Opinion
98 Civ. 8660 (MBM)
July 5, 2001
WILLIAM HARVEY (Petitioner pro se) Bronx, N.Y. 10457. ROBERT T. JOHNSON, ESQ. District Attorney, Bronx County
NANCY D. KILLIAN, ESQ. CRISTINA A. BAIATA, ESQ. ALLEN H. SAPERSTEIN, ESQ. Assistant District Attorneys, Bronx County (Attorneys for Respondent) Bronx, N.Y.
OPINION and ORDER
William Harvey petitions pro se, pursuant to 28 U.S.C. § 2254 (West 1994 Supp. 2000), challenging his state court conviction for criminal possession of a weapon in the third degree and criminal possession of stolen property in the fourth degree. Magistrate Judge Theodore Katz recommended in a Report and Recommendation, dated August 30, 2000 (the "Report"), that the writ be dismissed on the merits. Petitioner objected to the Report, arguing that when the trial court excluded his children from the courtroom, it in effect excluded his wife, and thereby violated his right to a public trial. For the reasons set forth below, the Report is adopted and the petition is dismissed.
I.
Beginning April 5, 1995, Harvey and his co-defendant, Tracy Rogers, were tried in Supreme Court, Bronx County, on charges of robbery, criminal possession of stolen property, and criminal possession of a weapon. After the trial court's preliminary instructions to the jury, the prosecutor claimed that Harvey's infant and five-year-old child were disruptive and asked the trial court to exclude them from the courtroom and the building. The trial court excluded the children from the courtroom, but refused to ban them from the building. (Tr. 545 56) The trial court said that Harvey's wife was "welcome to stay." (Tr. 551)
The testimony at trial established the following facts. At 2:30 am on June 1, 1992, two men robbed Kagi Reid at gunpoint in the vicinity of 864 East 219th Street. (Tr. 1006-08) The men took her earrings, her wallet containing $29, two bracelets, and her blue jacket. (Tr. 1006-07, 1011-12, 1019-20, 1028) She called the police, and Officer Kissh and his partner responded. (Tr. 612, 1025-27) They canvassed the area. (Tr. 1028, 1031)
At 3:17 am, Officer Kissh saw a blue and gray van parked on St. Owen's Street between White Plains Road and Barnes Avenue; the van was the same one that he had stopped earlier for backing down a street without its lights on. (Tr. 605-608, 613— 14) Petitioner Harvey and his co-defendant Tracy Rogers were in the van, wearing coats that matched Reid's description of the coats worn by the men who robbed her. (Tr. 614-15, 1009) When Officer Kissh took Harvey out of the van, a 9-millimeter bullet fell from Harvey's sleeve. (Tr. 673) Inside the van, the officer found a blue jacket and a duffel bag, which, upon examination, contained a holster, ammunition for a .38 caliber revolver, ammunition for a 9-millimeter pistol, women's gold jewelry, $29, and a manila envelope containing over $3,000 worth of savings bonds in the name of Robert Chin and Linda Lee Yee. (Tr. 674-75, 678-79) The officer also found a 9-millimeter semiautomatic pistol under the seat of the van. (Tr. 697) At the scene, and at trial, Reid identified Harvey and Rogers as the men who had robbed her. (Tr. 1007-08)
Before he was scheduled to present the defense case, Harvey's counsel served a subpoena on John Roberts through Roberts' employer, Carmel Limousine Service. (Tr. 1164) Roberts was the dispatcher at Carmel, where Harvey was also employed. Despite the subpoena, Roberts did not appear to testify. The trial court granted a continuance until the following morning. (Tr. 1176) Harvey's counsel reported that he went to Carmel to confirm that they had received the subpoena. He visited Carmel again the following morning with a police officer. Nonetheless, Roberts did not appear. Harvey's counsel then asked the trial court to call Carmel and inform them that it was important for Roberts to appear. (Tr. 1198-1200) The trial judge said that he would not issue a warrant for Roberts' arrest, and Harvey's counsel responded that he was not asking for his arrest. Rather, he reiterated his request that the court call Carmel. (Tr. 1204) Although the trial court asked for the number, the record is silent as to whether such a call was ever made. Harvey's counsel made no further comments on the record pertaining to Roberts' failure to appear, and rested without calling any witnesses. (Tr. 1227)
On April 22, 1994, the jury found Harvey guilty of criminal possession of a weapon in the third degree and criminal possession of stolen property in the fourth degree. (Tr. 1468 70) The Appellate Division affirmed the conviction. See People v. Harvey, 245 A.D.2d 108, 666 N.Y.S.2d 139 (1st Dept. 1997). A Judge of the New York Court of Appeals denied leave to appeal, and denied Harvey's pro se request to reconsider the application. See People v. Harvey, 91 N.Y.2d 1008, 676 N.Y.S.2d 136 (1998); People v. Harvey, 92 N.Y.2d 898, 680 N.Y.S.2d 62 (1998).
