Opinion
04 Civ. 8011 (PAC).
August 10, 2006
MEMORANDUM DECISION ORDER
Simon Goris ("Goris" or "Petitioner") brings two separate petitions for a writ of habeas corpus challenging two convictions in the New York County Supreme Court, one in 1997 for criminal sale of a controlled substance in the third degree and the other in 2000 on seven different counts related to the possession and sale of a controlled substance. At the time Petitioner filed both petitions, he was serving a six to twelve-year prison term pursuant to his 2000 conviction. Though he was no longer serving time for his 1997 conviction, Goris brought his first petition in the hopes of shortening his second sentence, the duration of which was enhanced by his prior criminal conviction. In light of the overlapping issues, the Court consolidated Goris's petitions for all purposes and now disposes of both petitions in this decision.
Goris was released on parole on April 17, 2006. See http://nysdocslookup.docs.state.ny.us (New York state inmate look-up database).
Both of Goris's petitions advance the same argument: the trial court's decision to exclude certain friends and family from the courtroom during key testimony violated Petitioner's Sixth and Fourteenth Amendment rights to a public trial. Specifically, Goris challenges the exclusion of his girlfriend from the courtroom in the first trial, and his "step-niece" and brother from the courtroom in the second trial, both times during the testimony of an undercover officer. In addition, Goris argues in his first pro se petition that the trial court's refusal in the 1997 trial to allow defense counsel to pursue a certain line of questioning on cross-examination violated his Sixth Amendment right to confront witnesses.
The Court declines to rule on the first petition challenging the 1997 conviction since there is no effective relief the Court may grant. As to the 2000 conviction, the Court denies the petition.
I. PETITION CHALLENGING 1997 CONVICTION
Petitioner's first habeas petition challenges his conviction on May 16, 1997 of criminal sale of a controlled substance in the third degree. Petitioner raises two errors in support of habeas relief: (1) the trial court violated his Sixth Amendment right to a fair trial when it excluded his girlfriend from the courtroom during the testimony of a key prosecution witness without any specific findings that the girlfriend posed a threat to the witness; and (2) the trial court violated his Sixth Amendment right to confront witnesses when it refused to allow defense counsel to ask certain questions on cross-examination. Given Petitioner's status at the time that he filed his habeas corpus petition in 2004 and his release from prison in April, 2006, however, the Court declines to review Petitioner's first petition.
To challenge a state court conviction by way of a habeas corpus petition in federal court, a petitioner must be "in custody pursuant to the judgment of a state court." 28 U.S.C. § 2254(a). The Supreme Court has interpreted this language to mean that the petitioner must be "in custody" under the conviction or sentence at the time the petition is filed. See Maleng v. Cook, 490 U.S.488, 490-91 (1989) (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)). Therefore, "once the sentence imposed for conviction has completely expired," a petitioner may not launch a habeas attack upon the conviction. See id. at 492. "[T]he collateral consequences of [a] conviction are not themselves sufficient to render an individual `in custody.'" Id.
Goris was sentenced in 1997 to an indeterminate term of one and one-third to four years' imprisonment, and he began serving this sentence sometime in 1998. Therefore, by the time that Goris filed his first habeas petition in August 2004, his sentence on the 1997 conviction had long expired. While Goris was still serving his sentence on the 2000 conviction at the time that he filed both petitions, his 2000 sentence, which was enhanced as a result of the 1997 conviction, is not sufficient to render Goris "in custody" for purposes of the 1997 conviction. See Maleng, 490 U.S. at 492 (declaring that the use of a prior conviction to enhance a subsequent sentence does not render a prisoner "in custody" on the prior, expired conviction). Therefore, to the extent that Goris's first petition is directed solely at his 1997 conviction, there is no basis for relief.
Even though Goris may not challenge his fully expired 1997 conviction, because Goris's 2000 sentence was enhanced by the allegedly invalid 1997 conviction, Goris's first petition may be construed as asserting a challenge to the 2000 sentence he was still serving at the time his petition was filed. See Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 394-95 (2001) (citing Maleng, 490 U.S. at 493). To the extent that this Court would need to review the constitutionality of the 1997 conviction to determine the validity of the enhancement, then, this Court could review the merits of Goris's challenge to the 1997 conviction, as well as the 2000 conviction. Were the Court to find that the 1997 conviction was unconstitutional, however, the proper remedy would be resentencing on the 2000 sentence, not a writ of habeas corpus vacating the 1997 conviction. Given that Goris was released to the New York State Division of Parole on April 17, 2006, and therefore is no longer serving the 2000 sentence, resentencing would be of little value in this case.See http://nysdocslookup.docs.state.ny.us. The Court can discern no remedy at this juncture were it to find that the enhancement of the 2000 sentence on the basis of the 1997 conviction was in error. As such, the Court will not review the merits of Goris's first petition.
II. PETITION CHALLENGING 2000 CONVICTION
A. The 2000 Trial
On June 21, 1998, Petitioner sold a bag of marijuana to an undercover detective ("UC 23728") in exchange for twenty dollars of pre-recorded buy money. (Hinton Hearing ("HH2") 73:12, December 8, 1999; Trial Tr. ("12/10/99 T.") 18:1-24, Dec. 10, 1999.) UC 23728 then signaled to her ghost that she had completed the buy. (12/10/99 T. 22:9-18.) As officers from the back-up team approached Goris, he threw a brown paper bag over a fence. (Trial T. (12/13/99 T.") 189:16-23, Dec. 13, 1999.) The officers retrieved the bag and found inside it twelve plastic bags of crack cocaine. (Mapp Hearing ("MH") 7:13-17, 19, Dec. 8, 1999.) Searching Goris, the police found a Ziploc bag of marijuana and $605, which included the twenty dollars of pre-recorded buy money. (12/13/1999 T. 190:18-192:4, 201:10-19, 261-268.) Goris was later indicted on seven counts related to the possession and sale of a controlled substance. (Indict. No. 9304/98.)
Prior to trial, the People moved to close the courtroom during the testimony of UC 23728. The trial court conducted a Hinton hearing. The trial judge reserved decision until trial, at which point the hearing continued. At the hearings, UC 23728 testified that she had previously worked in the Fifth and Seventh Precincts. (HH2 89:9-11.) She was no longer working on a regular basis in the Seventh Precinct, the precinct covering the Petitioner's home and the site of his arrest; nor was she regularly assigned to the Fifth Precinct, which encompasses the area of the Manhattan courts. (HH2 72:18-24, 73:10-16, 85:4-7, 230:1-5.) She stated, however, that she might be asked return to the Fifth or Seventh precinct, if another undercover team needed her to fill in. (HH2 233:6-22.) Further, her current station house, Goris's home, and the site of Goris's arrest were all located within the same neighborhood. (HH2 234:6-16.) UC 23728 also stated that she would soon begin a long-term investigation in a downtown area near the Manhattan courts. (HH2 74:14-24.)
Before her testimony, UC 23728 waited in the prosecutor's office because she "felt more comfortable" sitting where she would not be seen by other defendants going to criminal trial or family court. (HH2 75:3-13.) She testified that, on previous occasions, while traveling to or from the courthouse, she had encountered individuals from whom she had purchased drugs. (HH2 75:15-19.) According to her testimony, there were "eight to ten" pending cases in criminal court stemming from drug-purchase arrests in which she participated, and she had "about five lost subjects" in the Fifth and Seventh Precincts. (HH2 73:22-74:4, 75:20-76:3, 89:14-17.)
Regarding her safety, UC 23278 testified that she had "been threatened on the street . . . by someone that recognized me or thought that he recognized me" as a "snitch." (HH2 228:15-229:3.) Though she admitted that the Petitioner had not threatened her, she explained:
I'm still working in that area. And as I understand it, the defendant has a lot of family, he also lives in the area, and I really wouldn't feel comfortable with his whole family knowing who I am with the kind of job that I do. I have to see these people on a day-to-day basis, and it's just not safe for me to be out there doing what I do with people that can identify me.
(HH2 80:8-22, 92:7.)
