NOT FOR PUBLICATION
FILED
UNITED STATES COURT OF APPEALS
DEC 03 2014
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CARL HENRY, No. 12-56417
Petitioner - Appellant, D.C. No. 2:09-cv-07297-ODC-JC
v.
MEMORANDUM*
FREDERICK B. HAWS, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Argued and Submitted November 18, 2014
Pasadena, California
Before: W. FLETCHER and BYBEE, Circuit Judges, and SETTLE, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
Petitioner Carl Henry appeals the denial of his petition for a writ of habeas
corpus, filed pursuant to 28 U.S.C. § 2254. The district court 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 removed from the
courtroom. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We
affirm.
The Supreme Court has clearly established that “[o]ne of the most basic of
the rights guaranteed by the Confrontation Clause is the accused’s right to be
present in the courtroom at every stage of his trial.” Illinois v. Allen, 397 U.S. 337,
338 (1970) (citing Lewis v. United States, 146 U.S. 370 (1892)). But contrary to
Petitioner’s contention, the Court has not clearly established that it is a
constitutional violation to remove an unruly defendant from the courtroom without
issuing the defendant a warning regarding the consequences of his actions.
Reflecting the lack of guidance from the Court, lower courts have diverged on this
issue. Compare Jones v. Murphy, 694 F.3d 225, 242 n.9 (2d Cir. 2012), cert.
denied, 133 S. Ct. 1247 (2013) (warning not mandatory), with Gray v. Moore, 520
F.3d 616, 624 (6th Cir. 2008), cert. denied, 555 U.S. 894 (2008) (warning
mandatory). Even if more circuits had weighed in on this particular issue, the
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Court has held that an appellate panel “may not canvass circuit decisions to
determine whether a particular rule of law is so widely accepted among the Federal
Circuits that it would, if presented to this Court, be accepted as correct.” Marshall
v. Rodgers, 133 S. Ct. 1446, 1451 (2013). Therefore, in the absence of clearly
established law on this specific issue, the question presented is whether the
California Court of Appeal’s decision is contrary to or an unreasonable application
of the more general rule that removal is within the sound discretion of the trial
court. Cf. Knowles v. Mirzayance, 556 U.S. 111, 122–23 (2009).
When a fact-specific standard of review is viewed through the additionally
“deferential lens of § 2254(d),” id. at 121 n.2, the bar to relief is a high one. See
Renico v. Lett, 559 U.S. 766, 778 (2010) (noting the “dual layers of deference
required by AEDPA” and the abuse-of-discretion standard of review). According
the California Court of Appeal the deference it deserves, we conclude that it was
not an unreasonable application of federal law to hold that Petitioner lost his right
to be present 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.” Allen, 397 U.S. at 343. Therefore, Petitioner is not entitled to relief
under § 2254.
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Finally, to the extent that Petitioner asserts an uncertified claim on appeal
that he was incompetent to knowingly waive his right to confrontation, this claim
was not raised below. See Poland v. Stewart, 169 F.3d 573, 576 n.4 (9th. Cir.
1999). We decline to issue a certificate of appealability.
AFFIRMED.
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