Rodriguez v. Miller

     04-6665-pr
     Rodriguez v. Miller



1                       UNITED STATES COURT OF APPEALS

2                           FOR THE SECOND CIRCUIT

3                                  --------

4                              August Term, 2006

5    (Argued: November 2, 2005;           Last Submission: April 3, 2007
6    Decided: August 29, 2007                   Amended: August 6, 2008)
7

8                            Docket No. 04-6665-pr

9    -----------------------------------------------------------X

10
11   JOSE RODRIGUEZ,
12
13                    Petitioner-Appellant,

14             - v. -

15   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        AFFIRMED.

23                                   KATHERYNE M. MARTONE, Legal Aid
24                                   Society, Criminal Appeals Bureau,
25                                   New York, N.Y. (Mitchell J.
26                                   Briskey, on the brief) for
27                                   Petitioner-Appellant.
28
1                                    VICTOR BARALL, Assistant District
2                                    Attorney, for Charles J. Hynes,
3                                    District Attorney, Kings County,
4                                    Brooklyn, N.Y. (Leonard Joblove, on
5                                    the brief) for Respondent-Appellee.
6
7

 8   McLAUGHLIN, Circuit Judge:

 9        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.    Accordingly, we remanded the

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.   See Rodriguez v. Miller, 439 F.3d 68, 76 (2d Cir.

20   2006).

21        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                                 BACKGROUND

25        A full recitation of the salient history of this suit may be

26   found in our prior opinion.    See Rodriguez, 439 F.3d at 70-73.

27   We revisit only the facts controlling our decision today.


                                       2
 1   A.   Rodriguez

 2        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.    The State moved to close the

 5   courtroom during the Undercover’s testimony to protect his

 6   identity.   The state court held a hearing pursuant to People v.

 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.      He also admitted

14   that he did not know any of Rodriguez’s relatives and had not

15   been threatened by them.

16        The state court found that this testimony was sufficient to

17   close the courtroom.   Rodriguez, himself, conceded that some

18   closure was necessary but argued that the court could not exclude

19   his family on these facts alone.       The court eventually ruled that

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.     Fearing prejudice to his defense,

23   Rodriguez objected to the screen and instructed his family not to

24   attend his trial.


                                        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.    See People v. Rodriguez,

 4   258 A.D.2d 483, 685 N.Y.S.2d 252 (2d Dep’t 1999).    The New York

 5   Court of Appeals denied leave to appeal.    See People v.

 6   Rodriguez, 93 N.Y.2d 978, 695 N.Y.S.2d 64, 716 N.E.2d 1109

 7   (1999).

 8        In June 2000, Rodriguez petitioned the United States

 9   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.   The district court denied the petition,

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        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)).     See Rodriguez v. Miller,

22   82 F.App’x 715, 716 (2d Cir. 2003).     On remand, the district

23   court again denied the petition, concluding that Rodriguez’s

24   mother and brother were properly excluded because they lived near


                                      4
 1   the Undercover’s territory.   See Rodriguez v. Miller, No. 00-cv-

 2   3832, 2004 WL 3567978, at *6 (E.D.N.Y. Nov. 24, 2004) (mother

 3   lived in Bushwick, brother in nearby Ridgewood).

 4        In February 2006, we again vacated the district court’s

 5   judgment.   While conceding that the state court may have made

 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.    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.    See id. at 74-75.     We

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.”    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.      The district court denied

 2   habeas relief but granted a certificate of appealability.

 3        The Ninth Circuit reversed.       See Musladin v. Lamarque, 427

 4   F.3d 653 (9th Cir. 2005).   The court concluded that the state

 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.   Id. at 659-60.

 9        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).      Id. at 656-57.   The

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.”      Musladin, 427 F.3d

17   at 657.

18        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.   Compare Norris, 918 F.2d at 829-

23   31 (“Women Against Rape” buttons on private spectators in

24   gallery), with Williams, 425 U.S. at 502 (court compelled


                                        6
 1   defendant to wear prison clothes at trial), and Flynn, 475 U.S.

 2   at 562 (state troopers sat behind defendant at trial).     Given the

 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.      Musladin,

 8   427 F.3d at 658, 661.

 9        In December 2006, the Supreme Court vacated the Ninth

10   Circuit’s decision.     See Musladin, 127 S. Ct. at 654.   The

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.”   Id. at 653 (quoting Williams v. Taylor, 529 U.S. 362,

16   412 (2000)).   It then noted that, in contrast to warring

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.”     Id. at 653-54 (emphasis

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        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.”   Id. at 653.1   Thus, the Court

 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        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   law.”        28 U.S.C. § 2254(d)(1).2   We conclude that it did not.

 2   A.     Clearly established federal law

 3           “Clearly established federal law” refers only to the

 4   holdings of the Supreme Court.          Williams v. Taylor, 529 U.S. at

 5   412.        No principle of constitutional law grounded solely in the

 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.          See

 8   Musladin, 127 S. Ct. at 653, 654.           Leading by example, Musladin

 9   admonishes courts to read the Supreme Court’s holdings narrowly

10   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.    See,

 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        Unsurprisingly, the parties here have broken lances over the

 9   scope and sources of “clearly established federal law” on

10   courtroom closures.    The State insists that there are only two

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).   Rodriguez, for his part, champions a tradition of

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


          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).   In addition, Rodriguez argues that we should still apply

 2   our own precedents to “interpret” Waller and grant his writ.       We

 3   consider each potential authority in turn.

 4        1.    In re Oliver

 5        In Oliver, the Supreme Court overturned a contemner’s

 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.     At most, the Court held that a defendant’s

12   right to a public trial was violated by the wholesale and

13   unjustified exclusion of the public from an inquisitorial

14   “secret” trial.   See id. at 259, 278.

15        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.”    Id. at 271-72.   However, we have

19   already confirmed that this sentiment is dicta.     See Yung v.

20   Walker, 341 F.3d 104, 110 (2d Cir. 2003).     Thus, it cannot

21   constitute clearly established federal law under AEDPA.

22        2.    Globe Newspaper and Press-Enterprise

23        Globe Newspaper and Press-Enterprise employed First

24   Amendment balancing to create an embryonic version of the


                                       11
 1   courtroom closure test that eventually reached its full

 2   expression in Waller.   Indeed, Waller expressly incorporates

 3   these First Amendment standards into its rule.   See 467 U.S. at

 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.”).

 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.    457 U.S. at 606-

11   07.   In Press-Enterprise, the Court added that there was a

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.”      464

15   U.S. at 510.

16         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.   Rodriguez clearly does not fall within the narrow

20   holdings of these freedom of the press cases.    Neither Globe

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.   At best, Globe Newspaper simply

24   repeated Oliver’s dicta.   See Globe Newspaper Co., 457 U.S. at


                                     12
 1   605.   Thus, the two cases are irrelevant to Rodriguez for AEDPA

 2   purposes.

 3          3.   Waller

 4          Waller provides the ne plus ultra of the Sixth Amendment

 5   right to a public trial: a four-part closure test.    To close a

 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”

10   to closure; and (4) the court must “make findings adequate to

11   support the closure.”    Waller, 467 U.S. at 48.

12          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.    Waller expressly relied upon and

15   incorporated decisions addressing closures in a variety of

16   proceedings.    See id. at 44-48 (citing Oliver, 333 U.S. at 259

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)).    Thus, the Waller test is rightly

20   regarded as a rule of general applicability in the courtroom

21   closure context.     Cf. Musladin, 127 S. Ct. at 654 (Williams and

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).


                                       13
 1        Waller does not demand a higher showing before excluding a

 2   defendant’s friends and family.      Nor does Waller’s quotation of

 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.     See generally

 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”).   AEDPA is concerned only with Waller’s

10   holding: that a courtroom closure must pass its four-part test.

11        4.     This Court’s precedent

12        AEDPA itself tells us that the decisions of the courts of

13   appeals cannot provide clearly established federal law.      28

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”).    Williams v. Taylor reinforced this principle.    See 529

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        It would appear that we can no longer do this.      Musladin

24   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.   Musladin,

 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        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.”   Williams v. Taylor, 529 U.S. at 413.

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.”   Id. at 411.

18   Importantly, “[t]he more general the rule, the more leeway

19   [state] courts have in reaching outcomes in case by case

20   determinations.”   Yarborough v. Alvarado, 541 U.S. 652, 664

21   (2004).

22        Here, the state courts did not unreasonably apply clearly

23   established federal law.   As we indicated in our prior opinion,

24   we found little fault with their application of the general



                                     16
 1   Waller test in the abstract.    See Rodriguez, 439 F.3d at 74.   It

 2   is clear that the State has an “overriding interest” in

 3   protecting the identity of its undercover officers.    See, e.g.,

 4   Brown v. Artuz, 283 F.3d 492, 501-02 (2d Cir. 2002).    The

 5   Undercover here had been threatened before and intended to return

 6   to Bushwick in the near future.    The closure was to last only for

 7   the duration of the Undercover’s testimony.    The court made

 8   sufficient findings to support the closure based on the

 9   Undercover’s testimony at the Hinton hearing.    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.     See

14   generally Waller, 467 U.S. at 48.

15        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.    Thus, Rodriguez’s petition must be

21   denied.

22                                 CONCLUSION

23        The judgment of the district court is AFFIRMED.




                                       17