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O’Daniel v. Martuscello



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

NOTATION A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 24 th day of May, two thousand

nineteen.

PRESENT: DENNIS JACOBS,

PIERRE N. LEVAL,

CHRISTOPHER F. DRONEY,

Circuit Judges.

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WILLIAM O’DANIEL,

Petitioner

‐ Appellant,

‐ v. ‐ 18

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DANIEL F. MARTUSCELLO, JR.,

Respondent

‐ Appellee. *

* The Clerk of Court is directed to amend the caption as set out above.2 ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

FOR PETITIONER

‐ APPELLANT: Bruce R. Bryan

, Bryan Law Firm, Syracuse,

NY.

FOR RESPONDENT

‐ APPELLEE: Matthew B. Keller, Assistant Attorney

General (Nikki Kowalski, Deputy Solicitor

General for Criminal Matters on the brief),

for Letitia A. James, Attorney General State

of New York, New York, NY.

Appeal from a judgment of the United States District Court for the

Northern District of New York (Hurd, J.; Peebles, M.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the district court be

AFFIRMED.

William O’Daniel appeals from the denial of his petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 by the United States District Court for

the Northern District of New York (Hurd, J.; Peebles, M.J.). The issue on appeal

is whether the state court’s denial of trial adjournment requests violated

O’Daniel’s Sixth Amendment right to the counsel of his choice. We assume the

parties’ familiarity with the underlying facts and procedural history.

Denial of a petition for a writ of habeas corpus is reviewed de novo. Epps

v. Poole, 687 F.3d 46, 50 (2d Cir. 2012). “The writ may not issue for any claim

adjudicated on the merits by a state court unless the state court’s decision was

‘contrary to, or involved an unreasonable application of, clearly established

Federal law as determined by the Supreme Court of the United States,’ or was

‘based on an unreasonable determination of the facts in light of the evidence

presented in the State Court proceeding.’” Id. (quoting 28 U.S.C. §§ 2254(d)(1)

‐

(2)). The state court’s findings of fact are presumed to be correct unless the3 petitioner can rebut this presumption by clear and convincing evidence. Id.

(citing 28 U.S.C. § 2254(e)(1)).

O’Daniel’s Sixth Amendment claim is that he was denied the right to

counsel of his choice because, when his retained counsel, James E. Martineau,

was hospitalized and unable to represent him at trial, the court permitted Keith

M. Bruno to represent him, and denied his motions for an adjournment.

O’Daniel argues that the state court unreasonably applied United States v.

Gonzalez

‐ Lopez, 548 U.S. 140, 144 (2006), and Wheat v. United States, 486 U.S.

153, 159 (1988).

A defendant who retains counsel has the right “to choose who will

represent him.” United States v. Gonzalez

‐ Lopez, 548 U.S. 140, 144 (2006).

The state court did not unreasonably apply established Supreme Court

precedent. Defense counsel Martineau suffered from a chronic disorder. The

court had twice granted adjournments of the trial due to debilitating flare

‐ ups,

and advised Martineau to find a “second chair” in the event that Martineau was

rendered unable to represent O’Daniel. This was a reasonable measure to avoid

further delays. Martineau advised in court that he had contracted Bruno “to act

as my second chair in the event that I am unable to proceed

. . . and ha[d]

advised my client of the situation.” SA 99.

Once Bruno agreed to substitute for Martineau, it was reasonable to deny

the defense motions to adjourn the trial in order to give Bruno more time to

prepare because Bruno represented that he would be ready. As the trial court

explained on the record, nothing indicated that Bruno was unable or unprepared

to proceed on schedule; and there was no demonstrated need for extra

preparation: witnesses were available, no physical or mental examination was

outstanding, and no motion was unresolved. O’Daniel twice moved to adjourn

on the ground that his new counsel needed more time to prepare for the trial;

and on each occasion, the court assured itself that Bruno was prepared. Bruno

represented that he met with Martineau and discussed the case with him;

reviewed the case file; met with O’Daniel and his father; and would be prepared

and ready for the trial as scheduled.4 O’Daniel argues that notwithstanding the focus of his adjournment request

on the adequacy of Bruno’s time to prepare, (i) he was in fact objecting to being

represented by Bruno; (ii) the trial court should have understood his request for

time to prepare (coupled with Bruno’s citation of CPLR section 321(c), which

pertains to allowing time to replace incapacitated counsel) as an objection to

having Bruno as his counsel; and (iii) what was said by Bruno at least triggered a

duty on the court to inquire whether O’Daniel was objecting to Bruno. We

reject those arguments. The trial court could not have guessed from the

circumstances that O’Daniel objected to Bruno. As the state appellate court

found, “absent from the record is any indication that defendant was unwilling to

proceed to trial with Bruno as counsel or, more to the point, that he sought

further adjournment of the trial date for the express purpose of retaining another

attorney.” People v. O’Daniel, 105 A.D.3d 1144, 1146 (N.Y. App. Div. Third

Dep’t 2013), aff’d, 24 N.Y.3d 134 (N.Y. 2014).

We have considered O’Daniel’s remaining arguments and find them to be

without merit. For the foregoing reasons, we AFFIRM the district court’s

judgment.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK