Downs v. Lape

• Decision Date: 14 September 2011
• Docket Number: Docket No. 09–4723–pr.
• Citation: 657 F.3d 97
• Parties: Everett DOWNS, Petitioner–Appellant,v.Superintendent William LAPE, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

657 F.3d 97

Everett DOWNS, Petitioner–Appellant,

v.Superintendent William LAPE, Respondent–Appellee.

Docket No. 09–4723–pr.

United States Court of Appeals, Second Circuit.

Argued: May 6, 2011.Decided: Sept. 14, 2011.

Donna R. Newman, Buttermore Newman, Delanney & Foltz, LLP, New York, NY, for Petitioner–Appellant.Ashlyn Dannelly (Barbara D. Underwood, Roseann B. MacKechnie, and Paul B. Lyons, on the brief), Eric T. Schneiderman, Attorney General of the State of New York, for Respondent–Appellee.Before: WESLEY, CHIN, and LOHIER, Circuit Judges.Judge CHIN dissents by separate opinion.LOHIER, Circuit Judge:

Everett Downs appeals the District Court's denial of his petition for habeas corpus brought under 28 U.S.C. § 2254, which claimed a violation of his Sixth Amendment right to a public trial. The claim rests on the New York state trial judge's failure to make specific findings justifying the removal of Downs's relative from the courtroom during trial. The appeal requires us to consider whether New York's intermediate appellate court exorbitantly misapplied New York law when it held that Downs failed to preserve this claim for state appellate review.

BACKGROUND

1. Facts and State Court Proceedings

Downs was arrested and indicted for robbing an auto body shop in 2003. His jury trial in New York State Supreme Court lasted six days. This appeal focuses solely on what happened at the start of the second day of Downs's trial when immediately after jury selection, but just before opening statements, the government and Downs's counsel attended an off-the-record court conference. Although we have no transcript of what occurred during the conference, no one disputes that the trial judge excluded Downs's twelve-year-old brother, Nathaniel Clarke, from the courtroom. The lack of a transcript prevents us from knowing if the trial court justified the exclusion or considered alternatives. Our only record evidence of what transpired comes from the following statement by Downs's counsel in open court after the off-the-record conference:

I do want to note for the record that there was a young man who, a family member of the defendant who had been asked by the Court to leave because of his age. He is 12 years old and the Court is indicating that it sets a limit of approximately 16 or 17 years of age.

I informed the family of that and I'm sure they will comply. However, I do want to note, for the record, that I believe the young man is a suitable age and that he would not have been an obstruction to the proceedings.

But be that as it may, I have also spoken to the assistant district attorney earlier to apprise her of the following list of things that I believe that I am entitled to and have not yet received ....

Counsel made no other statement about Downs's brother or his exclusion; he failed specifically to ask that the judge give reasons for the exclusion or to solicit comment from the judge or the prosecutor, neither of whom interrupted or responded to counsel's statement.

After trial, Downs was convicted of robbery, burglary, and criminal mischief, and sentenced principally to eight years' imprisonment. He appealed to the Appellate Division of the Supreme Court of New York, arguing that his Sixth Amendment right to a public trial was violated because the trial judge closed the courtroom to Clarke without making findings to support the exclusion as required by Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).

The Appellate Division never reached the merits of Downs's Sixth Amendment claim, however, because it found that “[t]he defendant's claim that he was denied the right to a public trial by the court's request that a 12–year old boy be removed from the courtroom is unpreserved for appellate review.” People v. Downs, 34 A.D.3d 596, 825 N.Y.S.2d 103, 103 (2d Dep't 2006). Downs's application for leave to appeal to the New York Court of Appeals was denied. People v. Downs, 8 N.Y.3d 880, 832 N.Y.S.2d 492, 864 N.E.2d 622 (Table) (2007).

