Andre R. Thomas v. Warden Thomas L. Carroll

Hon. Louis H. Pollak, Senior Judge, United States District*
Court for the Eastern District of Pennsylvania, sitting by
designation.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2282
ANDRE R. THOMAS,
Appellant
v.
WARDEN THOMAS L. CARROLL;
ATTORNEY GENERAL OF THE STATE OF DELAWARE
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 04-cv-00159)
District Judge: Honorable Joseph J. Farnan
Argued March 5, 2009
Before: SLOVITER, HARDIMAN, Circuit Judges,
and POLLAK , District Judge*
(Filed: September 22, 2009)

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2
Peter A. Levin (Argued)
Philadelphia, PA l9l30
Attorney for Appellant
Loren C. Meyers
Gregory E. Smith
Paul R. Wallace (Argued)
Department of Justice
Wilmington, DE 19801
Attorneys for Appellee
OPINION OF THE COURT
SLOVITER, Circuit Judge.
This appeal presents a factual scenario unique in our
experience and a legal question for which we have found no
precise precedent.
While Appellant Andre R. Thomas was serving a thirty-
five year sentence in a Delaware penal institution, he punched a
corrections officer and was subsequently indicted under
Delaware law for assault. Prior to trial, Thomas voluntarily and
knowingly waived his right to counsel and was permitted to
proceed pro se. However, after the Delaware trial judge
(Superior Court) declined to order the production of all the
witnesses and documents that Thomas requested, Thomas
refused to participate in the trial. The case proceeded to jury
selection and then trial without anyone representing the defense.
On several occasions, the trial judge provided Thomas with the
opportunity to return to, and participate in, the proceedings, but
he declined to do so. Ultimately, he was convicted by a jury,
sentenced to eight years additional imprisonment, and on direct
appeal, the Delaware Supreme Court affirmed.

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At trial, the State proceeded under the theory that Thomas1
was guilty of the lesser-included offense of assault at a detention
3
According to Thomas, his Sixth Amendment rights were
violated because the Superior Court conducted the trial without
anyone present for the defense. If we were writing on a blank
slate, we might agree with Thomas that a trial under those
circumstances is inconsistent with the fair trial requirement of
the Sixth Amendment. However, this case comes to us on
Thomas’ petition for a writ of habeas corpus and our inquiry is
limited under the Antiterrorism and Effective Death Penalty Act
(AEDPA), 28 U.S.C. § 2254(d). Here, the Delaware courts’
conclusion that Thomas’ Sixth Amendment rights were not
violated was not contrary to, or an unreasonable application of,
clearly established federal law as determined by the United
States Supreme Court. Therefore, we will affirm the District
Court’s denial of his petition.
I.
Background
A. The Crime and State Court Proceedings
In 2000, Thomas was convicted of reckless endangerment
and related offenses in Delaware state court and sentenced to
thirty-five years imprisonment. Pursuant to that conviction and
sentence, Thomas was held at the Delaware Correctional Center
(“DCC”) in New Castle County, Delaware. On July 25, 2002, as
Thomas and approximately forty other inmates were exiting the
DCC’s dining hall, Thomas struck a correctional officer,
Michael Moran, on the back of his head. When Moran turned
around to determine who had struck him, Thomas hit Moran in
the side of the head two or three more times with a closed fist.
Thomas was subsequently indicted by a grand jury in
Delaware state court with attempted assault in a detention
facility with intent to cause serious physical injury in violation of
Del. Code Ann. tit. 11, § 1254(b). An assistant public defender1

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facility, in violation of Del. Code. Ann. tit. 11, § 1254(a).
4
was appointed to represent Thomas, but after Thomas twice
refused his assistance and stated that he wished to represent
himself, the public defender entered a motion to withdraw as
counsel. The Delaware Superior Court granted that motion to
withdraw and appointed new counsel. At that time, the Superior
Court also denied Thomas’ motion that his new counsel serve
only as standby counsel.
On December 9, 2002, the Superior Court held a final
pretrial hearing. During that proceeding, Thomas expressed his
desire to represent himself. The Superior Court informed
Thomas of the risks of self-representation, including that
Thomas faced a minimum sentence of eight years imprisonment
as a habitual offender if convicted and a maximum of life
imprisonment. The Superior Court also reminded Thomas that
he proceeded pro se in his previous criminal trial and was
convicted and sentenced to thirty-five years imprisonment.
Thomas subsequently made a formal motion to proceed
pro se. Although the State opposed Thomas’ motion, the
Superior Court granted it on December 23, 2002. We note that
Thomas does not allege that his waiver of his right to counsel
was deficient in any way.
On January 20, 2003, Thomas sent a letter to the Court
requesting standby counsel and information regarding the means
for subpoenaing witnesses and documents. This letter was
docketed as a request for appointment of standby counsel.
On April 8, 2003, the case proceeded to trial. Prior to
jury selection, the Superior Court noted that Thomas had
requested standby counsel and asked whether he recalled that
motion. Thomas stated that he did not recall the motion, and
upon further questioning by the Court, he stated that he was
prepared to proceed pro se.
Thomas then moved for the production of thirteen

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Thomas also alleged during his colloquy with the Superior2
Court that he had not received any discovery materials prior to trial,
including the incident reports filed by the personnel at DCC. The
State provided Thomas with a copy of all its discovery materials
during that hearing.
5
inmates and nine correctional personnel as witnesses as well as
certain medical and personnel records. Thomas had taken no2
action to secure the attendance of these witnesses or production
of these materials prior to the trial date. During a lengthy
colloquy, the Court explained that it was not obligated to assist
him in obtaining the attendance of witnesses or production of
documents. The Court also questioned Thomas regarding the
proposed testimony of the thirteen inmates, and Thomas stated
that all of the requested inmates were present during the alleged
assault and, presumably, would testify that he acted in self-
defense. The Court then stated that it would arrange to have two
or three inmates brought to the trial to testify on Thomas’ behalf,
but that it would not order production of all thirteen inmates
because their testimony would be cumulative. The Court asked
Thomas to select three inmate witnesses who would be produced
the next day but Thomas replied that this proposal was
unacceptable to him and that “you can have these guys take me
back down there [to the DCC] and please tell them don’t bring
me back up here [to the courthouse]. And what you can do is go
ahead and have your trial, I’m not participating in that.” App. at
11.
After further discussion, the Court asked Thomas if he
still wanted to represent himself. Thomas replied: “Certainly.”
App. at 12. Shortly thereafter, Thomas asked whether the Court
could “tell them don’t [sic] bring me back up here.” App. at 12.
The Court stated that it could do so, and Thomas replied: “Okay.
That’s what I [would] appreciate [that] you do. And just tell
them to mail me the verdict.” App. at 12.
This exchange did not end the colloquy between Thomas
and the Superior Court, and the Court continued to try to reach
an accommodation with Thomas. As to the nine correctional

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6
personnel, the Court stated that it would order the attendance of
a commissary officer who Thomas alleged was present at the
incident. However, because Thomas did not even allege that the
other personnel had personal knowledge regarding the assault,
the Court refused to order their attendance. The Court also ruled
that it would not order certain medical personnel to attend
because Thomas offered their testimony only to establish that he
was injured during the alleged assault and such injuries could be
established from his medical records (which it ordered the State
to produce).
At the end of the colloquy, after the Superior Court again
repeated its proposed resolution of Thomas’ demands regarding
production of witnesses and documents, Thomas stated that he
was “not going to be a part of that.” App. at 19. The Court then
asked Thomas whether he would participate in jury selection,
and he stated that “I’m not going to participate in having my
basic rights taken away from me.” App. at 19. The Court
concluded:
. . . [B]ased on your comments, I’m taking that you don’t
want to participate in [jury selection] if I’m not going to
do the other [things] that you’re asking for. So we’ll pick
a jury. And when we’re done picking the jury–and I
apologize to you now, but I’m going to have to bring you
up periodically and say, Mr. Thomas . . . is it still your
decision not to participate . . . .
App. at 19. Thomas was then escorted out of the courtroom and
taken to a holding cell in the courthouse. Again, we note that
Thomas concedes that he knowingly and voluntarily waived his
right to be present.
The jury was then selected outside of Thomas’ presence.
The judge informed the potential jurors of Thomas’ decision not
to participate, instructed them that they should draw no adverse
inferences from that decision, and excused any juror who
indicated that they would not be able to follow that instruction.
Several jurors accepted the invitation, and left. After jury
selection, the Court requested that Thomas be brought back into

