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 11 - - - - - - - - - - - - - - - - - - - -x 12 13 RAMON RAMOS, 14 15 Petitioner-Appellant , 16 17 - v.- 12-256 18 19 STEVEN RACETTE, 20 21 Respondent-Appellee

. 22 23 - - - - - - - - - - - - - - - - - - - -x 24 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 34a 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

2argues that this violated his Sixth Amendment right to self1 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

3That 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, 1Ramos 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

1In New York, “a Sandovalhearing 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). 4advantage 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

5month . . . 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 andto 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

seand absent himself.” Id.at *6. 23

6After this exchange, the court ordered Ramos returned 1 to court. Ramos confirmed, again, that he wished to appear 2
pro sewithout 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

7self-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 sefor 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

8application 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); seeid.at 786 (“If this standard is difficult to 22 meet, that is because it was meant to be.”). 23

9Ramos’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); see28 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 sedefendants who 20 are forcibly absented, 532 F.3d 132, 149-50 (2d Cir. 2008); 21 the same gap exists with respect to pro sedefendants like 22

10Ramos 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. SeeHarrington, 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 self15 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

11[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 sedefendant’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

12before 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 seand 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

13177 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 Gibbonscourt discussed (albeit in dicta) a 14 scenario similar to the one before us: a pro sedefendant 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 self18 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

14consistent 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 sedefense. 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. 2But even assuming his absence was intended to 19

2Ramos argues on appeal that he was hoping to“telegraph a message to the jury with both his selfrepresentation 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 15somehow 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. 16seriously 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 serepresentation. 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 11

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