After reciting detailed factual findings, the trial judge ordered a partial closure during UC 23728's trial testimony. (Trial Tr. ("12/09/99 T.") 243:18-247:6, Dec. 9, 1999.) The court posted an officer outside the courtroom to screen potential visitors. (HH2 246:3-14.) During the first part of UC 23728's testimony, two unidentified people and one defense attorney entered the courtroom. (12/10/99 T. 66:10-16.) The court later admitted Goris's sister, her husband and child — all of whom lived in Florida. (12/10/99 T. 66:21-67:10, 68:5-13.) The court excluded Petitioner's brother, however, because he had two prior arrests for drug sales on the Lower East Side in the Seventh Precinct. (12/10/99 T. 67:11-20, 68:14-19.)
Later, Jacqueline Salce, one of Goris's sisters, and Sonia Delgado, a family friend, both requested admission. (12/10/99 T. 71:13-72:12.) Though Salce lived on the Lower East Side, the court allowed her to remain because she was directly related to Goris and because she had no criminal history. (12/10/99 T. 73:22-74:3.) While Petitioner says that Ms. Delgado is his niece, at trial Ms. Delgado explained their relationship: "We known [sic] each other for years. [Salce's] brother and my mother had a child together so we're kind of related in that sense." (12/10/99 T. 72:14-16.)
Over defense counsel's objections, the trial court excluded Delgado, stating:
Ms. Delgado is not family. She may be related in a very strange and tenuous sexual way with interrelationships and kids and some other members of the family, but she is not part of the family. I had earlier ruled, essentially, that the public should not be here but the family is on a different ground.
(12/10/99 T. 74:4-10.) Immediately following this ruling, the trial court stated for the record that Ms. Delgado lived on the Lower East Side, and defense counsel confirmed that. (12/10/99 T. 75:2-10.) At the conclusion of UC 23728's testimony, both Ms. Delgado and Goris's brother were allowed to reenter the courtroom.
The jury returned a guilty verdict on all counts. (Trial Tr. (12/15/99 T.") 530-34, Dec. 15, 1999.) At the sentencing hearing on January 19, 2000, the court found Goris to be a predicate felon based upon his prior conviction for the criminal sale of a controlled substance in the third degree. (Sentencing Hearing ("SH") 3:16-4:19, Jan. 19, 2000.) Noting that Goris had returned to the same area to sell drugs immediately after his release from jail, the court stated:
It would appear that what is needed presumably is a high sentence for as long as [is] reasonabl[y] possible because you do not have the remorse or sense or the feeling at all that you've done anything wrong by selling in this area . . . I know that this is his second sale . . . No remorse has been learned, absolutely nothing and I find that a significant factor. Therefore the sentence will not be the minimum.
(SH at 14:11-15:18.) The trial court then sentenced Petitioner, as a repeat offender, to an aggregate term of six to twelve years' imprisonment, to be served consecutively to any time remaining from his 1997 conviction. (SH at 15:18-16:5.)
Petitioner appealed, claiming that the exclusion of his brother and Ms. Delgado violated his right to a public trial. People v. DeJesus, 305 A.D.2d 170, 171 (1st Dep't 2003). On May 8, 2003, the Appellate Division, First Department unanimously affirmed Petitioner's conviction, holding that Goris's brother's criminal record warranted his exclusion. Id. The Appellate Division also found that Ms. Delgado's exclusion was proper because "as evidenced in the record, the relationship between the friend and [Petitioner] was too remote to warrant the `heightened showing' . . . that is required when actual family members are excluded from a criminal trial pursuant to a limited closure order." Id. On September 12, 2003, the New York State Court of Appeals denied Petitioner's leave application. People v. DeJesus, 100 N.Y.2d 619 (2003).
B. Discussion of Challenge to 2000 Conviction
1. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus only if the state court's adjudication of the claim on the merits "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). The AEDPA further instructs that a state court's factual findings "shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). The applicant has the burden of rebutting the state court's findings with "clear and convincing evidence." Id.
