U.S. SUPREME COURT RULING RESTRICTS HABEAS REVIEW OF STATE COURT PROCEDURES

“In the past we and other courts occasionally have relied on our own precedents to interpret and flesh out Supreme Court decisions to decide variegated petitions as they come before us,” Judge Joseph McLaughlin wrote for the court. “It would appear that we can no longer do this.”
                            Mark Hamblett New York Law Journal August 31, 2007
 A U.S. Supreme Court decision narrowing habeas review of state court procedures may force a convicted cocaine dealer back to prison.
Jose Rodriguez thought he was in the clear in 2006 after the 2nd U.S. Circuit Court of Appeals ordered that his petition for habeas corpus be granted because the trial judge had restricted his family’s access to his trial.
But the government went to the nation’s highest court, which vacated the 2nd Circuit’s ruling and instructed it to reconsider in light of its decision in Carey v. Musladin, 127 S. Ct. 649 (2006).
Wednesday, after applying Musladin to the facts of Rodriguez’ case, the circuit said it could no longer rely on dicta in U.S. Supreme Court decisions in reviewing a habeas case — and it had no choice but to deny the petition in Rodriguez v. Miller, 04-6665-pr.
“In the past we and other courts occasionally have relied on our own precedents to interpret and flesh out Supreme Court decisions to decide variegated petitions as they come before us,” Judge Joseph McLaughlin wrote for the court. “It would appear that we can no longer do this.”
Judges Richard Cardamone and Barrington Parker joined the decision.
Rodriguez originally was sentenced to 30 years to life in prison, but he was released some 10 years into his sentence when the circuit issued its 2006 ruling.
Katheryne Martone of the Legal Aid Society’s Criminal Appeals Bureau said that before Rodriguez is sent back to prison she will apply for resentencing under reforms in the state’s drug laws, which set a different sentencing range and eliminate the lifetime maximum.
Martone said she will also apply to the 2nd Circuit for rehearing en banc.
Rodriguez was tried and convicted in 1995 of selling cocaine to an undercover police officer.
Before his trial, the state moved to close the courtroom to protect the identity of the officer. During a hearing, the officer testified that he had been threatened several times during the course of his work in Bushwick, Brooklyn, would have more investigations in Bushwick in the “near future,” had never testified in open court before, and feared that Rodriguez’s relatives would recognize him and blow his cover.
Brooklyn Supreme Court Justice James G. Starkey initially decided to close the courtroom entirely, but later said he would admit Rodriguez’s mother and brother to attend as long as they sat behind a screen that would block their view of the undercover.
Rodriguez’s lawyer argued the screen would be prejudicial to his defense, and Rodriguez told his family not to attend the trial.
After he was frustrated on direct appeal, Rodriguez filed a habeas petition claiming his Sixth Amendment rights had been violated.
Eastern District of New York Judge Frederic Block denied the petition, but the 2nd Circuit vacated and remanded in 2003. On remand, Block again denied it on the grounds that Rodriguez’s mother and brother could be excluded because they lived near the officer’s territory.
The circuit again reversed in 2006, saying that while the state judge’s findings may have been enough to exclude the general public, a “particularized inquiry” was required before family members are barred. The court said “exclusion of family members requires stricter scrutiny than exclusion of the public.”
The U.S. Supreme Court granted certiorari and vacated the 2nd Circuit’s ruling because of Musladin, a case in which a convicted murderer claimed he had been denied a fair trial because the victim’s family had been allowed to wear buttons bearing an image of the victim.
The 9th U.S. Circuit Court of Appeals granted the petition, finding that the state court’s test for “the inherent prejudice” of the buttons “was contrary to clearly established federal law and constituted an unreasonable application of that law,” which is the federal standard for reversing state court decisions in habeas cases under the Antiterrorism and Effective Death Penalty Act.
The U.S. Supreme Court reversed the 9th Circuit in Musladin, reiterating that “clearly established federal law” only “refers to the holdings, as opposed to the dicta, of this court’s decisions at the time of the relevant state court decisions.”
The Court went on to state that the effect on a defendant’s fair-trial rights of “spectator conduct … is an open question in our jurisprudence.”
‘NARROWEST POSSIBLE READING’
In the case of Rodriguez, McLaughlin said the Musladin Court applied the “narrowest possible reading” of its holdings assessing the prejudice of “state-sponsored courtroom practices.”
“Leading by example, Musladin admonishes courts to read the Supreme Court’s holdings narrowly and to disregard as dicta for habeas purposes much of the underlying logic and rationale of the high court’s decisions,” Judge McLaughlin said.
He said the circuit was now required to ignore dicta in other Supreme Court cases, including one that noted that an accused is, at a minimum, entitled to have his relatives and friends present in the courtroom.
McLaughlin then turned to Waller v. Georgia, 467 U.S. 39 (1984), which “provides the ne plus ultra of the Sixth Amendment right to a public trial.”
To close a proceeding, Waller said, the party seeking closure must show “an overriding interest that is likely to be prejudiced,” the closure must be “no broader than necessary,” the court must consider “reasonable alternatives” and the court must “make findings adequate to support the closure.”
McLaughlin said, “Waller does not demand a higher showing before excluding a defendant’s friends and family.”
Rodriguez’s case does not “come within the narrow holdings” of Supreme Court cases on public trials, the judge said, and he “cannot appeal to Supreme Court dicta or decisions of this court,” so “his petition stands or falls solely upon application of the Waller test.”
In addition to Martone, Mitchell Briskey of the Legal Aid Society represented Rodriguez.
“We really feel the court has way over-read Musladin,” Martone said.
Even under Musladin, she said, her client met the Waller test.
Waller requires a closure no broader than necessary and we say that the closure was broader than necessary,” she said. “It’s a well-understood principle that you have the right to have your family present at your trial.”
Brooklyn Assistant District Attorneys Victor Barall and Leonard Joblove represented the government.

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