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Petitioner-appellant Alfred Norde appeals from a judgment of the United States District Court for the Southern District of New York (Marrero, J.) dismissing his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. In 1988, Norde was sentenced in the New York State Supreme Court, New York County, to a prison term of twenty-five years to life after a jury found him guilty of first-degree burglary in violation of New York Penal Law section 140.30(2). In his pro se petition to the district court, Norde contended, inter alia, that the trial court (1) violated his Sixth Amendment rights when the state trial judge "remove[d][him] from [the courtroom during voir dire] without warning"; (2) "procured a waiver of [his] right to be present at [the] proceedings by improper delegation of a judicial function" to a court officer; and (3) denied him assistance of counsel when it failed to grant "[d]efense counsel's application for a brief adjournment." The district court denied the petition and declined to grant a certificate of appealability. We granted a certificate of appealability to consider the following issues: (1) whether Norde was denied the right to be present at voir dire and trial; (2) whether he waived that right; and (3) whether he was denied the assistance of counsel when the trial judge denied counsel's request for an adjournment. We conclude that the state court's denial of counsel's request for an adjournment to consult with her client upon Norde's removal from the courtroom and its communication with him through a court officer rather than counsel unconstitutionally deprived Norde of the assistance of counsel. We therefore reverse the judgment of the district court and remand the case with instructions to issue the writ unless within sixty days the State elects to retry Norde.


294 F.3d 401 (2002)

Alfred NORDE, Petitioner-Appellant, v. John P. KEANE, Superintendent, Sing Sing Correctional Facility, Respondent-Appellee.

Docket No. 01-2049.

United States Court of Appeals, Second Circuit.

Argued: November 6, 2001.Decided: March 29, 2002.New York Law School location: File #3020, Box #144