Manning v. Rock
Filing
10
OPINION: For the reasons discussed above, Manning's petition for a write of habeas corpus is denied. SO ORDERED. (See Order.) (Signed by Judge Thomas P. Griesa on 12/5/2014) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
TROY MANNING,
:
:
Petitioner,
:
:
– against –
:
:
DAVID ROCK, SUPERINTENDENT,
:
UPSTATE CORRECTIONAL FACILITY,
:
:
Respondent.
:
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12 Civ. 3706 (TPG)
OPINION
On March 10, 2009, a New York County jury found Troy Manning
guilty of both possession and sale of cocaine and marijuana. The trial
court sentenced Manning, as a second felony drug offender, to forty-two
years in prison.
The New York State Appellate Division, First
Department subsequently reduced Manning’s aggregate sentence to
eighteen years, but otherwise affirmed his conviction.
Manning now petitions this court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, claiming that the trial court deprived him
of his Sixth Amendment right to a public trial.
Specifically, Manning
contends that the trial judge did not make sufficient factual findings to
support a decision to close the courtroom during the testimony of an
undercover police officer.
The court denies Manning’s petition.
1
FACTUAL BACKGROUND AND PROCEEDINGS BELOW
The Illegal Transactions
Between July 4, 2007 and October 16, 2007, the New York Police
Department (“NYPD”) Manhattan North Narcotics Bureau conducted an
investigation into cocaine and marijuana distribution at 141st Street,
between Lenox Avenue and Seventh Avenue in Manhattan. As part of
the operation, an undercover narcotics detective (“UC-C0003”) made
multiple purchases of narcotics from Manning.
These transactions
ultimately led to trial on charges of selling and possessing cocaine and
marijuana.
The State Trial and Appellate Proceedings
Prior to trial, the government moved for a limited closure of the
courtroom during the testimony of the undercover officer. Manning
opposed the government’s request.
On March 4, 2009, the trial judge held a hearing pursuant to
People v. Hinton, 31 N.Y.2d 71 (1972), to determine whether to close the
courtroom during the testimony of the undercover officer. At the Hinton
hearing, the undercover officer was the only witness to testify.
The
officer had worked undercover for 13 of his 15 years with the NYPD, and
had worked undercover for the three years preceding the trial in an area
near the courtroom in question. He explained that he continued to work
undercover in New York City, and feared that if forced to testify
2
publically, he would “blow [his] cover.” 3/4/2009 Tr. at 6. He testified
about the precautions he undertook to conceal his identity, and
explained that certain investigations he conducted resulted in “los[t]
subjects” or “unidentified suspects” where the alleged narcotics seller
remained at large. Id. at 6-10.
After the officer finished testifying, the parties made arguments on
the motion to the trial judge. In his argument, Manning’s counsel put
forth a general objection to the closure of the courtroom:
I can sum up real briefly. I’m going to rely on the record for
the most part with respect to the interest raised and the
purpose behind the two questions I asked or the rather few
questions, the two categories of questions.
The officer
doesn’t know if Mr. Manning has any contact at all to any of
the people that he’s ever dealt with on the street, therefore, it
doesn’t seem to be important or necessary to keep the
courtroom closed in this particular case because there is no
perceived connection between Mr. Manning or anybody else
that this officer has dealt with that would put this officer in
any kind of risk after he leaves here today so I would object
to closing the courtroom.
Id. at 12-13.
After further argument from the government, the trial judge ruled
from the bench that the courtroom would remain closed to the public
during the testimony of the undercover officer.
The trial judge found
that, although the facts did not support a finding of a “specific threat”
against the undercover officer, requiring the officer to testify openly could
subject him to more “general threats” and compromise his ability to
perform future undercover work. Id. at 15-19.
3
In so ruling, the trial judge made multiple findings of fact about
ways the undercover officer could encounter someone who might identify
him if testified in open court.
First, the courtroom is located close to
programs that serve as alternatives to incarceration for drug offenders—
some of whom may have interacted with the undercover officer during his
undercover operations.
Id. at 16.
Similarly, the trial judge explained
that defendants who had previously failed to appear were routinely
returned to his courtroom pursuant to outstanding bench warrants—
without prior notice to the judge or his staff.
Id. at 16-17.
The trial
judge also noted that the Probation Department is located in the
courthouse, and that “the identity of the undercover visually will be
engrained forever” in the minds of individuals previously convicted based
on buy-and-bust operations conducted by the undercover officer. Id. at
17-18. The court concluded: “[H]e is identifiable and the City of New
York and he, apparently, have a mutual interest in him continuing to be
an undercover officer and for that reason plus the general safety
concerns, the courtroom will be closed to the general public.” Id. at 19.
The trial judge thus ordered the courtroom closed to the general
public during the officer’s testimony, and allowed the officer to use his
shield number for purposes of identification. The trial judge qualified his
ruling by stating: “If anybody identifies somebody from Mr. Manning’s
family or otherwise that they wish me to consider with respect to being a
4
potential attendee, please do that when that information surfaces.” Id. at
19.
Manning’s counsel did not object to the trial judge’s Hinton ruling
after it was issued from the bench.
On March 10, 2009, a jury convicted Manning on all counts.
Judgment was entered on April 7, 2009, and the court sentenced
Manning to an aggregate of forty-two years in prison, followed by five
years of post-release supervision.
Manning
then
appealed
to
the
Appellate
Division,
First
Department, which reduced his aggregate sentence to eighteen years, but
otherwise unanimously affirmed the conviction. The Appellate Division
found that Manning did not preserve his constitutional claim to a public
trial, because he failed to comply with New York’s preservation rule by
making a contemporaneous and specific objection to the adequacy of the
judge’s factual findings at the Hinton hearing. 1
A.D.3d 585, 586 (1st Dep’t 2010).
People v. Manning, 78
The Appellate Division held that
Under New York’s preservation (or “contemporaneous objection”) rule, a party fails to
preserve an issue for appeal if he or she does not “object to what he or she believes is a
legal error in a trial court’s ruling or instruction ‘at the time of such ruling or
instruction or at any subsequent time when the court had an opportunity of effectively
changing the same.’ Where a party fails to lodge such a contemporaneous objection,
the issue is unpreserved for appeal because of the party's procedural default.” Gutierrez
v. Smith, 702 F.3d 103, 110 (2d Cir. 2012) (quoting C.P.L. § 470.05). The rule requires,
“at the very least, that any matter which a party wishes the appellate court to decide
have been brought to the attention of the trial court at a time and in a way that gave the
latter the opportunity to remedy the problem and thereby avert reversible error.”
Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011) (internal citations omitted).
1
5
although Manning had “preserved his general claim that the courtroom
should not have been closed, he did not preserve his specific complaint
that the court failed to set forth adequate findings of facts to justify
closure.” Id. The Appellate Division went on to explain that “[a] separate
contemporaneous objection was necessary because a timely objection
would have permitted the court to rectify the situation instantly by
making express findings.” Id. (citing People v. Doster, 13 A.D.3d 114, 115
(1st Dep’t 2004)).
Finally, “[a]s an alternative holding,” the Appellate
Division found “that the court’s ruling . . . was specific enough that a
reviewing court can determine whether the closure order was properly
entered.” Id.
The New York Court of Appeals subsequently denied Manning’s
application for leave to appeal, and the United States Supreme Court
denied his petition for a writ of certiorari. See Manning, 78 A.D.3d at 585,
lv. denied, 16 N.Y.3d 861, cert. denied sub nom., Manning v. New York,
132 S.Ct. 268 (2011). Manning is presently incarcerated pursuant to his
judgment of conviction and, through counsel, filed this petition for a writ
of habeas corpus on May 9, 2012.
Timeliness and Exhaustion
A habeas petitioner has one year from the date that his conviction
becomes final to file his petition for habeas relief. 28 U.S.C. § 2244(d)(1).