Harvey was released on parole on November 9, 1998. (Bajata Aff. ¶ 6) However, Harvey's petition is not moot because he was in custody at the time he filed. See Spencer v. Kemna, 523 U.S. 1, 7-8 (1998).
II.
In the instant petition, Harvey argues that the trial court violated (1) his right to a public trial; and (2) his right to compulsory process. Harvey's appeal to the Appellate Division and request for leave to appeal to the New York Court of Appeals fairly presented these claims to the highest state court. (See Aff. in Opp. Exs. 1, 3-6) Therefore, he has exhausted his state court remedies, see Daye v. Attorney Gen. of New York, 696 F.2d 186, 191 (2d Cir. 1982), and is entitled to consideration of the merits of his claims.
Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a writ of habeas corpus may be granted only if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) (West Supp. 2000). This deferential AEDPA standard applies only to claims "adjudicated on the merits" in state court. Claims that are not adjudicated on the merits in state court are reviewed under the pre-AEDPA standard —- de novo. See Noble v. Kelly, 246 F.3d 93, 98 (2d Cir. 2001).
A. Right to a Public Trial
The Appellate Division concluded that the trial court properly excluded Harvey's infant and five-year-old child from the courtroom because they were "actually, as well as potentially disruptive." People v. Harvey, 245 A.D.2d 108, 109, 666 N.Y.S.2d 139, 140 (1st Dep't 1997). The state court's decision cited to state law precedents which applied the relevant federal law. Id. (citing People v. Daniels, 237 A.D.2d 529, 655 N.Y.S.2d 582 (2d Dep't 1997) (citing People v. Witherspoon, 157 A.D.2d 811, 550 N.Y.S.2d 413 (2d Dep't 1990) (citing People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885 (1972) (citing relevant federal law))). Although the meaning of the phrase "adjudicated on the merits" has divided the Courts of Appeals, and the Second Circuit has yet to rule on the issue, the state court's decision of Harvey's claim that his right to a public trial was violated was an adjudication on the merits even under the most restrictive reading of that phrase. See Washington v. Shriver, 2001 WL 674248 (2d Cir. 2001) (citing Hameen v. Delaware, 212 F.3d 226, 248 (3d Cir. 2000)) (declining to decide whether a Claim was "adjudicated on the merits," and discussing the Third Circuit's requirement that "the state court decision make its rationale at least minimally apparent"). Therefore, Harvey is entitled to relief only if the state court's decision was contrary to or an unreasonable application of federal law as determined by the United States Supreme Court.
"A decision is contrary to Supreme Court precedent if it 'applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or 'if the state court confronts a set of facts that are materially indistinguishable from a decision of the [Supreme Court] and nevertheless arrives at a result different from its precedent.'" Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000)). The Appellate Division's decision of Harvey's right to a public trial claim did not apply a standard that was "contrary" to Supreme Court precedent. It properly cited case law addressing a defendant's Sixth Amendment right to a public trial. See U.S. Const. amend. VI; Hinton, 31 N.Y.2d 71, 74 Further, the cited case law identifies the "two-fold purpose" of public trials: (1) they bolster a defendant's right to be dealt with fairly; and (2) they enhance the public trust in the judicial process. Id. at 73; see also Waller v. Georgia, 467 U.S. 39, 46 (1984); Estes v. Texas, 381 U.S. 532, 539 (1965); In re Oliver, 333 U.S. 257, 270 n. 24 (1948). These precedents on which the state court relied are not contrary to Supreme Court precedent. Moreover, the facts of Harvey's case are not identical to the facts of a Supreme Court case which reaches a different result. Therefore, the state court's decision was not contrary to federal law.
