Juanard D. Robinson v. A Wcrawford

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Kevin Thomas Duffy, United States District Judge for***
the Southern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUANARD D. ROBINSON,
Petitioner - Appellant,
v.
A W CRAWFORD,
Respondent - Appellee.
No. 07-16623
D.C. No. CV-03-05684-TAG
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Theresa A. Goldner, Magistrate Judge, Presiding
Submitted October 5, 2010**
San Francisco, California
Before: FERNANDEZ and SILVERMAN, Circuit Judges, and DUFFY, District
Judge.***
FILED
OCT 07 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Petitioner Juanard Robinson appeals the denial of his petition for writ of
habeas corpus, filed pursuant to 28 U.S.C. § 2254. We granted a certificate of
appealability on a single issue: whether the trial court violated Petitioner’s Sixth
and Fourteenth Amendment rights to be present when he was twice removed from
the courtroom. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We
affirm.
The right to be present applies “in proceedings where the defendant is
confronting witnesses and evidence against him,” United States v. Gagnon, 470
U.S. 522, 526 (1985) (per curiam), or to “any stage of the criminal proceeding that
is critical to its outcome if [the defendant’s] presence would contribute to the
fairness of the procedure,” Kentucky v. Stincer, 482 U.S. 730, 745 (1987). In this
case, the California Court of Appeal determined that the trial court attempted to
warn Petitioner that his disruptive behavior could result in his removal, but the
judge was prevented from doing so by Petitioner’s obstreperous behavior.
Moreover, the California Court of Appeal ruled that Petitioner had no right to be
present at the proceedings surrounding his first removal because “no substantive
proceedings ensued in his absence.” These rulings are not contrary to, and do not
involve an unreasonable application of, the clearly established law of the U.S.
Supreme Court, see 28 U.S.C. § 2254(d)(1), nor are they “based on an

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unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” id. § 2254(d)(2).
Petitioner had a right to be present at the proceedings surrounding his second
removal, during which the state presented its case in chief. However, Petitioner
lost that right by “conducting himself in a manner so disorderly, disruptive, and
disrespectful of the court that his trial [could not] be carried on with him in the
courtroom.” Illinois v. Allen, 397 U.S. 337, 343 (1970). The California Court of
Appeal’s determination that Petitioner’s first removal served as the constitutionally
required warning for his second removal—and therefore that no constitutional
violation occurred—comports with Allen. See id. at 340–41, 343. Furthermore,
Petitioner was allowed to return a few hours later when he promised to conduct
himself properly; thereafter the trial went forward without incident.
Finally, to the extent that Petitioner asserts an uncertified claim on appeal
based on the trial court’s purported failure to provide him with adequate time to
prepare for trial, this claim was not raised below. See Poland v. Stewart, 169 F.3d
573, 576 n.4 (1999). We decline to issue a certificate of appealability.
AFFIRMED.

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