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