Jermaine JONES, Petitioner-Appellant, v. Peter MURPHY, Warden, Respondent-Appellee, 694 F.3d 225

Judge POOLER dissents in

part in a separate opinion. GERARD E. LYNCH, Circuit Judge: Petitioner-appellant Jermaine Jones was convicted of murder by a Connecticut jury in 2004. The Connecticut Supreme Court affirmed his conviction by opinion in 2007. In 2010, Jones filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the District of Connecticut. That court (Janet C. Hall, Judge) denied the petition, and this Court granted a certificate of appealability as to some of his claims.

Jones argues that the state trial court’s decision to exclude him from the courtroom violated his federal constitutional right to be present at his trial, and that police interrogation shortly after the murder violated his Miranda rights. We find that any error in initially excluding Jones was harmless because he did not miss any critical stage of the trial as a result of that exclusion.

Furthermore, because the subsequent decision to continue Jones’s exclusion was attributable to his own violent conduct, the Connecticut Supreme Court reasonably applied United States Supreme Court precedent in upholding the trial court’s decision. Jones’s two claims of improper police procedure in his interrogation are also meritless. One claim misapprehends Supreme Court precedent; the other was never raised in state court and is thus unavailable for review in federal court. We therefore affirm the denial of the writ. BACKGROUND I. The Crime The facts of the underlying crime are essentially undisputed.

A more detailed recitation is available in the Connecticut Supreme Court’s opinion. See State v. Jones, 281 Conn. 613, 916 A.2d 17, 21-22 (2007). In June 2001, Jones lived with his then girlfriend, Erica Minnifield, in Hartford, Connecticut. On June 22, 2001, Jones and Minnifield traveled to Waterbury to visit friends and family. Minnifield, without Jones, then went to a shopping mall with Thomas Williams, the victim, and purchased clothing. Later that evening, Jones saw Minnifield wearing new clothing and suspected that another man had purchased it for her.

While being driven back to Hartford together later that night by a friend, Jones confronted Minnifield about the new clothing. During the confrontation, Jones threatened Minnifield with a knife and cut her on the arm. When the couple arrived at home, Minnifield ran into a neighbor’s yard, but Jones found her and dragged her back into the house. He then cut her pants from her body using the same knife. Minnifield fled the next morning. Later that day, Jones saw Minnifield driving with Williams and became enraged. Jones went with a friend to look for Williams.

When they found him, Jones approached Williams and cocked a handgun hidden in his jacket. Jones then asked Williams, “[Y]o, you gonna stop fucking around with my girl?” Williams laughed and asked Jones what he meant. Jones told him that he would kill Williams if he saw him again with Minnifield. Jones then removed the handgun from his jacket and shot Williams four times. Williams died shortly thereafter. II. Police Investigation and Jones’s Confession Jones was arrested at his home on June 27, 2001, between 9:00 and 10:00 a.m.

Scott Stevenson, a detective with the Waterbury Police Department, executed the arrest warrant and, after searching the home, brought Jones back to the police station,where he was to be interviewed by detectives assigned to the case, between noon and 1:00 p.m. Because those detectives were not available, Stevenson was assigned to guard Jones in the interview room, the door of which did not lock. Stevenson was not instructed to interview Jones or ask him any questions.

Because it was lunchtime, Stevenson ordered food for himself and Jones, and the two men had a long conversation on various topics unrelated to the arrest. Eventually, Jones, unprompted, said that he hadn’t killed anyone. Stevenson ignored the statement, but shortly thereafter, Jones said, “I know you guys think it’s about the girl.” According to the Connecticut Supreme Court, “Stevenson then asked the defendant if he had known the victim. The defendant responded by placing his head in his hands and stating, ‘He did not deserve to have happen what I did to him.’ ” State v.

Jones, 916 A.2d at 40 (alterations omitted). Following that statement, Stevenson left the room to ask how to proceed; he was instructed to deliver Miranda warnings and then seek a confession. Stevenson advised Jones of his rights, and Jones then provided an oral confession. After signing an acknowledgment that he knew his rights, Jones signed a written confession as well. Jones also helped the police to find the murder weapon by telling police to speak to his brother, who knew the weapon’s whereabouts.

When his brother was initially unwilling to aid police, Jones spoke to him on the phone, after which his brother led police to the weapon. III. Pretrial Proceedings and Trial On January 27, 2004, the trial court held a hearing on Jones’s motion to suppress his confession. The court also heard arguments about whether and to what extent the prosecution would be permitted to discuss Jones’s threats to Minnifield and Minnifield’s knife injuries.

The parties agreed, and the court ruled, that Minnifield’s “injuries [could] be noted,” since they were relevant to understanding the sequence of events, but that the knife should not be mentioned as the source, as Jones was not charged with assaulting Minnifield. On January 30, the court denied the motion to suppress the confession. Jones attempted personally to dispute the court’s ruling, but the court told Jones that he could appeal the ruling later. On the way back to jail that evening, Jones, angry at the ruling, punched his hand through a Plexiglas window.

The trial court learned of this incident during pretrial proceedings on February 2, 2004, the first day of trial. The prosecution called Minnifield as one of its first few witnesses on February 2. During the course of Minnifield’s testimony, the assistant state’s attorney asked Minnifield several questions that went beyond the scope of the court’s order concerning Jones’s possession and use of the knife. Defense counsel did not object. During a recess, the court admonished the assistant state’s attorney.

Defense counsel explained that he had not objected at the time because he did not want to draw the jury’s attention to the testimony, but he requested a cautionary instruction. The court agreed that such an instruction was the proper remedy and subsequently delivered it. At the beginning of proceedings on February 3, before the jury entered the courtroom, defense counsel alerted the court that Jones would like to seek a mistrial on the basis of Minnifield’s testimony.

Defense counsel then informed the court that although counsel was satisfied that the court had adequately resolved the issue, Jones was not, and “as a result of what [Jones] considered to be [ ] the prejudicial impact of [ ] Minnifield’s testimony,” Jones “would choose personally at this point not to go further with the proceedings.” To the extent there was any ambiguity about the meaning of counsel’s statement, Jones himself made clear that he wanted leave the courtroom.

Jones addressed the court himself, stating that in light of the court’s rulings, “I don’t even want to be here then.” A colloquy ensued between the court and Jones. The court warned Jones that “[t]he case is going to proceed, you know, without you” and that Jones was “going to be prejudiced by this.” The court also repeatedly asked if Jones understood what he was doing. The colloquy culminated in the following exchange: THE COURT: Mr. Jones, you understand that you’re going to be prejudicing yourself by leaving today; you understand that? Do you understand that?

THE DEFENDANT: Well, I want to— Pm going to put a motion in to dismiss counsel, then. THE COURT: No, it’s— THE DEFENDANT: For the record. THE COURT: No, Mr. Jones, we’re proceeding— THE DEFENDANT: And I’ll take my case myself. THE COURT: — we are proceeding— THE DEFENDANT: I’ll take my case myself, Your Honor. THE COURT: — that’s denied, Mr. Jones. THE DEFENDANT: I have a right, Your Honor. That’s my Constitutional right. THE COURT: All right. THE DEFENDANT: You’re laughing, but I’m serious. THE COURT: Marshals, remove Mr. Jones. A MARSHAL: Let’s go, Mr. Jones. THE DEFENDANT: I’m not going nowhere, man.

A MARSHAL: Come on. THE DEFENDANT: No, I’m not going nowhere. A “scuffle ensued” in the courtroom. With order restored, the trial court stated that “Mr. Jones had to be physically restrained by a number of marshals. I guess to say Mr. Jones is a violent man is understating the obvious.” The court ordered a three-hour recess for Jones to calm down and consult with defense counsel. After the recess, and after a further discussion with counsel, the court excused the jury for the remainder of the day. The court also had a discussion with the chief marshal, Anthony Candido, about Jones’s behavior.

