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JONES v. HENDERSON

January 5, 1984

Donald L. JONES, Petitioner,
v.
Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Denis Dillon, District Attorney of Nassau County, and Robert Abrams, Attorney General of the State of New York, Respondents.



The opinion of the court was delivered by: WEXLER

MEMORANDUM AND ORDER

WEXLER, District Judge

 This is an action for a writ of habeas corpus brought under 28 U.S.C. Section 2254.

 I. FACTS

 On February 11, 1974, following a jury trial, the County Court of Nassau County convicted petitioner of criminal sale of a dangerous drug in the third degree (N.Y. Penal Law Section 220.35) and criminal possession of a dangerous drug in the fourth degree (N.Y.Penal Law Section 220.15). On January 6, 1975, the Appellate Division of the Supreme Court of the State of New York unanimously affirmed the conviction. On March 5, 1975, the Court of Apeals of the State of New York denied petitioner leave to appeal further. On May 19, 1977, petitioner filed his first petition for a writ of habeas corpus with this Court, in which petitioner stated, inter alia, "I was denied my Sixth Amendment right to a public trial pursuant to the court's order. [The] people requested the closing of the courtroom, without any showing of circumstances making it necessary to protect the identity of witnesses, or to preserve order in the court or to further the administration of justice. This during trial and over the objection of counsel." On October 5, 1977, petitioner moved the Apellate Division for reargument of his appeal, which motion was denied. On December 2, 1977, this Court denied petitioner's first petition on the merits. Jones v. Warden, CV 77-1049 (E.D.N.Y.1977). On February 22, 1980, petitioner again moved the Appellate Division for reargument of his appeal, which motion was denied on May 12, 1980. On May 23, 1980, petitioner moved the New York Court of Appeals for reconsideration of its previous denial of leave to petitioner to appeal to that court. Petitioner argued that new developments in the case law of the right to a public trial justified such reconsideration. It should be noted that the office of the Nassau County District Attorney claims that it never received a copy of petitioner's motion for reconsideration. On December 4, 1980, Lawrence Cooke, Chief Judge of the New York Court of Appeals, issued a certificate stating that "I have considered and hereby deny the application of [petitioner] for reconsideration of the Certificate Denying Leave signed by Chief Judge Charles D. Breitel, dated March 5, 1975." On February 13, 1981, petitioner moved the Nassau County Court to vacate petitioner's conviction. Petitioner argued that: (1) petitioner's right to a public trial was violated because the courtroom had been closed during the testimony of an undercover officer and had remained closed thereafter; (2) the trial court abused its discretion in curtailing cross-examination of witnesses; (3) petitioner had been denied a fair trial because the prosecutor made inflammatory remarks during his summation. On March 25, 1981, petitioner withdrew the latter two grounds from the Nassau County Court's consideration. On May 1, 1981, the Nassau County Court denied petitioner's motion to vacate his conviction. The Nassau County Court reasoned that the issue of the alleged significance of developments in case law concerning the right to a public trial had already been presented to the Appellate Division in petitioner's motion for reargument of his appeal, which motion was denied by the Appellate Division on May 12, 1980. The Nassau County Court explained that where "the ground or issue raised upon the motion must be denied in all respects, citing N.Y.C.P.L. 440.10(2)(a). With respect to petitioner's contention that the courtroom had remained closed even after the testimony by the undercover officer, the Nassau County Court stated: "[t]he new and additional allegation that the courtroom remained sealed during the entire trial is not clear on the record in a manner providing adequate basis for the review of the issue. The defendant unjustifiably failed to adduce this issue prior to sentence and the issue was not subsequently determined on appeal [C.P.L. 440.10(3)(a)]." On May 10, 1981, petitioner moved the Nassau County Court for reargument of the motion to vacate his conviction, requesting that the Nassau County Court consider all grounds originally raised in the motion, including the two grounds which were withdrawn from the court's consideration. On May 29, 1981, the Nassau County Court denied petitioner's motion for reargument. On June 25, 1981, petitioner applied to the Appellate Division for leave to appeal from the Nassau County Court's denial of petitioner's motion to vacate his conviction. In this application, petitioner raised only the issue of petitioner's right to a public trial. On December 15, 1981, the Appellate Division denied leave to appeal.

 II. THE INSTANT PETITION

 On January 19, 1982, petitioner filed the instant petition. Petitioner argues that: (1) petitioner's right to a public trial was denied in that the courtroom was sealed during the testimony of an undercover officer and remained sealed thereafter; (2) the trial court abused its discretion in curtailing the cross-examination of witnesses; (3) petitioner was denied a fair trial in that the prosecutor made inflammatory remarks during his summation.

 III. EXHAUSTION OF REMEDIES

 The first issue is whether petitioner has exhausted his state-court remedies. We hold that he has.

 Clearly petitioner has exhausted his state-court remedies with respect to petitioner's claim that he was denied a public trial.

 Petitioner's other two claims (unreasonable curtailment of cross-examination and inflammatory summation) were presented to the Nassau County Court in a motion by petitioner to vacate his conviction, withdrawn by the petitioner from that Court's consideration before that Court ruled on the motion, presented to that Court a second time in a motion by petitioner for reargument of the original motion, and were not raised in petitioner's application to the Appellate Division for leave to appeal the denial of the original motion.

 As we shall demonstrate in the next section of this opinion, petitioner has waived the right to raise such claims. Consequently, petitioner has exhausted his state-court remedies with respect to such claims. Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 1570 n. 28, 71 L. Ed. 2d 783 (1982).

 Consequently, this petition should not be dismissed pursuant to the doctrine of exhaustion ...


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