concurring.
I join the judgment of the court affirming the District Court’s denial of appellant’s petition for habeas corpus. And I join the court’s fine opinion. I will add a few words.
The court says:
The overriding factor for our disposition is that this case is before us on habeas. If this appeal had come before us on a direct appeal from a federal court presented with a defendant who waived his right to counsel and then absented himself from the courtroom, we might hold differently.
Under the hypothetical circumstances posited by the court, I not only might hold differently, I would hold differently. I would have this court direct, as a matter of obligatory circuit practice, that a federal trial judge, confronted by a criminal defendant who (1) did not have retained counsel and refused to be represented by appointed counsel, and (2) then absented himself from the courtroom, must appoint counsel to represent the in absentia defendant. Underlying this federal practice rule would be the imperative of the Constitution’s Fifth (“due process of law”) and Sixth (“Assistance of Counsel”) Amendments.4
A counterpart of this federal constitutional rule of federal court practice would be a federal constitutional rule of state court practice — namely, that a state trial judge would, in like circumstances, be required by the Fourteenth Amendment’s due process clause (cf. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)) to appoint counsel for the absent defendant.
If I am right in the foregoing, the trial of Andrew R. Thomas was conducted in a manner that contravened his constitutional rights. The fact that he invited this contravention by rejecting the assistance of counsel and by absenting himself from his *128trial is of no constitutional moment. The obligation to protect Thomas’s constitutional rights lay not with Thomas but with the judge. And there is now no available judicial mechanism for remedying the deficiency that has resulted in what I deem to be a constitutionally flawed conviction and resultant sentence. Today we determine that federal habeas corpus is of no avail because, as the court correctly holds, AEDPA stands in Thomas’s way. The Supreme Court having had no occasion squarely to address the constitutional problem presented by a criminal trial going forward to conviction with the defendant not present and not represented by counsel, the adverse ruling of the Delaware Supreme Court did not “result[ ] in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d).
A potential remedy did exist, but the time for asserting it was long ago. Thomas could have petitioned the Supreme Court for certiorari to review the decision of the Delaware Supreme Court. A grant of certiorari might have led the Supreme Court to promulgate the constitutional rule that I submit is appropriate. But Thomas did not petition for certiorari. Perhaps he was not acquainted with certiorari. He was proceeding pro se.
. “An absent defendant cannot present witnesses on his behalf or cross-examine prosecution witnesses. An absent defendant cannot object to inadmissible evidence. An absent defendant cannot question potential jury members, present an opening statement, or offer a summation. In short, an absent defendant can protect neither his constitutionally guaranteed rights nor his interest in the outcome of the proceeding. Appointing counsel to replace an absented defendant, however, goes a long way towards mitigating those concerns.” Davis v. Grant, 532 F.3d 132, 143 (2nd Cir.2008).