Moss v. Colvin
OPINION, the judgment of the district court is affirmed, per curiam RAK, RCW, SLC, FILED. [15-2272]
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Moss v. Colvin
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2016
(Submitted: October 26, 2016 Decided: January 9, 2017)
Docket No. 15‐2272
JOHN COLVIN, Superintendent, Mid‐State Correctional Facility,
B e f o r e:
KATZMANN, Chief Judge, WESLEY and CARNEY, Circuit Judges.
Appeal from a final judgment, entered on June 19, 2015, in the United
States District Court for the Southern District of New York (Crotty, J.), denying
The Clerk of Court is directed to amend the official caption to conform to the
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petitioner Andrew Moss’s petition for a writ of habeas corpus brought pursuant
to 28 U.S.C. § 2254(d). During Moss’s trial for criminal sale of a controlled
substance in the third degree, the trial court closed the courtroom to the general
public while the undercover officers involved in Moss’s arrest testified. Pursuant
to the Antiterrorism and Effective Death Penalty Act of 1996, we hold that: (1) the
New York Court of Appeals’ determination that a reviewing court may infer
from the record that a trial court considered, as it must, reasonable alternatives to
closure was not an unreasonable application of clearly established federal law as
determined by the Supreme Court; and (2) the New York Court of Appeals’
conclusion that the government established an overriding interest justifying
closure was also not an unreasonable application of clearly established federal
law as determined by the Supreme Court. Accordingly, we AFFIRM the
judgment of the district court.
Richard M. Greenberg and Joseph M. Nursey, Office of the Appellate Defender,
New York, NY, for Petitioner‐Appellant.
Barbara D. Underwood, Solicitor General, Nikki Kowalski, Deputy Solicitor
General, and Margaret A. Cieprisz, Volunteer Assistant Attorney General, for
Eric T. Schneiderman, Attorney General of the State of New York, New York,
NY, for Respondent‐Appellee.
Petitioner‐Appellant Andrew Moss appeals from a decision of the United
States District Court for the Southern District of New York (Crotty, J.) denying
his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254.
During the state trial testimony of the undercover officers involved in Moss’s
arrest, the state trial court closed the courtroom to the general public to protect
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the safety of the officers. Moss appealed his conviction, arguing that the closure
of the courtroom during the testimony of one of the officers violated his Sixth
Amendment right to a public trial. The New York Court of Appeals affirmed his
conviction. See People v. Echevarria, 21 N.Y.3d 1, 11–19 (2013).
In this appeal, Moss asserts that the New York Court of Appeals’ decision
is contrary to, or involves an unreasonable application of, clearly established
federal law as determined by the Supreme Court in Waller v. Georgia, 467 U.S. 39
(1984), and Presley v. Georgia, 558 U.S. 209 (2010) (per curiam). In particular, Moss
contends (1) that the New York Court of Appeals incorrectly held that a
reviewing court may infer from the record that a trial court fulfilled its obligation
to consider alternatives to closure, and (2) that the New York Court of Appeals
unreasonably concluded that the government had established an overriding
interest justifying closure. The district court denied the petition and, applying the
deferential standard of The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104‐132, 110 Stat. 1214 (1996), we affirm its
judgment. Limited as we are by AEDPA’s deferential standard, on the record
before us, we cannot conclude that the New York Court of Appeals’ decision was
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contrary to, or involved an unreasonable application of, clearly established law
or was based on an unreasonable determination of the facts.
Andrew Moss was arrested in July 2007 for selling crack cocaine to an
undercover officer (known as “UC 2454”) near West 135th Street and Broadway
in Manhattan. He was charged in New York State Supreme Court with criminal
sale of a controlled substance in the third degree, in violation of N.Y. Penal Law
Before Moss’s trial, the government requested that the court limit access to
the courtroom during the testimony of UC 2454 and another undercover officer
identified as UC 5986.1 The trial court held a hearing, at which both undercover
officers testified, to consider the request. Following the officers’ testimony, the
trial court indicated that it had tentatively determined, subject to hearing further
from counsel, to “keep the general public out when these two undercovers
testify.” Joint App. at 152–53. Moss’s counsel objected to the closure and
suggested, as an alternative, that an officer be stationed at the courtroom door to
screen individuals wishing to enter. The trial court did not expressly assess this
Moss does not challenge the courtroom closure with respect to UC 5986.
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proposed alternative. Instead, the trial court ruled that, in light of its concerns for
the undercover officers’ safety, it would close the courtroom to the public during
their testimony, with the exception of Moss’s mother and any other family
members who did not live in the area of the arrest. If any family members who
lived in the area of the arrest wished to observe trial during the testimony of the
undercover officers, the trial court determined that it would “face those decisions
when they arise.” Joint App. at 163.
The case proceeded to trial and Moss was convicted. Moss appealed his
conviction contending, inter alia, that the trial court’s closure of the courtroom
violated his Sixth Amendment rights. The New York Supreme Court, Appellate
Division unanimously affirmed. See People v. Moss, 89 A.D.3d 600, 600–01 (1st
Dep’t 2011). The New York Court of Appeals then granted review in Moss’s case,
together with the cases of two other defendants raising similar Sixth Amendment
challenges. It then found no reversible error in the closures in each case, while
reversing the conviction of one of the other two defendants on unrelated, jury
instruction grounds. See Echevarria, 21 N.Y.3d at 11–22.
After the United States Supreme Court denied certiorari, Moss filed a
petition for a writ of habeas corpus. The magistrate judge (Francis, J.) issued a
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Report and Recommendation (the “R&R”) recommending that the petition be
denied. Moss timely filed objections to the R&R, but the district court adopted
the R&R in its entirety and denied the petition. See Moss v. Colvin, No. 14 Civ.
2331 (PAC) (JCF), 2015 WL 3824749, at *1 (S.D.N.Y. June 18, 2015). Moss filed a
timely notice of appeal, and this court granted a certificate of appealability.
We review a district court’s decision denying a petition for a writ of habeas
corpus de novo. Dixon v. Miller, 293 F.3d 74, 78 (2d Cir. 2002).2 AEDPA instructs
The district court reviewed one of Moss’s objections to the R&R (regarding
whether the government met its burden of establishing an overriding interest
justifying closure) only for clear error. It did so on the basis that the objection
was “unquestionably a rehashing of the original arguments raised in the
petition.” Moss, 2015 WL 3824749, at *5 (citing Borrero v. Colvin, No. 14 Civ. 5304
(LTS) (SN), 2015 WL 1262276, at *1 (S.D.N.Y. Mar. 19, 2015) (“When a party . . .
reiterates original arguments, . . . the court will only review the magistrate’s
report for clear error.”)). On appeal, the government argues that Moss has
waived further judicial review of that objection, and that, if we do review the
objection, we must do so for clear error. First, we reject the government’s
argument that Moss’s failure to file specific objections to the R&R regarding
Moss’s overriding‐interest challenge resulted in a waiver. Even if it were the case
that Moss failed to lodge a specific objection to the magistrate judge’s
recommendation, it is clear that the district court did not consider the issue
waived and went on to evaluate the magistrate judge’s determination for clear
error, which was well within its discretion. See Grassia v. Scully, 892 F.2d 16, 19
(2d Cir. 1989) (“Even if neither party objects to the magistrate’s recommendation,
the district court is not bound by the recommendation of the magistrate.”); see
also Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Where a
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that an application for a writ of habeas corpus shall not be granted where a state
court adjudicated the claim on the merits, unless that adjudication (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,” or (2) “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). To conclude that a state court decision involved
an unreasonable application of clearly established federal law, the petitioner
must show that the state court applied the law in a manner that was “objectively
unreasonable.” Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015) (quoting Mitchell v.
Esparza, 540 U.S. 12, 18 (2003) (per curiam)) (internal quotation marks omitted). A
state court determination that a claim lacks merit is not objectively unreasonable
district court conducts . . . review of an issue that was not raised in objection to
[a] magistrate’s report, this court may disregard the waiver and reach the
merits.”). Accordingly, we may consider the merits ourselves. Second, we are
skeptical that clear error review would be appropriate in this instance, where
arguably “the only way for [Moss] to raise . . . arguments [on that point] [was] to
reiterate them.” Watson v. Geithner, No. 11 Civ. 9527(AJN), 2013 WL 5441748, at *2
(S.D.N.Y. Sept. 27, 2013); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall
make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”). We need
not resolve which standard of review applies to this objection, however, because
we conclude that Moss’s argument does not prevail even under de novo review.
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if “‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
The Sixth Amendment, by way of the Fourteenth Amendment, guarantees
a state criminal defendant “the right to a speedy and public trial.” U.S. Const.
amend. VI. However, the right to a public trial is not absolute and “may give
way in certain cases to other rights or interests.” Waller v. Georgia, 467 U.S. 39, 45
(1984). In those rare instances, “the balance of interests must be struck with
special care.” Id. To aid courts in this balancing act of determining whether a
courtroom closure is justified, the Supreme Court articulated the following four‐
part test in Waller: (1) “the party seeking to close the hearing must advance an
overriding interest that is likely to be prejudiced” if the courtroom is not closed,
(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.” Id. at 48. In Presley v. Georgia, 558 U.S. 209 (2010) (per curiam), the
Supreme Court clarified that under the third prong of Waller, “trial courts are
required to consider alternatives to closure even when they are not offered by the
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parties.” 558 U.S. at 214. Moreover, the Court instructed that “[t]rial courts are
obligated to take every reasonable measure to accommodate public attendance at
criminal trials.” Id. at 215.
Moss’s appeal focuses on Waller’s first and third prongs: the government’s
overriding interest, and the trial court’s consideration of alternatives to closure.
We conclude with respect to both issues that the New York Court of Appeals’
decision was not contrary to, or an unreasonable application of, clearly
established federal law as determined by the Supreme Court.
With respect to Waller’s first prong, the New York Court of Appeals
correctly articulated the standard for determining whether an overriding interest
exists that justifies closure. See Echevarria, 21 N.Y.3d at 11. It recognized that,
while “[t]he safety of law enforcement officers ‘unquestionably’ may constitute
an overriding interest,” id. at 12 (quoting People v. Ramos, 90 N.Y.2d 490, 498
(1997)), the party moving for closure still “must demonstrate a ‘substantial
probability’ that the identified interest will be prejudiced by an open courtroom,”
id. (quoting Press‐Enter. Co. v. Superior Court, 478 U.S. 1, 14 (1986)). In finding that
the government had met its burden, the New York Court of Appeals noted that
UC 2454 continued to work in the area of the arrest, had received numerous
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threats in the past, had encountered suspects in the courthouse, and had taken
steps to protect his identity when entering courthouses. See id. at 13–14. It held
that, “[t]aken together, the record amply supports the trial court’s determination
that a specific link existed between the officer’s safety and his open‐court
testimony.” Id. at 14. In light of the record before us, we cannot conclude that the
New York Court of Appeals unreasonably applied the law in reaching that
conclusion. See Rodriguez v. Miller, 537 F.3d 102, 110 (2d Cir. 2007) (affirming
denial of habeas petition where “[t]he Undercover [officer] . . . had been
threatened before and intended to return to [the neighborhood of the arrest] in
the near future”); Ayala v. Speckard, 131 F.3d 62, 72 (2d Cir. 1997) (en banc)
(upholding closure where three officers testified that “they were continuing their
undercover work and would soon be returning in an undercover capacity to the
same areas where the defendants had been arrested” and where the officers had
described those areas “with particularity”). We therefore find no basis for
reversal on Waller’s first prong.
As to the third Waller prong, Moss contends that the New York Court of
Appeals’ conclusion that the trial court considered reasonable alternatives to
closure was contrary to clearly established Supreme Court precedent. Moss takes
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specific issue with the New York Court of Appeals’ determination that it could
infer from the record in his case that the trial court had considered alternatives to
closing the courtroom, even if the trial court did not discuss them expressly on
the record. See Echevarria, 21 N.Y.3d at 19 (“On the record before us, it is fair to
imply that the trial courts concluded that no lesser alternative would have
adequately protected the officers’ safety and, therefore, the courts discharged
their prong three duty to consider reasonable alternatives.”). He maintains that
Waller and Presley require that the court make express, specific findings to show
that it considered alternatives and that the trial court’s “silence” here shows that
it did not comply with this requirement.
Moss relies heavily on Presley’s requirement that “the particular interest,
and threat to that interest, must ‘be articulated along with findings specific
enough that a reviewing court can determine whether the closure order was
properly entered.’” Presley, 558 U.S. at 215 (quoting Press‐Enter. Co., 464 U.S. at
510). Notably, we read this specific portion of Presley as relating to the
articulation of findings specific to the government’s overriding interest, not to
the court’s consideration of reasonable alternatives. To apply this language to an
analysis under Waller’s third prong would require us to extend the rationale of
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Presley, which is beyond the scope of our review under AEDPA. Cf. White v.
Woodall, 134 S. Ct. 1697, 1706 (2014) (“‘[I]f a habeas court must extend a rationale
before it can apply to the facts at hand,’ then by definition the rationale was not
‘clearly established at the time of the state‐court decision.’” (quoting Yarborough,
541 U.S. at 666)). Moreover, this statement in Presley conveys that the purpose of
requiring a court to make specific findings is to enable a reviewing court to
determine whether a closure was appropriate. If that is so, then we cannot
conclude that the New York Court of Appeals’ decision was necessarily contrary
to the principles articulated in Presley, so long as the record is sufficiently
detailed such that a reviewing court can glean that the trial court considered and
rejected alternatives and, in turn, “can determine whether the closure order was
properly entered.” Presley, 558 U.S. at 215 (internal quotation mark omitted).
Moss’s reference to cases interpreting Presley does not support a
conclusion otherwise. As Moss acknowledges, we may only “look to lower
courts of appeals decisions ‘to the extent [they] have already reviewed and
interpreted the relevant Supreme Court case law to determine whether a legal
principle or right had been clearly established by the Supreme Court.’” Nolan v.
Money, 534 F. App’x 373, 378 (6th Cir. 2013) (unpublished opinion) (alteration in
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original) (quoting Landrum v. Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)). None of
the cases Moss cites turn on the issue of whether a reviewing court may look to
the record as a whole to determine whether a court considered reasonable
alternatives, and, therefore, they do not help resolve whether that practice is
contrary to Presley. See, e.g., United States v. Gupta, 699 F.3d 682, 687–88 (2d Cir.
2011); United States v. Waters, 627 F.3d 345, 361 (9th Cir. 2010); United States v.
Agosto‐Vega, 617 F.3d 541, 547–48 (1st Cir. 2010); State v. Cox, 304 P.3d 327, 333–34
(Kan. 2013); Lilly v. State, 365 S.W.3d 321, 333 (Tex. Crim. App. 2012); State v.
Wise, 288 P.3d 1113, 1118 (Wash. 2012) (en banc).
Accordingly, we conclude that, under AEDPA’s deferential standard, the
New York Court of Appeals’ determination that we may look to the record as a
whole to determine whether the trial court complied with Waller’s third prong
was not contrary to clearly established Supreme Court precedent. In turn, the
New York Court of Appeals did not unreasonably conclude that the record here
sufficiently shows that the trial court considered alternatives to closure. See
Echevarria, 21 N.Y.3d at 18–19; see also id. at 25 (Lippman, J., dissenting in part
and concurring in part) (“I join the Court’s affirmance in People v. Moss because
there the trial court considered what it thought was the only reasonable
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alternative to closure, placing an officer outside the courtroom, and considered
and rejected this option on the record.”); People v. Moss, 89 A.D.3d at 600
(“Instead of ordering a complete closure, the court permitted defendant’s family
to attend [and] . . . it considered but rejected an alternative to closure proposed
To be sure, Moss’s argument that the trial court must “consider all
reasonable alternatives to closure” on the record is not without some persuasive
force. Pet’r Br. at 27 (quoting Presley, 558 U.S. at 216) (internal quotation mark
omitted). The “implied consideration” standard developed by the New York
Court of Appeals in People v. Echevarria and People v. Ramos is arguably in tension
with the trial court’s duty of sua sponte consideration of reasonable alternatives
imposed by Waller v. Georgia and Presley v. Georgia. See Echevarria, 21 N.Y.3d at 23
(Lippman, J., dissenting in part and concurring in part) (“There is nothing in
[Presley’s] language that would suggest that the Supreme Court had in mind that
an ‘implied’ consideration of alternatives would be constitutionally
acceptable. . . . It is to state the obvious that Presley does not contemplate an
unreviewable, purely contemplative exercise in satisfaction of a trial court’s
obligation to consider reasonable alternatives to court closure.”).
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Without some consideration of alternatives on the record, even if well short
of the explicit discussion of all possible alternatives that Moss seeks, there will
often be little basis on which a reviewing court can determine whether the trial
court adequately engaged in the Waller and Presley analysis, and in particular
whether the trial court met its obligations under Presley to consider sua sponte
various alternatives to closure. The record here, where there is some ambiguity
as to why the trial court did not implement defense counsel’s proposed
alternative to closure, illustrates the value of explicit consideration and rejection
of reasonable alternatives. Trial courts weighing a potential courtroom closure
would do better to make a clear record of their application of the Waller/Presley
test, including their consideration of reasonable alternatives to closure.
Constrained as we are in this case by AEDPA’s deferential standard, however,
and on this particular record, we cannot here say that the New York Court of
Appeals’ decision was contrary to, or involved an unreasonable application of,
clearly established federal law, or was based on an unreasonable determination
of the facts.
For the foregoing reasons, we AFFIRM the judgment of the district court.
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