A state court decision is "contrary to" clearly established federal law only if (1) "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or (2) "if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A State court unreasonably applies clearly established federal law when it `identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of [a] prisoner's case.'" Williams, 529 U.S. at 407. To be unreasonable, the state court decision must be more than incorrect or erroneous. Id. at 410, 412. Rather, the state court's application of clearly established federal law must be "objectively unreasonable." Id. at 409.
Under the "unreasonable application" standard prescribed by the AEDPA, the habeas court looks only to Supreme Court precedent, rather than to precedents of the lower appellate courts. As the Second Circuit explained:
The phrase `clearly established federal law as determined by the Supreme Court' refers only to cases decided by the Supreme Court, as opposed to other courts, . . . and `refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.Leslie v. Artuz, 230 F.3d 25 (2d Cir. 2000) (quoting Williams v. Taylor, 529 US at 412). "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 341 F.3d 104, 110 (2d Cir. 2003) (citing Mask v. McGinnis, 252 F.3d 85, 90 (2d Cir. 2001)). Therefore, the question in this case is whether the Appellate Division unreasonably applied Waller v. Georgia, 467 U.S. 39 (1984), the prevailing Supreme Court case on courtroom closure under the Sixth Amendment. Cf. Yung, 341 F.3d at 106, 110 (remanding habeas petition and directing court to reevaluate petition in light of "the more general teachings ofWaller," rather than "Second Circuit authority interpreting Supreme Court cases"); accord Smillie v. Greiner, 99 Fed. Appx. 324, 326 (2d Cir. 2004).
2. Sixth Amendment Right to a Public Trial
A. Waller v. Georgia Four-Part Test
While there are numerous Supreme Court decisions on closure of courtrooms under the First Amendment, the Court has provided little guidance on closure of courtrooms under the Sixth Amendment. The controlling case is Waller v. Georgia, 467 U.S. 39 (1984). In Waller, a Georgia state trial court had closed an entire suppression hearing to all persons other than witnesses, court personnel, the parties and their lawyers, in order to prevent unnecessary "publication" of information contained in wiretaps, which would render the wiretaps tainted and inadmissible under Georgia wiretap law. See Waller, 467 U.S. at 41-42. The Georgia Supreme Court upheld the closures on appeal, finding that the trial court "had properly balanced petitioners' rights to a public hearing against the privacy rights of others under . . . the Sixth Amendment." Id. at 43. The Supreme Court reversed, finding that closure of the entire suppression hearing, without specific findings as to "whose privacy rights might be infringed, how they would be infringed, what portions of the [wiretap] tapes might infringe them, and what portion of the evidence consisted of the tapes," was unduly "broad and general," and therefore in potential violation of the defendants' Sixth Amendment right to a public trial. See id. at 48-50.
The Waller Court made clear that "the right to an open trial" is not absolute, and "may give way in certain cases to other rights or interests." Id. at 45. The Court cautioned, however, that there is a "presumption of openness," and therefore "the balance of interests must be struck with special care." Id. Synthesizing its previously holdings, the Waller Court explained that, in determining whether closure of a courtroom during criminal proceedings was constitutionally permissible, a reviewing court should consider four factors: (1) whether the party seeking to close the courtroom advanced an overriding interest that is likely to be prejudiced; (2) whether the closure was no broader than necessary to protect that interest; (3) whether the trial court considered reasonable alternatives to closing the courtroom; and (4) whether the trial court made adequate findings to support the closure. See Waller, 467 U.S. at 48 (citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984)). To facilitate such review, a district court contemplating closure of a courtroom must render "findings specific enough that a reviewing court can determine whether the closure order was properly entered." Id. at 45 (quoting Press-Enterprise, 464 U.S. at 510).
The Second Circuit has explained that Waller's second prong — that the closure be no broader than required to protect the overriding interest at stake — "applies to both the duration of the closure and to the portion of the public to be excluded." See Yung, 341 F.3d at 110-11.