Candido informed the court that after he was removed, Jones had made threatening comments that he would “continue to fight” and would “bring you people down” and had refused to place his hands behind his back. Candido also noted that one marshal had to be sent to the hospital as a result of injuries sustained in attempting to restrain Jones. Candido recommended that Jones be kept in full restraints if he returned.

The court stated: I’m very concerned, having observed ... the defendant over the course of jury selection, especially after ruling on his motions, his reaction thereto, and it just appears every time the defendant gets an adverse ruling, he reacts and reacts violently at times, including breaking his hand after ... what he viewed as losing on the motion to suppress. The court also stated that it was “not at all sure that this trial could proceed in an orderly fashion with Mr. Jones in the courtroom,” and that it was “concerned, as is Marshal Candido, about the safety of people in the courtroom.

That includes the prosecutors, the other court personnel, the jury and his own counsel.” The court concluded that Jones had “forfeited his right to ... be in the courtroom by his engaging in this disruptive and volatile, disorderly, disrespectful conduct.” Furthermore, the court was not optimistic that, despite what he says or may say down the road — and I haven’t heard anything yet — but even if he were to promise to try to behave, based on having observed him over the course of the last two weeks or so, I am very concerned for the court personnel, who will be closer to him than I[,] for their safety because he just does not control himself and does not appear to want to control himself, more importantly.

The court then engaged counsel in a discussion of how to proceed. Defense counsel stated that Jones no longer wished even to be brought to the courthouse but suggested that Jones be given the option each day of coming to the courthouse or remaining at the jail. The court adopted this suggestion and noted that a holding cell adjacent to the courtroom was equipped with a monitor and speaker system which would permit Jones to monitor the trial.

The court also said, however, that it wouldn’t “force him” to attend if he “does not want to come to court.” The court again expressed concern about the “personal safety of court personnel, attorneys, and correctional personnel,” and that “based on everything the Court has observed and stated today and heard today,” it would “not [] bring [Jones] into the courtroom unless he is highly restrained.” The court noted, however, that it would leave the decision to defense counsel and Jones and that it would “listen to any other requests.” On the morning of February 4, defense counsel told the trial court that Jones had come to court and wished to be present in the courtroom, though he had not agreed to wear full restraints.

The trial court then asked the advice of the deputy chief marshal, Gino DiMauro, about whether it would be safe to permit Jones back in the courtroom. DiMauro initially indicated that he felt the marshals would be able to “handle” Jones, but he left to speak to Jones and assess the situation. During DiMauro’s absence, the court expressed further concern about the safety of courtroom personnel and Jones’s ability to keep himself under control. The court also suggested that having Jones absent might be less prejudicial than having the jury see him in full restraints.

When DiMauro returned, he reported to the court that Jones was being “somewhat confrontational” toward the marshals, and that in his “better judgment” he “[could not] say that the defendant should be present in court during the proceedings.” Di-Mauro also said that he could not guarantee that another outburst would not occur, and that he did not “believe that Mr.

Jones should be in these proceedings while they’re going on for the safety of everybody involved.” In discussion with the court, the marshal confirmed that Jones was agitated and was “still talking about yesterday.” In light of the earlier events and DiMauro’s assessment, the court then reconsidered its ruling and found that Jones had “by his disruptive behavior, waived any right to be present during the proceedings.” The court reiterated its concerns that bringing Jones back would be unsafe and disruptive.

After consulting Jones about his options, defense counsel informed the court that Jones wanted a new attorney and that Jones wished to be returned to the jail rather than sit in the holding cell. The court stated that it saw “no reason to force Mr. Jones to listen to the proceedings” and that Jones had rejected “the most viable option,” which was “to have Mr.

Jones be able to listen to the proceedings, participate to a limited extent.” The court also noted that after his removal the previous day, Jones could be heard in the courtroom “kicking or pounding walls,” so that “it might be better” for him not to be present. But the court stated again that “well treat the future proceedings on a day-by-day basis.” The record is unclear as to whether Jones returned to the holding cell or chose to remain at the jail for the remainder of the trial.

At any rate, his counsel never again raised the question of his return to the courtroom, nor did the judge, and Jones did not return to the courtroom until his sentencing. See State v. Jones, 916 A.2d at 30-31. He was sentenced to sixty-five years in prison. IV.

Subsequent Procedural History Jones appealed his conviction to the Connecticut Supreme Court and argued that the trial court had erred in initially excluding him and then in keeping him out of the courtroom, that he was improperly denied his right to proceed pro se, and that the trial court had erred in rejecting his argument that his confession had been obtained illegally. The Connecticut Supreme Court rejected these arguments and affirmed his conviction, State v. Jones, 281 Conn. 613, 916 A.2d 17 (2007), and the United States Supreme Court denied certiorari, Jones v.

Connecticut, 552 U.S. 868, 128 S.Ct. 164, 169 L.Ed.2d 112 (2007). Jones then sought state habeas relief, claiming that he had been denied effective assistance of counsel. Following an evidentiary hearing, the state court denied the writ. Jones v. Comm’r of Corr., No. CV044001435, 2007 WL 1976664 (Conn.Super.Ct. June 15, 2007). The state Appellate Court summarily dismissed his appeal from that denial, Jones v. Comm’r of Corr., 115 Conn.App. 902, 971 A.2d 97 (2009), and the state high court denied a petition for certification to appeal, Jones v. Comm’r of Corr., 293 Conn. 911, 978 A.2d 1109 (2009).

Jones, proceeding pro se, then sought federal habeas corpus review before the United States District Court for the District of Connecticut, arguing that his constitutional rights were violated by his absence from the trial, the admission of his confession, and the denial of his request to proceed pro se. The district court denied the petition and denied a certificate of appealability. Jones v. Murphy, No. 3:10— CV-49(JCH), 2010 WL 3829129 (D.Conn. Sept. 21, 2010).

A panel of this Court, however, granted a certificate of appealability on July 13, 2011, as to four issues: (1) whether, before removing the Appellant from the courtroom, the trial court should have warned the Appellant that he would be removed if he continued his disruptive behavior; (2) whether the Appellant “reclaimed” his right to be present at trial. See Illinois v. Allen, 397 U.S. 337, 343 [90 S.Ct. 1057, 25 L.Ed.2d 353] (1970); (3) whether the Appellant was interrogated within the meaning of Rhode Island v.

Innis, 446 U.S. 291 [100 S.Ct. 1682, 64 L.Ed.2d 297] (1980) and, (4) if so, whether his subsequent, post-Miranda statements are admissible consistent with Oregon v. Elstad, 470 U.S. 298 [105 S.Ct. 1285, 84 L.Ed.2d 222] (1985), and Missouri v. Seibert, 542 U.S. 600 [124 S.Ct. 2601, 159 L.Ed.2d 643] (2004)? DISCUSSION I. Standard of Review Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L.

No. 104-132, 110 Stat. 1214 (1996), a state prisoner may seek federal collateral review of a state court conviction “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). AEDPA “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Hardy v. Cross, — U.S.-, 132 S.Ct. 490, 491, 181 L.Ed.2d 468 (2011) (per curiam) (internal quotation marks omitted).

When a petitioner “in custody pursuant to the judgment of a State court” advances “any claim that was adjudicated on the merits in State court proceedings” as a basis for federal habeas relief, a federal court may grant relief only if the “adjudication of the claim ... resulted 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), (d)(1), or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2).

As we have stated, under § 2254(d)(1), for a state court decision to be “contrary to,” or an “unreasonable application of,” that Supreme Court precedent, the decision must: (1) “arrive[ ] at a conclusion opposite to that reached by [the Supreme Court] on a question of law”; (2) “decide[] a case differently than [the Supreme Court] on a set of materially indistinguishable facts”; or (3) “identif[y] the correct governing legal principle ... but unreasonably appl[y] that principle to the facts of the prisoner’s case.” Portalatin v. Graham, 624 F.3d 69, 79 (2d Cir.2010) (alterations in original), quoting Williams v.

Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (opinion for the Court by O’Connor, J.). However, “[w]e apply AEDPA deference only if the state court has disposed of a claim on the merits.” Watson v. Greene, 640 F.3d 501, 508 n. 7 (2d Cir. 2011) (internal quotation marks omitted); see also, e.g., Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009); Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). II.

Exclusion Claims Jones argues that both his initial exclusion from the courtroom and the trial court’s subsequent refusal to allow him to return to the courtroom violated clearly established Supreme Court precedent under Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The Connecticut Supreme Court adjudicated these questions on the merits. See State v. Jones, 916 A.2d at 32-34 (initial exclusion); id. at 34-37 (subsequent exclusion).

Thus, our first task is determining whether either of the state court’s rulings “was contrary to, or involved an unreasonable application of,” Allen or other “clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or whether either determination “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). A.

Initial Exclusion The Connecticut Supreme Court held that the trial court’s initial order to exclude Jones did not violate Allen because Jones had voluntarily consented to removal. See State v. Jones, 916 A.2d at 32-34. We find that this holding rests on an “unreasonable determination of the facts” within the meaning of § 2254(d)(2), but that any Allen error in excluding Jones was nonetheless harmless. This claim therefore provides no basis for granting the writ.

The Connecticut Supreme Court determined that the trial court had ordered Jones removed because Jones had requested to leave, and not because he was disruptive. Id. With respect, we find that this holding cannot reasonably be reconciled with the trial transcript. On the morning of February 3, before the jury arrived, Jones’s counsel indicated that Jones disputed the court’s ruling of the previous day regarding Minnifield’s testimony. After the court declined to reconsider the ruling and Jones had a chance to consult with his counsel, counsel stated: Mr.

Jones is indicating to me, Your Hon- or — and I’ve tried to explain to him that as a result of what he considered to be this — the prejudicial impact of Miss Minnifield’s testimony that as a result of that he would choose personally at this point not to go further with the proceedings. Counsel also indicated that he had told Jones that there was “no legal way to interrupt, continue, stop the proceedings.” Jones interrupted, stating, “Your Honor, I — I don’t even want to be here then.” The court then engaged Jones in a discussion about whether he actually wished to remove himself from the courtroom.

The court warned Jones that “[t]he case is going to proceed, you know, without you,” that Jones was “going to be prejudiced by this,” and repeatedly asked if Jones understood what he was doing. The colloquy, which spans more than four transcript pages, culminated in the following exchange, which we quote again in full due to its importance: THE COURT: Mr. Jones, you understand that you’re going to be prejudicing yourself by leaving today; you understand that? Do you understand that? THE DEFENDANT: Well, I want to— I’m going to put a motion in to dismiss counsel, then.

THE COURT: No, it’s— THE DEFENDANT: For the record. THE COURT: No, Mr. Jones, we’re proceeding— THE DEFENDANT: And I’ll take my case myself. THE COURT: —we are proceeding— THE DEFENDANT: I’ll take my case myself, Your Honor. THE COURT: —that’s denied, Mr. Jones. THE DEFENDANT: I have a right, Your Honor. That’s my Constitutional right. THE COURT: All right. THE DEFENDANT: You’re laughing, but I’m serious. THE COURT: Marshals, remove Mr. Jones. A MARSHAL: Let’s go, Mr. Jones. THE DEFENDANT: I’m not going nowhere, man. A MARSHAL: Come on. THE DEFENDANT: No, I’m not going nowhere. A MARSHAL: Let’s go.

THE DEFENDANT: Don’t touch me. The transcript then breaks off as a “scuffle ensued” in the courtroom. After order was restored, the trial court made a record that “Mr. Jones had to be physically restrained by a number of marshals.” Reviewing the transcript, the Connecticut Supreme Court found that “it was not the defendant’s conduct that precipitated his removal,” but rather that “the trial court ordered the defendant’s removal because the defendant had requested that he be permitted to leave the courtroom, which, although inadvisable, was the defendant’s right.” State v. Jones, 916 A.2d at 32.

The high court noted that Jones “never explicitly stated that he had changed his mind about absenting himself from the courtroom,” and observed in a footnote that “it does not appear that the trial court perceived the defendant’s request to dismiss counsel and represent himself to be a sincere one.” Id. at 33 & n. 17. Respectfully, we find the Connecticut Supreme Comb’s finding of fact unreasonable. When Jones asserted that he would like to leave, the trial court did not accede to that request. Rather, it engaged him in a discussion of the consequences of a decision to absent himself from the trial.

That was entirely proper, and indeed necessary, since a waiver of the right to be present at trial, “as the waiver of any constitutional right in a criminal proceeding, must be knowing and voluntary.” Polizzi v. United States, 926 F.2d 1311, 1319 (2d Cir.1991); see also United States v. Tureseo, 566 F.3d 77, 83 (2d Cir.2009) (at least in federal cases, “[t]o establish waiver, the District Court must conduct a record inquiry to determine whether the defendant’s absence was ‘knowing and voluntary’ ”).

A criminal defendant, who is not an expert in criminal procedure or constitutional law, must generally be advised of the consequences of waiving his rights, and be found by the court to have made a knowing and voluntary waiver, before being permitted to waive such an important right as presence at trial. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (“[C]ourts indulge every reasonable presumption against waiver of fundamental constitutional rights and [ ] we do not presume acquiescence in the loss of fundamental rights.

A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.”) (internal quotation marks and citation omitted, emphasis added); cf. Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) (citing Zerbst and holding that a waiver of constitutional confrontation rights must be knowing and voluntary); see also Schriro v. Landrigan, 550 U.S. 465, 484-87, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (Stevens, J., dissenting) (collecting cases holding that waiver must be knowing and voluntary).

If the trial court had concluded its colloquy, and Jones had still wished to leave the courtroom after understanding the consequences, the state supreme court’s reading of the situation would be correct. But the transcript indicates that the colloquy instead caused Jones to rethink his decision to leave the trial. Indeed, reconsideration was the intended effect of the colloquy.

The trial court was correct that leaving would have prejudiced Jones by, for example, preventing him from participating in his own defense, and the entire point of advising a defendant about the consequences of a waiver is to give him the opportunity to decide whether, in light of those consequences, he persists in his desire to waive. Once the warnings had their intended effect, Jones indicated he wanted to fire his attorney and represent himself, a desire plainly inconsistent with waiving his presence in court.

At a minimum, the record does not indicate that Jones had made any final decision to waive his right to be present at trial at the time the court ordered the marshals to “remove Mr. Jones.” Although the Connecticut Supreme Court correctly noted that Jones “never explicitly stated that he had changed his mind about absenting himself from the courtroom,” State v. Jones, 916 A.2d at 33, that observation cannot reasonably support a finding that Jones’s departure was voluntary.

Indeed, to require the defendant expressly to revoke his earlier request, at least on the facts presented here, puts the burden in the wrong place. For Jones’s attempted waiver to be valid, the trial court was required to make sure that he understood the consequences of his decision, and that his waiver was knowing and intelligent. Polizzi, 926 F.2d at 1319; Zerbst, 304 U.S. at 464, 58 S.Ct. 1019. The trial court clearly understood this obligation, and proceeded to ask Jones whether he did indeed understand what he was doing.

Since there is no indication that Jones’s initial request was knowing and intelligent, a voluntary waiver could not be sustained unless Jones reiterated his request after he was properly advised by the court. He never made such a request. To the contrary, Jones’s words and actions made clear that he did not wish to leave the courtroom. Jones’s comment about proceeding pro se, whether or not it was a “serious” request that could not be summarily denied without further inquiry, see Faretta v.

