Ramos v. Racette

12-256-cv
Ramos v. Racette
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2012 5
6
7
(Argued: June 24, 2013 Decided: August 9, 2013) 8
9
Docket No. 12-256 10
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RAMON RAMOS, 14
15
Petitioner-Appellant, 16
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- v.- 12-256 18
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STEVEN RACETTE, 20
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Respondent-Appellee. 22
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Before: JACOBS, Chief Judge, CARNEY and DRONEY, 25
Circuit Judges. 26
27
During his trial for multiple rape-related crimes, 28
Ramon Ramos elected to appear pro se and to absent himself 29
from the proceedings. The trial judge introduced Ramos’s 30
standby counsel to the voir dire panel as Ramos’s lawyer. 31
After a recess, the court attempted to correct the 32
mischaracterization by reintroducing counsel as Ramos’s 33
“legal advisor.” Following his conviction, Ramos filed for 34

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a writ of habeas corpus in the United States District Court 1
for the Eastern District of New York (Gleeson, J.), arguing 2
that the brief introduction violated his Sixth Amendment 3
right to self-representation. We affirm the denial of the 4
writ because there is no clear Supreme Court precedent 5
controlling this case, and because the introduction did not 6
substantially impair his right to self-representation. 7
SALLY WASSERMAN, New York, NY, 8
for Appellant. 9
10
JOHNNETTE G. A. TRAILL (John M. 11
Castellano, on the brief), 12
Queens County District 13
Attorney’s Office, Kew Gardens, 14
NY, for Appellee. 15
16
DENNIS JACOBS, Chief Judge: 17
18
Ramon Ramos appeals from the judgment of the United 19
States District Court for the Eastern District of New York 20
(Gleeson, J.) denying his petition for a writ of habeas 21
corpus. Charged with first-degree rape, first-degree 22
sodomy, and second-degree burglary in state court, Ramos 23
elected to forego counsel and to absent himself from the 24
proceedings in protest. Shortly thereafter, the trial judge 25
introduced Ramos’s standby counsel to the jury as his 26
attorney--a mischaracterization that the court attempted to 27
correct by reintroducing him as a “legal advisor.” Ramos 28
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argues that this violated his Sixth Amendment right to self- 1
representation. We affirm because the state proceeding did 2
not result “in a decision that was contrary to, or involve[] 3
an unreasonable application of, clearly established Federal 4
law, as determined by the Supreme Court of the United 5
States.” 28 U.S.C. § 2254(d). And the Supreme Court case 6
on which Ramos relies, McKaskle v. Wiggins, fairly read, 7
does not support his position because standby counsel’s 8
extremely limited participation was “simply not substantial 9
or frequent enough to have seriously undermined [Ramos’s] 10
appearance before the jury in the status of one representing 11
himself.” 465 U.S. 168, 187 (1984). The judgment is 12
affirmed. 13
14
BACKGROUND 15
In July 1993, a young woman reported to police that she 16
had been raped. A sexual assault kit was used to collect 17
evidence at the local hospital in Queens. The case went 18
cold for some time. In March 1994, Ramos was arrested for 19
burglary, also in Queens. Although police suspected his 20
involvement in the rape, the victim was unable to identify 21
him in multiple photo arrays and lineups, and the case went 22
cold again. 23
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That changed in October 2001, when state officials 1
procured a DNA sample from Ramos, who was then serving time 2
for a third-degree robbery conviction. In July 2002, 3
Ramos’s DNA was matched to the semen from the victim’s 4
sexual assault kit. Ramos was indicted for the rape in May 5
2003. 6
Ramos’s first trial in New York Supreme Court ended in 7
a mistrial when the prosecutor took ill. During those 8
truncated court proceedings in 2005, Ramos evinced a desire 9
to represent (and eventually absent) himself. Ramos advised 10
the court that he would appear pro se, except for certain 11
challenges to DNA evidence, which he wanted his standby 12
counsel, John Scarpa, to make. However, during the Sandoval 13
hearing,1 Ramos expressed disgust with the court and the 14
proceedings, and a distrust of lawyers based in part on his 15
perception that unchallenged police perjury had led to a 16
prior conviction. He refused counsel and refused to stay: 17
I will not sit here and have this court convict me for 18
wrongs done by the police. . . . I do not wish to 19
attend this trial. . . . I am a minority and I cannot 20
afford a lawyer—it seems the system would like to take 21
1 In New York, “a Sandoval hearing is held, upon a
defendant’s request, to determine the extent to which he
will be subject to impeachment by cross-examination about
prior bad acts if he testifies.” Grayton v. Ercole, 691
F.3d 165, 173 (2d Cir. 2012) (quotation marks omitted).
