Argued: April 7, 2014,
[Copyrighted Material Omitted]
Appeal from a judgment of the United States District Court for the Southern District of New York, Jed S. Rakoff, Judge, dismissing habeas corpus petition alleging that the state trial court violated petitioner's constitutional rights to be present during critical stages of trial and to effective assistance of counsel by (1) holding a closed hearing in petitioner's absence to consider the disclosability and admissibility of certain evidence and (2) ordering defense counsel not to disclose that evidence to petitioner during the trial. Giving AEDPA-mandated deference to the state-court's rejection of these claims, as did the district court, we affirm.
ANDREW C. FINE, New York, New York (Steven Banks, The Legal Aid Society, Criminal Appeals Bureau, New York, New York, on the brief), for Petitioner-Appellant.
ALYSON J. GILL, Assistant Attorney General, New York, New York (Eric T. Schneiderman, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, Nikki Kowalski, Deputy Solicitor General, New York, New York, on the brief), for Respondent-Appellee.
Before: KEARSE, JACOBS, and LYNCH, Circuit Judges.
KEARSE, Circuit Judge:
Petitioner Walkins Contreras, a New York State (" State" ) prisoner convicted of, inter alia, rape in the first degree, unlawful imprisonment in the first degree, and burglary in the first degree, appeals from a judgment of the United States District Court for the Southern District of New York, Jed S. Rakoff, Judge, dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition alleged principally that the trial court denied Contreras (1) his due process right to be present during critical stages of his trial when it held a closed hearing in his absence to consider the disclosability and admissibility of a note written by the complaining witness and found at the crime scene, and (2) his Sixth Amendment right to the effective assistance of counsel when it barred his trial attorney from disclosing to him the note and the substance of the
hearing until after the trial ended. The district court, applying the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), dismissed the petition on the ground that the New York Court of Appeals' rejection of these claims was neither contrary to nor an unreasonable application of precedents of the United States Supreme Court. On appeal, Contreras contends principally that the New York Court of Appeals' decision was an unreasonable application of the Supreme Court's decisions in (A) Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (limitations on mid-trial communications between the accused and his attorney), and Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989) (same), and (B) Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (the accused's right to be present at critical stages of trial), United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (same), and Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (same). We affirm.
Contreras's convictions resulted from his violent conduct on February 10, 2004, against his estranged wife in her apartment, where they previously lived together. Contreras's apparent motive was his anger that his wife--referred to herein as " Y.A." --had filed for divorce and begun a romantic relationship with another man. There is no dispute as to what evidence was given and what proceedings were held at Contreras's state-court trial.
At trial, Y.A. testified that on the morning of February 10, Contreras arrived at her apartment, confronted her as she was about to leave with her 7-year-old son James, and forced them back into the apartment. Contreras brandished a knife, claimed he had a gun, and told Y.A. that he had come to kill her. Once inside, Contreras and Y.A. struggled in the living room, causing her to drop her purse, scattering its contents. One of the items that fell out was a cellular telephone; when Contreras allowed Y.A. to clean up the mess, she was able to conceal the phone and hide it in the bathroom. Contreras ordered James to his bedroom and Y.A. to hers. Contreras followed Y.A. and forced her, at knifepoint, to have sex.
Contreras then left the bedroom but returned in time to interrupt Y.A.'s attempt to use her bedroom phone to call 911. Contreras proceeded to, inter alia, choke Y.A. with a cord, question her about her new boyfriend, question James about the boyfriend, force Y.A. to have sex again, and force her to write farewell letters to her mother and James. Eventually, Y.A. was able to flee to the bathroom with James and lock the door; she used the cell phone to call 911. The police arrived to find Y.A. in the bathroom and Contreras hiding in a closet.
Contreras's principal strategy at trial was to attack Y.A.'s credibility, arguing that Y.A. had consented to sex and then fabricated accusations against him after she changed her mind. Defense counsel also argued that Contreras was not guilty of burglary because he had a right to be in the marital home.
A. The Note Found in the Apartment
The police collected various items of possible evidence from Y.A.'s apartment, including a notepad containing a note in Y.A.'s handwriting (the " Note" ). The trial court would later describe the Note for the record as follows:
The pad seems to have four bullet points on it. The first one says, I want you to open yourself more to me. The second one acknowledge me in bed. When you are sleeping, parenthesis even
though you are getting better, end parenthesis. Third one is take me and fuck the shit out of me. And the fourth one is get tested for.
(Trial Transcript (" Tr." ) at 153-54.)
Following proceedings that are the subject of this habeas petition, the Note was excluded from evidence at Contreras's trial. The nature of the Note was not disclosed to defense counsel until after the trial had begun and was not disclosed to Contreras until well after the trial had ended.
