NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 19-1436

_______________ DONALD E. BOYD, Appellant

v. ADMINISTRATOR NEW JERSEY STATE PRISON; ATTORNEY GENERAL NEW JERSEY

_______________ On Appeal from the United States District Court for the District of New Jersey

(D.C. No. 2:18-cv-00965) District Judge: Honorable Susan D. Wigenton

_______________ Submitted Under Third Circ uit L.A.R. 34.1(a) on May 19, 2020 Before: McKEE, BIBAS, and COWEN, Circuit Judges (Filed: August 20, 2020)

_______________ OPINION *

_______________ BIBAS, Circuit Judge

. On habeas review of a state conviction, a fe deral court’s role is limited. When a state court reasonably finds facts and applies clearly established federal law, we must defer.

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent.2 Donald Boyd decided to repres ent himself at his criminal trial for kidnapping and rape. It did not go well, and the jury convicted hi m. He now attacks that conviction on habeas, arguing that the State denied him due process a nd his right to counsel when it involuntarily drugged him with Xanax starti ng on the third day of trial. But as the state court reasonably found, Boyd knew all along that he was taking Xanax for his anxiety and did not obj ect to it. Indeed, he demande d that drug by name, heard the nurse announce that she was giving it to him, an d said he felt better after he took it. So although Supreme Court precedent requires cour ts to make certain findings before letting the government involuntarily medicate a defendant, Boyd had no right to that process. And no clearly established federal law required the st ate court to reevaluate Boyd’s waiver of his right to counsel after he started taking Xanax. So we will affirm the District Court’s denial of his habeas petition.
I. B ACKGROUND A. The crime Pretending to be an expected visitor, Dona ld Boyd tricked a wo man into letting him into her apartment. State v. Boyd , No. 04-06-1142, 2008 WL 3287240, at *2 (N.J. Super. Ct. App. Div. Aug. 12, 2008) (per curiam). Once inside, Boyd attacked her from behind. Id. He then bound her arms and legs to the bed, threatening her with a knife and gun. Id. As she resisted, he gagged her and raped her both vaginally and anally. Id. A year and a half later, DNA tests identifie d the semen found on the victim as coming from Boyd. See id. As a forensic scientist testified, the odds that the DNA could have come from anyone else were se veral quadrillion to one. Id.3 B. Boyd’s trial The State of New Jersey charged Boyd with aggravated sexual assault, kidnapping, burglary, and terroristic threats. Before tria l, Boyd moved to fire his lawyer. Though the court warned him of the dangers of self-representation, Boyd still chose to represent himself. At the hearing, Boyd note d that he takes pa in medication but not psychotropic drugs. Finding that his waiver of counsel was knowi ng and voluntary, the tr ial court granted his motion but ordered his lawyer to stay on as standby counsel. The trial did not go smoothly. For the first th ree days, Boyd kept prot esting that the jail had not given him his medications . The first morning, he told the judge that he had not eaten breakfast or slept in thirty hours b ecause he had gotten in to a quarrel in jail. He also said that he needed Clonidine (for high blood pressure), Ultram an d Pheldene (for pain), and Zantac (for stomach ulcers), but the jail had not given him thes e medications. Later that morning, Boyd to ok all but the Zantac, which would have to wait until he met with the jail doctor. That afternoon, the court note d on the record that in anot her trial, Boyd had made the same allegations. There too, Bo yd said he had gotten into a quarrel at the jail, had not had his blood-pressure medicine , and had neither eaten nor slept in thirty hours. State v. Boyd , No. 01-12-3098, 2006 WL 1096622, at *1 (N.J. Super. Ct . App. Div. Apr. 27, 2006) (per curiam). The second day, Boyd again co mplained that he had gotte n only his blood-pressure medication. He told the judge that he takes painkillers and anxiety medication and that he was “shaking” without them. JA 8, 271. The trial transcript show s that he specifically4 named “Xanax.” JA 271. But becau se the jail doctor had decided that he did not need them, the trial moved ahead. On the third day