Moss v. Colvin

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS (#12): CONCLUSION: For the foregoing reasons, Moss's petition is denied, as is his request for a certificate of appealability. The Clerk of Court is directed to enter judgment and to close this case. SO ORDERED. (Signed by Judge Paul A. Crotty on June 18, 2015) (mov)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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USDCSDNY

DOCUMENT
ELECTRONICALLY FILED
DOC#: ~~~~~~~

ANDREW MOSS,

DATE FILED: (p - I ~- 15.
Petitioner,

-against14 Civ. 2331 (PAC) (JCF)
JOHN COLVIN, Superintendent of Mid-State
Correctional Facility,

ORDER ADOPTING REPORT
AND RECOMMENDATION

Respondent.

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HONORABLE p AUL A. CROTTY, United

sL
es

District Judge:

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On April 3, 2014, Petitioner Andrew l oss ("Petitioner" or "Moss") filed a 28 U.S.C. §
2254 petition challenging his conviction in Supreme Court, New York County, for the criminal
sale of a controlled substance in the third degrle. The conviction was affirmed on appeal. As he
did in his appeal, Moss contends that his Sixth Amendment right to a public trial was violated
when the trial judge closed the courtroom to tHe public during the testimony of an undercover
police officer. On August 4, 2014, Magistrate Judge James C. Francis IV issued a Report and
Recommendation ("R & R"), recommending that the petition be denied. Moss filed timely
objections. For the following reasons, the R ! R is adopted and the petition is denied.

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BACKGROUND
Moss was arrested on July 21, 2007 fo selling crack cocaine to an undercover police
officer near West 135th Street and Broadway i Manhattan. The trial judge, Justice Daniel
Fitzgerald, held a Hinton hearing to evaluate tlie prosecution' s motion to close the courtroom to

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the public during the trial testimony of two undercover officers involved in the arrest. At the
hearing, the prosecution argued that closing th I courtroom during the officers' testimony was
necessary to preserve the safety and continued effectiveness of the officers. Undercover Officer
2454 testified at the hearing that he had made 'umerous arrests in the relevant area, had pending
cases in the area with "lost subjects" or defend nts out on bail, had received threats before, at
times shopped and walked around the area witl his family while off duty, and had been
concealing his identity when entering the cou1 ouse. 1
Towards the end of the Hinton hearing.I Justice Fitzgerald opened the argument up to
counsel, saying, "On the two undercovers I' ll ear from you if there ' s anything further you wish
to say. My position at the moment tentatively nless someone disabuses me of it, then enough
has come out so that I will keep the general pu lie out when these two undercovers testify" at
trial. See Ex. 1 to Pet., H. Tr. at A 72-73. Defi nse counsel responded, suggesting several
alternatives to closing the courtroom. Id. at A 6-77. Justice Fitzgerald then ruled that he would
close the courtroom, but allow Moss' s mother ~o observe, and would decide whether to allow
other family members on a case-by-case basis. Id. at A82-83.

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Moss challenges only the courtroom closure findings
testified. Pet. at 6 n.2.

ith respect to one of the two undercover officers who

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Moss was then convicted at trial of one count of criminal sale of a controlled substance in
the third degree. He appealed, arguing that his Sixth Amendment right to a public trial was
violated when the courtroom was closed during the testimony of the undercover officer. Moss

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argued that the prosecution had failed to provil e an overriding interest likely to be prtjudiced in
the absence of closure, and that the trial court l rred by not considering reasonable alternatives to
closure. On November 22, 2011 , the Appellate Division affirmed his conviction, People v.

Moss, 933 N.Y.S.2d 258 (N.Y. App. Div. !st

~ep't 2011), and on April 30, 2013, the Court of

Appeals affirmed the conviction, People v. EcAevarria, 21N.Y.3d1 (N.Y. 2013). In
Echevarria, the Court of Appeals held that "o 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." Id. at 19. The Supreme Court denied ertiorari on December 13, 2013 , Moss v. N.Y. ,
134 S. Ct. 823 (2013). In Moss' s section 2254 petition, he makes the same argument that he has
been deprived of his Sixth Amendment right to a public trial.
I.

Standard of Review
A.

Report and Recommendation

A federal district court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate

jud+"

28 U.S.C. § 636(b)(l). Where no objections

have been made, the Court may adopt the Rep@ as long as it is "not facially erroneous." Toto,
rt
Inc. v. Sony Music Entm 't, 2013 WL 163826, lit *1 (S.D.N.Y. Jan. 15, 2013). Contested portions
of an R & Rare reviewed by the district court e nova. 28 U.S.C. § 636(b)(l). When the
objections raised simply reiterate the parties' a iginal arguments, however, the Court reviews the
R & R for clear error. Orix Fin. Servs., Inc. v. Thunder Ridge Energy, Inc. , 2006 WL 587483, at
*1 (S.D.N.Y. Mar. 8, 2006).

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B.