California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), at a minimum indicated that Jones had rethought his decision to leave the courtroom. And certainly, the circumstances surrounding his exit do not show a man voluntarily departing. The immediate cause of his exit was the trial court’s order to the marshals, the execution of which Jones violently resisted. We therefore hold that the state supreme court’s decision was based on an unreasonable determination of the facts. That Jones did not expressly waive his right to be present, however, does not dispose of the case.

In addition to express waiver, a defendant may constructively waive his rights to be present at trial by disruptive behavior. Allen, 397 U.S. at 343, 90 S.Ct. 1057. But the record here presents difficulties in assessing any contention that Jones was properly removed on that basis. The transcript shows a defendant who insisted on speaking personally with the court despite being represented by counsel and who persisted in arguing with the court about its rulings— behavior that, while contentious and improper, would not in itself warrant the extreme response of involuntary exclusion.

Nevertheless, caution is appropriate in assessing the trial judge’s response to the interaction. Absent specific record findings by the judge about what occurred in the courtroom, a cold transcript provides no insight into tone of voice, body language, or possible overtly threatening behavior that might cast mere spoken words in a different light. The actual situation facing a judge in the real world is not limited to the words that a court reporter can transcribe. Cf Harris v. Kuhlmann, 346 F.3d 330, 354 (2d Cir.2003).

In any event, Jones’s violent resistance to the court’s removal order also supported a decision to continue the exclusion at least until he could comport himself appropriately, which purpose is implicit in the trial judge’s decision to declare a three-hour recess. It is not necessary, however, for us to decide whether AEDPA deference applies to our review of the trial court’s decision to exclude Jones or whether the exclusion was proper, because any error in the initial decision to remove Jones from the courtroom was harmless.

See Lucky, 569 F.3d at 108 (stating that harmless error applies to erroneous exclusion from the courtroom); cf. Spears v. Greiner, 459 F.3d 200, 204 (2d Cir.2006) (declining to decide whether to apply AEDPA deference because claim failed even without deference). Under the Sixth Amendment’s Confrontation Clause, a defendant has the right to be present at trial to confront the witnesses against him. See, e.g., Faretta, 422 U.S. at 816, 95 S.Ct. 2525; Allen, 397 U.S. at 338, 90 S.Ct. 1057.

This right extends as a matter of due process to “critical stages” of the trial beyond the presentation of evidence when the defendant’s “presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.” Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (internal quotation marks omitted); accord Tureseo, 566 F.3d 77 at 83. No further trial proceedings occurred on February 3 after Jones was excluded.

Immediately after the exclusion, the trial court ordered a three-hour recess to permit Jones to cool off and discuss his situation with defense counsel. After a colloquy with both the prosecution and the defense about how to proceed in light of Jones’s behavior, the trial court decided to dismiss the jury for the rest of the day and resume proceedings on the following day.

The minimal proceedings conducted in Jones’s absence on February 3 did not bear on Jones’s “opportunity to defend against the charge,” Stincer, 482 U.S. at 745, 107 S.Ct. 2658, but only on the entirely collateral issue of how the court should deal with Jones’s own dangerous and disruptive behavior. This was not a critical stage of the trial: the jury did not hear evidence, no motions were argued, jurors were not selected.

Any argument that Jones had a right to be present during the discussion of the consequences of his own violent and disruptive behavior would be circular, and would imply that a court could never exclude a defendant under Allen. In sum, Jones’s exclusion for the remainder of February 3 was not an exclusion from a critical stage and did not prejudice Jones. Jones’s initial exclusion thus provides no basis for federal habeas corpus relief. B. Subsequent Exclusion Jones was also absent from the courtroom on February 4.

We must therefore decide whether this continued exclusion was proper, particularly in light of any efforts by Jones to reclaim his right to be present. The Connecticut Supreme Court held that even if Jones did attempt to return to the courtroom, the trial court’s subsequent exclusion of Jones on February 4 was not an abuse of its discretion under Allen. We hold that the high court’s conclusion did not represent an unreasonable application of Allen. Even if the trial court erroneously removed Jones on February 3, Jones’s own violent and disruptive actions thereafter prevented him from returning on February 4. Cf.

Norde v. Keane, 294 F.3d 401, 413 (2d Cir.2002) (“The fact that [the § 2254 petitioner’s] conduct may have been based on what he believed to be a compelling reason ... does not excuse his misconduct. Allen makes clear that a defendant does not have the right to disrupt the trial proceedings.”).

Although Allen permits a court to find that a defendant has constructively waived his right to be present at his own trial, the Supreme Court also expressly made clear that “[o]nce lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.” 397 U.S. at 343, 90 S.Ct. 1057.

Thus, Jones is correct that once the trial court excluded Jones on February 3, it was required to permit him to return — but only if Jones satisfactorily demonstrated that he would not be violent or disruptive. The record shows not only that Jones failed to do so, but also that he engaged in further violent behavior that independently supported his exclusion from the courtroom, without regard to whether the initial removal was proper. On the morning of February 4, the court specifically cited Allen and noted that it believed it was permissible to exclude Jones based on his intervening misconduct.

But as the Connecticut Supreme Court noted, the trial court was initially ready to permit Jones’s return on the morning of February 4. See State v. Jones, 916 A.2d at 35. However, after assessing Jones in person, a marshal reported to the court that Jones was being “somewhat confrontational toward” the marshals, and that in his “better judgment” the marshal “[could not] say that the defendant should be present in court during the proceedings.” The marshal also said that he could not “guarantee that a possible outburst won’t happen again” and that he did not “believe that Mr.

Jones should be in these proceedings while they’re going on for the safety of everybody involved.” In discussion with the court, the marshal confirmed that Jones was agitated and was “still talking about yesterday.” In light of the earlier events and the marshal’s assessment, the court then “reconsider[ed]” its ruling and found that Jones, “by his disruptive behavior, [had] waived any right to be present during the proceedings.” The court reiterated its concerns that bringing Jones back would be unsafe and disruptive.

The Connecticut Supreme Court found that the trial court did not abuse its discretion in excluding Jones, and we cannot find that conclusion unreasonable. Initially, we are mindful of the Supreme Court’s guidance that “evaluating whether a rule application was unreasonable [under AEDPA] requires considering the rule’s specificity,” and that “[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004).

Although the right to be present at one’s own trial is a right of paramount importance, appellate courts— let alone courts considering a case on collateral review many years later — lack the direct perception of the situation that informs the trial court’s judgment. This distance from courtroom realities explains why we review decisions to exclude a defendant for abuse of discretion. When that fact-specific standard of review is viewed through the additionally “deferential lens of § 2254(d),” Knowles v. Mirzayance, 556 U.S. 111, 121 n. 2, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009), the bar to relief is a high one.

See Renico v. Lett, — U.S. -, 130 S.Ct. 1855, 1865, 176 L.Ed.2d 678 (2010) (noting the “dual layers of deference required by AEDPA” and an underlying standard asking “whether the [trial] judge exercised sound discretion”). Applying that deferential standard to this case, we conclude that the state high court reasonably determined that the trial court had a valid basis to exclude Jones on February 4, even if he wished to return. The Connecticut Supreme Court offered three reasonable considerations to support its conclusion. See State v. Jones, 916 A.2d at 35-36.

First, and most importantly, it noted that Jones had reacted with serious physical violence to the court’s previous exclusion order on February 3. Id. at 35. In addition to its personal observations of Jones’s violence on the previous day, the trial court was also aware that after a previous adverse pretrial ruling, Jones had punched his hand through a Plexiglas window. Though Jones had been placed in restraints on February 4, we do not think the trial court’s concern for the safety of the lawyers, jurors, and witnesses was misguided.

Second, the Connecticut Supreme Court noted that Jones had demonstrated no ability to control his temper and seemed unwilling to comply with court rulings or orders from the marshals. Id. at 35-36. This conclusion was supported by the marshal’s observation that Jones remained agitated and “confrontational,” and by the marshal’s concern that he could not guarantee the safety of courtroom personnel. Third, the Connecticut Supreme Court noted that the alternative — permitting Jones in the courtroom only in full-body restraints — presented its own difficulties. Id. at 36.

As the Allen Court held, the “sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant.” 397 U.S. at 344, 90 S.Ct. 1057. Moreover, contrary to Jones’s argument in our Court, it was not clear that Jones had consented to being shackled; his attorney had reported to the court that Jones ignored the “issue of restraints” in his discussions with counsel that morning. We conclude that the Connecticut high court’s decision was reasonable under § 2254(d). The trial court was faced with a violent and unpredictable defendant.

Putting aside the evidence that he had violently assaulted Minnifield and shot Williams to death, Jones had reacted violently (albeit outside the courtroom) to one adverse ruling, and had in the court’s presence violently resisted the removal order, requiring numerous marshals to restrain him, at least one of whom was injured in the fray. He then continued his obstreperous behavior once removed, threatening the marshals and “kicking or pounding [the] walls.” Jones manifestly waived his right to be present based on the extraordinary violence he had displayed during the preceding removal.

Even if the court had erred in ordering that Jones be removed from the courtroom, Jones’s proper recourse was to comply with the order and seek his return through legal argument, not to offer violent resistance. Cf. Norde, 294 F.3d at 413 (“The fact that [the § 2254 petitioner’s] conduct may have been based on what he believed to be a compelling reason ... does not excuse his misconduct.”). All of the behavior related above was either known to, or had been personally observed by, the trial judge.

Moreover, the court was entitled to rely on the marshal’s assessment that, whatever Jones might say, he remained volatile and confrontational, and continued to present a danger to persons in the courtroom. On this record, we cannot say that the Connecticut Supreme Court unreasonably applied Allen in affirming the trial court. The case on which Jones principally relies, United States v. Ward, 598 F.3d 1054 (8th Cir.2010), is not to the contrary.

During pretrial proceedings in that case, the defendant expressed a wish to speak for himself and speak with his lawyer aloud, rather than communicate with the court through counsel and with counsel through written notes, as the court had asked him to do. Id. at 1057. The court ordered him involuntarily removed. Id. He was then excluded for the rest of his trial because defense counsel could not guarantee to the court that the defendant would remain quiet. Id.

The Eighth Circuit vacated the conviction and remanded for a new trial, finding problematic both the defendant’s initial exclusion and the trial court’s reliance on the representations of counsel, rather than the defendant himself, about the defendant’s willingness to comport himself properly and reclaim his right to be present. Id. at 1058-60. The facts of Ward differ significantly from this case. Critically, the Ward court noted that [u]nlike many reported exclusion cases, including Allen ..., Ward’s presence at trial did not pose an apparent risk of physical injury to anyone.

For example, he did not threaten the judge or anyone else involved in the trial, he had not assaulted anyone outside the courtroom, and he was not charged with a crime of violence. A trial judge with a legitimate concern for safety in the courtroom faces a very different situation and clearly has discretion to take firm action. Id. at 1059. By contrast, Jones, who was charged with murder, was violent both within the courtroom and without, had injured a marshal in resisting compliance with a court order, and had expressly threatened further violence.

Thus, the trial judge here had precisely the “legitimate concern for safety in the courtroom” that was absent in Ward. Furthermore, although the Ward court was disturbed by the trial court’s reliance on conversations with defense counsel rather than the defendant himself, the trial court in this case relied on the marshal’s judgment about courtroom safety. Given the roles of judges and marshals, we have held that a trial judge may rely on a marshal’s judgment about safety. See United States v.

Zuber, 118 F.3d 101, 103 (2d Cir.1997) (rejecting, “as a matter of law, the contention that the district court erred in deferring to the recommendation of the Marshals Service on the need to restrain the defendant at his sentencing hearing,” and distinguishing Allen). Finally, Ward was decided on direct review, not under the deferential AEDPA standard. Nothing in the Supreme Court’s decision in Allen clearly establishes a rule that a trial judge must converse a minimum number of times in person with a removed criminal defendant regarding the right to return before continuing the exclusion.

Allen dictates only that a defendant be allowed to return once “willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.” 397 U.S. at 343, 90 S.Ct. 1057. It was not unreasonable for Connecticut’s Supreme Court to conclude that the trial court acted within its discretion in finding that, through his words and conduct, Jones exhibited no such willingness. The trial court may (or may not) have acted precipitously in ordering Jones removed from the courtroom on February 3.

In any event, it would have been preferable for the trial court to have recalled Jones to the courtroom, under restraint if necessary, outside the presence of the jury, on February 4 to instruct Jones about the standard of behavior that would be expected of him, question him about his commitment to comply with that standard, and make its own assessment, with due regard to the marshal’s opinion, about the reliability of whatever assurances Jones may have offered.

We cannot conclude, however, that Jones suffered any prejudice from his removal on February 3, or that the Connecticut Supreme Court unreasonably determined that his continued exclusion on February 4, in light of his extreme and violent actions the day before, was consistent with United States Supreme Court precedent. The district court thus did not err in denying the writ. III. Miranda Claims Jones also argues that the state courts failed to recognize that his interrogation violated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny. He makes two distinct claims.

First, he argues that because he was subjected to conduct that amounted to interrogation without receiving a Miranda warning, his subsequent statements were rendered involuntary and should not have been admitted under Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), and Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). Second, he argues that the police employed a deliberate two-step procedure to circumvent Miranda, in violation of Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).

Neither claim provides a basis for a grant of the writ: The first misunderstands the relevant Supreme Court law, and the second was never presented to any state court. A brief

summary of the pertinent facts is required. See State v. Jones, 916 A.2d at 39-41. In a pretrial suppression hearing, the government presented evidence that after his arrest, Jones had been placed in an interview room with a Detective Stevenson, who was assigned to prevent Jones from leaving because the door did not lock. Stevenson was not directed to take any statement or ask any questions of Jones. Because it was lunchtime, Stevenson ordered food for both men, and they had an informal and wide-ranging conversation.

As stated by the Connecticut Supreme Court: Stevenson testified that, shortly after lunch, however, the defendant spontaneously stated something “along the lines of, I didn’t kill anybody.” According to Stevenson, he ignored the comment, but the defendant stated shortly thereafter, “I know you guys think it’s about the girl.” Stevenson then asked the defendant if he had known the victim. The defendant responded by placing his head in his hands and stating, “[H]e did not deserve to have happen what I did to him.” Stevenson left the room to inform [his superior officer] O’Leary about the defendant’s statement.

O’Leary asked Stevenson whether the defendant had been advised of his rights and, upon learning that he had not, instructed Stevenson to do so immediately and then to ask the defendant if he would be willing to speak to Stevenson about the victim’s murder. Id. at 40. Thereafter, Stevenson returned and read Jones his rights. After Stevenson asked Jones if he understood these rights, Jones replied that he did and signed a card indicating that he had been advised of his rights. Jones then confessed to the murder.

After verifying again that he understood his lights, Jones also dictated a written confession to Stevenson, which Jones signed. A. Innis and Elstad Arguments Jones argues first that the apparently informal discussion he had with Detective Stevenson over lunch was actually an interrogation within the meaning of Miranda. He relies on Innis, in which the Supreme Court held that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.

That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. 446 U.S. at 300-01, 100 S.Ct. 1682 (footnote omitted).

Whether or not any of Stevenson’s conversation with Jones preceding Jones’s apparently spontaneous statements that he didn’t kill anyone and that the police thought “it’s about the girl,” we can assume for purposes of the argument that Stevenson’s direct question to Jones whether he knew the victim Williams, which elicited the more incriminating statement that Williams “did not deserve ... what I did to him,” constituted interrogation. None of these statements, however, were offered against Jones at trial.

