845 F.3d 516
2d Cir.2017Background
- Andrew Moss was tried in New York state court for selling crack cocaine to an undercover officer (UC 2454).
- Before trial the prosecution sought and the trial court granted closure of the courtroom to the general public during testimony of UC 2454 (Moss does not challenge closure for UC 5986).
- The court held an on-the-record hearing where the undercover officers testified about threats, ongoing undercover work, and steps taken to protect identity; the court expressed a tentative decision to exclude the public and later ordered closure while allowing certain family members.
- Moss objected at trial and appealed, arguing the closure violated his Sixth Amendment public-trial right under Waller/Presley. New York appellate courts affirmed; the New York Court of Appeals upheld the closure.
- Moss filed a federal habeas petition under 28 U.S.C. § 2254; the district court denied the petition. The Second Circuit reviewed the appeal under AEDPA deference and affirmed the denial.
Issues
| Issue | Plaintiff's Argument (Moss) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the government established an overriding interest justifying closure (Waller prong 1) | The record did not show a ‘substantial probability’ that officer safety would be prejudiced by openness. | Officer threats, ongoing undercover activity in the neighborhood, encounters with suspects, and protective measures establish a specific safety link. | Court: New York Court of Appeals’ finding of an overriding interest was reasonable; affirmed under AEDPA. |
| Whether the trial court considered reasonable alternatives to closure (Waller prong 3 / Presley) | Trial court failed to expressly articulate on the record its consideration and rejection of alternatives (e.g., screening at the door); Presley requires on-record consideration. | The record as a whole supports an inference that alternatives were considered and rejected; reviewing courts may look to the entire record. | Court: Under AEDPA, New York Court of Appeals’ ruling that the record shows consideration of alternatives was not contrary to clearly established law; affirmed. |
| Proper scope of Presley’s requirement for on-the-record findings | Presley requires explicit, specific on-the-record findings about alternatives and threats. | Presley’s specificity requirement concerns articulation of the overriding interest; a reviewing court may infer consideration of alternatives from the record. | Court: Presley’s language relates primarily to articulating the interest; AEDPA precludes extending Presley to forbid any inference from the record. |
| Standard of review on habeas (AEDPA) and whether state decision was unreasonable | State decision was contrary to or an unreasonable application of Supreme Court precedent. | State-court decision was reasonable under Waller/Presley and supported by the record; AEDPA requires deference. | Court: Applying AEDPA, the state-court decision was not contrary to or an unreasonable application of clearly established federal law; habeas denied. |
Key Cases Cited
- Waller v. Georgia, 467 U.S. 39 (rule for courtroom closures: overriding interest; narrowness; consideration of alternatives; findings)
- Presley v. Georgia, 558 U.S. 209 (clarified that courts must consider alternatives sua sponte and take measures to accommodate public attendance)
- Press-Enter. Co. v. Superior Court, 478 U.S. 1 (requirement that risk to interest be articulated with specific findings)
- Harrington v. Richter, 562 U.S. 86 (AEDPA deference: state court decision must be objectively unreasonable to grant habeas)
- Yarborough v. Alvarado, 541 U.S. 652 (standard that reasonable jurists may disagree; limits on habeas relief)