of trial, Bo yd said he could not keep representing hi mself until he got his other medications. Though he told the co urt that he was “shaking,” the court did not believe him. JA 276. The cour t noted that Boyd was not shak ing, slurring, or stuttering; instead, he looked “as so lid and secure as everyone else in the courtroom.” JA 279. Still, the court called the jail doctor to see about getting Boyd hi s other medications. When the jail nurse arrived later that mornin g, she said on the re cord and in Boyd’s presence that she had brought “Xanax, one m illigram, and Ultram, fifty grams.” JA 278. Boyd then drank the medicine di ssolved in a glass of juice. An officer confirmed that he would keep getting those medications twi ce a day for the rest of the trial. After a long weekend, the trial resumed with closing arguments. When Boyd stood up to give his argument, he faced the jury and sa id something like: “My name is Donald Boyd. Do you want to see a man bleed? I’ll show you blood.” JA 285. He then took out a hidden razor blade and cut his arm. B oyd later admitted that he had “planned [the in cident], maybe to hurt himself, [or] maybe to get a mistrial.” JA 22. On the last morning of tria l, Boyd showed up to court in his prison jumpsuit. The cut on his arm did not need stitche s, nor was he wearing a banda ge. When aske d why he was not dressed for trial, he said he had just learned that the jail was giving him Xanax, not Zantac. He alleged that he ha d never taken Xanax in his life and that the high dosage made him “crazy.” JA 282. When the court asked agai n why he was not dresse d for trial, he said,5 “[i]t doesn’t matter any more.” JA 282. Later, he added: “Of course I’m going to be found guilty in front of this jury. This was a lynching.” JA 285. The jury did indeed convict Boyd of all fift een charges, and the court sentenced him to life imprisonment plus sixty ye ars. The state appellate co urt affirmed. 2008 WL 3287240. The New Jersey and U.S. S upreme Courts denied review . 960 A.2d 745 (N.J. 2008); 556 U.S. 1241 (2009) (mem.). C. State habeas In his state post-conviction petition, Boyd cl aimed that he did not know he had been given Xanax for part of the tr ial. The trial court denied hi s petition, finding that his claim conflicted with his statements at trial that he took anxiety medica tion. The New Jersey appellate court affirmed. It distinguished Riggins v. Nevada , which provides constitutional safeguards when the government seeks to medi cate a defendant at trial involuntarily. 504 U.S. 127, 135 (1992). Here, by contrast, the nurse had announc ed the drug on the record, so Boyd “knew he was being given Xanax from the beginnin g of the trial” yet never objected. JA 32. The court also noted that Riggins involved an anti-psycho tic rather than an anti-anxiety drug. In any event, it found no prejudice because there were no signs that the Xanax left Boyd “intoxicated , or cognitively impaired.” JA 34. The New Jersey Supreme Court denied review.
D. Federal habeas Boyd raised the same claim again on federal habeas. The District Court denied his petition. It deferred to the state court’s finding that Boyd knew he was taking Xanax. And it6 recognized that Riggins is limited to “ forced and involuntary ” medication. JA 88 (citing Sell v. United States , 539 U.S. 166, 178–81 (2003)). The District Court also rejected Boyd’s claim that he had a right to a second hearing on self-representation. Boyd argued that taking Xa nax after he ha d decided to pr oceed pro se impaired his understanding of the risks of representing himself. But, the court noted, he offered no support for that assertion apart fro m “after the fact speculation.” JA 91. We issued a certificate of appealability. The District Court had jurisdiction under 28 U.S.C. § 2254(a), and we have jurisdiction under §§ 1291 and 2253(a). We can not grant federal habeas relief unless the state court’s decision rested on an “unreasonable determina tion of the facts” based on the evidence before it or its decision was “contrary to, or i nvolved an unreasonable application of, clearly established federal law, as determined by th e Supreme Court.” § 2254(d)(1)–(2). Because the District Court held no evidentiary hear ing, we review its decision de novo. Robinson v. Beard , 762 F.3d 316, 323 (3d Cir. 2014).