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advantage but after being convicted here and serving 15 1
to life based on the fact that the court protected a 2
police officer from having perjured himself, I am not 3
going to go through it and I respectfully refuse to 4
attend any further of my trial and conviction. Let it 5
go on without me. . . . I want to make it clear that I 6
do not wish an attorney for me. What I feel is 7
happening, there is corruption going on in the system, 8
corruption going on. 9
10
Ramos v. Racette, No. 11-CV-1412, 2012 WL 12924, at *2-3 11
(E.D.N.Y. Jan. 4, 2012) (quoting the trial transcript). The 12
court then instructed Scarpa to act as counsel in Ramos’s 13
absence, explaining, “[w]e can’t have an empty defense chair 14
and table, so it’s a good thing that you are advisory 15
counsel because now you are back in the box . . . . [F]rom 16
this point on, you are the attorney for the defendant.” Id. 17
at *3. However, the trial prosecutor missed three 18
consecutive days with illness before the jury was sworn in, 19
and the court declared a mistrial. 20
The retrial was held over five days from January 3 to 21
10, 2006. On the first day, Ramos indicated that he was 22
unhappy with the new legal advisor assigned to his case, 23
Russell Rothberg. Although Ramos had not objected to 24
Scarpa’s replacement when it occurred, he now insisted that 25
he wanted Scarpa back. The court informed him that “Mr. 26
Rothberg . . . has been on the case for the past 27
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month . . . and you, frankly, don’t have a say in the 1
matter.” Id. at *4. Ramos made clear that he would protest 2
the trial if Rothberg were involved, and the court allowed 3
Ramos to leave the courtroom. 4
After Ramos went to his cell, Rothberg asked the court 5
to clarify his role: “Judge, just so the record is 6
absolutely clear, I know that the Court has made the inquiry 7
of the defendant who has voluntarily absented himself from 8
the courtroom, so again my status now changes from legal 9
advisor to counsel for the defendant?” Id. at *5. The 10
court confirmed that “[f]or the purposes of the trial, and 11
for the jury’s edification, obviously you have to be 12
referred to as the defendant’s attorney, yes, or you are 13
representing the defendant.” Id. The jury was brought into 14
the courtroom, and the court introduced Rothberg to the jury 15
as “the attorney for the defendant.” Id. 16
The prosecutor returned from the lunch break worried, 17
and suggested to the court that a defendant had a 18
constitutional right both to appear pro se and to absent 19
himself from trial without representation. The prosecutor 20
advised that the court could not “force [Ramos] to have Mr. 21
Rothberg represent him merely because he [wanted] to go pro 22
se and absent himself.” Id. at *6. 23
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After this exchange, the court ordered Ramos returned 1
to court. Ramos confirmed, again, that he wished to appear 2
pro se without any representation from Rothberg. He 3
declared that he wanted to “take [his] chances with appeal,” 4
and voluntarily returned to his cell. Id. 5
The prosecutor asked the court to clarify for the jury 6
that Ramos was actually representing himself, but the 7
request strangely was denied. Instead, the court obliquely 8
informed the jury that “Mr. Rothberg has been appointed by 9
the Court to be available to serve as a legal advisor to Mr. 10
Ramos.” Id. Jury selection continued. 11
Before each day of trial, Ramos was asked whether he 12
would like to participate in the proceedings. Each day, 13
Ramos elected to remain in the holding cell. After the 14
prosecution rested, the court charged the jury, including an 15
instruction to draw no inference from the defendant’s 16
absence. On January 10, 2006, the jury returned a verdict 17
of guilty on all counts. 18
Ramos appealed through the state court system, arguing 19
that his right to self-representation had been abrogated. 20
The Second Department denied the appeal: “Contrary to the 21
defendant’s contention, he was not denied [his] right [to 22
