164 F.3d 105 (2nd Cir. 1998), 98-2180, English v. Artuz

Docket Nº:Docket No. 98-2180.
Citation:164 F.3d 105
Party Name:Gerald ENGLISH, Petitioner-Appellee, v. Christopher ARTUZ, Superintendent Green Haven Correctional Facility, Respondent-Appellant.
Case Date:December 29, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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164 F.3d 105 (2nd Cir. 1998)

Gerald ENGLISH, Petitioner-Appellee,


Christopher ARTUZ, Superintendent Green Haven Correctional

Facility, Respondent-Appellant.

Docket No. 98-2180.

United States Court of Appeals, Second Circuit

December 29, 1998

Submitted Nov. 6, 1998.

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Emil Bricker, Assistant District Attorney, Queens County, (Richard A. Brown, District Attorney, John M. Castellano, Robin A. Forshaw, Assistant District Attorneys), Kew Gardens, NY, for Appellant.

Jeffrey A. Udell, Paul, Weiss, Rifkind, Wharton & Garrison, New York, NY, for Appellee.

Before: KEARSE, CARDAMONE and POOLER, Circuit Judges.

POOLER, Circuit Judge:

This appeal concerns the exclusion of petitioner's family members during the state criminal trial testimony of one witness in violation of his Sixth Amendment right to a public trial. On April 19, 1996, 1 Gerald English filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Supreme Court, Queens County for second degree murder under N.Y. Penal Law § 125.25 and second-degree criminal possession of a weapon, under N.Y. Penal Law § 265.03. Respondent Christopher Artuz, Superintendent of Green Haven Correctional Facility, appeals from the decision of the United States District Court for the Eastern District of New York (Nickerson, J.) granting English's petition. Because the state trial court improperly excluded English's family from the courtroom in violation of Waller v. Georgia, which was decided one year before petitioner's conviction, we affirm the judgment of the district court.


In 1985, Gerald English was tried with co-defendants Daniel Staley and Ronnie Simpson in Queens County state court for the murder of Bernard Williams. Staley arranged for Williams' murder in retaliation for his participation in the theft of $100,000 and cocaine from one of Staley's "drug spots" during the summer of 1983. Staley gave English and Simpson a gun with which to murder Williams. Perry Bellamy, himself a participant in Staley's illegal drug operation, saw Staley hand over the gun to English and Simpson. Bellamy became the primary witness for the prosecution.

Prior to the testimony of Perry Bellamy, the prosecutor requested that the trial judge close the courtroom because Bellamy feared for his life. At the resulting closure hearing, Bellamy testified that he was afraid of Staley's family members because everyone except Bellamy who stole from Staley was either dead or incapacitated. However, on cross-examination, Bellamy admitted that he would be willing to testify if English's family members were in the courtroom.

At the conclusion of the hearing, counsel for English argued for a limited response rather than complete closure of the courtroom: "prohibit from entering the courtroom those people before whom Mr. Bellamy would not testify, and, that is Mr. Staley's relatives, and allow Mr. English's relatives,

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who are present and very much interested in what's going on in this proceeding, to be in the courtroom and watch the course of the trial." The prosecutor argued that, pursuant to New York law, it was within the trial judge's discretion to close the courtroom for the duration of Bellamy's testimony. When the court asked the prosecutor about the alternative of allowing English's family members to remain in the courtroom, he claimed, "We have no way of determining who those people are.... "

Without further discussion regarding English's request, the state court ruled that "based on the totality of the evidence and in particular the sworn testimony of the witness, Perry Bellamy, there is clear and convincing proof that there exists a manifest necessity for the Court to grant the People's application to order the closing of this courtroom during the testimony of the witness, Perry Bellamy, in the presence of the jury." Bellamy testified in a sealed courtroom, and the state trial jury convicted English of second-degree murder and second-degree criminal possession of a weapon. Judge Leahy sentenced English to concurrent terms of twenty-five years to life imprisonment on the murder charge and five to fifteen years imprisonment on the weapons charge. English exhausted his state remedies. The Supreme Court, Appellate Division, affirmed the convictions without opinion, see People v. English, 153 A.D.2d 575, 544 N.Y.S.2d 503 (2d Dep't 1989), 2 and the Court of Appeals denied English leave to appeal. People v. English, 75 N.Y.2d 770, 551 N.Y.S.2d 912, 551 N.E.2d 113 (1989).

On April 19, 1996, English filed a petition for writ of habeas corpus in the Eastern District of New York, claiming among other things that the exclusion of his family from the courtroom during Bellamy's testimony violated English's Sixth Amendment right to a public trial. 3 Judge Nickerson granted the writ of habeas corpus by amended order dated February 4, 1998. The district court held that the state trial court failed to comply with the requirements of Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) and thus violated English's Sixth Amendment right to a public trial. Judge Nickerson dismissed as "flimsy" the state's argument that it would be impossible to tell which people were members of English's family and which were cohorts of Staley. Respondent Artuz now appeals.


I. Retroactive application of new rules

We consider first whether a finding in favor of English would violate Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) by retroactively applying new rules to English's final state conviction. The state argues that those new rules are articulated in Ayala v. Speckard, 131 F.3d 62 (2d Cir.1997) (in banc ), cert. denied, --- U.S. ----, 118 S.Ct. 2380, 141 L.Ed.2d 747 (1998), Guzman v. Scully, 80 F.3d 772 (2d Cir.1996), and Vidal v. Williams, 31 F.3d 67 (2d Cir.1994). In Teague v. Lane, the Supreme Court held that a new rule may not be applied retroactively on collateral review of a state conviction which has become final, absent exceptional circumstances. 4 Teague, 489 U.S. at 310, 109 S.Ct. 1060 (plurality opinion); see also Penry v. Lynaugh, 492 U.S. 302, 313-314, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). A rule is not new if precedent in effect at the time the defendant's conviction became final dictated the rule. Teague, 489 U.S. at 301, 109 S.Ct.

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1060. In short, a final state conviction or sentence will not be disturbed "unless it can be said that a state court, at the time the conviction or sentence became final, would have acted objectively unreasonably by not extending the relief later sought in federal court." O'Dell v. Netherland, 521 U.S. 151, 117 S.Ct. 1969, 1973, 138 L.Ed.2d 351 (1997).

We conclude that it was objectively unreasonable for the state courts not to adhere to Waller, and no problem of retroactive application of new rules is present. We find that both English's appeal and the district court's decision rely primarily on Waller and In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948) rather than Second Circuit precedents. We reject the state's suggestion that our decisions in Ayala,...

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