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Sevencan v. Herbert

United States Court of Appeals, Second Circuit
Dec 30, 2002
No. 01-2491 (2d Cir. Dec. 30, 2002)

Opinion

No. 01-2491

Argued: June 13, 2002.

Decided: December 30, 2002. Filed: January 8, 2003. Filed: January 14, 2003 Amended: August 7, 2003. Filed: August 25, 2003. Filed: October 8, 2003.

Salih Sevencan appeals from an Opinion and Order of the District Court for the Eastern District of New York (Allyne R. Ross, Judge) entered on August 3, 2001, denying his petition for a writ of habeas corpus. The District Court granted a Certificate of Appealability on the issue of whether the trial court's refusal to except Sevencan's wife from a limited courtroom closure order violated Sevencan's Sixth Amendment rights.

Affirmed.

GEORGIA J. HINDE, New York, NY, for Petitioner-Appellant.

PHYLLIS MINTZ, Leonard Joblove, Sholom J. Twersky, Assistant District Attorneys (Office of the District Attorney, Kings County, Brooklyn, NY), for Respondent-Appellee.

Before: MINER, CABRANES, and POOLER, Circuit Judges.


Salih Sevencan appeals from an Opinion and Order of the District Court for the Eastern District of New York (Allyne R. Ross, Judge) entered on August 3, 2001, denying his petition for a writ of habeas corpus. The District Court granted a Certificate of Appealability on the issue of whether the trial court's refusal to except Sevencan's wife from a limited courtroom closure order violated Sevencan's Sixth Amendment rights.

We hold that (1) the District Court properly conducted a Nieblas hearing in order to determine that the exclusion of Sevencan's wife was justified and (2) the state trial court's decision to exclude Sevencan's wife was not "an unreasonable application of[ ] clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d).

I. BACKGROUND

We assume familiarity with the background facts of this case as set forth in the District Court's opinion, Sevencan v. Herbert, 152 F. Supp.2d 252 (E.D.N.Y. 2001). We briefly set forth here only those facts necessary to our disposition.

Between June and September 1993 Sevencan and four co-defendants were tried in the Supreme Court for Kings County, New York, on various charges stemming from their participation in a conspiracy to import heroin from Turkey and sell it in the United States. Among the crimes that the defendants were charged with were weapons possession and conspiracy to commit murder.

The chief witness against Sevencan was an undercover police officer. Before the officer testified, the prosecution moved to seal the courtroom during the officer's testimony. Defense counsel for Sevencan objected. The trial court held a hearing, and, on June 16, 1993, it granted the motion to seal the courtroom during the officer's testimony. In so ruling, the trial judge noted the importance of an open courtroom, but found the need to protect the identity of the undercover officer for his safety compelling, in light of the officer's continuing undercover work. The judge made an exception for attorneys and law student interns working with defense counsel, stating:

a lawyer is a lawyer, and we'[re] sorry about spectators, family, I mean, another matter, something that [the prosecutor] can't exclude from the courtroom is the two defendants on bail, they're going to walk out, I mean, the family-there's always a certain amount of risk in everything we do and we try to do it. 152 F. Supp.2d at 255 (alterations in original).

On June 24, 1993, the court informed counsel that both the undercover officer and the assistant district attorney had received death threats connected to the trial. Twelve days later, Sevencan's wife attempted to attend the trial. Defense counsel sought an exception to the sealing order at sidebar, which the Court denied as follows:

[Defense Counsel]: Judge, the defendant's wife is here and works all the time.

This is practically the only day she can get here and would like to come in. I understand —

The Court: The courtroom is sealed.

[Defense Counsel]: Yes, it is. That's why I'm applying to you [so that] it be allowed —

The Court: The reason we seal it is to protect the undercover. I don't think she falls within the exceptions I've created. What's the district attorney's position?

[The Prosecutor]: I would object.

The Court: Your application is denied. Id. at 255-56.

After Sevencan was convicted, he argued on appeal, inter alia, that the closure of the courtroom, including the exclusion of his wife, deprived him of this Sixth Amendment rights. The Appellate Division of the Supreme Court rejected his arguments as follows:

The defendant contends that he was denied his right to a public trial when the trial court closed the courtroom during the testimony of two undercover police officers.