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self-representation] when the court appointed a new attorney 1
to act as standby counsel.” People v. Ramos, 877 N.Y.S.2d 2
177, 178 (2d Dep’t 2009). The New York Court of Appeals 3
granted Ramos leave to appeal, People v. Ramos, 13 N.Y.3d 4
748 (2009), but subsequently affirmed the Second 5
Department’s order without taking up the Sixth Amendment 6
issue. People v. Ramos, 13 N.Y.3d 881, 881-82 (2009). 7
Reargument and reconsideration were denied. People v. 8
Ramos, 14 N.Y.3d 794 (2010). 9
On March 10, 2011, Ramos petitioned pro se for a writ 10
of habeas corpus in the United States District Court for the 11
Eastern District of New York (Gleeson, J.), presenting six 12
claims for relief. Ramos, 2012 WL 12924, at *9. The court 13
denied the petition. Id. at *29. Ramos appeals from that 14
judgment. The only question now before us is whether his 15
Sixth Amendment right to self-representation was violated in 16
the state trial. 17
18
DISCUSSION 19
I 20
We review the denial of a habeas petition de novo. 21
Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003). “An 22
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application for a writ of habeas corpus on behalf of a 1
person in custody pursuant to the judgment of a State court 2
shall not be granted with respect to any claim that was 3
adjudicated on the merits in State court proceedings unless 4
the adjudication of the claim [either] (1) resulted in a 5
decision that was contrary to, or involved an unreasonable 6
application of, clearly established Federal law, as 7
determined by the Supreme Court of the United States; or (2) 8
resulted in a decision that was based on an unreasonable 9
determination of the facts in light of the evidence 10
presented in the State court proceeding.” 28 U.S.C. 11
§ 2254(d). 12
“A state court’s determination that a claim lacks merit 13
precludes federal habeas relief so long as ‘fairminded 14
jurists could disagree’ on the correctness of the state 15
court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 16
786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 17
664 (2004)). This standard protects against intrusion of 18
federal habeas review upon “both the States’ sovereign power 19
to punish offenders and their good-faith attempts to honor 20
constitutional rights.” Id. at 787 (internal quotations 21
omitted); see id. at 786 (“If this standard is difficult to 22
meet, that is because it was meant to be.”). 23
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Ramos’s primary argument on appeal is that his Sixth 1
Amendment right to self-representation was violated when the 2
2006 trial court initially disregarded his request to appear 3
pro se, assigned counsel during voir dire, and introduced 4
Rothberg to the jury as Ramos’s counsel. 5
The fleeting imposition of counsel upon a pro se 6
defendant who has elected to abstain from participating at 7
trial is a matter of first impression in this Court. 8
Critically, the Supreme Court has not specifically addressed 9
it, either. “[I]t is not an unreasonable application of 10
clearly established Federal law for a state court to decline 11
to apply a specific legal rule that has not been squarely 12
established by [the Supreme] Court.” Knowles v. Mirzayance, 13
556 U.S. 111, 122 (2009) (quotation marks omitted); see 28 14
U.S.C. § 2254(d). Ramos can point to no Supreme Court case 15
analyzing whether the unwanted participation of standby 16
counsel violated the Sixth Amendment rights of a pro se 17
defendant asserting an absentee protest defense. In Davis 18
v. Grant, we called for further guidance from the Supreme 19
Court on appointment of counsel for pro se defendants who 20
are forcibly absented, 532 F.3d 132, 149-50 (2d Cir. 2008); 21
the same gap exists with respect to pro se defendants like 22
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Ramos who voluntarily absent themselves, and who thus (as it 1
were) “disappear” pro se. 2
Given the lack of Supreme Court guidance in this area, 3
“fairminded jurists” could reasonably support the state 4
