15-2272 Moss v. Colvin

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2016

(Submitted: October 26, 2016 Decided: January 9, 2017)

Docket No. 15‐2272

_______________

ANDREW MOSS,

Petitioner‐Appellant,

—v.—

JOHN COLVIN, Superintendent, Mid‐State Correctional Facility,

Respondent‐Appellee.* _______________

B e f o r e:

KATZMANN, Chief Judge, WESLEY and CARNEY, Circuit Judges.

_______________

Appeal from a final judgment, entered on June 19, 2015, in the United States District Court for the Southern District of New York (Crotty, J.), denying

* The Clerk of Court is directed to amend the official caption to conform to the caption above. petitioner Andrew Moss’s petition for a writ of habeas corpus brought pursuant to

(d). During Moss’s trial for criminal sale of a controlled substance in the third degree, the trial court closed the courtroom to the general public while the undercover officers involved in Moss’s arrest testified. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, we hold that: (1) the New York Court of Appeals’ determination that a reviewing court may infer from the record that a trial court considered, as it must, reasonable alternatives to closure was not an unreasonable application of clearly established federal law as determined by the Supreme Court; and (2) the New York Court of Appeals’ conclusion that the government established an overriding interest justifying closure was also not an unreasonable application of clearly established federal law as determined by the Supreme Court. Accordingly, we AFFIRM the judgment of the district court.

_______________

Richard M. Greenberg and Joseph M. Nursey, Office of the Appellate Defender, New York, NY, for Petitioner‐Appellant.

Barbara D. Underwood, Solicitor General, Nikki Kowalski, Deputy Solicitor General, and Margaret A. Cieprisz, Volunteer Assistant Attorney General, for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Respondent‐Appellee. _______________

PER CURIAM:

Petitioner‐Appellant Andrew Moss appeals from a decision of the United

States District Court for the Southern District of New York (Crotty, J.) denying

his petition for a writ of habeas corpus brought pursuant to

.

During the state trial testimony of the undercover officers involved in Moss’s

arrest, the state trial court closed the courtroom to the general public to protect 2 the safety of the officers. Moss appealed his conviction, arguing that the closure

of the courtroom during the testimony of one of the officers violated his Sixth

Amendment right to a public trial. The New York Court of Appeals affirmed his

conviction. See People v. Echevarria,

, 11–19 (2013).

In this appeal, Moss asserts that the New York Court of Appeals’ decision

is contrary to, or involves an unreasonable application of, clearly established

federal law as determined by the Supreme Court in Waller v. Georgia,

(1984), and Presley v. Georgia,

(2010) (per curiam). In particular, Moss

contends (1) that the New York Court of Appeals incorrectly held that a

reviewing court may infer from the record that a trial court fulfilled its obligation

to consider alternatives to closure, and (2) that the New York Court of Appeals

unreasonably concluded that the government had established an overriding

interest justifying closure. The district court denied the petition and, applying the

deferential standard of The Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub. L. No. 104‐132,

(1996), we affirm its

judgment. Limited as we are by AEDPA’s deferential standard, on the record

before us, we cannot conclude that the New York Court of Appeals’ decision was

3 contrary to, or involved an unreasonable application of, clearly established law

or was based on an unreasonable determination of the facts.

BACKGROUND

Andrew Moss was arrested in July 2007 for selling crack cocaine to an

undercover officer (known as “UC 2454”) near West 135th Street and Broadway

in Manhattan. He was charged in New York State Supreme Court with criminal

sale of a controlled substance in the third degree, in violation of

(1).

Before Moss’s trial, the government requested that the court limit access to

the courtroom during the testimony of UC 2454 and another undercover officer

identified as UC 5986.1 The trial court held a hearing, at which both undercover

officers testified, to consider the request. Following the officers’ testimony, the

trial court indicated that it had tentatively determined, subject to hearing further

from counsel, to “keep the general public out when these two undercovers

testify.” Joint App. at 152–53. Moss’s counsel objected to the closure and

suggested, as an alternative, that an officer be stationed at the courtroom door to

screen individuals wishing to enter. The trial court did not expressly assess this

1 Moss does not challenge the courtroom closure with respect to UC 5986.

4 proposed alternative. Instead, the trial court ruled that, in light of its concerns for

the undercover officers’ safety, it would close the courtroom to the public during

their testimony, with the exception of Moss’s mother and any other family

members who did not live in the area of the arrest. If any family members who

lived in the area of the arrest wished to observe trial during the testimony of the

undercover officers, the trial court determined that it would “face those decisions

when they arise.” Joint App. at 163.