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the courtroom (outside the presence of the jury), but Thomas
resisted and the Court declined to use force to secure his
presence.
After the prosecution gave its opening statement, the
Court (outside the presence of the jury) again requested that
Thomas be brought into the courtroom to determine whether he
still desired not to participate in his trial. Thomas complied with
the request to enter the courtroom, but he continued to refuse to
participate. Thomas was again escorted out of the courtroom
and the trial was conducted without him or anyone else present
for the defense. The jury found Thomas guilty of assault in a
detention facility. After the jury was excused, Thomas was
brought back into the courtroom and informed of the verdict.
The Superior Court subsequently held a sentencing
hearing. Thomas was present for, and participated in, that
proceeding and again acted pro se. The Superior Court
determined that Thomas qualified as a habitual offender under
Delaware law and sentenced Thomas to the mandatory minimum
sentence of eight years imprisonment. See Del. Code Ann. tit.
11, § 4214(a).
B. Direct Appeal
Thomas, again acting pro se, then filed a direct appeal to
the Delaware Supreme Court, which affirmed Thomas’
conviction and sentence. As relevant here, Thomas contended
that the Superior Court violated his rights under state law and the
Sixth Amendment by its failure to appoint counsel after Thomas
was removed from the courtroom because no one was present for
the defense. The Delaware Supreme Court concluded that the
Superior Court did not err by declining to appoint counsel or by
proceeding with the trial in Thomas’ absence.
As to the decision not to appoint counsel, the Delaware
Supreme Court noted that the Superior Court had raised the issue
of Thomas’ prior motion for standby counsel, but that Thomas
stated that he did not recall the motion and was prepared to
proceed pro se. Thus, “[i]t was reasonable under the

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8
circumstances for the judge to assume that Thomas did not want
standby counsel. Given that the facts of Thomas’ case were not
complex, the judge was within his discretion not to pursue the
issue further.” App. at 101. In support, the Delaware Supreme
Court cited two of its own precedents regarding waiver of the
right to counsel, both of which in turn relied on United States
Supreme Court (and other federal) precedents construing the
Sixth Amendment. App. at 101 (citing Bass v. State, 760 A.2d
162 (Del. 2000) (table); Briscoe v. State, 606 A.2d 103 (Del.
1992)).
Further, the Court concluded that “Thomas voluntarily
decided not to participate in his trial and, under those
circumstances, the Superior Court judge had no choice but to
proceed in Thomas’ absence.” App. at 102. The Delaware
Supreme Court relied exclusively on state law regarding the right
of a criminal defendant (who is initially present at trial) to
voluntarily waive his right to be present at trial. We note that
this state authority is consistent with the precedent of the United
States Supreme Court. See Illinois v. Allen, 397 U.S. 337, 342-
43 (1970) (“No doubt the privilege (of personally confronting
witnesses) may be lost by consent . . . .”) (quotation omitted); see
also Fed. R. Crim. Pro. 43(c) (stating that defendant may waive
right to be present at trial).
C. Federal Habeas Proceedings
Thomas thereafter filed a pro se petition for federal
habeas relief under 28 U.S.C. § 2254, alleging violations of his
Sixth Amendment and due process rights. The District Court
rejected all of Thomas’ claims. However, it also issued a
certificate of appealability “to determine whether [Thomas’]
right to a fair trial was violated when the Superior Court
proceeded with his trial in absentia without appointing counsel
to represent him.” App. at 132-33. Because that is the only
issue properly before us, we limit our discussion of the District
Court’s opinion accordingly.
First, the District Court held that, although the Delaware
Supreme Court rejected Thomas’ right to counsel claim on the