However, his present claim was waived by his failure to object to the closures at trial, and, in any event, is without merit. People v. Sevencan, 685 N.Y.S.2d 735, 736 (2d Dep't 1999) (citing People v. Akaydin, 685 N.Y.S.2d 737 (2d Dep't 1999) (companion case)). Notably, although the Appellate Division appeared to hold that Sevencan had not objected to the closures at trial, it did not similarly hold that his co-defendant, Akaydin, had also waived his objection to those closures. See Akaydin, 685 N.Y.S.2d at 738. Yet it appears from the record that counsel for Sevencan objected more vocally than counsel for Akaydin. Sevencan, 152 F. Supp.2d at 260. See generally N.Y. Crim. Proc. Law § 470.05(2). The New York Court of Appeals denied leave to appeal further. See People v. Sevencan, 697 N.Y.S.2d 586 (N.Y. 1999).

Section 470.05(2) of New York's Criminal Procedure Law provides, in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an "exception" but is sufficient if the party made his position with respect to the ruling or instruction known to the court, or if in [response] to a protest by a party, the court expressly decided the question raised on appeal.

Sevencan subsequently timely filed the instant petition in the District Court. He sought relief on various grounds, including the closure of the courtroom and the exclusion of his wife. The proceedings subsequently focused on the exclusion of Sevencan's wife.

Inasmuch as the state trial court had made no findings specific to Sevencan's wife, the District Court held a hearing pursuant to Nieblas v. Smith, 204 F.3d 29 (2d Cir. 1999) (holding that district courts have the discretion to conduct evidentiary hearings to determine whether a courtroom closure was justified where the record of proceedings before the trial court was not sufficient to determine whether the closure was proper). Sevencan, 152 F. Supp.2d at 263-64. At the hearing, the State submitted tapes of conversations that suggest Mrs. Sevencan's knowledge of her husband's illegal activities and her familiarity with several of Sevencan's associates. Id. at 258-59. The undercover officer also testified, stating that he did business at bars in a large shopping area for residents of Mrs. Sevencan's neighborhood, that he spent between two and five days a week in this area, and that he intended to continue working in that area under cover. He further testified that the leader of the drug conspiracy was still at large at the time of trial and that Sevencan himself had previously committed a murder.

Following the Nieblas hearing, the District Court held that the closure of the courtroom to Mrs. Sevencan during one day of the undercover officer's testimony did not deny Sevencan his right to a public trial because (1) protection of the undercover's safety and security was an important interest within the meaning of Waller v. Georgia, 467 U.S. 39, 48 (1984), and (2) the State demonstrated that Mrs. Sevencan was likely to encounter the undercover officer in the course of her daily activities. Sevencan, 152 F. Supp.2d at 264-65. Although the District Court acknowledged that Mrs. Sevencan did not pose a direct physical threat to the undercover officer, it held that her ability to report that officer's description to other more dangerous individuals was sufficient. Id. at 265-66. The District Court also found that Mrs. Sevencan is "a timid[,] pliable woman" likely to be susceptible to requests from her husband's associates, who still were at large, to inform them if she spotted the undercover officer. Id. at 266-67.

The District Court then rejected Sevencan's remaining claims and denied his petition. Id. at 269-70. It granted a Certificate of Appealability limited to the issue of whether the exclusion of Sevencan's wife deprived him of his Sixth Amendment right to a public trial. See id. at 270.

On appeal, Sevencan principally argues that (1) the District Court erred in holding a hearing pursuant to Nieblas v. Smith and, accordingly, the writ should have been granted based on the lack of findings by the state trial court; and (2) even if the evidence adduced at the Nieblas hearing was properly considered, the District Court erred in holding that the evidence and record before it were sufficient to support the state trial court's decision to exclude Sevencan's wife from the courtroom.

II. DISCUSSION

The habeas corpus statute available to persons convicted under state law, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, provides, in relevant part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(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. 28 U.S.C. § 2254(d) (emphasis added). In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court authoritatively interpreted the phrase "clearly established Federal law, as determined by the Supreme Court of the United States" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." 529 U.S. at 412. "[A]s the statutory language makes clear, . . . 2254(d)(1) restricts the source of clearly established law to [the Supreme Court's] jurisprudence." Id.

In Waller v. Georgia, 467 U.S. 39 (1984), the Supreme Court held that, before public access to a courtroom in a criminal case may be restricted, "[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [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 court] must make findings adequate to support the closure." Id. at 48.

The violation of the constitutional right to a public trial is a "structural error" warranting remediation regardless of prejudice. See Id. at 49-50 n. 9.