Rather, the prosecutor offered into evidence only the full oral and written confessions that were made after Stevenson advised Jones of his rights and began a formal interview. In Elstad, the Supreme Court held that even if a defendant is questioned without Miranda warnings, rendering any statement made during such questioning coerced and inadmissible, that violation does not automatically taint subsequent statements made after he is advised of his rights. 470 U.S. at 318, 105 S.Ct. 1285. “The relevant inquiry is whether, in fact, the second statement was also voluntarily made.” Id.

Thus, even assuming arguendo that the pre-warning police conduct was “interrogation,” and that Jones’s pre-warning statements were therefore not admissible, Jones’s post-warning statements — -the only ones received in evidence — were admissible unless they were involuntary. Here, the facts as reasonably found by the Connecticut Supreme Court — and which Jones does not contest in this proceeding — demonstrate that Jones’s confession was voluntary. See State v. Jones, 916 A.2d at 39-41.

Indeed, the Connecticut Supreme Court noted that Jones “does not dispute that the evidence adduced by the state, if credited, was sufficient to establish that he confessed to the murder and revealed the whereabouts of the murder weapon only after a knowing and voluntary waiver of his rights.” Id. at 42. According to the facts as found by the state courts, Detective Stevenson advised Jones of his rights by reading aloud from a card and asked Jones if he understood; Jones replied that he did. Id. at 40.

After making an oral confession, but before making a written one, Jones signed a card advising him of his rights, and two police witnesses verified that Jones had “read aloud from a voluntary statement rights form and initialled] each line.” Id. at JO-41. Later, Jones told the police that his brother would lead them to the murder weapon; after his brother initially refused to cooperate, Jones spoke to him on the phone, and his brother led officers to the weapon. Id. at 41.

It is true that Jones disputed this version of events at his suppression hearing, but the court found the officers more credible, and the Connecticut Supreme Court found no clear error in that finding. Id. at 42. Even if Jones attempted to challenge this credibility determination, under the substantially more deferential standard of § 2254(d)(2) and (e), we cannot conclude that the findings of the state courts were unreasonable. B. Seibert Claim Jones attempts to raise a second claim under Missouri v. Seibert.

That case created an exception to the Elstad rule, discussed above, by holding that police may not use a deliberate two-step procedure to circumvent Miranda. See Seibert, 542 U.S. at 621, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment) (“When an interrogator uses [a] deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps.”).

Jones contends that the police employed such a deliberate two-step procedure here, rendering his post-warning confessions inadmissible. Because Jones did not present this argument to the state courts, however, this Court may not consider it. Under AEDPA, a prisoner in custody pursuant to a state court judgment must generally exhaust state court remedies before seeking federal habeas corpus review. See 28 U.S.C. § 2254(b)(1); see also Carvajal v. Artus, 633 F.3d 95, 104-05 (2d Cir.2011).

Moreover, “[i]f a habeas applicant fails to exhaust state remedies by failing to adequately present his federal claim to the state courts so that the state courts would deem the claim procedurally barred, we must deem the claim procedurally defaulted.” Carvajal, 633 F.3d at 104 (internal quotation marks and brackets omitted); see also Aparicio v.

Artuz, 269 F.3d 78, 90 (2d Cir.2001) (“[W]hen the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, federal habeas courts also must deem the claims procedurally defaulted.” (internal quotation marks omitted)). “An applicant seeking habeas relief may escape dismissal on the merits of a procedurally defaulted claim only by demonstrating ‘cause for the default and prejudice’ or by showing that he is ‘actually innocent’ of the crime for which he was convicted.” Carvajal, 633 F.3d at 104, quoting Aparicio, 269 F.3d at 90.

Jones makes several arguments that his Seibert claim is not barred. The first and most substantial is that he presented essentially the same claim in his Connecticut Supreme Court appeal. Jones notes that “citing

chapter and verse of the Constitution” is not necessary to exhaust a claim before the state courts. Daye v. Att’y Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir.1982) (en banc). Jones argues that his Seibert claim was “fairly presented,” Picard v. Connor, 404 U.S. 270, 275, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), to the state courts when Jones made other, similar arguments about his Miranda rights. We are not persuaded. In the Connecticut Supreme Court, Jones did argue that his confession was involuntary.

But his brief did not so much as cite Seibert, nor did he in any way articulate the core of a Seibert claim — that the police had employed a deliberate two-step procedure to circumvent Miranda. Instead, Jones contended that the trial court had erred in its factual determinations, and, citing State v. Finder, 250 Conn. 385, 736 A.2d 857, 878 (1999), requested that the high court conduct its own “scrupulous examination of the record.” Furthermore, Jones’s failure to alert the government and the state courts to this claim is not a mere technicality.

This is not a case in which the habeas petitioner has simply applied a slightly different label to what is essentially the same claim. Adjudicating a Seibert claim would require factual findings that were never made by the trial court, based on evidence that was never adduced in the state courts — for example, evidence of the subjective intent of the officers. See United States v. Williams, 681 F.3d 35, 43 (2d Cir.2012) (stating that in assessing a Seibert claim, “a court should review the totality of the objective and subjective evidence surrounding the interrogations” (internal quotation marks omitted)).

Thus, Jones’s failure to raise the claim prevented the development of a proper record for assessing it. Connecticut law is clear that “rights of constitutional magnitude may be waived,” State v. Paige, 304 Conn. 426, 40 A.3d 279, 284 (2012), and the Connecticut Supreme Court has declined to consider similar arguments in similar procedural postures. Cf. State v. Mullins, 288 Conn. 345, 952 A.2d 784, 795-97 (2008) (declining to consider claim that confession was coerced because defendant had not objected below and record was inadequate to review the claim).

We are confident that “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Aparicio, 269 F.3d at 90 (internal quotation marks omitted). Because “the state courts would deem the claim procedurally barred, we must deem the claim procedurally defaulted.” Carvajal, 633 F.3d at 104 (internal quotation marks and brackets omitted). Jones makes two additional arguments that his Seibert claim is preserved, but neither is persuasive.

First, he notes that although he did not raise the claim in his initial § 2254 petition below, he attempted to make the claim in a reply brief that the district court rejected as untimely. This argument is irrelevant — it addresses a separate default, namely Jones’s failure to raise the claim below, in the federal district court, to preserve it for this federal appeal. Second, Jones notes that this Court’s certificate of appealability mentioned Seibert.

But the purpose of a certificate of appealability is only to provide jurisdiction for appeal, see 28 U.S.C. § 2253(c), not to determine the merits of claims or investigate whether those claims were properly presented in state proceedings. Finally, Jones does not attempt to show cause and prejudice or actual innocence, which are necessary to raise a defaulted claim. See Carvajal, 633 F.3d at 104. Thus, we cannot reach Jones’s argument that the police interrogation violated Seibert. CONCLUSION For the foregoing reasons, the judgment of the district court denying the petition for a writ of habeas corpus is AFFIRMED.

POOLER, Circuit Judge, concurring in part and dissenting in part: I join the majority opinion fully as to Parts II.A and

Part III. I respectfully dissent as to

Part II.B, denying Jones habeas relief for his unwarned and continued exclusion from trial. The majority concludes that the state court’s decision that this exclusion did not deprive Jones of his right to presence was a reasonable application of clearly established Supreme Court law. I disagree. Background “ ‘A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner.’ ” United States v. Canady, 126 F.3d 352, 360 (2d Cir.1997) (quoting Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 36 L.Ed. 1011 (1892)).

The right to presence is “scarcely less important to the accused than the right of trial itself.” Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500 (1912). It is “rooted to a large extent in the Confrontation Clause of the Sixth Amendment,” United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam), but due process also protects the right of a defendant to “be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge,” Snyder v.

Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 2, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The right to presence, crucial though it is, can be constructively waived by misbehavior in the courtroom. In Illinois v.