Section 2254

A state prisoner who believes his feder 1 rights were violated by his conviction may seek
relief by petitioning a federal court for a writ of habeas corpus. 28 U.S.C. § 2254(a). Under the
Antiterrorism and Effective Death Penalty Act ("AEDPA"), a petition may be granted where the
state court' s decision was "contrary to, or invo ved an unreasonable application of, clearly
established Federal law, as determined by the upreme Court of the United States," or "was
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding." Id. § 2254(d). The federal court must also give a presumption of
correctness to the state court' s determination of factual issues, and the petitioner may only
overcome this presumption by clear and convincing evidence. Id. § 2254(e)(l). Section 2254
"reflects the view that habeas corpus is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction through appeal,"

Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (internal citations and quotation marks
omitted), and the AEDPA standard " was meant to be difficult" to meet, Byrd v. Evans, 420 F.
App ' x 28, 30 (2d Cir. 2011) (citing Harrington, 562 U.S. at 102). In order for a petition under
section 2254 to be granted, "a state prisoner must show that the state court' s ruling on the claim
being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement. " Id. at 103.

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C. Sixth Amendment Right to a Public Trial
The Sixth Amendment gives all criminal defendants the right to a "speedy and public
trial." U.S. Const. amend. VI. Whether a defendant's Sixth Amendment right to a public trial
has been violated by the closure of a courtroom depends on four factors: ( 1) whether the party
seeking closure has advanced an overriding interest that is likely to be prejudiced absent closure;
(2) whether closure was no broader than necessary to protect that interest; (3) whether the trial
judge considered reasonable alternatives to closing the proceeding; and (4) whether the trial
judge made sufficient findings to support the closure. Waller v. Georgia, 467 U.S. 39, 48
(1984); see also Presley v. Georgia, 558 U.S. 209, 214 (2010) ("[T]rial courts are required to
consider alternatives to closure even when they are not offered by the parties.").

II.

Objections
The Court notes that only Moss's petition is before the Court, and the Court does not

assess the reasonableness of the Court of Appeals' decision with respect to Echevarria or
Johnson, the other defendants whose appeals are addressed in Echevarria.
Petitioner first argues that Magistrate Judge Francis "fail[ ed] to address, and to then
reject, the central premise of the New York Court of Appeals' decision in this case on the
constitutional requirement that a trial court must consider reasonable alternatives to closure
before closing a criminal trial to the public." Objections at 1-5. Petitioner points to the R & R's
statement that "[w]hatever the validity of the Court of Appeals'

int~rpretation

of Presley, it is

apparent that [state trial] Justice Fitzgerald both considered the alternatives suggested by the
petitioner' s counsel and adopted a portion of them as an alternative to full closure." Id. at 2-3; R .
& Rat 12-13. But Magistrate Judge Francis's decision not to weigh in on the validity of the

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Court of Appeals' rationale, and to focus only on the outcome of the case as it pertained to Moss,
was not erroneous.
A federal court's review of a state court's determination "look[s] to the result of a state
court's consideration of a criminal defendant's claim .... [D]eficient reasoning will not
preclude AEDP A deference ... at least in the absence of an analysis so flawed as to undermine
confidence that the constitutional claim has been fairly adjudicated." Watson v. Greene, 640
F.3d 501, 512 (2d Cir. 2011) (quoting Cruz v. Miller, 255 F.3d 77, 86 (2d Cir. 2001)) (internal
alterations omitted). Here, Magistrate Judge Francis evaluated the constitutionality of the
outcome in the context of the trial record, and chose not to speak to the propriety of the Court of
Appeals' broader reasoning. Magistrate Judge Francis' s examination is especially reasonable in
the situation here, where the Court of Appeals' decision ruled on three ·simultaneous appeals.

Echevarria addresses appellate issues raised by defendants not presently before the Court, and
Magistrate Judge Francis' s limited consideration of the constitutionality of Echevarria' s result
with respect to Moss was proper. The Court agrees with Magistrate Judge Francis, and finds that
the record reflects that Moss's Sixth Amendment rights were not violated. While Petitioner's
first objection also raises the argument that Echevarria violates the Supreme Court' s holdings in

Presley v. Georgia, 558 U.S. 209 (2010) and Press Enterprise Co. v. Super. Ct. of Cal., 464 U.S.
501 (1984), Objections at 3-5, Petitioner raises this argument twice in his objections, and the
Court will address it below.
Moss next objects to Magistrate Judge Francis' s "finding that the state trial court
'solicit[ed] alternatives ' to closure from the parties" and argues that Magistrate Judge Francis
was "mistaken" because nothing the trial judge said could be considered a solicitation of
alternatives. ·Objections at 5-8. But the version of events proffered by Petitioner borders on