See Johnson v. United States, 520 U.S. 461, 468 (1997) ("A `structural' error, we explained in Arizona v. Fulminante, [ 499 U.S. 279, 310 (1991),] is a `defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.'").

Prior to the enactment of AEDPA, we set forth a standard in our own Circuit governing the constitutionality of excluding a defendant's family members from the courtroom. See Vidal v. Williams, 31 F.3d 67 (2d Cir. 1994). In Vidal, we reversed a District Court's denial of a habeas petition on the ground that the closure of a courtroom to a defendant's parents was improper. In that case, the defendant's parents were in the courtroom at the time the prosecutor sought closure, and defense counsel requested that they be allowed to remain. Id. at 68. The state trial court had rejected that request because the parents lived within three miles of the area in which the officer conducted undercover operations, and it closed the courtroom. Id. We held that the proximity of the parents' residence to the officer's area of operation was insufficient to justify their exclusion, relying in part on the Supreme Court's "specific[ ] not[ation, in dicta, of] a special concern for assuring the attendance of family members of the accused" in In re Oliver, 333 U.S. 257, 271-72 n. 29 (1948). Vidal, 31 F.3d at 69.

Since Vidal, we have often noted in pre-AEDPA cases that particular attention must be paid to the exclusion of family members. See English v. Artuz, 164 F.3d 105, 108 (2d Cir. 1998) (granting a habeas petition in a pre-AEDPA case where the prosecutor sought closure of the courtroom, the defendant asked that his family be allowed to remain, and the state trial court denied the defendant's request and closed the courtroom); Guzman v. Scully, 80 F.3d 772, 775-76 (2d Cir. 1996) (similar, citing Oliver); see also Bowden v. Keane, 237 F.3d 125, 130 n. 1 (2d Cir. 2001) ("Special concerns may apply when the spectators selectively barred from the courtroom are the defendant's family members." (citing Vidal)); Brown v. Kuhlmann, 142 F.3d 529, 538 (2d Cir. 1998) (similar, citing Vidal and Oliver); Ayala v. Speckard, 131 F.3d 62, 72 (2d Cir. 1997) (en banc) (similar, citing Vidal and Guzman).

In Yung v. Walker, 341 F.3d 104, 111 (2d Cir. 2003)-the first and only decision of our Court on the exclusion of family members applying the AEDPA standard (as informed by Williams v. Taylor)-we held that "Waller prevents a court from denying a family member's request to be exempted from a courtroom closure order unless the court is convinced that the exclusion of that particular relative is necessary to protect the overriding interest at stake." We noted, however, that the particular showing required in Vidal was not mandated by "clearly established" Supreme Court law. Because the District Court had relied on Vidal, we vacated the judgment and remanded for application of "the more general teachings of Waller as informed by Oliver." Id.

Although this language does not appear in the original opinion in Yung v. Walker, 296 F.3d 129, 136 (2d Cir. 2002), it is included in an amended version of that opinion filed on August 1, 2003. See Yung v. Walker, 341 F.3d 104, 111 (2d Cir. 2003). The amended opinion in Yung was filed in conjunction with our amended opinion in the instant case in order to resolve any arguable disagreement within our circuit regarding the standard for analyzing, under AEDPA, a Waller Sixth Amendment claim pertaining to the exclusion of relatives from the courtroom.

In the case now before us, the District Court likewise followed Vidal and analyzed the issue as if "clearly established" law includes our Circuit's pre-AEDPA jurisprudence regarding the consideration due to family members in such circumstances. See Sevencan, 152 F. Supp.2d at 262-63. This was error. As we recognized in Yung, the only "clearly established" law within the meaning of 28 U.S.C. § 2254(d)(1) relevant to this case is Waller's four-factor test for closures generally. See Yung, 341 F.3d at 111. Accordingly, Sevencan is entitled to relief only if he can demonstrate that the state court's decision "resulted in a decision that was contrary to, or involved an unreasonable application of," Waller. See 28 U.S.C. § 2254(d)(1).

A state court's decision is "contrary to" clearly established law, within the meaning of § 2254(d)(1), if "the state court applies a rule that contradicts" governing Supreme Court law, or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams, 529 U.S. at 405, 406. Ordinarily, a "run-of-the-mill state-court decision applying the correct legal rule from our cases to the facts of a prisoner's case would not fit comfortably within § 2254(d)(1)'s `contrary to' clause," even if a federal court believes that the state court reached the wrong result. Id. at 406. This is just such a "run-of-the-mill" case-indeed, petitioner does not contend that the result is "contrary to" federal law, but, rather, that the state appellate court "fail[ed] to [properly] apply" federal law. See Pet'r's Br. at 29. This claim is properly analyzed pursuant to the "unreasonable application" clause of 28 U.S.C. § 2254(d). See Williams v. Taylor, 529 U.S. at 407.

