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Moss v. Colvin

United States District Court, S.D. New York

June 18, 2015

ANDREW MOSS, Petitioner,
v.
JOHN COLVIN, Superintendent of Mid-State Correctional Facility, Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

PAUL A. CROTTY, District Judge.

On April 3, 2014, Petitioner Andrew Moss ("Petitioner" or "Moss") filed a 28 U.S.C. § 2254 petition challenging his conviction in Supreme Court, New York County, for the criminal sale of a controlled substance in the third degree. The conviction was affirmed on appeal. As he did in his appeal, Moss contends that his Sixth Amendment right to a public trial was violated when the trial judge closed the courtroom to the public during the testimony of an undercover police officer. On August 4, 2014, Magistrate Judge James C. Francis IV issued a Report and Recommendation ("R & R"), recommending that the petition be denied. Moss filed timely objections. For the following reasons, the R & R is adopted and the petition is denied.

BACKGROUND

Moss was arrested on July 21, 2007 for selling crack cocaine to an undercover police officer near West 135th Street and Broadway in Manhattan. The trial judge, Justice Daniel Fitzgerald, held a Hinton hearing to evaluate the prosecution's motion to close the courtroom to the public during the trial testimony of two undercover officers involved in the arrest. At the hearing, the prosecution argued that closing the courtroom during the officers' testimony was necessary to preserve the safety and continued effectiveness of the officers. Undercover Officer 2454 testified at the hearing that he had made numerous arrests in the relevant area, had pending cases in the area with "lost subjects" or defendants out on bail, had received threats before, at times shopped and walked around the area with his family while off duty, and had been concealing his identity when entering the courthouse.[1]

Towards the end of the Hinton hearing, Justice Fitzgerald opened the argument up to counsel, saying, "On the two undercovers I'll hear from you if there's anything further you wish to say. My position at the moment tentatively unless someone disabuses me of it, then enough has come out so that I will keep the general public out when these two undercovers testify" at trial. See Ex. 1 to Pet., H. Tr. at A72-73. Defense counsel responded, suggesting several alternatives to closing the courtroom. Id. at A76-77. Justice Fitzgerald then ruled that he would close the courtroom, but allow Moss's mother to observe, and would decide whether to allow other family members on a case-by-case basis. Id. at A82-83.

Moss was then convicted at trial of one count of criminal sale of a controlled substance in the third degree. He appealed, arguing that his Sixth Amendment right to a public trial was violated when the courtroom was closed during the testimony of the undercover officer. Moss argued that the prosecution had failed to provide an overriding interest likely to be prejudiced in the absence of closure, and that the trial court erred by not considering reasonable alternatives to closure. On November 22, 2011, the Appellate Division affirmed his conviction, People v. Moss, 933 N.Y.S.2d 258 (N.Y.App.Div. 1st Dep't 2011), and on April 30, 2013, the Court of Appeals affirmed the conviction, People v. Echevarria, 21 N.Y.3d 1 (N.Y. 2013). In Echevarria, the Court of Appeals held that "on the record before us, it is fair to imply that the trial courts concluded that no lesser alternative would have adequately protected the officers' safety." Id. at 19. The Supreme Court denied certiorari on December 13, 2013, Moss v. N.Y., 134 S.Ct. 823 (2013). In Moss's section 2254 petition, he makes the same argument that he has been deprived of his Sixth Amendment right to a public trial.

I. Standard of Review

A. Report and Recommendation

A federal 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). Where no objections have been made, the Court may adopt the Report as long as it is "not facially erroneous." Toto, Inc. v. Sony Music Entm't, 2013 WL 163826, at *1 (S.D.N.Y. Jan. 15, 2013). Contested portions of an R & R are reviewed by the district court de novo. 28 U.S.C. § 636(b)(1). When the objections raised simply reiterate the parties' original arguments, however, the Court reviews the R & R for clear error. Orix Fin. Servs., Inc. v. Thunder Ridge Energy, Inc., 2006 WL 587483, at *1 (S.D.N.Y. Mar. 8, 2006).

B. Section 2254

A state prisoner who believes his federal rights were violated by his conviction may seek relief by petitioning a federal court for a writ of habeas corpus. 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a petition may be granted where the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d). The federal court must also give a presumption of correctness to the state court's determination of factual issues, and the petitioner may only overcome this presumption by clear and convincing evidence. Id. § 2254(e)(1). Section 2254 "reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal, " Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (internal citations and quotation marks omitted), and the AEDPA standard "was meant to be difficult" to meet, Byrd v. Evans, 420 F.Appx. 28, 30 (2d Cir. 2011) (citing Harrington, 562 U.S. at 102). In order for a petition under section 2254 to be granted, "a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.

C. Sixth Amendment Right to a Public Trial

The Sixth Amendment gives all criminal defendants the right to a "speedy and public trial." U.S. Const. amend. VI. Whether a defendant's Sixth Amendment right to a public trial has been violated by the closure of a courtroom depends on four factors: (1) whether the party seeking closure has advanced an overriding interest that is likely to be prejudiced absent closure; (2) whether closure was no broader than necessary to protect that interest; (3) whether the trial judge considered reasonable alternatives to closing the proceeding; and (4) whether the trial judge made sufficient findings to support the closure. Waller v. Georgia, 467 U.S. 39, 48 (1984); ...


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