Allen, the Supreme Court case which guides all analysis in this area, the Court considered the appropriateness of removing a defendant from the courtroom who had “argue[d] with the judge in a most abusive and disrespectful manner”; threatened the judge by telling him “ ‘When I go out for lunchtime, you’re (the judge) going to be a corpse here’ ”; and t[ore] up “the file which his attorney had and threw the papers on the floor.” 397 U.S. 337, 339-340, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The defendant continually interrupted voir dire, badgered prospective jurors and was generally obstreperous. Id.

The judge warned him that after another outbreak, he would be removed. The defendant continued to make “abusive remarks” and was, indeed, removed from the courtroom. The next day the defendant was returned to the courtroom. The judge admitted him, but told him he would be only “would be permitted to remain in the courtroom if he ‘behaved (himself) and (did) not interfere with the introduction of the case.’” Id. In spite of this second warning, the defendant again acted disruptively. Id. at 340-341, 90 S.Ct. 1057.

He was again removed; during the intermittent time he was present, he “responded to one of the judge’s questions with vile and abusive language.” Id. at 341, 90 S.Ct. 1057. The judge still told him that “he could return to the court room whenever he agreed to conduct himself properly.” Id. When the defendant eventually gave such assurances, and ultimately complied with them, he “was permitted to be present through the remainder of the trial, principally his defense.” Id.

In considering whether such “deplorable” removals, id. at 347, 90 S.Ct. 1057, were constitutionally sound, the Court explicitly h[e]ld that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.

Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. Id. at 343, 90 S.Ct. 1057. Allen thus sets forth two requirements for a constitutional removal from his trial. First, it requires that a defendant be warned before he is removed. Id. Second, it requires that a defendant who has previously lost the right to presence be able to reclaim it.

These holdings bound the Connecticut Supreme Court in analyzing Jones’s case, and now, in habeas, they bind us. Analysis I. Allen Warnings This troubling case implicates both of Allen’s major holdings: the necessity of warning and reclamation of right. Taking first the question of warning, the state court found that no warning was required before Jones’s removal because he was taken from the courtroom only upon his “own request that he be permitted to leave.” Jones, 281 Conn. at 638-39, 916 A.2d 17.

I am in full agreement with the majority opinion that such a conclusion based on the record was unreasonable, as the record unmistakably reflects that Jones was not originally removed pursuant to his request. Maj. Op. 236-37. The majority concludes that because the exclusion itself on February 3rd was-harmless, further warning analysis is obviated. Maj. Op. 239 fn. 6.

I agree that Jones’s removal that day was harmless, but even assuming the error in failure to warn on that day was subsumed by the harmlessness of the exclusion itself, the majority inexplicably fails to account for the fact that Jones was excluded again, without warning, on February 4 (and indeed, every other day of the trial). If warning is required before a defendant loses his right to be present, then a warning was required before Jones was deemed to have waived his right to be present in the courtroom the day after his initial wrongful exclusion.

This, of course, raises the question of whether warning is required — or to be more precise, whether it has been clearly established by the Supreme Court that a defendant must be warned that he may lose his right to be present if he fails to comport himself in an appropriate manner. There is no doubt to my mind that it has.

In Allen the Court “explicitly” held that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. 397 U.S. at 343, 90 S.Ct. 1057. This passage is completely unambiguous about what Allen requires in terms of warning.

There is no doubt about its force (“we explicitly hold”) or what is required from it (“can lose his right to be present at trial, if, after he has been warned, ” (emphasis added)). A defendant can lose his right to presence if he has been warned about the consequences of inappropriate behavior. Jones never was. I am compelled, of course, to admit that our court has not always read Allen this way. In two cases, Gilchrist v. O’Keefe, 260 F.3d 87, 97 (2d Cir.2001) and Norde v. Keane, 294 F.3d 401, 413 (2d Cir.2002), we indicated that Allen does not require a warning before removal.

In Gilchrist, we examined a state court’s determination that a defendant could “forfeit[ ] his right to counsel based on a single, apparently spontaneous violent incident,” without warning that such behavior might light to a loss of counsel. 260 F.3d at 97. We considered Allen in relationship to the warning question, and found that “while [it] stated that a defendant could be removed from the courtroom ‘after he has been warned by the judge,’ it did not indicate whether such a warning was a requirement in every situation.” Id. at 96.

We concluded that Allen “stand[s] for the proposition” that “even absent a warning, a defendant may be found to have forfeited certain trial-related constitutional rights based on certain types of misconduct,” id., and so denied the petitioner relief. In Norde v. Keane, we cited to the “even absent warning” language in Gilchrist and upheld a removal where the court did not “explain to [the defendant] the potential ramifications of his removal” for misbehavior. 294 F.3d at 413. The judge in Norde did, however, warn the defendant that “he would be removed if he did not remain quiet.” Id.

As an initial matter, these cases do not bind us in habeas. “ ‘Clearly established federal law’ refers only to the holdings of the Supreme Court.” Rodriguez v. Miller, 537 F.3d 102, 106 (2d Cir.2008) (citing Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Moreover, to the extremely limited extent they are relevant, those precedents are themselves an unreasonable application of Supreme Court law. “[T]he warning requirement from Allen cannot be interpreted in any non-mandatory way, lest we substitute our own judgment of what the rule should be for that of the Court.” Gray v.

Moore, 520 F.3d 616, 624 (6th Cir.), cert. denied by Gray v. Moore, 555 U.S. 894, 129 S.Ct. 216, 172 L.Ed.2d 162 (2008). There is no way to read the Supreme Court’s holding in Allen as anything other than “requiring] a trial court to give the accused one last chance to comply with courtroom civility before committing the ‘deplorable’ act — in the Allen Court’s words — of removing that person from his own trial.” Id. Moreover, neither Norde nor Gilchrist’s view of Allen constitutes their holdings.

The language in Gilchrist is dicta, since the question before the court was not whether warnings were required before a defendant was removed for disruptive behavior, but whether the right to counsel could be forfeited absent warning. Norde is also distinguishable by the crucial fact that the defendant there actually received the only warning — that misbehavior would lead to removal — that Allen requires. The majority opinion itself recognizes to some extent that warning is required prior to removal, Maj. Op. 237 fn. 3, though it fails to apply that warning to second day of Jones’s exclusion.

Under the applicable Supreme Court precedent, a warning was required before Jones was not allowed to return to court on the second day. The failure to warn is particularly disturbing in the circumstances of this case. The record reflects that Jones’s behavior on February 4th sprung in part from his anger at being excluded from court the previous day, as well as his distress at the court’s (appropriate) refusal to let him proceed pro se without further discussion.

The marshal told the court that Jones was “still talking about yesterday” and that he was “reliving the past.” The marshal further indicated that Jones did not think that he had done anything wrong the day before and believed that he had been treated unjustly. I do not disagree with the majority that “[t]he fact that [Jones’s] conduct may have been based on what he believed to be a compelling reason ... does not excuse his misconduct,” Norde 294 F.3d at 413, Maj.

Op. 240, though I note that we are not confronting Jones’s mere belief that he had a compelling claim — this court apparently agrees with him that his initial removal was wrongful. But what concerns me is not whether Jones’s behavior could be excused in light of the previous day’s violation, but whether he had a right to be told that if he did not behave he would continue to be excluded. Under Allen, he clearly did. Allen warnings were not only required, but especially important in this case.

Jones, who wanted to attend court and whose misbehavior was occasioned in part by the court’s previous initially wrongful removal, might have heeded the court’s warning that he had to behave appropriately or risk further exclusion, had one been given. Moreover, given that Jones’s initial removal was precipitated only by his “insist[ing] on speaking personally with the court despite being represented by counsel and ... [his] persistence] in arguing with the court about its rulings,” Maj. Op. 238, Jones may not have made the connection between his violent behavior and his exclusion.

