Rodriguez v. Miller, No. 04-6665 (2d Cir. 2008)

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04-6665-pr Rodriguez v. Miller 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 -------- 4 August Term, 2006 5 6 7 (Argued: November 2, 2005; Decided: August 29, 2007 8 9 10 11 12 13 14 15 Last Submission: April 3, 2007 Amended: August 6, 2008) Docket No. 04-6665-pr -----------------------------------------------------------X JOSE RODRIGUEZ, Petitioner-Appellant, - v. DAVID MILLER, Superintendent, Eastern Correctional Facility, 16 Respondent-Appellee. 17 -----------------------------------------------------------X 18 Before: CARDAMONE, McLAUGHLIN, and B.D. PARKER, Circuit Judges. 19 Petitioner appeals from the denial of a writ of habeas 20 corpus by the United States District Court for the Eastern 21 District of New York (Block, J.). 22 23 24 25 26 27 28 AFFIRMED. KATHERYNE M. MARTONE, Legal Aid Society, Criminal Appeals Bureau, New York, N.Y. (Mitchell J. Briskey, on the brief) for Petitioner-Appellant. 1 2 3 4 5 6 7 8 9 VICTOR BARALL, Assistant District Attorney, for Charles J. Hynes, District Attorney, Kings County, Brooklyn, N.Y. (Leonard Joblove, on the brief) for Respondent-Appellee. McLAUGHLIN, Circuit Judge: The Supreme Court has vacated our decision in this habeas 10 proceeding with the instruction to reconsider it in light of 11 Carey v. Musladin, 127 S. Ct. 649 (2006). 12 Relying on our own well-settled precedent and what we 13 conceived to be the teachings of the high court, we had held that 14 the New York State Courts had unreasonably applied clearly 15 established Sixth Amendment law in excluding Jose Rodriguez s 16 family from his criminal trial. 17 case to the United States District Court for the Eastern District 18 of New York (Block, J.) with instructions to grant Rodriguez s 19 petition. 20 2006). 21 Accordingly, we remanded the See Rodriguez v. Miller, 439 F.3d 68, 76 (2d Cir. Our decision cannot stand after Musladin. Thus, we are now 22 obliged to conclude that Rodriguez s petition must be denied and 23 the district court affirmed. 24 25 BACKGROUND A full recitation of the salient history of this suit may be 26 found in our prior opinion. 27 We revisit only the facts controlling our decision today. See Rodriguez, 439 F.3d at 70-73. 2 1 2 A. Rodriguez In 1995, Rodriguez was tried in Kings County for selling 3 cocaine to an undercover officer (the Undercover ) in the 4 Bushwick area of Brooklyn. 5 courtroom during the Undercover s testimony to protect his 6 identity. 7 Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972), at 8 which the Undercover testified that he: (1) had received numerous 9 threats in the course of prior work in Bushwick; (2) planned to 10 return to Bushwick to conduct additional investigations in the 11 near future ; (3) had never in his life testified in open court; 12 and (4) feared Rodriguez s relatives would recognize him and 13 spread the word that he was a police officer. 14 that he did not know any of Rodriguez s relatives and had not 15 been threatened by them. 16 The State moved to close the The state court held a hearing pursuant to People v. He also admitted The state court found that this testimony was sufficient to 17 close the courtroom. 18 closure was necessary but argued that the court could not exclude 19 his family on these facts alone. 20 it would permit Rodriguez s mother and brother to attend the 21 proceedings but only if they sat behind a screen to obscure the 22 Undercover s appearance. 23 Rodriguez objected to the screen and instructed his family not to 24 attend his trial. Rodriguez, himself, conceded that some The court eventually ruled that Fearing prejudice to his defense, 3 1 Rodriguez was convicted. The Appellate Division affirmed 2 his conviction despite his claim that the courtroom closure 3 violated his right to a public trial. 4 258 A.D.2d 483, 685 N.Y.S.2d 252 (2d Dep t 1999). 5 Court of Appeals denied leave to appeal. 6 Rodriguez, 93 N.Y.2d 978, 695 N.Y.S.2d 64, 716 N.E.2d 1109 7 (1999). 8 9 See People v. Rodriguez, The New York See People v. In June 2000, Rodriguez petitioned the United States District Court for the Eastern District of New York for a writ of 10 habeas corpus pursuant to 28 U.S.C. § 2254, again arguing the 11 lack of a public trial. 12 holding that the state court s decision was reasonable under the 13 Antiterrorism and Effective Death Penalty Act of 1996 ( AEDPA ). 14 See Rodriguez v. Miller, No. 00-cv-3832, 2001 WL 1301732, at *5 15 (E.D.N.Y. Oct. 22, 2001). 16 The district court denied the petition, In November 2003, we vacated and remanded for 17 reconsideration in light of our then-recent opinion in Yung v. 18 Walker, 341 F.3d 104 (2d Cir. 2003) (interpreting Supreme Court 19 precedent to bar exclusion of family unless exclusion of that 20 particular relative is necessary to protect the overriding 21 interest at stake (emphasis added)). 22 82 F.App x 715, 716 (2d Cir. 2003). 23 court again denied the petition, concluding that Rodriguez s 24 mother and brother were properly excluded because they lived near 4 See Rodriguez v. Miller, On remand, the district 1 the Undercover s territory. 2 3832, 2004 WL 3567978, at *6 (E.D.N.Y. Nov. 24, 2004) (mother 3 lived in Bushwick, brother in nearby Ridgewood). 4 See Rodriguez v. Miller, No. 00-cv- In February 2006, we again vacated the district court s 5 judgment. 6 findings that justified barring the attendance of the general 7 public, we concluded that the state court had failed to make the 8 particularized inquiry necessary to exclude Rodriguez s family 9 members. While conceding that the state court may have made Rodriguez v. Miller, 439 F.3d 68, 74 (2d Cir. 2006). 10 In particular, we questioned the district court s 11 reliance without more on the geographical proximity of the 12 Undercover s territory and the residences of Rodriguez s family 13 members to support the courtroom closure. 14 relied on a host of decisions of our own Court to support our 15 conclusion that exclusion of family members requires stricter 16 scrutiny than exclusion of the public. See id. at 74-75. We Id. at 76. 17 In January 2007, the Supreme Court granted certiorari and 18 vacated our decision for further consideration in light of its 19 recent decision in Carey v. Musladin, 127 S. Ct. 649 (2006). 20 B. Musladin 21 In Musladin, a habeas petitioner convicted of murder in 22 California state court claimed that he had been denied his right 23 to a fair trial because his victim s family had been permitted to 24 wear buttons bearing a photograph of the victim in the courtroom 5 1 gallery throughout the proceedings. 2 habeas relief but granted a certificate of appealability. 3 The Ninth Circuit reversed. The district court denied See Musladin v. Lamarque, 427 4 F.3d 653 (9th Cir. 2005). 5 court s test for the inherent prejudice caused by the 6 inflammatory buttons was contrary to clearly established federal 7 law and constituted an unreasonable application of that law 8 under AEDPA. 9 The court concluded that the state Id. at 659-60. The Ninth Circuit first noted that the appropriate inherent 10 prejudice test is derived from the Supreme Court s watershed 11 decisions in Estelle v. Williams, 425 U.S. 501 (1976), and 12 Holbrook v. Flynn, 475 U.S. 560 (1986). 13 court went on to observe, however, that its own decision in 14 Norris v. Risley, 918 F.2d 828 (9th Cir. 1990), has persuasive 15 value in an assessment of the meaning of the federal law that was 16 clearly-established by Williams and Flynn. 17 at 657. 18 Id. at 656-57. The Musladin, 427 F.3d Grafting its own Norris decision onto the Supreme Court s 19 jurisprudence proved critical to the Ninth Circuit s analysis, as 20 Norris dealt with prejudicial conduct by private courtroom 21 spectators, as opposed to the state-sponsored conduct at issue in 22 the Supreme Court s decisions. 23 31 ( Women Against Rape buttons on private spectators in 24 gallery), with Williams, 425 U.S. at 502 (court compelled Compare Norris, 918 F.2d at 829- 6 1 defendant to wear prison clothes at trial), and Flynn, 475 U.S. 2 at 562 (state troopers sat behind defendant at trial). 3 striking factual similarities between the victim buttons in 4 Musladin and the anti-rape buttons found inherently prejudicial 5 in Norris, the Ninth Circuit had little trouble finding that the 6 California courts had violated clearly established federal law 7 by not ordering the spectators to remove the buttons. 8 427 F.3d at 658, 661. 9 Given the Musladin, In December 2006, the Supreme Court vacated the Ninth 10 Circuit s decision. 11 Supreme Court first reiterated the bedrock principle of habeas 12 law in the AEDPA universe: [C]learly established Federal law . . 13 . refers to the holdings, as opposed to the dicta, of this 14 Court s decisions as of the time of the relevant state-court 15 decision. 16 412 (2000)). 17 decisions among the federal circuits, the effect on a 18 defendant s fair-trial rights of spectator conduct . . . is an 19 open question in our jurisprudence. 20 added) (comparing Billings v. Polk, 441 F.3d 238, 246-47 (4th 21 Cir. 2006) (no violation of right to a fair trial based on 22 spectator s clothing), with Norris but noting no Supreme Court 23 decision on the issue). 24 See Musladin, 127 S. Ct. at 654. The Id. at 653 (quoting Williams v. Taylor, 529 U.S. 362, It then noted that, in contrast to warring Id. at 653-54 (emphasis In so doing, the Court gave a narrow reading to its holdings 7 1 in Williams and Flynn essentially concluding that the two cases 2 provided a rule for assessing only the prejudice of state- 3 sponsored courtroom practices. 4 concluded that [n]o holding of this Court required the 5 California Court of Appeal to apply the test of Williams and 6 Flynn to the spectators conduct at issue in Musladin and thus 7 held that the state court s decision was not contrary to or an 8 unreasonable application of clearly established federal law. 9 Id. at 654. 10 Id. at 653.1 Thus, the Court Rodriguez s petition now returns to us for reconsideration 11 in light of the teachings of Musladin. 12 DISCUSSION 13 As the parties agree, the sole issue confronting this Court 14 on remand is whether the New York State Courts decision to 15 exclude Rodriguez s family from his trial involved an 16 unreasonable application of . . . clearly established Federal 1 At first blush, little in Williams and Flynn indicates that the Court intended to limit its holding to state-sponsored conduct cases. The Court buttressed its narrow interpretation in Musladin by noting that part of the legal test of Williams and Flynn . . . ask[s] whether the practices furthered an essential state interest. Musladin, 127 S. Ct. at 654. Nevertheless, at least one Justice noted that Williams and Flynn are merely part of the Court s larger jurisprudence on the fundamental fairness of criminal trials. See id. at 657 (Souter, J., concurring) (disagreeing with the majority s reading and arguing that [t]he Court s intent to adopt a standard at [a] general and comprehensive level on the fundamental fairness of the trial process in Flynn and Williams could not be much clearer ). 8 1 2 A. 28 U.S.C. § 2254(d)(1).2 law. 3 We conclude that it did not. Clearly established federal law Clearly established federal law refers only to the 4 holdings of the Supreme Court. 5 412. 6 holdings of the various courts of appeals or even in the dicta of 7 the Supreme Court can provide the basis for habeas relief. 8 Musladin, 127 S. Ct. at 653, 654. 9 admonishes courts to read the Supreme Court s holdings narrowly 10 Williams v. Taylor, 529 U.S. at No principle of constitutional law grounded solely in the See Leading by example, Musladin and to disregard dicta for habeas purposes.3 Happily, this case 2 Rodriguez no longer appears to argue that the state courts decision to exclude his family was also directly contrary to clearly established federal law. See 28 U.S.C. § 2254(d)(1). To the extent he does, we note that the New York courts neither arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law nor decide[d] a case differently than [the Supreme] Court . . . on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362 at 413. Also, to the extent that Rodriguez still argues that it was error for the district court to consider new evidence in support of the courtroom closure after our prior remand in this case, Rodriguez fails both prongs of the test in Nieblas v. Smith, 204 F.3d 29, 32 (2d Cir. 1999). 3 It is not clear whether courts should treat the underpinnings of Supreme Court decisions so cavalierly outside the AEDPA context. Individual Justices have cautioned against such a restrictive (and perhaps constrictive) reading of precedent, both in Musladin, see, e.g., 127 S. Ct. at 655 (Stevens, J., concurring) ( It is quite wrong to invite state court judges to discount the importance of [our] guidance on the ground that it may not have been strictly necessary as an explanation of the Court s specific holding in the case. ), and before, see, e.g., County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 668 (1989) (Kennedy, J., concurring in part and dissenting in part) ( [T]he principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also their 9 1 does not present the related question of whether and under what 2 circumstances clearly established federal law exists when there 3 may be a potential conflict among Supreme Court decisions. 4 e.g., Abdul-Kabir v. Quarterman, 127 S. Ct. 1654, 1664, 1670 n.17 5 (2007) (noting possible conflict in sentencing law); Brewer v. 6 Quarterman, 127 S. Ct. 1706, 1714 (2007) (Roberts, C.J., 7 dissenting) (same).4 8 9 See, Unsurprisingly, the parties here have broken lances over the scope and sources of clearly established federal law on 10 courtroom closures. 11 relevant authorities: the holdings of the Supreme Court in In re 12 Oliver, 333 U.S. 257 (1948), and Waller v. Georgia, 467 U.S. 39 13 (1984). 14 courtroom closure cases bookended by Oliver and Waller, 15 particularly Globe Newspaper Co. v. Superior Court for the County 16 of Norfolk, 457 U.S. 596 (1982), and Press-Enterprise Co. v. 17 Superior Court of California, Riverside County, 464 U.S. 501 The State insists that there are only two Rodriguez, for his part, champions a tradition of explications of the governing rules of law. ). AEDPA deference raises the stakes on Judge Friendly s famous warning that [a] judge s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word hold. United States v. Rubin, 609 F.2d 51, 69 n.2 (2d Cir. 1979) (Friendly, J., concurring). 4 Rodriguez reads Abdul-Kabir and Brewer to intimate that clearly established federal law comprises all the governing legal principles and supporting reasoning contained in the Supreme Court s decisions. Such a broad interpretation warps the logic of those cases and would bring them into a direct conflict with Musladin, decided only six months earlier. 10 1 (1984). 2 our own precedents to interpret Waller and grant his writ. 3 consider each potential authority in turn. In addition, Rodriguez argues that we should still apply 4 1. 5 We In Oliver, the Supreme Court overturned a contemner s In re Oliver 6 conviction pursuant to an antiquated one-man grand jury 7 procedure on Sixth Amendment grounds because the Michigan trial 8 court had excluded the entire general public except the judge 9 and his attaches. 333 U.S. at 271. The Court neither sketched 10 a test for courtroom closures nor provided contours for the 11 constitutional right. 12 right to a public trial was violated by the wholesale and 13 unjustified exclusion of the public from an inquisitorial 14 secret trial. 15 At most, the Court held that a defendant s See id. at 259, 278. The Oliver Court did note that without exception all courts 16 have held that an accused is at the very least entitled to have 17 his friends, relatives and counsel present, no matter with what 18 offense he may be charged. 19 already confirmed that this sentiment is dicta. 20 Walker, 341 F.3d 104, 110 (2d Cir. 2003). 21 constitute clearly established federal law under AEDPA. Id. at 271-72. However, we have See Yung v. Thus, it cannot 22 2. 23 Globe Newspaper and Press-Enterprise employed First 24 Globe Newspaper and Press-Enterprise Amendment balancing to create an embryonic version of the 11 1 courtroom closure test that eventually reached its full 2 expression in Waller. 3 these First Amendment standards into its rule. 4 47 ( [W]e hold that under the Sixth Amendment any closure of a 5 suppression hearing over the objections of the accused must meet 6 the tests set out in Press-Enterprise and its predecessors. ). Indeed, Waller expressly incorporates See 467 U.S. at 7 In Globe Newspaper, the Court held that to justify the 8 exclusion of the press from criminal trials, the state must: (1) 9 show a compelling government interest; and (2) narrowly tailor 10 the courtroom closure to serve that interest. 11 07. 12 presumption of openness in criminal trials that could only be 13 rebutted by findings specific enough that a reviewing court can 14 determine whether the closure order was properly entered. 15 U.S. at 510. 16 457 U.S. at 606- In Press-Enterprise, the Court added that there was a 464 To the extent that the general approach of Globe Newspaper 17 or Press-Enterprise might aid Rodriguez, Waller has incorporated 18 it and now stands as the new touchstone of case law on public 19 trials. 20 holdings of these freedom of the press cases. 21 Newspaper nor Press-Enterprise held that the exclusion of the 22 family and friends of the defendant should be subject to a 23 heightened level of scrutiny. 24 repeated Oliver s dicta. Rodriguez clearly does not fall within the narrow Neither Globe At best, Globe Newspaper simply See Globe Newspaper Co., 457 U.S. at 12 1 605. 2 purposes. Thus, the two cases are irrelevant to Rodriguez for AEDPA 3 3. 4 Waller provides the ne plus ultra of the Sixth Amendment Waller 5 right to a public trial: a four-part closure test. 6 proceeding: (1) the party seeking closure must advance an 7 overriding interest that is likely to be prejudiced ; (2) the 8 closure must be no broader than necessary to protect that 9 interest ; (3) the court must consider reasonable alternatives To close a 10 to closure; and (4) the court must make findings adequate to 11 support the closure. 12 Waller, 467 U.S. at 48. We do not believe nor does the State truly argue that the 13 Waller test should be limited solely to the closure of 14 suppression hearings. 15 incorporated decisions addressing closures in a variety of 16 proceedings. 17 (one-man grand jury proceeding), Globe Newspaper Co., 457 U.S. at 18 602 (victim trial testimony), and Press-Enterprise Co., 464 U.S. 19 at 510 (juror voir dire)). 20 regarded as a rule of general applicability in the courtroom 21 closure context. 22 Flynn speak only to state-sponsored conduct and do not provide a 23 rule of general applicability that must be considered in 24 spectator conduct cases). Waller expressly relied upon and See id. at 44-48 (citing Oliver, 333 U.S. at 259 Thus, the Waller test is rightly Cf. Musladin, 127 S. Ct. at 654 (Williams and 13 1 Waller does not demand a higher showing before excluding a 2 defendant s friends and family. 3 Oliver and its jeremiad against European judicial secrecy 4 magically transmogrify the entire history of the common law right 5 to a public trial into constitutional precedent. 6 Oliver, 333 U.S. at 266-71 (discoursing at length on Jeremy 7 Bentham and the various injustices of the Spanish Inquisition, 8 English Court of Star Chamber, and the French monarchy s abuse 9 of the lettre de cachet ). 10 Nor does Waller s quotation of See generally AEDPA is concerned only with Waller s holding: that a courtroom closure must pass its four-part test. 11 4. 12 AEDPA itself tells us that the decisions of the courts of This Court s precedent 13 appeals cannot provide clearly established federal law. 14 U.S.C. § 2254(d)(1) (states must apply clearly established 15 Federal law, as determined by the Supreme Court of the United 16 States ). 17 U.S. at 412 (the phrase refers to the holdings, as opposed to 18 the dicta, of this Court s decisions (emphasis added)). 19 Nevertheless, in the past we (and other courts) occasionally have 20 relied on our own precedents to interpret and flesh out Supreme 21 Court decisions to decide variegated petitions as they come 22 before us. 23 24 Williams v. Taylor reinforced this principle. It would appear that we can no longer do this. 28 See 529 Musladin made short work of the Ninth Circuit s use of Norris to extend 14 1 Supreme Court precedent on inherent prejudice caused by state- 2 sponsored conduct into the context of private conduct. 3 127 S. Ct. at 654 ( No holding of this Court required the 4 California Court of Appeal to apply the test of Williams and 5 Flynn to the spectators conduct here. (emphasis added)). 6 Although the Supreme Court noted the existence of a split on the 7 spectator conduct issue among the circuits, see id. (collecting 8 cases), there is no reason to believe that the Court would look 9 more charitably on the use of circuit precedent to address an 10 issue which had not yet divided (but might later divide) the 11 courts. 12 Musladin, Thus, despite Rodriguez s protestations, we can rely neither 13 on Guzman v. Scully, 80 F.3d 772, 776 (2d Cir. 1996) ( The 14 exclusion of courtroom observers, especially a defendant s family 15 members and friends, even from part of a criminal trial, is not a 16 step to be taken lightly. ), nor Vidal v. Williams, 31 F.3d 67, 17 69 (2d Cir. 1994) (noting a tradition of a special concern for 18 assuring the attendance of family members of the accused ), nor 19 Carson v. Fischer, 421 F.3d 83, 91 (2d Cir. 2005) (the Court 20 takes very seriously the right to have family and friends 21 present at trial), nor critically Yung, 341 F.3d at 111 (stating 22 that it would be an unreasonable interpretation of Waller for a 23 court to [exclude a defendant s relative] if the exclusion of 15 1 that particular relative, under the specific circumstances at 2 issue, is not necessary to promote the overriding interest ). 3 In sum, as Rodriguez does not come within the narrow 4 holdings of Oliver, Globe Newspaper, or Press-Enterprise, and 5 cannot appeal to Supreme Court dicta or decisions of this Court, 6 his petition stands or falls solely upon the application of the 7 Waller test. 8 B. Application 9 Under the unreasonable application clause, a federal 10 habeas court may grant the writ if the state court identifies the 11 correct governing legal principle from [the Supreme] Court s 12 decisions but unreasonably applies that principle to the facts of 13 the prisoner s case. 14 Under this standard, a federal court may not issue the writ 15 simply because that court concludes on its independent judgment 16 that the relevant state-court decision applied clearly 17 established federal law erroneously or incorrectly. 18 Importantly, [t]he more general the rule, the more leeway 19 [state] courts have in reaching outcomes in case by case 20 determinations. 21 (2004). 22 Williams v. Taylor, 529 U.S. at 413. Id. at 411. Yarborough v. Alvarado, 541 U.S. 652, 664 Here, the state courts did not unreasonably apply clearly 23 established federal law. 24 we found little fault with their application of the general As we indicated in our prior opinion, 16 1 Waller test in the abstract. 2 is clear that the State has an overriding interest in 3 protecting the identity of its undercover officers. 4 Brown v. Artuz, 283 F.3d 492, 501-02 (2d Cir. 2002). 5 Undercover here had been threatened before and intended to return 6 to Bushwick in the near future. 7 the duration of the Undercover s testimony. 8 sufficient findings to support the closure based on the 9 Undercover s testimony at the Hinton hearing. See Rodriguez, 439 F.3d at 74. It See, e.g., The The closure was to last only for The court made And we now wade 10 hesitantly into the semantic bog we avoided last time to note 11 that, even if the use of a screen to shield Rodriguez s family 12 was a reasonable alternative to closure, it was certainly 13 considered (and in fact proposed) by the state court. 14 generally Waller, 467 U.S. at 48. 15 See Indeed, Rodriguez conceded at the Hinton hearing that some 16 form of closure was necessary but argued that the court could not 17 exclude his family based on the limited testimony in the record. 18 This was the basis for our prior decision to grant the 19 writ relying principally on Yung and it is precisely the basis 20 now foreclosed by Musladin. 21 denied. 22 23 Thus, Rodriguez s petition must be CONCLUSION The judgment of the district court is AFFIRMED. 17

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