The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge:
Petitioner Gerald English brought this proceeding on April 19, 1996 for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
He was convicted in March 1985 after a jury trial in New York Supreme Court, Queens County, of murder in the second degree and criminal possession of a weapon in the second degree, and sentenced by Justice John J. Leahy to two concurrent terms of twenty-five years to life on the murder count and five to fifteen years on the weapons count.
The Appellate Division, Second Department, affirmed on August 7, 1989. People v. English, 153 A.D.2d 575, 544 N.Y.S.2d 503 (2d Dep't 1989). The New York Court of Appeals denied leave to appeal on December 21, 1989. People v. English, 75 N.Y.2d 770, 551 N.Y.S.2d 912, 551 N.E.2d 113 (1989).
The main witness for the prosecution at trial was one Perry Bellamy. Indeed his testimony was the only evidence implicating petitioner in the crimes.
Petitioner makes two claims. First, he says that because all spectators, including his family members, were excluded from the courtroom during Bellamy's testimony, his Fourteenth Amendment and Sixth Amendment rights to a public trial were violated. Second, he argues that the cross examination of Bellamy was so curtailed by the court as to deny him his Sixth Amendment right to confrontation.
On motion of the prosecutor Justice Leahy closed the courtroom to all spectators, including petitioner's family and friends, during the testimony of Bellamy on the ground that Bellamy feared for his life were he to testify in an open courtroom. Justice Leahy held a hearing on the prosecutor's motion. Bellamy testified and was questioned by the prosecutor, counsel for petitioner, and counsel for each of petitioner's two co-defendants, Daniel Staley and Ronnie Simpson.
Bellamy and four other persons, including one Bernard Williams, had stolen about a hundred thousand dollars and half a kilogram of cocaine from Staley's drug spot. Bellamy and Williams had known each other many years. They had been partners in crime and had worked together selling cocaine for Staley at his "spot."
Some four weeks after the robbery Williams received word that Staley wished to see him and Bellamy in Brooklyn. Bellamy and Williams then drove to the apartment of Staley's girlfriend. When they arrived they found Staley, Simpson, who was Staley's "bodyguard," petitioner, and others.
After a while Staley's girlfriend gave Williams, who smoked cocaine and sniffed dope, about half a gram of cocaine. Thereafter Staley gave Williams a glassine bag of beige colored drugs that looked like "raw dope." Bellamy went to another room and watched television for a while until Staley called him into another room, handed him a .357 Magnum, and said "give this to Ron," meaning Simpson. Bellamy handed the weapon to Simpson. After that Staley purported to get annoyed with the crowded condition in the apartment, saying "I don't know what you all crowded up in here for." Petitioner then approached Williams, who was very "high" and staggering, and said "come on, let's get out of here." Simpson, Williams, and petitioner then walked out the door.
About three hours later Simpson and petitioner came back to the apartment, and Staley asked "what did you do with him?". Petitioner "was going to say something" when Simpson interrupted and said "we dumped him over there where they dump garbage." Thereafter Williams' dead body was found.
Bellamy said at the pretrial hearing that of the five persons who robbed Staley three were dead and one hospitalized and a "vegetable", and that he was the sole survivor. When the prosecutor asked Bellamy if he was prepared to testify if family members and friends of "the defendant" were ...