Brown v. Artuz
| Decision Date | 13 March 2002 |
| Docket Number | Docket No. 00-2516. |
| Citation | 283 F.3d 492 |
| Parties | Andrew BROWN, Petitioner-Appellant, v. Christopher ARTUZ, Superintendent, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael G. Paul, New York, NY, for Petitioner-Appellant.
John M. Castellano, Johnette Traill, Alyson J. Gill, Assistant District Attorneys Queens County, Kew Gardens, NY, (Richard A. Brown, District Attorney, Queens County, Kew Gardens, NY), for Respondent-Appellee.
Before: KEARSE, MINER, and F.I. PARKER, Circuit Judges.
Petitioner-appellant Andrew Brown appeals from a judgment of the United States District Court for the Eastern District of New York (Sifton, J.) denying his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. In 1995, Brown was sentenced in the New York State Supreme Court, Queens County, to a prison term of between nine and eighteen years after a jury found him guilty of sale of a controlled substance in the third degree and sale of a controlled substance on or near school grounds in violation of New York Penal Law sections 220.39(1) and 220.44(2). In his pro se petition to the district court, Brown contended, inter alia, that his Sixth Amendment right to a public trial was violated when the state court "clear[ed] the Courtroom" during the testimony of an undercover officer. The district court denied the petition, but granted Brown's motion for a certificate of appealability on the sole question of whether his Sixth Amendment right to a public trial was violated. Because the state court's decision to close the courtroom during the testimony of the undercover officer was not "contrary to, [n]or [did it] involve[] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," we affirm.
On March 1, 1995, New York City Undercover Police Officer 1445 (the "officer") participated in a "buy and bust" operation in an area designated by the police for the investigation of the sale of drugs. At about 6:45 p.m. on that date, the officer saw Brown standing beneath an awning in the vicinity of Sutphin Boulevard and Archer Avenue in the borough of Queens, City of New York. The officer approached Brown and asked him for "four nicks of crack," slang for twenty dollars worth of crack-cocaine. In response, Brown led the officer to a nearby bar located at 91-14 Sutphin Boulevard. Once inside the bar, Brown introduced the officer to Shirelle Evans and instructed her to give the officer four "nicks." Evans gave the officer four plastic vials that contained crack-cocaine, and he gave her twenty dollars in prerecorded money. The officer then left the bar, and immediately radioed the details of the sale, including descriptions of Brown and Evans and their location, to his back-up team. After receiving the call, the back-up team entered the bar and arrested Brown and Evans. The officer drove past the scene shortly after the arrest and recognized Brown and Evans as the people who had sold him the four vials of crack-cocaine.
Following an indictment by a Queens County grand jury, Brown was charged with one count of criminal sale of a controlled substance in the third degree and one count of criminal sale of a controlled substance on or near school grounds. N.Y. Penal Law §§ 220.39(1), 220.44(2). A jury trial was held in the New York State Supreme Court, Queens County. On the first day of trial, the People moved to close the courtroom to the public during the upcoming testimony of the officer. In response to the People's motion, the court held a closed hearing pursuant to People v. Hinton, 31 N.Y.2d 71, 286 N.E.2d 265, 334 N.Y.S.2d 885 (1972). The Hinton hearing consisted solely of the testimony of the officer.
On direct examination at the hearing, the officer testified that he had been a member of the New York City Police Department for seven and one-half years, serving as an undercover detective for the last three and one-half years. As an undercover detective, the officer was assigned to purchase narcotics. The officer's testimony revealed that he was currently working undercover in Queens, New York, in the areas of Sutphin Boulevard and Archer Avenue, 150th Street and South Road, Jamaica Avenue and Sutphin Boulevard, and Jamaica Avenue and Hillside Avenue. The officer also testified that he had worked undercover in the area of Sutphin Boulevard and Archer Avenue, an area one block from the courthouse, the day before Brown's trial began, and expected to work undercover in that area the very next day. The officer also explained that he had "about five" open cases in the New York Supreme Court, "about five" cases pending in the grand jury, and a number of unapprehended subjects.
Testifying with regard to the dangerous nature of undercover work, the officer explained that during previous undercover operations he had been shot at and had bottles thrown at him. The officer testified that he had taken certain precautions to conceal his identity the day of the hearing, such as wearing a different type of clothing and entering the courthouse through a nonpublic doorway. The officer then explained that he feared testifying in open court because On cross-examination the officer revealed that in the last seven months he had "dual status," meaning that he was employed as both an arresting investigator and as an undercover officer. When asked to explain his dual status, the officer stated:
Following the officer's hearing testimony, the court granted the People's motion for a limited closure of the courtroom, over Brown's objection:
After hearing the testimony of [the officer], this court will grant the People's application to close the courtroom during his testimony. We think that his safety that has shown [sic] that this is the area that he works in. Although he hasn't made any buys at this address, 91-14 [Sutphin Boulevard,] since that time, ... he is working in that neighborhood.
He says that he expects to return to Sutphin Boulevard and Archer [A]venue which is the next block tomorrow, that he has five pending open cases, and five in the grand jury, and this is the locale that he is operating in, the Sutphin Boulevard, Jamaica Avenue, Archer Avenue area, so [that] the safety of this officer, and his identification ... will not be, to use his words[,] ... blown, we will close the courtroom during testimony.
At trial, the prosecution's witnesses consisted of the officer, the arresting officer, and the chemist who analyzed the drugs sold by Brown to the officer. Brown did not offer any witnesses of his own. The jury convicted Brown on both counts, and, on January 25, 1995, he was sentenced in the Supreme Court as a predicate felon to a prison term of nine to eighteen years.
On December 16, 1995, Brown filed an appeal with the New York State Appellate Division of the Supreme Court, Second Department. In his appeal Brown argued that (i) the court should have instructed the jury on an agency defense, (ii) the court erred in closing the courtroom during the testimony of the officer, (iii) the prosecution engaged in discrimination during jury selection, and (iv) his guilt was not proven beyond a reasonable doubt. On September 29, 1997, a four-judge panel unanimously affirmed Brown's conviction in a short published opinion that concentrated on Brown's argument that his guilt was not proven beyond a reasonable doubt. See People v. Brown, 242 A.D.2d 730, 664 N.Y.S.2d 929 (2d Dep't 1997) ("Brown I"). As to his other claims, the Appellate Division stated that "[Brown's] remaining contentions are without merit." Id. By letter dated October 3, 1997, Brown sought review by the New York Court of Appeals on all of the issues advanced before the Appellate Division. On November 24, 1997, the New York Court of Appeals denied Brown's motion for leave to appeal. People v. Brown, 91 N.Y.2d 833, 690 N.E.2d 495, 667 N.Y.S.2d 686 (1997).
In December 1998, Brown filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York.1 Brown's petition included claims that were raised on his appeal to the Appellate Division, including the Sixth Amendment claim, and also a new claim of excessive punishment. In an unpublished memorandum and order dated July 12, 2000, the district court denied the petition. However, upon finding that Brown had made a "substantial showing of the denial of a constitutional right with his claim of improper trial closure," the district court granted Brown a certificate of appealability on the sole issue of whether the courtroom closure violated Brown's Sixth Amendment right to a public trial. In granting the certificate, the district court noted that "the questions presented [in Brown's closure argument] are `deserving of further proceedings' because the Second Circuit has recently granted en banc review on this very issue for the second time in three years."
This appeal followed.
We review de novo a district court's decision to grant or deny a petition for a writ of habeas corpus. Clark v. Stinson, 214 F.3d 315, 319 (2d Cir.2000). Prior to the 1996 passage of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), P.L. No. 104-132, 110 Stat. 1214 (1996), state court factual findings after a "hearing on the merits" were "presumed... correct" in federal habeas corpus proceedings with certain exceptions, such as the failure of the fact-finding procedure to afford a full and fair hearing. 28 U.S.C. § 2254(d) (1994). However, federal courts were not required to defer to ...
To continue reading
Request your trial
-
Brumfield v. Stinson
...solely on a state procedural grounds, the federal claim will be considered to have been adjudicated on the merits. Brown v. Artuz, 283 F.3d 492, 498 (2d Cir.2002). The court concludes that, in this case, the Appellate Division decided all of Brumfield's claims on the merits when it unanimou......
-
Cotto v. Fischer
...nom. Portalatin v. Graham, 624 F.3d 69(2d Cir. 2010) (en banc); Howard v. Walker, 406 F.3d 114, 121-22 (2d Cir. 2005); Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002). Clearly established federal law "'refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions as of ......
-
Vasquez v. Poole
...that the Appellate Division stated were `without merit.'" Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir.2004) (citing Brown v. Artuz, 283 F.3d 492, 498 (2d Cir.2002)). Therefore, in a situation such as this, "we review petitioner's due process claim under the standard prescribed by AEDPA......
-
Harris v. Kuhlmann
...and convincing evidence.'" LanFranco v. Murray, 313 F.3d 112, 117 (2d Cir.2002) (quoting 28 U.S.C. 2254(e)(1) and citing Brown v. Artuz, 283 F.3d 492, 498 (2d Cir.2002)). "This presumption of correctness is particularly important when reviewing the trial court's assessment of witness credib......