Sevencan v. Herbert, Docket No. 01-2491.

• Citation: 316 F.3d 76
• Decision Date: 30 December 2002
• Docket Number: Docket No. 01-2491.
• Parties: Salih SEVENCAN, Petitioner-Appellant, v. Victor HERBERT, Superintendent, Attica Correctional Facility, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

316 F.3d 76

Salih SEVENCAN, Petitioner-Appellant, v. Victor HERBERT, Superintendent, Attica Correctional Facility, Respondent-Appellee.

Docket No. 01-2491.

United States Court of Appeals, Second Circuit.

Argued: June 13, 2002.

Decided: December 30, 2002.

COPYRIGHT MATERIAL OMITTED

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.

POOLER, Circuit Judge, filed an opinion concurring in the judgment.

JOSÉ A. CABRANES, Circuit Judge:

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 requirement set forth in Yung v. Walker, 296 F.3d 129, 136 (2d Cir.2002), that a "heightened showing" be made before a state trial court excludes a family member from a criminal trial as part of a limited closure order is satisfied where the record reflects that the state trial court considered the familial relationship at the time the family member was excluded; (2) where the record reflects that the state trial court was aware of the familial relationship, it necessarily includes an implicit or explicit finding that the court considered the familial relationship and found that the reasons justifying the Waller closure order extend to excluded family members; and (3) because the state trial court in the instant case clearly considered the familial relationship in determining whether to exempt Sevencan's wife from a properly entered limited closure order, its 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," within the meaning of 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 3 and September 23, 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, after which 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).

Twenty 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 closures 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, 258 A.D.2d 485, 685 N.Y.S.2d 735, 736 (2d Dep't 1999) (citing People v. Akaydin, 258 A.D.2d 466, 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).¹ The New York State Court of Appeals denied leave to appeal further. See People v. Sevencan, 93 N.Y.2d 1027, 697 N.Y.S.2d 586, 719 N.E.2d 947 (1999).

Sevencan subsequently timely filed the instant petition in the United States District Court for the Eastern District of New York. He sought relief on various grounds, including the closures of the courtroom and 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). See 152 F.Supp.2d at 263-64. Based upon the evidence adduced at the hearing, the District Court held that the closure with respect to Sevencan's wife was justified. Id. at 264-68. It then rejected Sevencan's remaining claims, and denied the petition. Id. at 269-70. The District Court granted a Certificate of Appealability limited to the issue of whether the exclusion of Sevencan's wife deprived him of his Sixth Amendment rights. See id. at 270.

On appeal, Sevencan argues that (1) hearings pursuant to Nieblas v. Smith are not appropriate in cases governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, and that, 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 in the District Court was properly considered, that Court erred in holding that the evidence and record here were sufficient to support the decision to exclude Sevencan's wife from the courtroom.

The State opposes Sevencan's claims, and also argues that, as a preliminary matter, the District Court erred in holding that the Appellate Division's holding that Sevencan "waived" his closure claims was not an independent and adequate state-law ground for the denial of Sevencan's claim. See generally Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir.2000) ("Federal courts may not review state court decisions that rest on an adequate and independent state procedural default unless petitioner can show both cause and prejudice or a fundamental miscarriage of justice.").

We do not reach the issues of the propriety of the Nieblas hearing and the alleged independent and adequate state-law ground for the denial of Sevencan's claim because we conclude that the petition should be denied on the basis of the record of the state trial court proceedings. Cf. Nieblas, 204 F.3d at 31 ("Because we ultimately find that the courtroom closure was proper, however, we need not consider these procedural arguments."); Brown v. Kuhlmann, 142 F.3d 529, 534 (2d Cir.1998) (similar).

We hold that (1) the requirement we set forth in Yung v. Walker, 296 F.3d 129, 136 (2d Cir.2002), that a "heightened showing" be made before a state trial court excludes a family member from a criminal trial as part of a limited closure order is satisfied where the record reflects that the state trial court was aware of the familial relationship; and (2) because the state trial court in this case clearly considered the familial relationship in considering whether to exempt Sevencan's wife from a properly entered limited closure order, 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," within the meaning of 28 U.S.C. § 2254(d).

Accordingly, we affirm the judgment the District Court.

II. DISCUSSION

The habeas statute, as amended by AEDPA, 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...