B. The Proceedings With Respect to the Note
On the morning of jury selection, the State applied in open court for a protective order ruling that " some person[al] papers of the complainant" --by which it meant the Note--were inadmissible in evidence and need not be disclosed to the defense. (Tr. 2.) Contreras's trial attorney, Barry Apfelbaum, asked for an opportunity to see the Note and oppose the State's motion. (See id. at 3.) The court read the Note and decided to hold an in camera hearing, with a sealed record, to consider the State's application (the " Admissibility Hearing" ). At the commencement of the Admissibility Hearing, which was initially ex parte, the court stated that it would consider whether the Note should be disclosed to the defense either under New York law as a witness's prior statement relating to the subject matter of the witness's testimony, see People v. Rosario, 9 N.Y.2d 286, 290, 173 N.E.2d 881, 213 N.Y.S.2d 448, 451 (1961) (" Rosario" ), or under the federal Constitution as material evidence favorable to the defendant, see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). (See Tr. 153.)
The State represented that the Note was " a personal letter that [Y.A.] wrote to her . . . boyfriend at the time of the incident." (Id. at 154.) It argued that because the Note was " very much a private person[al] letter relating to something [sic] totally different than the defendant" (id. at 155), and because " [t]he defendant has not made any allegations of knowledge" of the Note (id. at 154), " [i]t doesn't have anything to do with the instant case" (id. at 155). Thus, the State contended (1) that the Note was inadmissible at trial pursuant to New York's so-called " rape shield" law, which excludes certain " evidence of [a] victim's sexual conduct in sex offense cases," N.Y. Criminal Procedure Law § 60.42 (McKinney 2004) (see Tr. 154), and (2) that the Note should not be disclosed to the defense because its disclosure would both " embarrass the victim" and permit Contreras to " fabricate further the defense . . . [of] consent" (id. at 155).
After hearing this ex parte presentation, the court informed both sides that it would reserve decision on the State's application until it could hear testimony from Y.A. the next morning, in camera. (See Tr. 157.) Although Apfelbaum objected to the delay, the court stated that it wanted " to corroborate that the People have not been lied to" by Y.A. (Id. at 159.)
On the following day, the court began by questioning Y.A. under oath in a closed hearing attended by the State, but from which Contreras and his counsel were excluded. Y.A. testified that she had written the Note " for [her]self" at least a month before February 10, 2004, and that the Note was about a new romantic partner, not Contreras. (Tr. 187.) She testified that the notepad had been in her purse when, during her February 10 struggle with Contreras, the purse's contents scattered onto the floor. (See
id.) She stated that she did not know whether Contreras had seen the Note. (See id.)
The court called Contreras's attorney into the hearing room before making its ruling and stated that,
[i]n the interest of disclosure and in the interest of moving this trial along, I am going to disclose to Mr. Apfelbaum the contents of the term [sic] but I am going to place him under the order of court not to disclose that to his client or to any other person without prior order of the court.
(Tr. 188 (emphases added).) The court then ruled that
this was a pad that was kept by [Y.A.] in her pocketbook and related to notes that she apparently makes before writing longer letters or collecting her thoughts with respect to her boyfriend, who is not the defendant.
. . . .
Because it does not relate to this event and is [in] the nature of those things covered by the rape shield law, I am excluding it.
(Id. at 189-90 (emphasis added).)
Apfelbaum objected to the ruling, arguing first that the Note could be relevant to refute the burglary charge by indicating that Contreras had entered the apartment lawfully, see N.Y. Penal Law § 140.30 (McKinney 2004) (to be guilty of first-degree burglary, the defendant must have, inter alia, " knowingly enter[ed] or remain[ed] unlawfully in a dwelling with intent to commit a crime therein" ). (See Tr. 191-92.) Counsel theorized that after Contreras arrived in the apartment to make a peaceful visit, he might have learned something from the Note about Y.A.'s new relationship that set off his temper, leading him to commit the violent acts with which he had been charged (see id. at 191); counsel argued that " the issue is what the effect of reading this may have had on the defendant while he was in the apartment" (id. at 198). The court responded, " [a]ssuming he read it" ; and when counsel acknowledged that there was no evidence that Contreras had read the Note, the court said, " Well, the answer is you can't give it to him so he will create the evidence." (Id.) The court indicated, however, that Contreras could seek reconsideration of the court's ruling if the defense produced evidence consistent with counsel's theory: " If in fact it turns out that absent your showing it to him he voluntarily says that among the things that got me totally annoyed was that [I] picked this up and I read it, I picked up something and read it, well, that's another story." (Id. at 199.)
Apfelbaum also objected that the nondisclosure order interfered with his duties to his client, especially if he would need to decide whether to have Contreras testify without his having disclosed to Contreras the contents of the Note and thus without knowing what Contreras's testimony would be. (See Tr. 192-93.) Apfelbaum argued that he should at least be allowed to question Y.A., and the court agreed. (See id. at 200.) Y.A. was recalled to the hearing room and reminded that she was still under oath (see id. at 200-01), and she was then questioned by Apfelbaum.
MR. APFELBAUM: . . . [W]e have been talking about what looks like a note pad with some notes on it on the top page. Can I, I guess we have already ...