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Brown v. Cunningham

United States District Court, S.D. New York

June 4, 2015

CLAYTON BROWN, Petitioner,


VALERIE CAPRONI, District Judge.

Pro se Petitioner Clayton Brown filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his June 1, 2011 conviction in New York State Supreme Court, New York County, for criminal sale of a controlled substance under N.Y. Penal Law §220.39(1). This Court referred the action to Magistrate Judge Michael H. Dolinger for a Report and Recommendation ("R&R") pursuant to 28 U.S.C. § 636(b). Dkt. 5. On April 22, 2015, Magistrate Judge Dolinger issued his R&R, recommending that the Petition be denied. Dkt. 14. Upon careful review of the record, the R&R, and Petitioner's Objections to the R&R, the Court agrees with the R&R; accordingly, the Petition is DENIED.


On October 9, 2010, Brown was arrested for criminal sale of a controlled substance as part of a "buy-and-bust" operation. At trial, the State's evidence against Brown relied heavily on the testimony of two undercover officers, who testified that they witnessed the narcotics transaction. Before the officers testified, the court held a Hinton hearing to determine the necessity of closing the courtroom during the testimony of the undercover officers. See People v. Hinton, 31 N.Y.2d 71 (1972). The trial court found that partial closure of the courtroom was warranted, noting that there was "an overriding public interest... involving the safety of the officers" and that "proceeding any other way would endanger the lives and seriously damage other investigations being conducted by these officers." Hinton Tr. at 41.[1] Although the trial court closed the courtroom to the public during the officers' testimony, Petitioner's girlfriend and niece were allowed to remain in the courtroom. Id. at 41. The jury found Brown guilty of criminal sale of a controlled substance; the trial court sentenced him to seven years in prison with three years of post-release supervision. Sentencing Tr. at 22.

Petitioner filed a notice of appeal on September 8, 2011, with the Appellate Division, First Department. SR at 9. He asserted that (1) his conviction was against the weight of the evidence; (2) the court violated his constitutional right to a public trial under the Sixth Amendment by excluding his co-workers during the undercover officers' testimony; and (3) his sentence was excessive and should be reduced in the interest of justice. Id. at 37, 45, 50. The First Department affirmed Brown's conviction and sentence, and the Court of Appeals denied review. People v. Brown, 107 A.D.3d 499, 500, leave denied, 21 N.Y.3d 1040 (2013).

On May 12, 2014, Petitioner timely filed the instant petition, reasserting the same three arguments he raised on appeal and adding a claim of actual innocence. Pet. at 4. On April 22, 2015, Magistrate Judge Dolinger issued an R&R, recommending that the Petition be denied. In particular, Magistrate Judge Dolinger noted that (1) "petitioner makes no allegations of insufficiency beyond the credibility of the officers' testimony, and that cannot be a basis for habeas relief, " R&R at 33-34; (2) the "trial judge ma[d]e findings adequate to support the closure'" of the courtroom during the testimony of the undercover officers, id. at 43 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)); and (3) Petitioner's claim that his sentence is excessive fails because it "was well within the statutory range, " id. at 47. Magistrate Judge Dolinger also noted that Petitioner's newly asserted claim of innocence does not entitle him to habeas relief because a "petition for habeas relief cannot be premised on actual innocence.... Such a claim is not permitted on habeas review...." Id. at 37. On May 7, 2015, Petitioner filed his Objections to the R&R ("Objections").[2] Dkt. 15.


In reviewing a report and recommendation, a district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). When specific objections are made, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. By contrast, the district court may adopt portions of a magistrate judge's report to which there are no objections so long as "there is no clear error on the face of the record." Phillips v. Reed Grp., Ltd., 955 F.Supp.2d 201, 211 (S.D.N.Y. 2013) (citation omitted).

Courts "have never held pro se prisoners to the standards of counseled litigants." Gonzalez v. Crosby, 545 U.S. 524, 544 (2005) (citing Haines v. Kerner, 404 U.S. 519 (1972) ( per curiam )). Accordingly, "the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest. '" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) ( per curiam ) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (emphasis in Triestman )).


A prisoner may be entitled to habeas relief if (1) the state court's decision was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court, or (2) the state's decision was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d); see also Harrington v. Richter, 562 U.S. 86, 98 (2011).

I. Closure of the Courtroom

Petitioner objects only to one recommendation in the R&R - he alleges that Magistrate Judge Dolinger improperly analyzed his Sixth Amendment argument under Waller, 467 U.S. 39. Brown asserts that he was denied his Sixth Amendment right to a public trial and thus that he is entitled to habeas relief. Objections at 1, 2. The Court reviews Petitioner's arguments de novo but finds that Petitioner's arguments are unpersuasive.

In Waller, the Supreme Court articulated a four-pronged test to determine whether a courtroom can be closed during a criminal trial without violating the defendant's public trial rights. 467 U.S. at 45. The test, which balances the defendant's rights against the Government's interest in protecting sensitive information, provides that (1) the party seeking to close a hearing must advance an overriding interest that is likely to be prejudiced absent closure; (2) 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) the trial court must make sufficient findings to ...

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