned attorney, Raymond Aab, informed the court that Davis wished to appear pro se. Aab also informed the court that, at Davis's request, he would stay on as his advisory counsel. Justice Rothwax warned Davis of the dangers of representing himself, and informed him that he was ill-advised to do so. Justice Rothwax then asked Petitioner if he understood the dangers of representing himself and if he still wished to do so; Davis answered "yes" to each question. Justice Rothwax then granted Davis's motion to proceed pro se and ordered Aab to remain on as his legal advisor.

Davis's trial commenced on March 3, 1997. Prior to voir dire, Davis was further warned by the judge:

I am aware Mr. Davis [that] you have not previously tried a criminal case, and I put you on notice, that you ought to be conferring with your legal advisor. If you ask questions on the voir dire that I deem to be inappropriate or improper I will stop you from asking those questions.... [Y]ou have no right to argue with me in front of the jury nor do you have any right to characterize my rulings. I put you on notice that if you choose to argue with me in front of the jury or if you choose to characterize my rulings I will remove you from the courtroom. I will not tolerate misbehavior from you during the course of this trial.

Shortly thereafter, after conferring with his legal advisor, Davis made several applications, including demands for daily transcripts of the trial proceedings and the release of personnel records of the police officers associated with his arrest. When the court denied those requests, Davis stated to the court: "That is why you hate the Appellate Division so much." After being admonished by the court for his outburst, Davis stated that he "wanted to make a motion of recusal." At that point, the first jury panel entered the courtroom.

While selecting jurors from the second panel, Davis asked the court if his legal advisor, Mr. Aab, could complete the remainder of the voir dire. The court refused, ruling that Davis could not adopt a hybrid defense. The court instructed Davis that he could either complete the voir dire, or, in the alternative, he could elect to have Aab represent him during the remainder of the trial. Davis responded that he did not want to forfeit his right to self-representation.

After jury selection was completed, the court repeatedly warned Davis that it was not in his interest to represent himself. In doing so, the court noted that, thus far, Petitioner had "repeatedly conferred with Mr. Aab" and indicated that he should continue to do so. The court also commented that, "[i]t should be clear to you by now if it w[as] not earlier, you are not capable of trying this case adequately and effectively." Davis responded that Aab had not helped him to "build a defense" and complained that he had not had "an attorney visit." Shortly thereafter, the judge again suggested to Davis that he would be better off having Aab represent him and Davis reiterated his complaint that Aab had not prepared an adequate legal defense for him:

Mr. Aab hasn't prepared any defense for me. He has never come to visit me, has never sent investigators out to get pictures of the scene to show — establish my defense, what I want to show. I was never arrested at the scene, I was arrested in the park, mistakenly identified. He has done nothing to investigate this, nothing whatsoever, none of the attorneys in this case have.

Aab denied Davis's claims and restated his willingness to represent Petitioner, despite disagreeing with him on an appropriate defense strategy.

The trial. The Prosecution called George McMillan, a paralegal in the District Attorney's office, and Officer Baez as their first two witnesses. Davis cross-examined both of these witnesses and made evidentiary objections. Davis's cross-examination of Baez was extensive and included references to prior statements made by her at a pre-trial hearing in an attempt to impeach her credibility.

Following the completion of Baez's testimony, the court denied a number of written motions by Davis. Davis again demanded that Justice Rothwax recuse himself, accusing him of "out right [sic] blatant prejudice" and "forc[ing][him] to have counsel that has not prepared a case."

On the second day of trial, at a bench conference, Davis informed the judge that while he did not want Aab to represent him, he was "incapable" of representing himself. The court responded, "Mr. Davis, I am tired of that." Davis replied, "I will say it again. I said it." The court retorted, "[y]ou said it today, you won't say it again." The court then noted that Davis had rejected the representation of two attorneys. Davis again reminded the court that he had rejected his prior attorney for the same reason he was rejecting Mr. Aab — "because he wanted the defense which I'm not comfortable with because it fits none of the circumstances that fit my case." When Davis continued to try to specify his reasons for rejecting counsel, the court threatened, "I'm going to remove you from the courtroom." When Petitioner asked, "[h]ow can I represent myself if you remove me," the court responded, "I don't care if you are representing yourself." When Davis persisted in attempting to specify his grounds for rejecting Aab, he was involuntarily removed from the courtroom.

Prior to the jury's return, Davis was brought back into the courtroom and seated with Aab. Just as the prosecution was about to call its next witness, Davis, in the presence of the jury, began yelling: "LADIES AND GENTLEMEN OF THE JURY ... I DON'T BELIEVE I'M RECEIVING A FAIR TRIAL BECAUSE IN THIS COURTROOM BECAUSE THIS...