The case proceeded to trial and Moss was convicted. Moss appealed his

conviction contending, inter alia, that the trial court’s closure of the courtroom

violated his Sixth Amendment rights. The New York Supreme Court, Appellate

Division unanimously affirmed. See People v. Moss,

, 600–01 (1st

Dep’t 2011). The New York Court of Appeals then granted review in Moss’s case,

together with the cases of two other defendants raising similar Sixth Amendment

challenges. It then found no reversible error in the closures in each case, while

reversing the conviction of one of the other two defendants on unrelated, jury

instruction grounds. See Echevarria, 21 N.Y.3d at 11–22.

After the United States Supreme Court denied certiorari, Moss filed a

petition for a writ of habeas corpus. The magistrate judge (Francis, J.) issued a

5 Report and Recommendation (the “R&R”) recommending that the petition be

denied. Moss timely filed objections to the R&R, but the district court adopted

the R&R in its entirety and denied the petition. See Moss v. Colvin, No. 14 Civ.

2331 (PAC) (JCF),

, at *1 (S.D.N.Y. June 18, 2015). Moss filed a

timely notice of appeal, and this court granted a certificate of appealability.

DISCUSSION

We review a district court’s decision denying a petition for a writ of habeas

corpus de novo. Dixon v. Miller,

(2d Cir. 2002).2 AEDPA instructs

2 The district court reviewed one of Moss’s objections to the R&R (regarding whether the government met its burden of establishing an overriding interest justifying closure) only for clear error. It did so on the basis that the objection was “unquestionably a rehashing of the original arguments raised in the petition.” Moss,

, at *5 (citing Borrero v. Colvin, No. 14 Civ. 5304 (LTS) (SN),

, at *1 (S.D.N.Y. Mar. 19, 2015) (“When a party . . . reiterates original arguments, . . . the court will only review the magistrate’s report for clear error.”)). On appeal, the government argues that Moss has waived further judicial review of that objection, and that, if we do review the objection, we must do so for clear error. First, we reject the government’s argument that Moss’s failure to file specific objections to the R&R regarding Moss’s overriding‐interest challenge resulted in a waiver. Even if it were the case that Moss failed to lodge a specific objection to the magistrate judge’s recommendation, it is clear that the district court did not consider the issue waived and went on to evaluate the magistrate judge’s determination for clear error, which was well within its discretion. See Grassia v. Scully,

(2d Cir. 1989) (“Even if neither party objects to the magistrate’s recommendation, the district court is not bound by the recommendation of the magistrate.”); see also Mario v. P & C Food Mkts., Inc.,

(2d Cir. 2002) (“Where a

6 that an application for a writ of habeas corpus shall not be granted where a state

court adjudicated the claim on the merits, unless that adjudication (1) “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,” or (2) “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.”

(d). To conclude that a state court decision involved

an unreasonable application of clearly established federal law, the petitioner

must show that the state court applied the law in a manner that was “objectively

unreasonable.” Davis v. Ayala,

(2015) (quoting Mitchell v.

Esparza,

(2003) (per curiam)) (internal quotation marks omitted). A

state court determination that a claim lacks merit is not objectively unreasonable

district court conducts . . . review of an issue that was not raised in objection to [a] magistrate’s report, this court may disregard the waiver and reach the merits.”). Accordingly, we may consider the merits ourselves. Second, we are skeptical that clear error review would be appropriate in this instance, where arguably “the only way for [Moss] to raise . . . arguments [on that point] [was] to reiterate them.” Watson v. Geithner, No. 11 Civ. 9527(AJN),

, at *2 (S.D.N.Y. Sept. 27, 2013); see also

(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”). We need not resolve which standard of review applies to this objection, however, because we conclude that Moss’s argument does not prevail even under de novo review.

7 if “‘fairminded jurists could disagree’ on the correctness of the state court’s

decision.” Harrington v. Richter,

(2011) (quoting Yarborough v.

Alvarado,

(2004)).

The Sixth Amendment, by way of the Fourteenth Amendment, guarantees

a state criminal defendant “the right to a speedy and public trial.” U.S. Const.

amend. VI. However, the right to a public trial is not absolute and “may give

way in certain cases to other rights or interests.” Waller v. Georgia,

(1984). In those rare instances, “the balance of interests must be struck with

special care.”