In Waller v. Georgia, 467 U.S. 39 (1984), the Supreme Court set the following standard for evaluating a courtroom closure to peaceable individuals over the objection of the defendant. Id. at 45, 47. "The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure was properly ordered." Id. at 45. That test need not be satisfied here because Harvey's children were disruptive and the courtroom was otherwise open to the public. See Cosentino v. Kelly, 102 F.3d 71, 73 (2d Cir. 1996). Nonetheless, the standard is satisfied. The trial court had an overriding interest in maintaining order in the courtroom. The exclusion of Harvey's young children was narrowly tailored to maintain that order.
The Appellate Division's decision also was not an unreasonable application of Supreme Court precedent. A state court decision is an unreasonable application of Supreme Court precedent if the state court's application of clearly established federal law to the facts of the petitioner's case was objectively unreasonable. See Williams, 529 U.S. at 409. The right to a public trial is not absolute. See Waller, 467 U.S. at 45 ("[T]he right to an open trial may give way in certain cases to other rights or interests."). Harvey's infant and five-year-old child were disruptive. (Tr. 551) The stats court's finding that Harvey's children were actually and potentially disruptive is presumed to be correct. 28 U.S.C. § 2254(e)(1) (West Supp. 2000). Harvey has not presented clear and convincing evidence to rebut this presumption. Id. In Illinois v. Allen, 397 U.S. 337, 343 (1970), the Supreme Court, when considering a defendant's Sixth Amendment right to be present, wrote that "[i]t is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country." Id. at 343. Moreover, the interests promoted by the right to a public trial — a fair trial and public trust in the judicial process — would have been only slightly furthered by the presence of Harvey's infant and five-year-old child.
Harvey argues also that the exclusion of his infant child in effect excluded his wife. However, Harvey presents no evidence of his wife's exclusion beyond the unsworn, self-serving statements in his legal memoranda. Moreover, after excluding Harvey's children, the trial court stated that Harvey's wife was "welcome to stay." (Tr. 551) The Appellate Division reasonably concluded that the trial court's decision to exclude Harvey's disruptive children in order to maintain "order and decorum" did not violate Harvey's Sixth Amendment right to a public trial. See Shepard v. Artuz, 2000 WL 423519, at *4-5 (S.D.N Y 2000) (holding that a state court's decision that the petitioner's right to a public trial was not violated by the exclusion of his mother was reasonable). The Second Circuit has reached a similar conclusion, holding that a defendant's right to a public trial "has always been interpreted as being subject to the trial judge's power to keep order in the courtroom." Cosentino v. Kelly, 350 F.3d 71, 73 (2d Cir. 1996) (quoting United States ex rel. Orlando v. Fay, 350 F.2d 967, 971 (2d Cir. 1965)).
B. Right to Compulsory Process
The Appellate Division did not specifically address Harvey's compulsory process claim. Rather, it stated that it had "considered defendants' other claims and [found] them to be without merit." People v. Harvey, 245 A.D.2d 108, 109, 666 N.Y.S.2d 139, 140 (1st Dep't 1997). Similar summary state court opinions have created to the division among the Courts of Appeals regarding the meaning of "adjudicated on the merits" as required by § 2254(d)(1). Some Circuits have held that a state court's summary decision that a petitioner's claim is without merit is an adjudication on the merits. See Bell v. Jarvis, 236 F.3d 149, 163 (4th Cir. 2000) (en banc) petition for cert. filed (U.S. Mar. 29, 2001) (No. 00-9290); Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999); Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999) Other Circuits have held that a state court's decision is an adjudication on the merits only if the state court articulates its rationale. See Hameen v. Delaware, 212 F.3d 226, 248 (3d Cir. 2000) cert. denied 121. Ct. 1365 (2001). As noted, the Second Circuit has not ruled on this issue. See Washington v. Shriver, 2001 WL 674248 (2d Cir. 2001). However, its resolution is not dispositive of Harvey's compulsory process claim. Even if the state court's decision was not an adjudication on the merits as required by § 2254(d)(1), his claim would fail even the less deferential pre-AEDPA standard of review — de novo. See Noble v. Kelly, 246 F.3d 93, 98 (2d Cir. 2001) (applying pre-AEDPA standard of review to claim that was not adjudicated on the merits).