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illogical. Petitioner would have the Court believe that Justice Fitzgerald did not intend for the
attorneys to suggest alternatives to closure when he asked for them to speak, ignored the
alternatives that were suggested, and then simply ruled without having listened to the previous
colloquy. This is nonsense.
After requesting suggestions (and the Court notes that whether Justice Fitzgerald solicited
the suggestions or not is irrelevant, because such suggestions were made on the record), Justice
Fitzgerald listened to the suggestions and considered them, but declined to adopt them. On the
record, Justice Fitzgerald chose not to adopt the suggestion from Petitioner' s trial counsel that a
court officer be posted at the courtroom door who would stop "suspicious [people or people] of a
dubious background who want[] to come in." H. Tr. at A 77. Justice Fitzgerald found that the
safety and effectiveness risks in this situation were too great for such an alternative-he did not
simply fail to consider them. As Chief Judge Lippman characterized this holding in his
concurrence, this consideration of alternatives was "not a litany, but a particularized deliberation
of a case-specific alternative," 989 N.E.2d 9, 25, and one that was constitutionally sound.
Petitioner next objects to Magistrate Judge Francis's finding that allowing Moss ' s family,
on a case-by-case basis, to enter the courtroom constituted consideration of a reasonable
alternative. Objections at 8-11. Having determined that Justice Fitzgerald considered reasonable
alternatives separate and apart from the consideration of family attendance, the Court need not
consider this issue in order to adopt the recommendation to deny the petition. The Court notes,
however, that courts in this Circuit have found that closures that allow family members
constitute partial closures, and partial closures are examined under a less stringent standard. See

Mickens v. Larkin, 2014 WL 414013, at *9 (S.D.N.Y. Feb. 4, 2014) (citing cases).

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Next Petitioner objects to Magistrate Judge Francis's finding that the Court of Appeals'
decision in Echevarria was not contrary to, nor an unreasonable application of, clearly
established federal law. Objections at 11-13. Petitioner argues that Echevarria was contrary to
federal law as established by Press-Enterprise Co. v. Super. Ct. of Cal., 464 U.S. 501 (1984) and

Presley v. Georgia, 558 U.S. 209 (2010), in holding that the Court of Appeals could "imply that
the trial courts concluded that no lesser alternative would have adequately protected the officers'
safety." Id. at 11. Petitioner asserts that because Press-Enterprise, which addressed the right to
a public trial under the First Amendment, held that the "trial court's orders denying access to
voir dire testimony failed to consider whether alternatives were available," and because the
Supreme Court in Presley quoted this language, clearly established federal law requires that a
trial judge consider alternatives to closure in an order on the record. But here, with respect to
Moss, where the trial judge did consider alternatives on the record, the Court cannot find that the
Court of Appeals' decision as to Moss was contrary to, or an unreasonable application of, clearly
established federal law.
Finally, Petitioner objects to Magistrate Judge Francis's acceptance of the Court of
Appeals' holding that "the record amply supports the trial court's determination that a specific
link existed between the officer's safety and his open court testimony," and "the facts support the
State's overriding interest in maintaining the effectiveness" of the officer. Objections at 14-18;
R & Rat 10-11 (quoting Echevarria, 21 N.Y.3d at 14). This is unquestionably a rehashing of the
original arguments raised in the petition, see Pet. at 11-13, Pet. Mem. at 22-28, and so the Court
reviews this portion of the R & R for clear error. See Borrero v. Colvin, 2015 WL 1262276, at
*l (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."). Magistrate Judge Francis found that "[t]he

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facts in this case support the Court of Appeals ' conclusion regarding UC 2454 ' s safety concerns .
. . . [B]ecause Justice Fitzgerald based his decision on the risk to the officer' s effectiveness and
on concern for the officer' s safety, the first prong of the Waller test was fulfilled. " R & Rat 1011 (citation omitted). Finding no error in this determination, the Court rejects this objection.

III.

Certificate of Appealability
Petitioner requests a certificate of appealability because it is "clearly debatable" whether

Echevarria is consistent with Presley , and whether allowing family members in a closed
proceeding constitutes a reasonable alternative to closure. Objections at 18-20. The Court may
issue a certificate of appealability "only if the applicant has made a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A substantial showing requires a
finding that "reasonable jurists could debate whether . . . the petition should have been resolved
in a different manner" or the "issues presented [are] adequate to deserve encouragement to
proceed further. " Slack v. McDaniel, 529 U.S . 473 , 484 (2000) (internal citation and quotation
marks omitted). Here, the Court does not believe that reasonable jurists "would find the district
court' s assessment of the constitutional claims debatable or wrong." Contant v. Sabol, 987 F.
Supp. 2d 323, 335 (S.D.N.Y. 2013) (quoting Slack v. McDaniel, 529 U.S. 473 , 484 (2000)).
Accordingly, the Court will not issue a certificate of appealability.

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CONCLUSION
For the foregoing reasons, Moss' s petition is denied, as is his request for a certificate of
appealability. The Clerk of Court is directed to enter judgment and to close this case.

Dated: New York, New York
June 18, 2015

SO ORDERED

PAL~y

United States District Judge

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