Review of this case under Waller is complicated by the fact that the Supreme Court has never applied the Waller factors in the context of a partial closure of the courtroom. In determining that the Georgia state court's closure was unjustifiable, theWaller Court put great emphasis on the fact that the trial court had closed the entire seven-day hearing, even though less than 2½ hours involved the tapes that the prosecutors wished to protect. See Waller, 467 U.S. at 42, 48. This is not the case here. In Goris's 2000 trial, the trial court excluded only one friend and one brother during the testimony of the undercover officer which was otherwise open. And following the undercover's testimony, the courtroom was completely open to all.
Similarly, the Supreme Court has never applied the Waller factors in the context of a targeted closure, i.e., closure of a courtroom only to specific individuals such as some but not all of defendant's family members or friends. Cf. Yung, 341 F.3d at 110 (acknowledging that the Supreme Court has never reviewed theWaller factors in the context of a court's exclusion of family members). Waller involved a total closure of the courtroom to all individuals "other than witnesses, court personnel, the parties, and the lawyers." Id. at 42. Again, this is not the case here. In Goris's 2000 trial, the trial judge excluded only certain individuals who, he determined after a hearing, posed a heightened threat to the testifying undercover officer.
Applying Waller generally, however, and taking all facts as determined by the trial court and the Appellate Division as correct, see 28 U.S.C. § 2254(e)(1), the Court does not find that the Appellate Division unreasonably appliedWaller. Accordingly, the Court declines to grant Petitioner a writ of habeas corpus on this ground.
Since Waller involved a full courtroom closure — to all persons for the entire length of the suppression hearing — it is not "materially indistinguishable" from Petitioner's case. Therefore, this case does not implicate the "contrary to" clause of § 2254(d), and the proper inquiry is whether the state courts' adjudication on the merits constitutes an "unreasonable application of" Waller.
B. Exclusion of Goris's Brother and a Family Friend During the 2000 Trial
The trial court's decision to exclude certain indidivuals from the courtroom during the testimony of an undercover officer at Goris 2000 trial falls squarely within the parameters ofWaller. Therefore, the Appellate Division's decision that the partial closure was reasonable is neither contrary to, nor an unreasonable application of, Waller; and cannot support a writ of habeas corpus.
First prong: overriding interest
The trial court closed the courtroom to protect the safety and usefulness of UC 23728, an undercover officer. The Second Circuit has held this interest sufficient to justify closure underWaller. See Smillie v. Greiner, 99 Fed. Appx. 324 (2d Cir. 2004) (citing other 2d Cir. cases on courtroom closure). Furthermore, the Appellate Division expressly found:
the evidence at the Hinton hearing established that [UC 23728] expected to continue operations in the vicinity of defendant's arrest in the near future, had open cases and lost subjects from the area, had pending cases in the courthouse, had been threatened in the past in the area of defendant's arrest, and had come to the courtroom with precautions taken to conceal her identity.See People v. DeJesus, 305 A.D.2d 170 (1st Dep't 2003). On this evidence, it was reasonable for the Appellate Division to find that some amount of closure was necessary to protect the undercover officer, and therefore the first prong of Waller was satisfied.