A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "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." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "[s]ome increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

In this case, the state trial court's initial decision to close the courtroom to the general public clearly comported with Waller: (1) the prosecutor advanced an "overriding interest" that was "likely to be prejudiced" by a public hearing-the safety of the undercover officer; (2) the closure was "no broader than necessary to protect that interest," as it was solely for the officer's testimony; (3) the trial court considered reasonable alternatives proposed by the defense-the admission of other lawyers and legal interns-and (4) the trial court made "findings adequate to support the closure," in that it found that the undercover officer would indeed be in danger if he were publicly identified. See Waller, 467 U.S. at 48. Accordingly, Sevencan is entitled to relief only if the trial court's refusal to make an exception to its general closure order for his wife was an "unreasonable" application of Waller.

In Yung, we set forth the standard for determining whether a state court has unreasonably applied Waller by excluding a relative of the defendant from the courtroom. We held that "it would be an unreasonable interpretation of Waller for a court to deny [the] request [of a member of the defendant's family to be exempted from a courtroom closure order] if the exclusion of that particular relative, under the specific circumstances at issue, is not necessary to promote the overriding interest [at stake]." Yung, 341 F.3d at 111.

In this case, the state trial court did not make express findings regarding whether the exclusion of Mrs. Sevencan was necessary to protect the undercover officer's safety. Accordingly, the District Court held a Nieblas hearing to determine whether Mrs. Sevencan's exclusion was justified. As a preliminary matter, Sevencan argues that the District Court's decision to hold the Nieblas hearing was in error. He advances several justifications for this assertion, each of which we consider in turn.

First, Sevencan maintains that evidence adduced at a Nieblas hearing cannot satisfy Waller because the fourth prong of the Waller test requires the state trial court itself to make "findings adequate to support the closure." Waller, 467 U.S. at 48. We have previously rejected this argument. See Nieblas, 204 F.3d at 31-32; see also Yung, 341 F.3d at 112; Gonzales v. Quinones, 211 F.3d 735, 738 (2d Cir. 2000).

Sevencan also argues that § 2254(d)(1) precludes district courts from conducting any ex post evidentiary hearings in habeas cases. But § 2254(d)(1) sets forth a legal standard governing when a writ can and cannot be granted: It does not explicitly or implicitly invalidate the district courts' long-standing practice of holding evidentiary hearings to supplement an incomplete state record. Moreover, although Nieblas itself is a pre-AEDPA case, our opinions in both Yung and Gonzales recognized the validity of Nieblas hearings in habeas cases filed after AEDPA's enactment. Accordingly, Sevencan's argument that § 2254(d)(1) precludes the use of Nieblas hearings is without merit.

Finally, Sevencan argues that even if Nieblas hearings are permissible in post-AEDPA cases generally, the facts of his case in particular did not justify a Nieblas hearing. This argument also fails: The hearing in this case was well within the scope of the District Court's discretion as described in Nieblas. Two factors supported our affirmance in Nieblas of the district court's decision to hold a hearing. First, the petitioner had made only a perfunctory objection at trial to the courtroom closure. Second, the law changed after trial, creating a greater necessity for a fully-developed record. We held that "where either of the above two reasons or any other similar reason exists, it is particularly appropriate for a habeas court to gather additional evidence-rather than granting the defendants the `windfall' of a new trial-where the alleged constitutional violation does not affect the fairness of the outcome at trial, as in courtroom closure cases like this one." Nieblas, 204 F.3d at 32 (quoting Waller, 467 U.S. at 50).

Like Nieblas, Sevencan made only a perfunctory objection to the exclusion of his wife. He did not alert the trial court that a different standard might govern his wife's exclusion. In addition, after Sevencan's trial in 1993, the New York Court of Appeals decided People v. Nieves, 660 N.Y.S.2d 858 (1997), in which it held that, in order to exclude a defendant's wife and children, the People must establish "a `substantial probability' that the officer's safety would be jeopardized by [their] presence." Nieves, 660 N.Y.S.2d at 861. As in Nieblas, it is likely that the State would have built a stronger case for the exclusion of Mrs. Sevencan had the rule of Nieves been New York law at the time of trial. Thus, the District Court did not err by holding a Nieblas hearing.