2. Federal Habeas Corpus Proceedings

Downs then filed his habeas corpus petition in the District Court, reasserting the arguments set forth above. The District Court (Dearie, J.) denied the petition on the ground that the sparse trial record justified the Appellate Division's conclusion that Downs's claim was not preserved, since defense counsel's statement provided no “meaningful opportunity for the [trial] court to take corrective action.” Downs v. Lape, No. 08–CV–0092, 2009 WL 3698134, at *4 (E.D.N.Y. Oct. 30, 2009). The District Court found that “[a]lthough counsel spoke in time for the trial court to change its ruling,” his remarks did not “occasion[ ], as they should have, a meaningful opportunity for the [trial] court to take corrective action.” Id. (emphasis in original). Because the issue was sufficiently close, however, the District Court granted Downs a certificate of appealability. See 28 U.S.C. § 2253(c)(2) (certificate granted upon “a substantial showing of the denial of a constitutional right”).

This appeal followed.

DISCUSSION

We review the District Court's denial of Downs's petition for a writ of habeas corpus de novo. See Gibbons v. Savage, 555 F.3d 112, 115 (2d Cir.2009). In rejecting Downs's petition, the District Court declined to address the merits of his Sixth Amendment claim. We recently explained that, on the merits, four criteria need to be satisfied under Waller to “overcome [the] presumption” of openness created by the Sixth Amendment's public trial guarantee and to “justify closure of a courtroom during a criminal proceeding: (1) ‘the party seeking to close the [proceeding] must advance an overriding interest that is likely to be prejudiced’; (2) ‘the closure must be no broader than necessary to protect that interest’; (3) ‘the trial court must consider reasonable alternatives to closing the [proceeding]’; and (4) the trial court ‘must make findings adequate to support the closure.’ ” United States v. Gupta, 650 F.3d 863, 866–67 (2d Cir.2011) (quoting Waller, 467 U.S. at 48, 104 S.Ct. 2210) (alterations in original).

1. Federal Review Under § 2254

Our function on habeas review of a state court proceeding is not to reenact the proceeding or peer over the shoulder of the state court judge ruling on questions of state law. See Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Instead, federal court review of a state's application of its own rules is deferential. We recently reaffirmed that we are to determine only whether the state ruling falls within the state's usual practice and is justified by legitimate state interests, not whether the state court ruling was correct. See Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir.2011) (“Our task is not to determine whether [the state] ruling was correct, but to determine its adequacy to preclude federal habeas review.”) (quoting Cotto v. Herbert, 331 F.3d 217, 247 (2d Cir.2003)). We therefore “will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.’ ” ¹Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 1780, 173 L.Ed.2d 701 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).

The Appellate Division's finding that Downs failed to preserve his Sixth Amendment claim for appellate review constitutes a state ground that is indisputably independent of the public trial right itself. We therefore consider only whether that finding is an adequate ground for decision. If the state ground for decision is adequate, “ ‘[a] federal habeas court will not review a claim rejected by [the] state court.’ ” Walker v. Martin, ––– U.S. ––––, 131 S.Ct. 1120, 1127, 179 L.Ed.2d 62 (2011) (quoting Beard v. Kindler, ––– U.S. ––––, 130 S.Ct. 612, 614, 175 L.Ed.2d 417 (2009)). Conversely, if the state ground for decision is inadequate, it “should not operate to bar federal review.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir.1999).

We generally assess the adequacy of a state ground of decision by examining whether the rule upon which the state court relied is “ ‘firmly established and regularly followed,’ ” Walker, 131 S.Ct. at 1127 (quoting Kindler, 130 S.Ct. at 617), keeping in mind that, in “exceptional cases,” the “exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.” Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002); see Cotto, 331 F.3d at 239 (quoting Lee, 534 U.S. at 376, 381, 122 S.Ct. 877). To determine whether this case involves an exorbitant misapplication of a state rule, we look to see if the state's application serves a legitimate state interest.²

2. New York's Contemporaneous Objection Rule

With these principles in mind, we turn to New York's contemporaneous objection rule, which the Appellate Division determined barred appellate review of Downs's Sixth Amendment claim. The full rule, codified at Section 470.05 of New York's Criminal Procedure Law, provides as follows:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an “exception” but is sufficient if the party made his position with respect to the ruling or instruction known to the court, or if in reponse [sic] to a protest by a party, the court expressly decided the question raised on appeal. In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the...