Second prong: closure was no broader than necessary to advance the overriding interest
The trial court at Goris's 2000 trial closed the courtroom only to certain members of the family and friends and as to them only for the undercover officer's testimony. Thus, the trial court's closure of the courtroom was limited in scope and duration and was "no broader than necessary to advance the overriding interest." The trial court found there was good reason to exclude two individuals: Goris's brother, who had a prior history of drug trafficking, and a family friend who lived in the vicinity of Goris's arrest. Other family members were not excluded; instead they were permitted to view UC 23728's testimony. In addition, the exclusion of the two individuals lasted only for the undercover's testimony, and those excluded individuals were allowed trial access for everything else. On this record, there is no doubt that the trial court made every effort to limit the scope of closure so that the closure would be "no broader than necessary" to advance the overriding interest. It is not the role of this court on a 2254 petition to substitute its judgment for that of the trial judge whose decision was certainly not unreasonable. Third prong: trial court considered reasonable alternatives to closure
Petitioner argues that the trial court erred in excluding Sonia Delgado, a close family friend, without making a "heightened showing" that Delgado poses a particularized threat to UC 23728's safety or effectiveness. Petitioner bases this argument on the Second Circuit's holding in Yung v. Walker that a "more rigorous standard applies to [the exclusion of] family members" from a courtroom. See 341 F.3d at 108; see also Rodriguez v. Miller, 439 F.3d 68, 76 (2d Cir. 2006) (finding that "stricter scrutiny" is necessary to support the exclusion of family members from the courtroom than members of the public),petition for cert. filed, 74 U.S.L.W. 3669 (U.S. May 17, 2006) (No. 05-1472); accord Smith v. Hollins, 448 F.3d 533, 539 (2d Cir. 2006). There are two problems with Petitioner's argument. First, the trial court expressly found that Ms. Delgado was not family, and therefore her relationship to Goris was too tenuous to warrant the "heightened showing" required under Yung for the exclusion of family members. (T. 74:4-10.) Second, the Second Circuit's holding in Yung is informed by the Supreme Court's observation in In re Oliver — a case dating back to 1948 — that "an accused is at the very least entitled to have his friends, relatives and counsel present." See 333 U.S. 272. But this statement was made in dicta, and the Supreme Court has never actually held that a heightened showing is required before a trial judge may exclude family and friends from the courtroom during a criminal trial. This narrowing of Waller by the Second Circuit has limited applicability on habeas review, in light of the AEDPA mandate that the habeas court consider the state court's application of "clearly established federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d).
The Appellate Division's implicit finding that the trial court considered reasonable alternatives to full closure of the courtroom comports with Waller. The trial court determined that all of Goris's family members but one, who lived on the Lower East Side and had prior involvement in drug trafficking, could be present for the undercover's testimony. Upon the completion of that testimony, everyone was allowed into the courtroom. This was certainly a "reasonable alternative" to full closure. As such, the third prong of Waller was satisfied.
Fourth Prong: Trial Court Made Adequate Findings to Support Closure
The trial court made detailed factual findings to support closure. (See 12/09/99 T. 24318-247:6.) The judge made findings about UC 23728's work on the Lower East Side, specifically in the area of the arrest; a prior threat by Goris towards his co-defendant in the case, which the court believed reflected Goris's propensity to threaten others; a prior threat to the undercover officer's safety, which resulted from her work as an undercover officer; and the undercover's efforts to conceal her identity prior to the trial. The court also made particularized findings about the two individuals who were ultimately excluded, explaining that Goris's brother had two prior arrests for drug sales on the Lower East Side and that Ms. Delgado was not related to Goris, so she was not entitled to entry as a family member. These findings are more than sufficient to support the trial court's very limited closure of the courtroom during UC 23728's testimony, and therefore the fourth prong of Waller is satisfied.
3. Triviality of the Closure
Regardless, even if the exclusion of Goris's brother and family friend was overly broad, their exclusion from the courtroom during the undercover officer's testimony was so trivial that it did not deprive Petitioner of a public trial. See, e.g., Carson v. Fischer, 421 F.3d 83, 92-94 (2d Cir. 2005) (discussing trivial closures). First, all of Goris's other family members, including two of his sisters, were permitted to enter the courtroom during UC23728's testimony. This sufficiently safeguarded Goris's public trial right. Second, the undercover officer's testimony was discussed at length during both parties' summations and overlapped the testimony of other law enforcement witnesses, whose testimony was open to the public. This minimized the risk of perjury by the witness and gave both Goris's family and friends the opportunity to come forward as witnesses, if they had any information contradicting the prosecution's case. Thus, even if the Court had some doubt as to the propriety of the trial court's decision to exclude Goris's brother and a family friend, on these facts the Court could not find that the trial court's decision subversted any of the values underlying the Sixth Amendment, and therefore the exclusion would not be unconstitional.
There is no suggestion whatsoever that any family member or friend had a shred of evidence contradicting the prosecutor's case.
CONCLUSION
For the foregoing reasons, the Court declines to review the merits of Petitioner's first petition and find that the trial court's partial closure of the courtroom during Petitioner's 2000 trial was reasonable under Waller. Accordingly, both petitions for a writ of habeas corpus are hereby DENIED. The Clerk of the Court is directed to close out this case.
SO ORDERED.