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9
basis of state law, in doing so the Delaware Supreme Court also
adjudicated Thomas’ constitutional claims on the merits for
purposes of federal habeas review because the Delaware
Supreme Court cited state cases applying United States Supreme
Court precedent concerning the right to counsel. Thus,
AEDPA’s deferential standard of review applied to Thomas’
Sixth Amendment claims.
On the merits, the District Court denied habeas relief
because the Superior Court’s decision to conduct the trial in
absentia without appointing standby counsel was not contrary to,
or an unreasonable application of, clearly established federal
law. The District Court noted that the “Supreme Court opinions
dealing with the appointment of counsel or stand-by counsel
after a defendant voluntarily and knowingly waives his right to
counsel focus on whether the trial court violated the defendant’s
right to self-representation by appointing counsel or stand-by
counsel.” App. at 116. It noted that Thomas “argues the
converse here, that the Superior Court violated his right to
counsel by failing to appoint stand-by counsel.” App. at 116.
The Court concluded that Thomas’ “refusal to participate in his
trial was his way of controlling the case he either did, or did not,
present to the jury and court.” App. at 119. Further, the District
Court noted that the Superior Court questioned Thomas
regarding whether he continued to wish to proceed pro se after
he expressed his desire not to participate in the trial, and Thomas
answered affirmatively. Accordingly, “[h]aving assumed control
over his defense . . . [Thomas] cannot now challenge the
effectiveness of his own representation.” App. at 119.
II.
Jurisdiction and Standard of Review
The District Court had subject matter jurisdiction
pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to
28 U.S.C. §§ 1291 and 2253. We exercise plenary review over a
district court’s denial of habeas relief where it did not conduct an
evidentiary hearing. Jacobs v. Horn, 395 F.3d 92, 99 (3d Cir.
2005).

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At oral argument before us, we questioned whether the
Delaware Supreme Court decided Thomas’ constitutional claims
on the merits for purposes of the application of AEDPA’s
deferential standard of review. As noted above, the District
Court concluded that it did so, and we agree. “[Q]ualification
for AEDPA deference ‘does not require citation of [Supreme
Court] cases–indeed, it does not even require awareness of
[such] cases, so long as neither the reasoning nor result of the
state court decision contradicts them.” Priester v. Vaughn, 382
F.3d 394, 398 (3d Cir. 2004) (quoting Early v. Packer, 537 U.S.
3, 8 (2002)). Although the Delaware Supreme Court cited only
state law in rejecting Thomas’ claims, that decision is entitled to
AEDPA deference because, as described above, those state
authorities were consistent with applicable Supreme Court
precedent, and, in fact, some cited Supreme Court decisions.
Thus, under AEDPA, Thomas is entitled to habeas relief
only if the Delaware Supreme Court’s resolution of his claims
“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).
III.
Discussion
Under the Sixth and Fourteenth Amendments, all criminal
defendants have the right to the assistance of counsel as well as
the right to be present in the courtroom during trial. See Powell
v. Alabama, 287 U.S. 45 (1932); Pointer v. Texas, 380 U.S. 400
(1965). A criminal defendant may waive these rights if such a
waiver is knowingly and voluntarily made. See Allen, 397 U.S.
at 342-43; Faretta v. California, 422 U.S. 806, 835 (1975).
Thomas acknowledges that he did in fact waive both his right to
counsel and his right to be present at trial. Instead, the issue
presented by this case is whether the Delaware Supreme Court
committed constitutional error in allowing the case to proceed to