We also agree with the District Court's conclusion, based on the evidence adduced at the Nieblas hearing, that the exclusion of Sevencan's wife was "necessary to protect the overriding interest" in the safety of the undercover officer. Yung, 341 F.3d at 111. At the hearing, the undercover officer testified that, at the time of Sevencan's trial, he had intended to return to the same general area in which Sevencan plied his narcotics trade. The officer stated that he had conducted undercover work at bars in a large shopping area for residents of Mrs. Sevencan's neighborhood and that he had spent between two and five days a week in this area. Based on this evidence, the District Court properly determined that Mrs. Sevencan was likely to have encountered the undercover officer in the course of her daily activities.

Nor do we find error in the District Court's conclusion that Mrs. Sevencan is "a timid[,] pliable woman" likely to be susceptible to requests from her husband's associates to inform them if she spotted the undercover officer. Sevencan, 152 F. Supp.2d at 266-67. At the Nieblas hearing, the State submitted tapes of conversations that suggest Mrs. Sevencan's knowledge of her husband's illegal activities and her familiarity with several of his associates. Id. at 258-59. The evidence also plainly established that Sevencan and his associates were highly dangerous: The undercover officer and the assistant district attorney both received death threats several days before Mrs. Sevencan asked to be admitted into the courtroom. There is no reason to believe that Sevencan's associates would not make similar threats in order to force Mrs. Sevencan to identify the undercover officer. Accordingly, the evidence adduced at the Nieblas hearing overwhelmingly supports the necessity of excluding Sevencan's wife from the courtroom in order to protect the undercover officer's safety. In conformity with our decision in Yung, we hold that the state trial court reasonably applied the Supreme Court's decision in Waller when it declined to exempt Mrs. Sevencan from the courtroom closure order.

III. CONCLUSION

In sum, we hold that (1) the District Court properly conducted a Nieblas hearing in order to determine that the exclusion of Sevencan's wife was justified and (2) the state trial court's decision to exclude Sevencan's wife was not "an unreasonable application of[ ] clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d).

Accordingly, the judgment of the District Court is affirmed.


I concur in the judgment. Regretfully, I cannot concur in the majority's reasoning, which has two central flaws. First, the majority ignores the careful factual record made by the district court and thus sweeps far more widely than necessary to resolve this appeal. More important, the majority opinion misconstrues and conflicts with Yung v. Walker, 296 F.3d 129 (2d Cir. 2002) and impermissibly restricts the authority granted to the district court by 28 U.S.C. § 2254(d)(2).

To explain why the record below justifies affirmance without any consideration of the parameters of Yung, I will briefly describe the background of the issue before us.

At Sevencan's trial, the prosecution requested closure of the courtroom for the testimony of the undercover officer who provided the most significant testimony against Sevencan. Sevencan v. Herbert, 152 F. Supp.2d 252, 254-55 (E.D.N.Y. 2001). After Sevencan objected to closure, the trial court conducted a hearing at which the undercover officer testified that he worked throughout New York City and that five to ten individuals targeted by his past investigations remained at large. Id. at 255. He claimed that testifying would endanger his life and limit his ability to function as an undercover officer. Id. Based on the undercover officer's testimony, the trial court closed the courtroom to the public including Sevencan's family members. Id.

On June 24, 1993, the trial judge told the attorneys that both the undercover officer and the assistant district attorney had received death threats. Id. Three trial days later, as the undercover officer's testimony continued, Jacinta Asillo Sevencan, the defendant's wife, came to the courtroom. Id. Defense counsel requested that Mrs. Sevencan be admitted because she "works all the time [and t]his is practically the only day she can get here and would like to come in." Id. (quoting Tr. at 2550). After the court reminded counsel that the courtroom was sealed, counsel responded: "Yes it is. That's why I'm applying to you it be allowed." Id. The court declined defense counsel's request, finding that Mrs. Sevencan did not fall within the scope of an exception it had created for attorneys and students who worked with the defense counsel. Id. at 256.

After Sevencan's conviction and exhaustion of state appellate remedies, he filed a habeas petition containing a claim based on Mrs. Sevencan's exclusion. United States District Judge Allyne Ross appointed counsel for Sevencan and conducted a hearing. At the hearing, respondent submitted tapes of conversations that suggest Mrs. Sevencan's knowledge of her husband's illegal activities and her familiarity with several of Sevencan's associates including Turon Taspinar, who was Sevencan's intermediary with "the Boss" in Turkey. Sevencan, 152 F. Supp.2d at 258-59.