The Supreme Court denied Manning’s request for a writ of certiorari on
6
October 3, 2011, and he filed his petition on May 9, 2012. Thus, his
petition is timely.
Additionally, Manning previously alleged the same
constitutional claims that he raises in the instant petition in his state
court appeals before the Appellate Division and the Court of Appeals.
Since Manning has exhausted his remedies in state court, his petition is
properly before this court.
DISCUSSION
Manning claims, as he did on direct appeal, that the trial court did
not support its partial closure order with adequate factual findings, thus
depriving him of his constitutional right to a public trial.
The court,
however, finds that Manning procedurally defaulted on his constitutional
claim.
Federal courts typically do not review a habeas petitioner’s federal
claim when the state court has determined that petitioner failed to meet
a state procedural requirement. Whitley, 642 F.3d at 285 (citing Coleman
v. Thompson, 501 U.S. 722, 729 (1991)). Before denying review, a federal
court must be satisfied that the state law ground on which the state
court relied “is independent of the federal question and adequate to
support the judgment.” Id.; see also Garcia v. Lewis, 188 F.3d 71, 82 (2d
Cir. 1999).
Given the Appellate Division’s holding of a procedural default, this
court is foreclosed from considering the merits of Manning’s petition.
7
Federal courts in this Circuit have repeatedly recognized New York’s
contemporaneous objection rule as an independent and adequate statelaw ground to deny habeas review. See, e.g., Downs v. Lape, 657 F.3d
97, 102-104 (2d Cir. 2011) (petitioner’s failure to “preserve his Sixth
Amendment claim for appellate review constitutes a state ground that is
indisputably independent of the public trial right itself”); Kozlowski v.
Hulihan, 511 F. App’x 21, 25-26 (2d Cir. 2013) (because “the
contemporaneous objection rule is firmly established and regularly
followed, its application ordinarily constitutes an adequate state-law
ground for barring federal habeas review”) (internal citations omitted);
Gutierrez, 702 F.3d at 110 (“If a state appellate court refuses to review
the merits of a criminal defendant's claim of constitutional error because
of his failure to comply with such a ‘contemporaneous objection’ rule, a
federal court generally may not consider the merits of the constitutional
claim on habeas corpus review.”).
Nor will the court find that these facts present the type of
“exceptional case in which exorbitant application of a generally sound
rule renders the state ground inadequate to stop consideration of a
federal question.”
Kozlowski, 511 F. App’x at 25-26 (citing Cotto v.
Herbert, 331 F.3d 217, 240 (2d Cir. 2003)).
This is particularly so
because the contemporaneous objection rule has been upheld as a
procedural bar to Hinton-based habeas claims similar to those brought
8
by Manning in his petition.
See, e.g., Downs, 657 F.3d. at 104-108
(holding that state appellate court’s determination that petitioner failed
to preserve Sixth Amendment public-trial claim for appellate review by
neglecting to make contemporaneous objection to trial court’s removal of
petitioner’s brother from courtroom was not “exorbitant” misapplication
of
the
firmly
established
contemporaneous
objection
rule,
thus
precluding federal habeas review); Garcia, 188 F.3d at 82 (holding that
where, as here, petitioner’s counsel in a buy-and-bust trial posed only
general objections to a courtroom closure before a Hinton ruling was
made, the Sixth Amendment claim was unpreserved, because a “contrary
holding would only encourage the kind of sandbagging that procedural
forfeiture rules reasonably discourage”) (internal citations omitted).
In failing to comply with New York’s contemporaneous objection
rule, Manning neglected to preserve his objection to the trial judge’s
decision.
Accordingly,
Manning
procedurally
defaulted
on
his
constitutional claims, and this court declines to consider the merits of
his petition.
CONCLUSION
For the reasons discussed above, Manning’s petition for a writ of
habeas corpus is denied.
9
SO ORDERED.
Dated: New York, New York
December 5, 2014
U.S. District Judge
tJSDC SDNY
DOCUMENT
ELECTRONICALLY FILED
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DATE FILED: \l- I 5 I 1'1
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