court judgment. See Harrington, 131 S. Ct. at 786. We 5
decline to grant a writ of habeas corpus in the absence of 6
“clearly established Federal law” that requires it. The 7
Supreme Court authority on which Ramos relies does not 8
support his claim, let alone do so with the requisite 9
clarity. 10
11
II 12
Ramos argues that McKaskle v. Wiggins, 465 U.S. 168 13
(1984), constitutes the Supreme Court precedent he needs. 14
However, analysis of that case confirms that Ramos’s self- 15
representation was not substantially disturbed by the 16
court’s brief introduction of counsel. 17
The Supreme Court has instructed that a pro se 18
defendant has a right to maintain control over the case that 19
the defendant wants to present to the jury personally. 20
McKaskle, 465 U.S. at 178. “[O]nce a defendant has 21
knowingly and intelligently waived her right to counsel, a 22
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[trial] court should not interfere with the defendant’s 1
choice, even though it ‘may sometimes seem woefully foolish 2
to the judge.’” Torres v. United States, 140 F.3d 392, 402 3
(2d Cir. 1998) (quoting United States v. Curcio, 694 F.2d 4
14, 25 (2d Cir. 1982)). “[P]articipation by standby counsel 5
without the defendant’s consent should not be allowed to 6
destroy the jury’s perception that the defendant is 7
representing himself.” McKaskle, 465 U.S. at 178. 8
However, a pro se defendant’s control over the defense 9
is not limitless. In McKaskle, the Supreme Court considered 10
whether unsolicited participation of standby counsel 11
violated a defendant’s right to defend pro se. Although the 12
trial court permitted the defendant to appear pro se, it 13
also allowed standby counsel an occasional interjection. 14
Standby counsel “made motions, dictated proposed strategies 15
into the record, registered objections to the prosecution’s 16
testimony, urged the summoning of additional witnesses, and 17
suggested questions that the defendant should have asked of 18
witnesses”--over the explicit objections of the defendant. 19
Id. The Court held that the intrusions of the standby 20
counsel “were simply not substantial or frequent enough to 21
have seriously undermined [the defendant’s] appearance 22
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before the jury in the status of one representing himself.” 1
465 U.S. at 187. 2
Here, the court introduced Rothberg to the jury as “the 3
attorney for the defendant” notwithstanding that Ramos 4
expressly asked to appear pro se and without Rothberg’s 5
participation. Ramos, 2012 WL 12924, at *5. The court’s 6
brief statement was alarming enough that the state 7
prosecutor soon after asked the court to limit Rothberg to 8
an observer’s role, with a clarifying instruction for the 9
jury. The instruction given was that Rothberg was acting as 10
the defendant’s “legal advisor.” Id., at *6. Although it 11
would have been best if the court had not made the initial 12
introduction, the mischaracterization did not cross 13
McKaskle’s “substantial” interruption threshold for a 14
constitutional violation. 15
Ramos argues that the momentary introduction crossed 16
the line. He cites a footnote from McKaskle: “[s]ince the 17
right of self-representation is a right that when exercised 18
usually increases the likelihood of a trial outcome 19
unfavorable to the defendant, its denial is not amenable to 20
‘harmless error’ analysis. The right is either respected or 21
denied; its deprivation cannot be harmless.” 465 U.S. at 22
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177 n.8. Ramos similarly points to United States v. 1
Gonzalez-Lopez, which instructed that structural errors 2
“defy analysis by harmless error standards because they 3
affect the framework within which the trial proceeds and are 4
not simply an error in the trial process itself.” 548 U.S. 5
140, 148-49 (2006) (quotation marks omitted). 6
However, “[i]t does not necessarily follow . . . that 7
every deprivation in a category considered to be 8
‘structural’ constitutes a violation of the Constitution or 9
requires reversal of the conviction, no matter how brief the 10
