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June 2, 1995

CHARLES OKONKWO, Petitioner, against PETER LACY, Respondent.

The opinion of the court was delivered by: SHIRA A. SCHEINDLIN


 Petitioner Charles Okonkwo, a New York State prisoner, filed this petition for a writ of habeas corpus ("Pet.") pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1990 state court conviction, asserting that his Fourteenth Amendment rights and his Sixth Amendment right to a public trial were violated. He argues that the trial court's order to close the courtroom during the testimony of an undercover police officer called by the prosecution failed to meet any of the four requirements for closure set forth in Waller v. Georgia, 467 U.S. 39, 48, 81 L. Ed. 2d 31, 104 S. Ct. 2210 (1984).

 Petitioner appealed his conviction, and the New York State Supreme Court, Appellate Division, affirmed. People v. Okonkwo, 176 A.D.2d 163, 574 N.Y.S.2d 186 (1st Dept. 1991). The Court of Appeals of New York denied petitioner's application for leave to appeal. People v. Okonkwo, 79 N.Y.2d 862, 580 N.Y.S.2d 733, 588 N.E.2d 768 (1992). This action followed. *fn1"


 Petitioner Okonkwo was arrested on October 22, 1989, for the sale of fifteen dollars of crack cocaine to undercover officer John Swift of the New York City Police Department, Manhattan South Tactical Narcotics Team. Pet. at PP 2, 13; Trial Transcript, February 5-6, 1990 ("Tr.") at 3, 28. During this police operation, known as a "buy and bust," Officer Swift acted as a purchaser of the narcotics while a different officer made the arrest. Tr. at 28, 84-86.

 Petitioner was tried by a jury in New York State Supreme Court, New York County, and convicted of one count of criminal sale of a controlled substance in the third degree, N.Y. Penal Law § 220.39(1) (McKinney 1989). Pet. at PP 1,5,6. The judgement was entered on March 14, 1990. Pet. at P 2.

 Prior to trial, New York Supreme Court Justice Jay Gold conducted what is known in this state as a Hinton hearing, an in camera proceeding to determine the appropriateness of excluding the public during trial testimony. Tr. at 2-11. See People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972), cert. denied, 410 U.S. 911, 35 L. Ed. 2d 273, 93 S. Ct. 970 (1973). At the hearing, Officer Swift testified under oath that: he would continue to act as an undercover agent in the same area in which he made the buy from petitioner (Cooper Square); he believed his life would be endangered in a working area where his undercover identity was known; he had testified as an undercover before several grand juries; there may be other cases in which he would be called to testify; there was no continuing investigation with respect to Okonkwo. Tr. at 3-8.

 The court found that Officer Swift would continue to operate undercover in the general area of Cooper Square and that his life might be jeopardized if his identity were exposed. Tr. at 8-11. The trial judge ordered the courtroom closed to the public during the testimony of Officer Swift. Tr. at 11.


 A. Closure of Criminal Proceedings to the Public

 Eleven years ago, the United States Supreme Court established a four-part test to determine when a suppression hearing may be closed to the public. The Court held that:

[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.

 Waller, 467 U.S. at 48 (citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 78 L. Ed. 2d 629, 104 S. Ct. 819 (1984)). Failure to satisfy all four prongs of the test prior to an order of closure is a violation of the Sixth Amendment, *fn2" and a showing of prejudice need not be made to obtain relief where such violations occur. See Waller, 467 U.S. at 49, n.9. Federal courts presiding over criminal prosecutions and appeals have consistently applied the Waller test to the closure of trial testimony. See e.g. Vidal v. Williams, 31 F.3d 67 (2d Cir. 1994) (exclusion of all observers), cert. denied, 130 L. Ed. 2d 672, 115 S. Ct. 778 (1995); Woods v. Kuhlmann, 977 F.2d 74 (2d Cir. 1992) (exclusion of defendant's family members); Ip v. Henderson, 710 F. Supp. 915 (S.D.N.Y.), aff'd without opinion, 888 F.2d 1376 (2d Cir. 1989). Therefore, the Waller framework controls this action.

 B. Procedural Default in Habeas Actions

 The Court must first consider whether procedural default blocks consideration of the merits. On a petition for a writ of habeas corpus, district courts must respect state procedural rules and consider whether petitioner's claims are procedurally barred. *fn3" See Coleman v. Thompson, 501 U.S. 722, 729-732, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). In deference to principles of federalism and comity,

[the independent and adequate state ground] doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.

 Id. at 729-730. Together with its companion case, Ylst v. Nunnemaker, 501 U.S. 797, 115 L. Ed. 2d 706, 111 S. Ct. 2590 (1991), Coleman limited the scope of the presumption established in Harris v. Reed, 489 U.S. 255, 103 L. Ed. 2d 308, 109 S. Ct. 1038 (1989), that federal review is barred only when the state court clearly and expressly notes its reliance on procedural default. Id. at 263. Today, "the Harris presumption is to be applied only after it has been determined that 'the relevant state court decision. . . fairly appear[s] to rest primarily on federal law or [is] interwoven with [federal] law." Ylst, 501 U.S. at 802 (quoting Coleman, 501 U.S. at 740). *fn4" Nevertheless, the Supreme Court has established that, under certain circumstances, federal courts may reach the merits of a particular claim, even in the face of clear procedural default. *fn5" "State procedural bars are not immortal. . . they may expire. . . [if] the last state court to be presented with a particular federal claim reaches the merits." Ylst, 501 U.S. at 801.

 Therefore, this Court must determine the extent to which the merits of petitioner's claims are reviewable.

 C. Whether Closure of the Courtroom during the Testimony of Undercover Officer Swift Was Warranted Under the Circumstances ...

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