Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



August 18, 1995

CHARLES OKONKWO, Petitioner, against PETER LACY, Respondent.

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



 By Opinion and Order dated June 2, 1995 ("the Opinion") this Court issued a conditional writ of habeas corpus in the above-captioned matter. The case was remanded to the state trial court for an evidentiary hearing and findings with respect to closure of the courtroom to the public during a portion of Petitioner Okonkwo's trial. Petitioner now moves, pursuant to Fed. P. Civ. P. 52(b) and 59(e) for an order amending the Court's findings, issuing additional findings, or altering or amending the judgment. Because the procedural history and facts of this case are set out in the Opinion, they are only briefly discussed below.


 Charles Okonkwo, a New York State prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Petitioner challenged his 1990 state court conviction, asserting that his Fourteenth Amendment rights and his Sixth Amendment right to a public trial were violated when the state trial court ordered closure of the courtroom during the testimony of an undercover police officer. Petitioner claims that order failed to satisfy 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).

 This Court held that, by virtue of the decision of the New York State Supreme Court, Appellate Division, two of the four prongs of the Waller test were procedurally defaulted. *fn1" This Court also found that, in violation of the fourth prong of Waller, the trial court failed to make findings adequately supporting closure. *fn2" Due to the inadequate findings, review of the Waller prong requiring an overriding state interest likely to be prejudiced was impossible. *fn3" The case was remanded to the state trial court "for an evidentiary hearing as to the propriety of the closure of the proceedings to the public during the testimony of the undercover officer." *fn4" The trial court was directed to issue explicit findings to satisfy Waller. This motion followed.


 A. The Legal Standard

 Whether petitioner moved pursuant to the appropriate Federal Rules is questionable. Rules 52 and 59 pertain to trials and judgments. Nevertheless, petitioner's intent is clear, and this Court deems that his request constitutes a motion to reargue pursuant to Local Rule 3(j).

 Courts in this District have clearly established the standard for moving to reargue.


The only proper ground on which a party may move to reargue an unambiguous order is that the court has overlooked [important facts or controlling law] which, had they been considered, might reasonably have altered the result reached by the court.

 Adams v. U.S., 686 F. Supp. 417, 418 (S.D.N.Y. 1988) (citations omitted); see also, Fulani v. Brady, 149 F.R.D. 501 (S.D.N.Y. 1993) ("local Rule 3(j) is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court"), aff'd, 35 F.3d 49 (2d Cir. 1994).

 B. The Merits

 1. Remand to State Court

 The Opinion of this Court fully considered the law and facts of this case. Neither party argues that facts were overlooked or misinterpreted. Rather, the gravamen of the motion regards the nature of the remedy designed by the Court in its June 2 Opinion. Specifically, this Court exercised its discretion in remanding the case to the trial court for explicit findings in compliance with the guidelines set by the Supreme Court and the Court of Appeals for the Second Circuit. See Opinion at pp. 10-14, 17.

 Conditional writs or remands to state courts for findings is a practice supported by considerable authority. See e.g. Senna v. Patrissi, 5 F.3d 18, 20 n. 1. (2d Cir. 1993) (per curiam) Howard v. Senkowski, 986 F.2d 24 (2d Cir. 1993); Suggs v. LaValle, 570 F.2d 1092, 1114 (2d Cir. 1978); cf. Waller, 467 U.S. at 49-50; Jackson v. Denno, 378 U.S. 368, 391-396, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). *fn5" Petitioner attempts to distinguish the cases the Opinion relies upon. See Brief of Petitioner at pp. 5-7; Opinion at p. 17. However, although those cases obviously have certain legal and factual distinctions from this case, the principle remains the same -- District Courts have wide discretion in addressing errors brought before them and fashioning judgments on petitions for habeas corpus. See e.g. Hilton v. Braunskill, 481 U.S. 770, 775, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987). Such discretion unquestionably includes the power to hold hearings in the District Court, itself, Pagan v. Keane, 984 F.2d 61, 64 (2d Cir. 1993), but the issue in this case is more appropriately addressed by the state court.

 General notions of comity counsel that where, as here, an error was committed by a state court, it should be given an opportunity to correct its own error. Cf. Coleman v. Thompson, 501 U.S. 722, 731, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1990) (in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights); Darr v. Burford, 339 U.S. 200, 204, 94 L. Ed. 761, 70 S. Ct. 587 (1950) ("it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation"). The state court in this case should be given an opportunity to correct its own error, and the state court's findings are critical to the creation of a record for review. *fn6"

 In sum, the Supreme Court's articulation of the importance of remands to state courts strongly supports this Court's Order. In a case that controls and parallels this case in more ways than one, the Court remanded:


if, after a new [state court] hearing, essentially the same [result is reached], a new trial presumably would be a windfall for the defendant, and not in the public interest.

 Waller, 467 U.S. at 50 (citations omitted). In Okonkwo's case, the trial court may well have determined that closure of the courtroom was appropriate after the proper analysis and fact finding. To order a new trial and deny that court the opportunity to correct its error would be an affront to comity and a potential windfall for the petitioner.

 2. Procedural Default

 Petitioner argues that trial counsel's objection to closure of the courtroom constitutes a single claim. Therefore, Okonkwo argues that his objection preserved all elements of the Waller test. Okonkwo contends that his general objection to closure, despite no reference to the Supreme Court's test, preserves a single claim. This argument, raised in his prior briefs to this Court, raises no new grounds and cites no controlling law overlooked by this Court. Further, this Court followed the procedural ruling of the Appellate Division. That court interpreted its own state's statute and found that the contemporaneous objection requirement barred consideration of certain elements of the Waller test. The parties have not presented, and the Court is not aware of, authority rendering the Appellate Division's prong-by-prong analysis improper. The Court declines to rule that the Appellate Division erred in implicitly ruling that each prong of the Waller test constitutes an individual claim requiring preservation by specific objection under the New York statute. *fn7"


 Because petitioner has not demonstrated that the Court overlooked any controlling law or material facts, the Motion to Reargue is denied. Barring appeal, the Order of this Court dated June 2, 1995 currently remains in effect in all respects consistent with this Opinion. This Court retains jurisdiction to review the trial court's findings. The Court specifically directs that such findings provide a sufficient record for substantiating all prongs of the test laid out in Waller.8

 If this Court subsequently determines that the findings do not support closure, the petition will be fully granted and the writ shall issue. If the new findings support closure, the Court will deny the writ. As stated in the June 2 Order, the State may defer release of the prisoner pending final disposition of the writ. *fn9" The time for filing a notice of appeal or for commencing a new trial runs from the date this Opinion and Order issues.


 Shira A. Scheindlin


 Dated: New York, New York

 August 18, 1995

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.