deprivation or how trivial the proceedings that occurred 11
during the period of deprivation.” Gibbons v. Savage, 555 12
F.3d 112, 120 (2d Cir. 2009), cert. denied, 558 U.S. 932 13
(2009). The Gibbons court discussed (albeit in dicta) a 14
scenario similar to the one before us: a pro se defendant 15
“who, in spite of his demand to represent himself, was 16
required to be represented by counsel.” Id. The court 17
speculated that such an encroachment upon self- 18
representation would support a viable habeas claim if the 19
unwanted representation persisted “throughout the trial, or 20
for a substantial or important part of it.” Id. (emphasis 21
added). This notion of a “substantial” intrusion is 22
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consistent with McKaskle, which held that the standby 1
counsel’s comments made over the defendant’s protests were 2
not “substantial” or “frequent enough” to disrupt the jury’s 3
perception of his pro se defense. 465 U.S. at 187. The 4
right of self-representation is not a matter of all or 5
nothing, especially in the context of a habeas review 6
following an adverse state court ruling. 7
It is true that a spectacle of total protest against 8
the proceedings could be undermined, slightly, by an 9
introduction of counsel to the jury. Any presentation of a 10
defense at all, no matter how limited, inherently disrupts a 11
concerted refusal to participate. 12
Ramos made it plain enough that he wanted nothing to do 13
with the trial and wanted nothing done on his behalf. But 14
it is not clear from his statement of position that the 15
absence of any defense effort was a strategic defense 16
measure to convey a protest to the jury. Rather than 17
mounting a theatrical defense, Ramos could have simply been 18
quitting.2 But even assuming his absence was intended to 19
2 Ramos argues on appeal that he was hoping to
“telegraph a message to the jury with both his self-
representation and his absence.” Reply Br. at 13. But his
behavior seems more like pure apathy. His declaration (made
out of the presence of the jury) that he preferred to “take
[his] chances with appeal” does not support his current
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somehow influence the jury to acquit, any impact of the 1
introduction on the jury’s perceptions was insubstantial, 2
checked by the prosecutor’s prompt intervention. Rothberg’s 3
participation was limited to a three-word greeting, and that 4
was it. After the lunch break, the trial court explained to 5
the jury that “Mr. Rothberg has been appointed by the Court 6
to be available to serve as a legal advisor to Mr. Ramos.” 7
Ramos, 2012 WL 12924, at *6. Given that laymen might 8
consider availability to serve as legal advisor to be an 9
attorney’s function, an explicit clarification would 10
certainly have been preferable. However, this statement 11
sufficiently indicated that Rothberg was not, in fact, 12
Ramos’s active counsel (an impression greatly reinforced 13
when Rothberg sat in the spectator section, rather than at 14
the counsel’s table, for the remainder of the trial). 15
More importantly, after the initial introductions, 16
Ramos was able to advance a strategy of boycott for the 17
duration of the trial. Rothberg never presented any sort of 18
a defense to the jury whatsoever; indeed, he never uttered 19
another word. Thus, “the intrusions by counsel at [Ramos’s] 20
trial were simply not substantial or frequent enough to have 21
characterization that his absence was intended as a signal
of injustice to the jury.
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seriously undermined [Ramos’s] appearance before the jury in 1
the status of one representing himself.” McKaskle, 465 U.S. 2
at 187. This was not a situation where “only the lawyers in 3
the courtroom” knew that Ramos was exercising his right to 4
pro se representation. Id. at 179. Ramos was therefore not 5
deprived of his right to self-representation, and his claim 6
for a writ of habeas corpus is denied. 7
8
CONCLUSION 9
For the foregoing reasons, we affirm. 10
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