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Thomas is in a similar position to a young man who3
murders his parents and then seeks the sympathy of the court
because he is an orphan.
11
trial with no one present for the defense.3
The Supreme Court has never faced the precise issue
presented by this case. Accordingly, the Delaware Supreme
Court’s conclusion that the trial judge was not required to
appoint counsel was not “contrary to” Supreme Court precedent.
See Williams v. Talyor, 529 U.S. 362, 405-06 (2000) (holding
that a state court decision is contrary to clearly established
federal law if it “applies a rule that contradicts the governing law
set forth in [the Supreme Court’s] cases” or if it arrives at a
different result from Supreme Court precedent on a materially
indistinguishable set of facts).
Whether the Delaware Supreme Court’s decision was an
“unreasonable application of” clearly established federal law is a
closer issue. As we have explained, “an unreasonable
application of Supreme Court precedent occurs when a state
court applies the correct rule to specific facts in an objectively
unreasonable way.” Fischetti v. Johnson, 384 F.3d 140, 148 (3d
Cir. 2004). Importantly, a “court that unreasonably extends a
rule in a new context or, in the alternative, unreasonably fails to
extend a rule may also be deemed to unreasonably apply the
correct rule.” Id. “In reviewing the reasonableness of the state
courts’ application of Supreme Court precedent, we must use as
our point of departure the specific holdings of the Court’s
decisions.” Id. at 151.
As noted above, Faretta held that “a defendant in a state
criminal trial has a constitutional right to proceed without
counsel when he voluntarily and intelligently elects to do so.”
422 U.S. at 807. The Supreme Court explained: “The Sixth
Amendment does not provide merely that a defense shall be
made for the accused; it grants to the accused personally the
right to make his defense.” Id. at 819. Thus, a criminal
defendant “must be free personally to decide whether in his

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12
particular case counsel is to his advantage” and “his choice must
be honored out of ‘that respect for the individual which is the
lifeblood of the law.’” Id. at 834 (quoting Allen, 397 U.S. at 350-
51 (Brennan, J., concurring)).
However, the Supreme Court also explained that “the trial
judge may terminate self-representation by a defendant who
deliberately engages in serious and obstructionist misconduct.
Of course, a State may–even over objection by the
accused–appoint a ‘standby counsel’ to aid the accused if and
when the accused requests help, and to be available to represent
the accused in the event that termination of the defendant’s self-
representation is necessary.” Faretta, 422 U.S. at 834 n.46
(internal citations omitted); see also McKaskle v. Wiggins, 465
U.S. 168, 184 (1984) (holding that trial judge may appoint
standby counsel, even over defendant’s objection, “to relieve the
judge of the need to explain and enforce basic rules of courtroom
protocol or to assist the defendant in overcoming routine
obstacles that stand in the way of the defendant’s achievement of
his own clearly indicated goals”). Importantly, if standby
counsel is appointed, a defendant does not have a constitutional
right to “‘hybrid’ representation,” i.e., the “defendant does not
have a constitutional right to choreograph special appearances by
counsel” while otherwise representing his or her self. McKaskle,
465 U.S. at 183.
Thus, Faretta and McKaskle clearly establish that the
Superior Court could have appointed standby counsel for
Thomas (either before or after his decision not to be present at
trial). However, nothing in those cases mandated that the trial
judge appoint counsel when Thomas elected to represent himself
and then voluntarily declined to participate in the trial. To the
contrary, McKaskle explained that “the core of the Faretta right”
is that “the pro se defendant is entitled to preserve actual control
over the case he chooses to present to the jury.” 465 U.S. at 178.
Thus, “[i]f standby counsel’s participation over the defendant’s
objection effectively allows counsel to make or substantially
interfere with any significant tactical decisions, or to control the
questioning of witnesses, or to speak instead of the defendant on
any matter of importance, the Faretta right is eroded.” Id.

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(emphasis in original).
Here, Thomas reaffirmed his decision to represent himself
after he first voiced his desire not to be present at the trial.
Indeed, the record makes clear that Thomas declined to
participate in the trial to protest what he believed to be violations
of his constitutional rights. Thus, as the State contended at oral
argument, if the Superior Court had appointed counsel and
permitted such counsel to conduct the defense in Thomas’
absence, the Court arguably would have violated his right to
control his defense.
The Court of Appeals for the Second Circuit faced a
somewhat similar issue in Clark v. Perez, 510 F.3d 382 (2d Cir.
2008). There, the habeas petitioner (a former member of the
Weather Underground) alleged that her Sixth Amendment rights
were violated when the state trial judge “allowed her to appear
pro se . . . after she had given ample notice of her intention to
use a disruptive, political defense, including an unwillingness to
be present at trial.” Id. at 397 (quotation omitted). The Second
Circuit rejected that argument because the petitioner “conceded
that her absence was a tactic to influence the jury in her favor”
and therefore “[i]f she faced trial without the advantages
guaranteed by the Sixth Amendment, that was not by the trial
judge’s imposition, but by her own informed choice, which the
trial judge was bound to respect.” Id. Similarly, as the District
Court concluded, Thomas’ “refusal to participate in his trial was
his way of controlling the case he either did, or did not, present
to the jury and the court.” App. at 119.
On the other hand, Clark is distinguishable from our case
in important ways. The petitioner in that case participated in
parts of the trial, including a lengthy closing statement to the
jury. Indeed, the Second Circuit described the proceedings in
Clark as “intensely adversarial,” 510 F.3d at 397, whereas
Thomas’ case involved a complete breakdown of the adversarial
process.
Under such circumstances, important countervailing
considerations support the appointment of counsel. As the

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Second Circuit recognized in another case, “[i]f no counsel is
appointed to represent an absented pro se defendant, there is a
real danger that the ensuing lack of ‘rigorous adversarial testing
that is the norm of Anglo-American criminal proceedings,’
[Maryland v.] Craig, 497 U.S. [836,] 846 [(1990)], will
undermine ‘the accuracy of the truth-determining process’ by
eliminating ‘the trier of fact[’s] . . . basis for evaluating the truth
of the [testimony],’ Dutton v. Evans, 400 U.S. 74, 89[ ] (1970).”
Davis v. Grant, 532 F.3d 132, 143 (2d Cir. 2008). Further, “[a]
criminal trial is not a private matter; the public interest is so
great that the presence and participation of counsel, even when
opposed by the accused, is warranted in order to vindicate the
process itself.” Mayberry v. Pennsylvania, 400 U.S. 455, 468
(1971) (Burger, C.J., concurring).
In light of these considerations, the Second Circuit in
Davis concluded that, “if we were reviewing the issue on a blank
slate, we might be inclined to conclude . . . that the Sixth
Amendment requires that a defendant who is involuntarily
removed from the courtroom [for misconduct] must be provided
with replacement counsel during his absence.” Davis, 532 F.3d
at 144. However, that case held that a state decision not to
appoint counsel was not an unreasonable application of Faretta,
McKaskle, and Allen because “endorsing such a mandate
requires far more than a mere ‘extension’ of those [cases]” and
therefore affirmed the denial of habeas relief. Id. at 145.
Further, the basis for imposing such a mandate in
Thomas’ case is arguably even weaker than in Davis because
Thomas voluntarily declined to participate in the trial, whereas
Davis was involuntarily removed for disrupting the trial. As the
Second Circuit explained in distinguishing Clark from Davis:
“Whether a defendant’s voluntary choice to leave a courtroom
constitutes serious and obstructionist misconduct of the sort that
would allow a trial judge to terminate self-representation is not
as clear cut as when a defendant is removed from the courtroom
because of obnoxious behavior.” Id. at 147-48
The overriding factor for our disposition is that this case
is before us on habeas. If this appeal had come before us on a

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15
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.
Given the weighty interests on both sides of the question
– a defendant’s interest in controlling his or her defense against
the public’s interest in fair and effective criminal trials – and the
lack of guidance from the Supreme Court on this precise issue,
we cannot conclude that the Delaware Supreme Court’s decision
was contrary to, or an unreasonable application of, clearly
established federal law as determined by the Supreme Court.
IV.
Conclusion
For the forgoing reasons, we will affirm the judgment of
the District Court denying Thomas’ petition for habeas relief.
POLLAK, District Judge, 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

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“An absent defendant cannot present witnesses on his4
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).
16
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 (1932)) and
Gideon v. Wainwright, 372 U.S. 335 (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 trial 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

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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.

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