The undercover officer also testified, adding significantly to the allegations he previously had made in support of closure. He testified that he purchased large quantities of heroin from Sevencan and Taspinar and that the two offered to give him two kilos of heroin in return for the murder of a Turkish politician. Sevencan also admitted to the undercover that both he and his bodyguard had committed murder. The undercover officer considered the Turkish heroin conspiracy to be organized crime and Sevencan to be one of its bosses. Id. at 257.

From the beginning of the undercover officer's trial testimony, he protected his safety by switching entrances to the courthouse and entering at different times. Two armed bodyguards accompanied him. Id. at 258. After the undercover officer received a death threat, he began to wear a bulletproof vest when entering and leaving the courthouse, something he never had done before. Id.

At the time of trial, the officer intended to return to the same general area in which Sevencan plied his narcotics trade. The officer did business in bars on Sheepshead Bay Road, a large shopping area for people in Mrs. Sevencan's neighborhood. He spent between two and five days a week in this area and intended to continue buying from Turkish drug dealers.

Judge Ross held that the closure of the courtroom to Mrs. Sevencan during one day of the undercover officer's testimony did not deny Sevencan his right to a public trial because (1) protection of the undercover's safety and security was an important interest within the meaning of Waller v. Georgia, 467 U.S. 39, 48 (1984), and (2) the State demonstrated that Mrs. Sevencan was likely to encounter the undercover officer in the course of her daily activities. Sevencan, 152 F. Supp.2d at 264-65. Although the court acknowledged that Mrs. Sevencan did not pose a direct physical threat to the officer, it held that her ability to report the undercover's description to other more dangerous individuals was sufficient. Id. at 265-66. Judge Ross also found that Mrs. Sevencan was "a timid pliable woman" likely to be susceptible to a request from Taspinar, who still was at large, to inform him if she spotted the undercover officer. Id. at 266-67. Finally, the court found that Mrs. Sevencan deliberately minimized her relationship with Sevencan's co-conspirators. Id. at 266.

Judge Ross' analysis of the threat Mrs. Sevencan posed to the undercover officer rested in part on Vidal v. Williams, 31 F.3d 67 (2d Cir. 1994). In this case, which was decided before the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), we held that closure of a courtroom to defendant's parents was not justified where the state proved neither that the parents were likely to encounter the undercover officer nor that they were inclined to harm him. Id. at 69. The majority holds that Judge Ross erred by applying Vidal to the facts of this case. I disagree. In Yung, we held that proving likelihood of encounter and/or inclination to harm is not the only way to justify closing a trial to the defendant's relatives. Yung, 296 F.3d at 134. We neither held nor implied that a district court could not use a Vidal analysis as a preliminary step in adjudicating a family courtroom closure issue. Here, the district court would have erred had it granted the petition relying on Vidal and ignoring Waller. Instead, the district court denied the petition. Once the court found that the state court acted properly even under Vidal, which arguably is more protective of the ability of family members to attend a trial than is Waller, it had no need to determine whether the closure would survive using a Waller analysis. A fortiori, it would.

At the time Judge Ross ruled, we had issued no post-AEDPA cases addressing closure of a courtroom to a family member. Thus, the judge acted properly and in the interest of judicial economy by first testing the facts against the restrictive Vidal principle. Although the majority contends that the district court could not look to our cases to determine whether the state unreasonably applied Supreme Court precedent, we have not hesitated to rely on our precedent to establish that a state court did not unreasonably apply Supreme Court precedent. See Leslie v. Artuz, 230 F.3d 25, 32-33 (2d Cir. 2000) (refusing to find an unreasonable application of Supreme Court precedent because this circuit had declined to extend the right at issue to similar facts), cert. denied, 531 U.S. 1199 (2001). Error could have occurred only if Judge Ross found the closure improper under Vidal and then failed to consider whether it nevertheless constituted an unreasonable application of Waller.

Before: I address the merits of the district court's decision, I pause to consider Sevencan's contention that the district court erred by holding a supplemental hearing. Although Sevencan recognizes our prior holding in Nieblas v. Smith, 204 F.3d 29 (2d Cir. 1999), that district courts have discretion to hold a supplemental hearing on courtroom closure, he argues that Nieblas is contrary to both Waller and 28 U.S.C. § 2254(d)(1).

Like the majority I find it unnecessary to consider whether Sevencan's claim is procedurally barred in light of its lack of merit.

Sevencan relies on the fourth prong of the Waller test, which requires that the trial court make findings adequate to support closure, 467 U.S. at 48, arguing that this requirement precludes the consideration of after-the-fact evidence. We already have rejected his argument. Nieblas, 204 F.3d at 31-32; see also Yung, 296 F.3d at 137; Gonzales v. Quinones, 211 F.3d 735, 738 (2d Cir. 2000).

Sevencan's statute-based argument fares no better. Section 2254(d)(1) precludes a district court from granting a writ of habeas corpus unless the state court's adjudication of a claim "resulted in a decision that . . . involved an unreasonable application of[ ] clearly established Federal law, as determined by the Supreme Court of the United States." Sevencan argues that, by negative implication, this language requires the district court to grant the writ whenever the state trial court has unreasonably applied Supreme Court precedent to the trial record. In Sevencan's view, because the court must grant the writ as soon as it finds an unreasonable interpretation of Supreme Court precedent, it lacks authority to conduct a hearing. He also argues that Section 2254(d)(1), which was enacted as part of AEDPA and thus was not in effect when Nieblas filed his petition, implicitly overruled Nieblas. Of course, both Yung and Gonzales addressed post — AEDPA petitions. More important, Section 2254(d)(1) describes when a writ cannot be granted. It does not explicitly or implicitly invalidate the district courts' long-standing practice of holding evidentiary hearings to supplement a deficient state record. Therefore, Section 2254(d)(1) does not preclude the use of these hearings.

Sevencan alternatively argues that (1) the facts of his case did not justify a Nieblas hearing and (2) a Nieblas hearing should be limited to facts that the witnesses knew at the time of trial, leaving no room for speculation. Neither of these arguments has merit.

The hearing in this case was well within the scope of the district court's discretion as described in Nieblas. Two factors supported the Nieblas court's affirmance of the district court's decision to hold a hearing. First, the petitioner made only a perfunctory objection at trial. Second, the law changed after trial, creating a greater necessity for a fully developed record. We held that "where either of the above two reasons or any other similar reason exists, it is particularly appropriate for a habeas court to gather additional evidence-rather than granting the defendants the `windfall' of a new trial-where the alleged constitutional violation does not affect the fairness of the outcome at trial, as in courtroom closure cases like this one." Nieblas, 204 F.3d at 32 (quoting Waller, 467 U.S. at 50). Like Nieblas, Sevencan made only a perfunctory objection to the exclusion of his wife. He did not alert the trial court that a different standard might govern his wife's exclusion. In addition, after Sevencan's trial in 1993, New York's Court of Appeals decided People v. Nieves, 660 N.Y.S.2d 858 (1997), in which it held that to exclude a defendant's wife and children, the People must establish "a `substantial probability' that the officer's safety would be jeopardized by [their] presence." Nieves, 660 N.Y.S.2d at 861. As in Nieblas, it is likely that the People would have built a stronger case for the exclusion of Mrs. Sevencan had Nieves been New York law at the time of trial. Thus, the district court did not err by holding a Nieblas hearing. Nor does the district court's decision indicate that the court relied on facts not known to the witnesses at the time of trial.

Judge Ross clearly made the right decision on the merits. The proof at trial and at the Nieblas hearing established that Sevencan admitted to murder, tried to arrange for the undercover officer to kill a rival, and admitted that his bodyguard also had committed a murder. The evidence also established that the undercover officer and the assistant district attorney received death threats several days before Mrs. Sevencan asked to be admitted. After receiving those threats, the undercover officer began to wear a bullet proof vest when he entered and left the courthouse. Even before that time, the officer varied his times of arrival and was accompanied by two bodyguards. Finally, the evidence established that Mrs. Sevencan had reason to know the nature of her husband's business, maintained ties to men in her husband's criminal organization, and shopped and ran other errands in the area where the undercover continued to operate. This evidence was more than sufficient to justify the closure under Vidal or any other reasonable interpretation of Waller.

As a general matter, cases should be decided on the narrowest basis possible, leaving for a future case questions not raised by the facts. Because the majority decides issues well beyond the scope of the record, I cannot concur in its opinion.

I also respectfully conclude that the majority's analysis of the courtroom closure question is erroneous. This analysis comprises three steps. First, the majority finds that the "heightened showing" required to exclude family members "is satisfied where the record reflects that the state trial court considered the familial relationship at the time the family member was excluded." Second, the majority says that the state court's knowledge that Sevencan's wife wished to be admitted triggered an implicit conclusion that the need to protect the undercover officer justified her exclusion. Finally, the majority holds that "[b]ecause the trial court was clearly aware of the familial relationship between Sevencan and his wife, and because its decision to close the courtroom otherwise comported with Waller, the court's exclusion of Mrs. Sevencan from the courtroom during the undercover officer's testimony does not amount to an unreasonable application of clearly established federal law as determined by the Supreme Court." (internal citation omitted). While I have no quarrel with the majority's second step, the remainder of its analysis conflicts with Yung and misinterprets AEDPA.

The majority's analysis distorts Yung. We held in Yung that it would be "an unreasonable interpretation of Waller or, at a minimum, an unreasonable failure to extend Waller, not to require a heightened showing before excluding family members." Yung, 296 F.3d at 136. We did so because we found Waller was informed by In re Oliver, 333 U.S. 257 (1948), in which the Supreme Court noted in dicta that "without exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged." Id. (quoting Oliver, 333 U.S. at 271-72). Building on this premise, we held that in applying the second prong of Waller-measuring the extent of the closure against the pertinent overriding interest-a court must require a "heightened showing" before expanding the extent of the closure to family members. Id.

The majority contends that the trial court's consideration of Mrs. Sevencan's request to be admitted is a heightened showing. This focus on the state court's thought process conflicts with Yung, which requires the prosecution to make a heightened showing to justify the exclusion of family members. Because the trial court's consideration of a request to be admitted does not constitute a showing, it does not satisfy Yung.

The majority posits that Waller can be reasonably interpreted to allow the exclusion of family members based on the same showing that would justify excluding the ordinary curious onlooker. It claims that requiring a heightened showing would alter the Waller standard. I do not agree. Waller's core is the requirement that a trial court balance the overriding interest established by the prosecution against the extent of the closure. 467 U.S. at 48 ("the closure must be no broader than necessary to protect that interest"). In Yung, we recognized that it would be an unreasonable application of Waller or an unreasonable failure to extend it not to assess the breadth of the closure in terms both of its length and of "the portion of the public to be excluded." Yung, 296 F.3d at 136. Because Waller imposes a balancing test, it is clear that some closures will require a more substantial showing of a threat to the relevant overriding interest than others. Precluding family members from attending an accused's trial is such a closure.

In effect, the majority's view allows no consideration under Waller of the reasonableness of the state court's decision to exclude family members as long as (1) the prosecution's evidentiary showing was sufficient to exclude the general public and (2) the state court is aware that a family member wishes to be admitted. This restriction on the habeas court's review power conflicts with AEDPA, which allows the grant of the writ if a state court adjudication "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." 28 U.S.C. § 2254(d)(2). While an evidentiary showing that justifies exclusion of the general public may justify exclusion of family members in some cases, it will not always do so. The majority's analysis will lead ineluctably to the exclusion of an accused's closest family members, those who are most likely to offer the accused support at trial, even where those family members pose no threat to the interest advanced to support closure. This, I believe, is an unreasonable interpretation of Waller, which requires weighing the extent of any closure against the overriding interest at stake. See Waller, 467 U.S. at 48.

I also question whether the majority's restricted interpretation of Waller and Yung will ever allow a habeas petitioner to rely on the exclusion of family members as a ground for relief. Ultimately the majority relies on the state court's awareness that a family member is in the courtroom. However, if the trial court is unaware of the family member's presence, it will be because petitioner failed to alert the court. In this event, we will find the claim procedurally barred.

CONCLUSION

I am hard put to understand why the majority chose this case, which presents no difficult question, to limit Yung in a way that is unnecessary for resolution of the appeal. In any case, because I believe the majority opinion is directly at odds with Yung, I can concur only in the judgment.


Summaries of

Sevencan v. Herbert

United States Court of Appeals, Second Circuit
Dec 30, 2002
No. 01-2491 (2d Cir. Dec. 30, 2002)
Case details for

Sevencan v. Herbert

Case Details

Full title:SALIH SEVENCAN, Petitioner-Appellant, v. VICTOR HERBERT, Superintendent…

Court:United States Court of Appeals, Second Circuit

Date published: Dec 30, 2002

Citations

No. 01-2491 (2d Cir. Dec. 30, 2002)