From his perspective, the court was liable to remove him simply for insisting — correctly—that he had a right to represent himself. Maj. Op. 235-36. If he had been warned, however, about what sort of behavior actually warranted removal, he might have understood what was required of him to retain his right to presence, and the “deplorable” act of “removing] a man from his own trial,” Allen, 397 U.S. at 347, 90 S.Ct. 1057, avoided. Warnings are not ancillary under Allen’s framework; they are crucial. First, as just noted, warnings help prevent the loss of the right to presence where it can be avoided.

Allen itself tells us that “courts must indulge every reasonable presumption against the loss of constitutional rights,” Id. at 343, 90 S.Ct. 1057 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). Second, and most importantly, warnings ensure a defendant’s implied waiver by misconduct is both knowing and voluntary. As the majority notes a waiver of the right to be present at trial, “as the waiver of any constitutional right in a criminal proceeding, must be knowing and voluntary.” Polizzi v. United States, 926 F.2d 1311, 1319 (2d Cir.1991); see also United States v.

Lucky, 569 F.3d 101, 107-08 (2d Cir. 2009). A criminal defendant, who is not an expert in criminal procedure or constitutional law, must generally be advised of the consequences of waiving his rights, and be found by the court to have made a knowing and voluntary waiver, before being permitted to waive such an important right as presence at trial. Maj. Op. 235-36.

Allen’s warning requirement and its reliance on Zerbst, which established the knowing and voluntary waiver standard, tell us that even an implied waiver of the right to presence based on conduct must be knowing and voluntary — a contention with which the majority agrees. Maj. Op. 237 fn. 3. See also Brookhart v.

Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) (“There is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” (internal citation omitted)); United States v. Benabe, 654 F.3d 753, 768-69 (7th Cir.2011) (noting that while a defendant can implicitly waive his right to presence based on his conduct, under Allen, such a waiver must still be knowing and voluntary) (quoting Allen, 397 U.S. at 343, 90 S.Ct. 1057); Proffitt v.

Wainwright, 685 F.2d 1227, 1258 fn. 45 (11th Cir.1982) (noting Allen “supports retention of the knowing-and-voluntary waiver standard in right-to-presence cases”). If a defendant is warned that misconduct will lead to exclusion, and engages it in anyway, he has waived his right to presence knowingly and voluntarily. Not so with a defendant who has not been warned — especially one, like Jones, who was initially excluded wrongfully, and who cannot have been expected to connect his behavior to the loss of the right.

Under Allen, as well as Zerbst and the Supreme Court’s continued jurisprudence on knowing and voluntary waiver of rights, a defendant must be warned before he is excluded from his trial. He must be given an opportunity to comport himself appropriately, and more importantly, given the opportunity to do so with the knowledge that a failure to behave will lead to the loss of his right to be present. Without warning, we cannot say Jones’s misbehavior either on February 3rd in the courtroom or the next day with the marshal constituted a knowing waiver of his right to be present.

The Supreme Court has clearly established that the right to presence cannot be implicitly waived without warning. A defendant edging towards or having already crossing the line of excludable behavior must be given a chance to step back — or if he fails to do so, knowingly and voluntarily face the consequences of his actions. Jones faced the consequences of his misdeeds without ever having been warned about what they would be. Continued trial in his absence based on the lack of warning alone was a violation of his right to be present and a violation of clearly established Supreme Court law. II.

Reclamation Jones’s continued exclusion from trial also implicates Allen’s dictate that “[o]nee lost, the right to be present can ... be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.” 397 U.S. at 343, 90 S.Ct. 1057. The Connecticut Supreme Court found no error in the trial court’s refusal to let Jones come back to court on February 4, the day after this initial removal.

The court wrote that it acknowledged that Jones originally had refused to return to court in full body restraints but thereafter agreed to do so. In other words, as between banishment from the courtroom and returning to the courtroom fully restrained, the defendant expressed a preference for the latter. Although it may be true that a court normally should defer to the preference of the accused in this regard, we are not persuaded that the court was required to do so in the present case.

First, the court understandably was concerned that, due to the defendant’s demonstrated propensity for violence, he posed a particular danger to the personnel responsible for transporting him to and from the courtroom. For those persons, even attempting to outfit the defendant with body restraints gave rise to a safety risk.

Second, the court reasonably concluded that, under all of the circumstances, including the defendant’s volatile temper, his habitual unwillingness to accept adverse court rulings, his confrontational attitude toward the marshals and his lack of contrition for his prior violent behavior, the defendant was very likely to engage in disruptive and obstreperous conduct if permitted to return to the courtroom. Finally, as the trial court observed, the need for and use of visible restraints undoubtedly would have prejudiced the defendant in the eyes of the jurors.

In light of the relevant considerations, in particular, the nature and severity of the defendant’s misconduct, ■ his refusal to acknowledge the impropriety of that misconduct and his stubbornly antagonistic attitude, we cannot say that the trial court acted unreasonably in concluding that the defendant should not be allowed to return to the courtroom. Jones, 281 Conn, at 642-44, 916 A.2d 17. The majority finds each of these conclusions reasonable applications of Allen. I disagree entirely.

Taking first the conclusion that the “nature and severity of’ Jones’s misbehavior allowed not just for his removal, but his permanent exclusion from the courtroom, I turn back to Allen, which presented similar facts. The Allen defendant was extremely disruptive, even before the jury, and continued to be despite multiple warnings and removals. He also threatened the judge and made “abusive” and “vile” comments throughout the proceedings.

And yet in considering his case the Supreme Court still held that a defendant — previously engaged in vile, abusive and threatening behavior — who promises to comport himself appropriately can reclaim his right to be present. Such a conclusion is unsurprising. A defendant who is attempting to reclaim his right to presence is, by definition, a person who has' previously been so disruptive so as to have been removed. It would not only be circular to say that past disruption itself prevents reclamation, but also a perversion of Allen, the holding of which would be made meaningless in light of this circular logic.

That Jones’s disruptions involved violent behavior does not change this conclusion. The defendant in Allen was, if not violent, threatening, and yet he still was able to reclaim his right. Even if that were not so, Allen does not limit its holding to any particular class of misbehavior. The Court did not hold there that a defendant can reclaim his right unless he commits a violent act or unless the court has “concernís] for [] safety.” Maj. Op. 241.

Rather, it tells us unequivocally that “[o]nce lost, the right to be present can ... be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.” 397 U.S. at 343, 90 S.Ct. 1057. Neither the Connecticut Supreme Court, nor we, have the right or the power to read in a limitation where none exists. To the extent Jones’s violent behavior was relevant, I am troubled by some of the considerations made by the majority in its analysis.

First, the majority notes that the trial court was aware of the fact that “after a previous adverse pretrial ruling, Jones had punched his hand through a Plexiglas window.” Maj. Op. 241. But that incident took place outside of the courtroom, and thus is completely irrelevant to whether Jones could be excluded from his trial. Allen, and the power it gives to courts to conduct proceedings in a defendant’s absence, is about decorum in the courtroom, not about a defendant’s behavior outside of it.

The Allen court framed the “[t]he question presented [in that ease] ... [a]s whether an accused can claim the benefit of this constitutional right to remain in the courtroom while at the same time he engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial.” 397 U.S. at 338, 90 S.Ct. 1057 (emphasis added). Jones’s violent out-of-court conduct cannot be excused nor condoned, and there are many punishments which could have been constitutionally imposed in response. But exclusion from trial is simply not one of them.

Exclusion under Allen is simply not a punishment at all; it is a merely a means of preventing defendants from disrupting trial proceedings, not a way of punishing them if they do. Likewise, I am concerned by the majority’s suggestion that Jones’s violent nature and the crimes, which he was at the time accused and is now convicted of committing, are relevant to the court’s decision to exclude him. The majority writes that [t]he trial court was faced with a violent defendant.

Putting aside the evidence that he had violently assaulted Minnifield and shot Williams to death, Jones had reacted violently (albeit outside the courtroom) to one adv

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