The Sixth Amendment gives criminal defendants the right to compulsory process to secure the attendance of witnesses. U.S. Const. amend. VI. New York Criminal Procedure Law § 610.20 (McKinney 1995) gives counsel for a criminal defendant the power to issue a subpoena for the attendance of a witness at trial. Harvey's counsel served a subpoena on John Roberts through a representative of Roberts' employer, Carmel Limousine Service. (Tr. 1164) When Roberts did not appear, Harvey's counsel requested a continuance until the following day, which the trial court granted. However, Roberts evaded counsel's subsequent attempts to confirm his appearance. (Tr. 1198-1200) Harvey's counsel then asked the court to call the limousine service and explain the importance of Roberts' appearance. (Tr. 1200) The trial court responded that "I have done everything with Mr. Roberts that I intend to do. . . . I am not going to have him arrested." (Tr. 1204) Harvey now argues that the trial court violated his right to compulsory process because it did not enforce the subpoena against John Roberts by issuing a warrant for his arrest.
However, "[a] defendant is deemed to have waived his right to compulsory process where his counsel fails to move for such process."Minetos v. Scull, 625 F. Supp. 815, 818 (S.D.N.Y. 1986); see also United States v. Theresius Filippi, 918 F.2d 244 (1st Cir. 1990) (Breyer, C.J.) (finding the defendant's decision to proceed to trial despite the government's refusal to seek parole from the INS for a material witness constituted a knowing and intelligent waiver of the right to compulsory process); cf. United States ex rel. Nelson v. Follette, 430 F.2d 1055, 1059 (2d Cir. 1970) (finding that the defendant voluntarily abandoned testimony when he made no attempt to recall a witness) Before a court will issue an arrest warrant for a witness under New York law, counsel must first seek a material witness order in writing pursuant to N.Y. C.P.L. § 620.30 (McKinney 1995). Here, there is no record of a request for a material witness order by Harvey's counsel, although he said at one point that he intended to have one served on Roberts. (Tr. 1199) Moreover, when the trial court said that it would not have Roberts arrested, Harvey's trial counsel responded that he was "not asking [the court] to have him arrested." (Tr. at 1204) Harvey's counsel then reiterated his request that the court telephone Roberts' employer and explain the importance of Roberts' appearance in court. The trial court asked for the telephone number. (Tr. 1204) The record is silent as to whether the telephone call was made. Nonetheless, Harvey's counsel made no further requests of the court regarding Roberts' appearance, and rested without presenting any witnesses. (Tr. 1227) Because counsel never requested Roberts' arrest, and rested his case without further mention of Roberts, Harvey waived any right he may have had to a court-ordered arrest of Roberts. Cf. United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999) (holding that counsel "may waive a defendant's Sixth Amendment right to confrontation where the decision is one of trial tactics or strategy that might be considered sound")
III.
A certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (West Supp. 2000). In other words, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although, as noted above, the applicability of the AEDPA's deferential standard of review is debatable in Harvey's case, the result is not. Harvey has not made a substantial showing of the denial of a constitutional right. Therefore, a certificate of appealability will not issue.
* * *
For the reasons stated above, I agree with the Report's conclusion that Harvey's claims are without merit. Therefore, the petition is dismissed. Also, for the reasons stated above, a certificate of appealability will not issue.
SO ORDERED: