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

• Decision Date: 30 December 2002
• Docket Number: Docket No. 01-2491.
• Citation: 342 F.3d 69
• Parties: Salih SEVENCAN, Petitioner-Appellant, v. Victor HERBERT, Superintendent, Attica Correctional Facility, Respondent-Appellee,
• Court: U.S. Court of Appeals — Second Circuit

342 F.3d 69

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.

Amended: August 7, 2003.

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.

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 District Court properly conducted a Nieblas hearing in order to determine that the exclusion of Sevencan's wife was justified and (2) 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," 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 and September 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, and, on June 16, 1993, 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).

On June 24, 1993, the court informed counsel that both the undercover officer and the assistant district attorney had received death threats connected to the trial. Twelve 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 the closure 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 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 District Court. He sought relief on various grounds, including the closure of the courtroom and the 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). Sevencan, 152 F.Supp.2d at 263-64. At the hearing, the State submitted tapes of conversations that suggest Mrs. Sevencan's knowledge of her husband's illegal activities and her familiarity with several of Sevencan's associates. Id. at 258-59. The undercover officer also testified, stating that he did business at bars in a large shopping area for residents of Mrs. Sevencan's neighborhood, that he spent between two and five days a week in this area, and that he intended to continue working in that area under cover. He further testified that the leader of the drug conspiracy was still at large at the time of trial and that Sevencan himself had previously committed a murder.

Following the Nieblas hearing, the District Court held that the closure of the courtroom to Mrs. Sevencan during one day of the undercover officer's testimony did not deny Sevencan his right to a public trial because (1) protection of the undercover's safety and security was an important interest within the meaning of Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), and (2) the State demonstrated that Mrs. Sevencan was likely to encounter the undercover officer in the course of her daily activities. Sevencan, 152 F.Supp.2d at 264-65. Although the District Court acknowledged that Mrs. Sevencan did not pose a direct physical threat to the undercover officer, it held that her ability to report that officer's description to other more dangerous individuals was sufficient. Id. at 265-66. The District Court also found that Mrs. Sevencan is "a timid[,] pliable woman" likely to be susceptible to requests from her husband's associates, who still were at large, to inform them if she spotted the undercover officer. Id. at 266-67.

The District Court then rejected Sevencan's remaining claims and denied his petition. Id. at 269-70. It granted a Certificate of Appealability limited to the issue of whether the exclusion of Sevencan's wife deprived him of his Sixth Amendment right to a public trial. See id. at 270.

On appeal, Sevencan principally argues that (1) the District Court erred in holding a hearing pursuant to Nieblas v. Smith and, 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 was properly considered, the District Court erred in holding that the evidence and record before it were sufficient to support the state trial court's decision to exclude Sevencan's wife from the courtroom.

II. DISCUSSION

The habeas corpus statute available to persons convicted under state law, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, 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 adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

28 U.S.C. § 2254(d) (emphasis added). In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court authoritatively interpreted the phrase "clearly established Federal law, as determined by the Supreme Court of the United States" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." 529 U.S. at 412, 120 S.Ct. 1495. "[A]s the statutory language makes clear, ... 2254(d)(1) restricts the source of clearly established law to [the Supreme Court's] jurisprudence." Id.

In Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the Supreme Court held that, before public access to a courtroom in a criminal case may be restricted, "[1] the party seeking to close the hearing...