Garcia v. Lewis

Decision Date01 August 1998
Docket NumberDocket No. 98-3733
Citation188 F.3d 71
Parties(2nd Cir. 1999) THOMAS GARCIA, Petitioner-Appellant, v. HAZEL LEWIS, Superintendent, HALE CREEK CORRECTIONAL FACILITY, Respondent-Appellee
CourtU.S. Court of Appeals — Second Circuit

Petitioner-appellant applied for a writ of habeas corpus under 28 U.S.C. §2254, claiming that his Sixth Amendment right to a public trial was violated when his mother's companion was excluded from petitioner's state court trial during the testimony of an undercover officer. The United States District Court for the Eastern District of New York, Korman, J., dismissed the petition on harmless error grounds, and petitioner-appellant now appeals. We affirm on the ground that an independent and adequate state ground of decision bars federal habeas review of petitioner's Sixth Amendment claim. [Copyrighted Material Omitted] WINSTON McINTOSH, New York City (Lynn W.L. Fahey, Appellate Advocates, New York City, of counsel), for Appellant.

MARK H. LEVINE, Assistant District Attorney, Queens County, Kew Gardens, NY (Richard A. Brown, District Attorney, Queens County, John M. Castellano, Robin A. Forshaw, Assistant District Attorneys, Queens County, Kew Gardens, NY, of counsel), for Appellee.

Before: MESKILL and WALKER, Circuit Judges, and TRAGER, District Judge.*.

MESKILL, Circuit Judge:

Petitioner-appellant Thomas Garcia was convicted by a jury in New York State Supreme Court, Queens County, of one count of possession and sale of narcotics and one count of possession of marijuana. After exhausting his right to direct appeal in the state courts, Garcia petitioned for a writ of habeas corpus under 28 U.S.C. §2254. He claimed that his Sixth Amendment right to a public trial was violated because his mother's companion was excluded from the courtroom during the testimony of the undercover officer to whom Garcia allegedly sold drugs during a buy-and-bust operation. The state opposed the petition, arguing (1) that the state appellate court's finding that Garcia was procedurally barred from advancing his Sixth Amendment claim constituted an independent and adequate state ground of decision that precluded federal habeas review; (2) that even if federal review were proper, no constitutional violation occurred; and (3) that even if a violation occurred, the error was harmless. The district judge dismissed the petition on harmless error grounds alone, concluding that even if the claim were preserved, and a constitutional violation did occur, the petition nonetheless should be denied because the error was harmless.

We affirm the district court's judgment dismissing the petition, but, in so doing, we do not address the grounds relied on by the district court. Rather, we hold that Garcia is not entitled to federal habeas review because there exists an independent and adequate state ground for his conviction: the New York courts' conclusion that Garcia defaulted on his Sixth Amendment claim when his attorney failed to raise the issue at trial in accordance with New York's contemporaneous objection rules.

BACKGROUND
1. Factual and Trial History

On November 3, 1993, Garcia was arrested after police conducted a "buy-and-bust" operation in which Garcia allegedly sold crack cocaine to an undercover police officer and a third person. Garcia was charged with two counts of sale and possession of a controlled substance, in violation of New York Penal Law §220.39[1], and one count of marijuana possession, in violation of New York Penal Law §221.05.

After jury selection at Garcia's trial, the state moved to close the courtroom during the testimony of the undercover officer (Undercover) to whom Garcia allegedly sold the drugs. Garcia's counsel objected, and the trial judge held a hearing, pursuant to People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972), to determine whether closure was permissible.

At the hearing, the Undercover testified that he was engaged in undercover narcotics activities in Queens County and had been doing such work for two years, averaging about ten undercover operations per week. He explained that he had numerous undercover operations pending within three to four miles of the courthouse, and that four or five of his cases were pending in the Queens County courts at that time. The Undercover's operations had produced four "lost subjects," i.e., suspects with whom he had engaged in narcotics sales but who had evaded arrest, as well as others who had not yet been arrested. A number of the Undercover's open cases were from Astoria, Queens, where Garcia lived.

The Undercover testified that on at least fifteen occasions drug dealers who suspected him of being a police officer had threatened to kill him or injure his family, had thrown objects at him, or had tried to hit him with a car. The Undercover conceded, however, that he had not been threatened by Garcia, Garcia's family, or anyone connected with Garcia's case.

In light of his concerns, the Undercover explained his desire that the courtroom be closed during his testimony. Aware that his identity might become known if he was forced to testify in open court, he feared that his life would be jeopardized and that the effectiveness of his undercover operations would be compromised. The Undercover noted that he had never testified in an open courtroom and that in order to attend the Hinton hearing he had entered the courthouse through a side entrance and traveled to the courtroom in a back elevator with a court officer.

The trial judge granted the state's motion to close the courtroom, reasoning that requiring him to testify in open court would pose a "danger to him and to his operations." The court did, however, permit "any close relatives" of the defendant to be present. Garcia's counsel did not object to this ruling, responding only by saying, "Thank you."

When the prosecutor asked Garcia's counsel to identify in advance any family members who would be in the courtroom during the Undercover's testimony, Garcia's counsel indicated that although Garcia's mother, aunt or sister might attend, he did not "anticipate many people" attending the trial; to that effect he commented that "[n]o one is climbing to get in here."

The following day, after opening statements were complete and immediately before the Undercover was to testify, Garcia's counsel addressed the court and the following colloquy ensued:

Defense Counsel: Yes. Your Honor, yesterday, I believe during the closure hearing, you made a ruling that indicated that Mrs. Garcia, Tom's mother, would be allowed to stay, and I also believe that ruling would extend to her companion who has been a party to this action in terms of supporting Tom throughout the proceedings and pretrial proceedings as well. Would that ruling extend to him?

The Court: I said extended to relatives and the mother, but if he is not a relative, that doesn't extend to him. That was the ruling.

Defense Counsel: Okay.

The Court: So if he is technically just a friend, I'd have to excuse him along with the others.

Defense Counsel: Okay.

The Court: Are you ready to call your witness?

The State: Yes, I am, your Honor, and I'm going to ask now the Court to be closed.

The Court: I'll direct all those other people to leave the courtroom.

The Clerk: Okay. Folks, according to a Court ruling which was issued yesterday you must leave the courtroom. You will be instructed when you may return. So please leave. Thank you.

The Court: Counsel, there is no one else you expected?

Defense Counsel: No. You mean during the testimony of this witness?

The Court: Yes.

Defense Counsel: No. This is his mother's companion.

The Court: I made the ruling.

The clerk then sealed the courtroom, and the Undercover took the stand. He testified that he had purchased twenty dollars' worth of crack cocaine from Garcia, and had observed Garcia sell crack to a third person. The Undercover explained that he then identified Garcia to another officer, who arrested Garcia. The arresting officer and the Undercover's backup also testified on the prosecution's behalf. Garcia presented no witnesses.

The jury convicted Garcia on one count of criminal sale of a controlled substance, but acquitted him on the other. It also convicted him of marijuana possession, based on a small quantity of the drug that Garcia was found to possess at the time of his arrest. Garcia is currently serving a six-to-twelve year term of imprisonment.

2. State Post-Conviction Proceedings

Garcia appealed to the New York Supreme Court, Appellate Division, Second Department. He argued, among other things, that the exclusion of his mother's companion deprived him of his Sixth Amendment right to a public trial. The Appellate Division rejected this claim, holding that Garcia failed to preserve it for review. See People v. Garcia, 239 A.D.2d 599, 600, 658 N.Y.S.2d 365, 366 (2d Dep't 1997). The court also held, in the alternative, that the public trial claim failed on the merits because the exclusion satisfied the factors set out in Waller v. Georgia, 467 U.S. 39, 45 (1984). See Garcia, 239 A.D.2d at 600, 658 N.Y.S.2d at 366. On July 14, 1997, leave to appeal to the New York Court of Appeals was denied.

3. Garcia's Petition for a Writ of Habeas Corpus

On April 2, 1998 Garcia filed the instant habeas petition, based solely on the exclusion of his mother's companion. In opposition, the state argued (1) that the Appellate Division's conclusion that the claim was not preserved for review constituted an independent and adequate state ground for the conviction that precluded federal habeas review; (2) that even if federal habeas review were permitted, no constitutional violation occurred; and (3) that even if the closure were constitutionally infirm, the error was harmless.

The district court decided the petition on harmless error grounds, after assuming without deciding that the closure issue was...

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