Appeal from a judgment of the United States District Court for the Eastern District of New York (Wexler, J.) denying successive petition for writ of habeas corpus, 28 U.S.C. § 2254 (1982), because of procedural default and previous rejection of claim. Affirmed in part, vacated in part and remanded.
Before: VAN GRAAFEILAND, KEARSE and MINER, Circuit Judges. Kearse, Circuit Judge, concurs in a separate opinion.
Petitioner-appellant Donald L. Jones, a New York State prisoner, appeals from a judgment of the United States District Court for the Eastern District of New York (Wexler, J.) denying his successive petition for a writ of habeas corpus brought under 28 U.S.C. § 2254 (1982). Petitioner challenged his 1974 state court conviction, asserting infringement of his sixth amendment right to a public trial because of the closure of the courtroom during a prosecution witness' testimony and its continued closure for the remainder of his trial. The district court denied the first claim on the ground that it had been presented and rejected on the merits in a prior habeas petition. The second claim was denied on the basis of procedural default. Petitioner contends on appeal that the merits of his claims should be reached (1) because intervening changes in the law warrant relitigation of his attack on closure during the witness' testimony notwithstanding prior rejection of the claim, and (2) because he has demonstrated adequate cause for any procedural default as to his challenge to the continued closure of the courtroom.
We affirm the district court's rejection of petitioner's second claim on grounds of procedural default. We remand in order for the district judge to determine whether to entertain the claim arising from closure during the witness' testimony. That determination requires application of the "ends of justice" analysis of Sanders v. United States, 373 U.S. 1, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963), pertaining to claims rejected on the merits in prior habeas petitions. Applying the "ends of justice" test, the district court may consider whether a relevant change in the law has occurred. The court may also consider whether the petitioner has asserted a colorable claim of factual innocence, a factor discussed in Kuhlmann v. Wilson, 477 U.S. 436, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986). The district court should address the merits of this successive petition only if it finds that the "ends of justice" will be served thereby.
Accordingly, we affirm in part, vacate in part and remand.
In January of 1974, Jones was tried in Nassau County Court, charged with one count of sale of a dangerous drug in the third degree, in violation of N.Y. Penal Law § 220.35, repealed by Act of May 8, 1973, ch. 276, § 18, 1973 N.Y. Laws 371, 382 (current version at N.Y. Penal Law § 220.39 (McKinney 1980)), and one count of criminal possession of a dangerous drug in the fourth degree, in violation of N.Y. Penal Law § 220.15, repealed by Act of May 8, 1973, ch. 276, § 18, 1973 N.Y. Laws 371, 379 (current version at N.Y. Penal Law § 220.19 (McKinney Supp. 1986)). The charges resulted from Jones' alleged sale of .037 grams of hashish to Nassau County Police Officer William Cooper.
At trial, the state called as one of its four witnesses Patrolman Stephen DeSaro of the Nassau County Police Department Narcotics Bureau. Immediately before Officer DeSaro took the witness stand, the prosecution requested that the courtroom be sealed during his testimony because of his continuing activities as an undercover officer. Defense counsel objected, arguing that
allowing the People to close the courtroom because of an undercover officer supposedly sometimes working under cover, I believe adds an element of secrecy to the case .... The witness comes into the courtroom and testifies for the People, and to put him on the stand in this type of secrecy, when the courtroom has been closed I think leads the jury to believe that his testimony is in fact true ....
App. at 28-29. The trial judge overruled the objection and closed the courtroom during Officer DeSaro's testimony. Jones claims that the courtroom remained closed for the rest of the trial, while the state contends that it was reopened at the conclusion of DeSaro's testimony. The record is silent on this question. The jury convicted Jones on both counts and he was sentenced to a five-year term of probation.
On appeal, Jones was represented by different counsel who argued, inter alia, that the closure of the courtroom during DeSaro's testimony deprived Jones of his sixth amendment right to a public trial. Appellate counsel, however, did not argue that the courtroom had remained closed after DeSaro's testimony. On January 6, 1975, the New York Appellate Division, Second Department, affirmed the conviction without opinion. On March 5, 1975, the New York Court of Appeals denied leave to appeal.
On May 19, 1977, Jones filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982) in the United States District Court for the Eastern District of New York. The petition asserted infringement of Jones' sixth amendment right to a public trial because of the courtroom closure during Officer DeSaro's testimony, "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." App. at 4. Absent from the petition was any allegation that the courtroom remained closed for the duration of the trial.
District Court Judge Eugene H. Nickerson denied the petition in a Memorandum and Order dated December 2, 1977, relying primarily upon United States ex rel. Lloyd v. Vincent, 520 F.2d 1272 (2d Cir.), cert. denied, 423 U.S. 937, 96 S. Ct. 296, 46 L. Ed. 2d 269 (1975). In Lloyd we concluded that although "the better course would have been for the trial judge to hold an evidentiary hearing," there was no constitutional error in the exclusion of the public from the courtroom "solely on the basis of the prosecution's asserted need for confidentiality without requiring a showing ...." Id. at 1275. The habeas petition was therefore denied, but Judge Nickerson subsequently issued a certificate of probable cause. This Court denied Jones' motion for assignment of counsel and leave to proceed in forma pauperis, and on April 4, 1978, we dismissed the appeal.
Jones thereafter moved twice in the district court for reconsideration of his habeas petition. Petitioner argued in his first motion that an intervening decision of the New York Court of Appeals required the court to grant his petition. Jones based this assertion upon People v. Yohura Jones, 47 N.Y.2d 409, 418 N.Y.S.2d 359, 391 N.E.2d 1335, cert. denied, 444 U.S. 946, 100 S. Ct. 308, 62 L. Ed. 2d 315 (1979), which held that closure of a courtroom during witness testimony is reversible error in the absence of a factual showing that closure is required for compelling reasons. The district court, however, denied reconsideration on the ground that the state court decision relied upon was not binding on a federal court.
Petitioner's second motion for rehearing included for the first time an assertion that the courtroom had remained closed after DeSaro's testimony. Jones argued that reconsideration of his petition was warranted in light of Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 65 L. Ed. 2d 973, 100 S. Ct. 2814 (1980), in which the Supreme Court held that the first amendment rights of the press and public to attend criminal trials were infringed when the courtroom was closed. Emphasizing the dissimilar factual setting and the different constitutional rights at issue in Richmond, the district court again denied reconsideration on August 25, 1980.
Jones then renewed his efforts in the state courts. On February 13, 1981, Jones filed a motion in the Nassau County Court to vacate his judgment of conviction, again basing his attack on closure during DeSaro's testimony. Apparently for the first time before a state court, petitioner also asserted that the courtroom remained closed for the remainder of the trial. The county court denied both claims. As to the attack on closure during DeSaro's testimony, the court found the claim barred because it previously had been raised before the New York appellate courts. The court found appellant's other claim ...