To aid courts in this balancing act of determining whether a

courtroom closure is justified, the Supreme Court articulated the following four‐

part test in Waller: (1) “the party seeking to close the hearing must advance an

overriding interest that is likely to be prejudiced” if the courtroom is not closed,

(2) “the closure must be no broader than necessary to protect that interest,”

(3) “the trial court must consider reasonable alternatives to closing the

proceeding,” and (4) the trial court “must make findings adequate to support the

closure.”

. In Presley v. Georgia,

(2010) (per curiam), the

Supreme Court clarified that under the third prong of Waller, “trial courts are

required to consider alternatives to closure even when they are not offered by the

8 parties.”

. Moreover, the Court instructed that “[t]rial courts are

obligated to take every reasonable measure to accommodate public attendance at

criminal trials.”

.

Moss’s appeal focuses on Waller’s first and third prongs: the government’s

overriding interest, and the trial court’s consideration of alternatives to closure.

We conclude with respect to both issues that the New York Court of Appeals’

decision was not contrary to, or an unreasonable application of, clearly

established federal law as determined by the Supreme Court.

With respect to Waller’s first prong, the New York Court of Appeals

correctly articulated the standard for determining whether an overriding interest

exists that justifies closure. See Echevarria,

. It recognized that,

while “[t]he safety of law enforcement officers ‘unquestionably’ may constitute

an overriding interest,”

at 12 (quoting People v. Ramos,

(1997)), the party moving for closure still “must demonstrate a ‘substantial

probability’ that the identified interest will be prejudiced by an open courtroom,”

(quoting Press‐Enter. Co. v. Superior Court,

(1986)). In finding that

the government had met its burden, the New York Court of Appeals noted that

UC 2454 continued to work in the area of the arrest, had received numerous

9 threats in the past, had encountered suspects in the courthouse, and had taken

steps to protect his identity when entering courthouses. See

at 13–14. It held

that, “[t]aken together, the record amply supports the trial court’s determination

that a specific link existed between the officer’s safety and his open‐court

testimony.”

. In light of the record before us, we cannot conclude that the

New York Court of Appeals unreasonably applied the law in reaching that

conclusion. See Rodriguez v. Miller,

(2d Cir. 2007) (affirming

denial of habeas petition where “[t]he Undercover [officer] . . . had been

threatened before and intended to return to [the neighborhood of the arrest] in

the near future”); Ayala v. Speckard,

(2d Cir. 1997) (en banc)

(upholding closure where three officers testified that “they were continuing their

undercover work and would soon be returning in an undercover capacity to the

same areas where the defendants had been arrested” and where the officers had

described those areas “with particularity”). We therefore find no basis for

reversal on Waller’s first prong.

As to the third Waller prong, Moss contends that the New York Court of

Appeals’ conclusion that the trial court considered reasonable alternatives to

closure was contrary to clearly established Supreme Court precedent. Moss takes

10 specific issue with the New York Court of Appeals’ determination that it could

infer from the record in his case that the trial court had considered alternatives to

closing the courtroom, even if the trial court did not discuss them expressly on

the record. See Echevarria,

(“On the record before us, it is fair to

imply that the trial courts concluded that no lesser alternative would have

adequately protected the officers’ safety and, therefore, the courts discharged

their prong three duty to consider reasonable alternatives.”). He maintains that

Waller and Presley require that the court make express, specific findings to show

that it considered alternatives and that the trial court’s “silence” here shows that

it did not comply with this requirement.

Moss relies heavily on Presley’s requirement that “the particular interest,

and threat to that interest, must ‘be articulated along with findings specific

enough that a reviewing court can determine whether the closure order was

properly entered.’” Presley,

(quoting Press‐Enter. Co., 464 U.S. at

510). Notably, we read this specific portion of Presley as relating to the

articulation of findings specific to the government’s overriding interest, not to

the court’s consideration of reasonable alternatives. To apply this language to an

analysis under Waller’s third prong would require us to extend the rationale of

11 Presley, which is beyond the scope of our review under AEDPA. Cf. White v.

Woodall,

(2014) (“‘[I]f a habeas court must extend a rationale

before it can apply to the facts at hand,’ then by definition the rationale was not

‘clearly established at the time of the state‐court decision.’” (quoting Yarborough,

)). Moreover, this statement in Presley conveys that the purpose of

requiring a court to make specific findings is to enable a reviewing court to

determine whether a closure was appropriate. If that is so, then we cannot

conclude that the New York Court of Appeals’ decision was necessarily contrary

to the principles articulated in Presley, so long as the record is sufficiently

detailed such that a reviewing court can glean that the trial court considered and

rejected alternatives and, in turn, “can determine whether the closure order was

properly entered.” Presley,

(internal quotation mark omitted).

Moss’s reference to cases interpreting Presley does not support a

conclusion otherwise. As Moss acknowledges, we may only “look to lower

courts of appeals decisions ‘to the extent [they] have already reviewed and

interpreted the relevant Supreme Court case law to determine whether a legal

principle or right had been clearly established by the Supreme Court.’” Nolan v.

Money,

(6th Cir. 2013) (unpublished opinion) (alteration in

12 original) (quoting Landrum v. Mitchell,

(6th Cir. 2010)). None of

the cases Moss cites turn on the issue of whether a reviewing court may look to

the record as a whole to determine whether a court considered reasonable

alternatives, and, therefore, they do not help resolve whether that practice is

contrary to Presley. See, e.g., United States v. Gupta,

, 687–88 (2d Cir.

2011); United States v. Waters,

(9th Cir. 2010); United States v.

Agosto‐Vega,

, 547–48 (1st Cir. 2010); State v. Cox,

, 333–34

(Kan. 2013); Lilly v. State,

(Tex. Crim. App. 2012); State v.

Wise,

(Wash. 2012) (en banc).

Accordingly, we conclude that, under AEDPA’s deferential standard, the

New York Court of Appeals’ determination that we may look to the record as a

whole to determine whether the trial court complied with Waller’s third prong

was not contrary to clearly established Supreme Court precedent. In turn, the

New York Court of Appeals did not unreasonably conclude that the record here

sufficiently shows that the trial court considered alternatives to closure. See

Echevarria, 21 N.Y.3d at 18–19; see also id. at 25 (Lippman, J., dissenting in part

and concurring in part) (“I join the Court’s affirmance in People v. Moss because

there the trial court considered what it thought was the only reasonable

13 alternative to closure, placing an officer outside the courtroom, and considered

and rejected this option on the record.”); People v. Moss,

(“Instead of ordering a complete closure, the court permitted defendant’s family

to attend [and] . . . it considered but rejected an alternative to closure proposed

by defendant.”).

To be sure, Moss’s argument that the trial court must “consider all

reasonable alternatives to closure” on the record is not without some persuasive

force. Pet’r Br. at 27 (quoting Presley,

) (internal quotation mark

omitted). The “implied consideration” standard developed by the New York

Court of Appeals in People v. Echevarria and People v. Ramos is arguably in tension

with the trial court’s duty of sua sponte consideration of reasonable alternatives

imposed by Waller v. Georgia and Presley v. Georgia. See Echevarria,

(Lippman, J., dissenting in part and concurring in part) (“There is nothing in

[Presley’s] language that would suggest that the Supreme Court had in mind that

an ‘implied’ consideration of alternatives would be constitutionally

acceptable. . . . It is to state the obvious that Presley does not contemplate an

unreviewable, purely contemplative exercise in satisfaction of a trial court’s

obligation to consider reasonable alternatives to court closure.”).

14 Without some consideration of alternatives on the record, even if well short

of the explicit discussion of all possible alternatives that Moss seeks, there will

often be little basis on which a reviewing court can determine whether the trial

court adequately engaged in the Waller and Presley analysis, and in particular

whether the trial court met its obligations under Presley to consider sua sponte

various alternatives to closure. The record here, where there is some ambiguity

as to why the trial court did not implement defense counsel’s proposed

alternative to closure, illustrates the value of explicit consideration and rejection

of reasonable alternatives. Trial courts weighing a potential courtroom closure

would do better to make a clear record of their application of the Waller/Presley

test, including their consideration of reasonable alternatives to closure.

Constrained as we are in this case by AEDPA’s deferential standard, however,

and on this particular record, we cannot here say that the New York Court of

Appeals’ decision was contrary to, or involved an unreasonable application of,

clearly established federal law, or was based on an unreasonable determination

of the facts.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

15