II. T HE S TATE C OURT R EASONABLY F OUND T HAT B OYD R ECEIVED D UE P ROCESS

Boyd first claims that the State denied him due process by “u nknowingly and involuntarily drugg[ing]” him with high doses of Xana x at trial. Appellant’s Br. 16. The state habeas court, he argues, unreasonably applied Riggins and Sell . Not so. Though Riggins and Sell require courts to make certain findings before the government

can involuntarily medicate a defendant on trial, they do not extend those procedural safeguards to defendants who are not forced to accept medication. 504 U. S. at 133; 539 U.S.7 at 179. Here, the state court reasonably f ound that Boyd knew the jail was giving him Xanax and did not refuse it. So its decision reasonably applied those precedents. A. The state court’s finding that Boyd knew he was taking Xanax was reasonable The state court found that Bo yd knew the jail was giving him Xanax and did not object. On federal habeas, we presume the state c ourt’s factual finding was correct. 28 U.S.C. § 2254(e)(1). As petitioner, Boyd bears the burde n of rebutting this pr esumption of correctness by clear and convincing evidence. Id. He has not met that heavy burden. Boyd claims that he did not know he was ta king Xanax. But that claim conflicts with the record. On the third day of trial, th e jail nurse announced the name of the drug (“Xanax”) and the dosage (“one milligram”) on the record in Boyd’s presence before giving it to him. JA 278. Boyd responds that he never heard the nurs e say “Xanax.” Rather, he says he heard “Zantac,” the ulcer medication that he had aske d for. But this is unlikely. On the first day of trial, Boyd complained abou t not getting his anxiety medica tion. He told the court: “I take anxiety medication and my blood pressure medicati on together with painkillers. Not to have them I’m shaking right now.” JA 8 (emphasis added). He also explained: “This morning, they gave me my blood pressure medication, no Ultum [ sic ]. The Xanax is for my ulcers. Because I have anxiety. I don’t have any of that. I’ve been on it, taking it regularly now for over a year. You take a person off of it like that at their discretion, I’m just very shaky.” JA 271 (emphasis added).8 Plus, Boyd heard the nurse say “one milligra m” of Xanax. JA 278. That makes it unlikely that he thought he was ta king Zantac. On the first day of trial, he told the court that he takes one hundred and fifty milligrams of Zantac twice a day. He was articulate and persistent in demanding the particular medi cations he needed. Though Xanax and Zantac sound alike, Boyd did not object to hearing a dose that would have be en 1/150 of his usual Zantac dose. Based on the evidence before it, the state court could have reasonably found that he knew he was taking Xanax, an anxiety medica tion, not Zantac, an ulcer medication. And the record does not show, nor do es Boyd claim, that he objec ted. Thus, Boyd cannot show by clear and convincing evidence that th e state court’s findings were wrong.
B. Because Boyd knew he wa s taking Xanax and did no t object, the state court did not unreasonably apply Supreme Court precedent Boyd argues that the state habeas court unreasonably applied Riggins and Sell . He claims that he was denied the procedural safeguards guaranteed by those cases. But Boyd had no right to those protec tions because both cases limit only involuntary medication. The facts of Riggins and Sell are largely the same. In each case, the trial court rejected a defendant’s objection to having to take antip sychotic drugs during trial. 504 U.S. at 129– 31; 539 U.S. at 173–74. In each case, th e Supreme Court recognized defendants’ “constitutionally protected ‘liberty interest’ in ‘a voiding the unwanted administration of antipsychotic drugs.’ ” Sell , 539 U.S. at 178 (quoting Washington v. Harper , 494 U.S. 210, 221 (1990)); accord Riggins , 504 U.S. at 133–34. So before the Government can force a defendant to take those drugs, it must find that the treatment is (1) “medically appropriate,”9 (2) “substantially unlikely to have side effects that may undermine the fa irness of the trial,” and (3) necessary (given the a lternatives) to promote importantgovernmental interests relating to the trial. Sell , 539 U.S. at 179; accord Riggins , 504 U.S. at 135. These cases mandated these safeguards for defendants who are “t reated involuntarily” or “forced” to take the medication. Riggins , 504 U.S. at 135; accord Sell , 539 U.S. at 179. Boyd tries to stretch involuntariness to include lack of info rmed consent. But Riggins and Sell do not say that. On federal habeas, we cannot extend the definition of involuntariness to reach lack of informed consent. The habeas statute neither “r equire[s] state courts to extend [Supreme Court] prec edent [n]or license[s] federal c ourts to treat the failure to do so as error.” White v. Woodall , 572 U.S. 415, 426 ( 2014) (emphasis omitted). Boyd knew he was taking Xanax, and he did not object. No one forced him to take it. So this is not a case of involuntary medi cation, and the state court correctly set Riggins aside. That is enough to supp ort the court’s decision. We need not decide whether the state court erred by distinguishing Riggins based on the type of drug given, or by considering actual prejudice.
III. T HE S TATE C OURT R EASONABLY F OUND N O S IXTH A MENDMENT V IOLATION

Boyd also argues that the State violated hi s Sixth Amendment right to counsel by drugging him with high doses of Xanax after he de cided to proceed pro se. This claim fails too. No clearly established federa l law guaranteed him a second Faretta hearing, after he started taking Xanax, to reevaluate his decision to represent himself. Though the Sixth Amen dment guarantees a defendant the right to represent himself, he must choose to do so “with eyes open.” Faretta v. California , 422 U.S. 806, 835 (1975)10 (quoting Adams v. United States ex rel. McCann , 317 U.S. 269, 279 (1942)). The court must first warn him of the “dangers and disadva ntages of self-representation” so the record reflects a knowing and intelligent waiver. Id. Boyd now argues that once he st arted taking Xanax, the stat e court should have held a second Faretta hearing. To be sure, Bo yd did say at the hearing th at he was not taking any psychotropic drugs. But while he was taking Xanax on the third an d fourth days of trial, he never said that he felt sick or unable to repr esent himself. Only on th e fifth day, after he claimed that he learned he was taking it, did he say it made him “crazy.” JA 282. This silence is telling. Given his repeated pleas for medication, the state court could have reasonably expected him to speak up if he felt unwell. But just the opposite happened: once the medicine “kick[ed] in,” he told the court he was “d efinitely feeling a little better and a little bit level headed and a little bit more clear.” JA 280. “That medication is essential for me,” he added. Id. He also said he “d[id]n’t have the shakes anymore.” JA 280. And though Boyd cut his arm in frontof the jury during his closing statement, he admitted that he had planned that in part “may be to get a mistrial.” JA 22. Boyd does not cite, nor can we find, any clear ly established federal law that requires a second Faretta hearing in these circumstances. So the state habeas court properly denied relief. We express no opinion on whether ther e could be some intervening circumstance that might require a court to reevaluate a de fendant’s waiver of his right to counsel.
* * * * * On federal habeas, we must defer to the st ate court’s reasonable findings of fact and application of clearly established Supreme Court precedent. The state court reasonably11 found that Boyd knew he was taking Xanax a nd did not object to it. So it reasonably distinguished this case from Riggins and Sell , which prescribe procedures before the Government can medicate a defendant involuntarily. And no clearly established federal law required the state court to hold a second Faretta hearing, after Boyd started taking Xanax, to reevaluate his waiver of his right to counsel. Because the District Court correctly rejected these claims, we will affirm.