Stеve NOLAN, Petitioner-Appellant, v. Christine MONEY, Warden, Respondent-Appellee.
No. 11-3696.
United States Court of Appeals, Sixth Circuit.
Aug. 9, 2013.
373
C. Motion to discharge Kevin Schad as appellate counsel
The defendant seeks to have the Court replace his appointed appellate counsel, Kevin Schad, or in the alternative “release my employers funds to that they can provide for a private attorney.” Mot. at 8. The defendant alleges that after he presented Mr. Schad with evidence that his conviction was a result of a conspiracy and numerous violations of the defendant‘s constitutional rights, Mr. Schad stopped responding to the defendant‘s phone calls and emails. The defendant disagrees with Mr. Schad‘s strategic decisions, including his unwillingness to file a supplemental brief discussing the conspiracy alleged by the defendant.
Mr. Schad likewise has filed a motion seeking permission to withdraw as counsel of record and asks that the court grant the defendant leave to proceed pro se. Mr. Schad states that he was informed by the U.S. Marshal Service that there was an ongoing threat investigation involving the defendant that places appellate counsel in a conflict of interest.
We believe that appellate counsel has done a commendable job of challenging the defendant‘s convictions, and the full breadth of the issues generated by the proceeding below has been presented to us. Appellate counsel has admirably discharged his duties, and his motion to withdraw is GRANTED.
D. Other filings
The defendant has submitted several other filings consisting of citations to more authorities and affidavits. We view these as attempts to еxpand the record or prolong the briefing, all without leave of court. To the extent that the filings may be characterized as motions, we deny them for lack of merit in the grounds presented.
IV.
After a thorough review of the record and the issues raised, we are confident that no reversible error was committed by the lower court. Therefore, the defendant‘s convictions and sentences are AFFIRMED.
Before: WHITE and DONALD, Circuit Judges, and VARLAN, Chief District Judge.*
THOMAS A. VARLAN, Chief District Judge.
An Ohio grand jury charged Petitioner Steve Nolan (“Petitioner“) with attempted kidnapping, in violation of
After exhausting his state appeals process, Petitioner filed a petition for a writ of habeas corpus in the district court pursuant to
Petitioner then filed an appeal. This court remanded the case to the district court for the purpose of determining whether to grant a certificate of appealability, and the district court granted a certificate with respect to whether Petitioner was denied his Sixth Amendment rights to be present and to a public trial when the trial court conducted an examination of the key witness in the court‘s chambers and excludеd Petitioner from that hearing. Because the state court‘s rejection of Petitioner‘s claim was not an unreasonable application of clearly established federal law, we AFFIRM.
I. BACKGROUND
On the morning of March 11, 2005, Stephanie Martin (“Martin“), a high school student at Glenville High School, was waiting at the bus stop at Arbor Road and St. Clair Avenue in Cleveland, Ohio. At approximately 7:30 a.m., a black Jeep Cherokee with tinted windows and white numbers and letters pulled into the parking lot behind the bus stop. The driver asked Martin if he could talk to her and Martin said he could not. The driver repeated the question, said that he could put money into Martin‘s pocket, and told Martin to get into the vehicle. Martin again said no. The driver then got out of the vehicle and walked toward Martin. Martin ran away, but the driver chased her, telling her to get into the vehicle. Martin ran toward the left and the driver ran in the same direction after her. Martin continued running, but the driver returned to his car and left the scene. Martin fled to her home, and her mother called the police. Martin described the vehicle and the man to the police, whо she said was wearing a brown jacket, blue cap, blue jeans, and blue Timberland boots.
The case received media attention and two days later, the police received an anonymous tip that the vehicle was on Columbia Road. Officer Jerry Tucker responded to the tip. While on Columbia Road, Officer Tucker was flagged down by a male, who indicated a suspicious car with white letters and numbers was in a nearby driveway. Officer Tucker went to that house, where a woman answered the door. Petitioner then came to the door and admitted he owned the vehicle in the driveway. Officer Tucker believed Petitioner matched the description provided by Martin and therefore asked Petitioner to step outside and answer a few questions. Petitioner voluntarily exited the house and was arrested by Officer Tucker. Petitioner‘s car was towed, and blankets and alcohol were removed from the passenger compartment.
Martin was later shown pictures of Petitioner‘s vehicle and identified it as the vehicle driven by the man who chased her. Lieutenant Gail Maxwеll then conducted an identification line-up. She selected five men of similar height, weight, and appearance to participate in a line-up with Petitioner. Martin identified Petitioner as the man who chased her. At the conclusion of the line-up, Petitioner lingered and appeared to stare through the glass to where Martin would have been standing during the identification. Martin became frightened and fled crying.
Petitioner was charged with attempted kidnapping, in violation of
Martin testified in open court at trial and identified Petitioner as the man who chased her and as the man she identified in the line-up. Petitioner was convicted of attеmpted kidnapping and sentenced to four years in prison.
Petitioner filed an appeal to the Eighth District Court of Appeals of Ohio, raising seven assignments of error, including that he was denied his constitutional right to be present and his right to a public trial when the court conducted an examination of Martin in the court‘s chambers. The state appellate court, in a written opinion, affirmed the conviction, but vacated the sentence on grounds not relevant here and remanded the case for re-sentencing. Petitioner filed an application for reconsideration and a motion for certification of conflict, but these motions were denied without opinion.
Petitioner then filed a timely notice of appeal with the Ohio Supreme Court, presenting six propositions of law, including that he was “denied his constitutional right to be present and his right to a public trial [when] the court conduct[ed] an examination of a witness in the chambers.” (R. 17 at 4-5). The Ohio Supreme Court denied leave and dismissed the appeal as not involving any substantial constitutional question. See State v. Nolan, 114 Ohio St.3d 1513, 872 N.E.2d 953 (2007) (tаble). Subsequently, the trial court re-sentenced Petitioner to the same four-year prison term it had imposed prior to the remand.1 State v. Nolan, No. 90646, 2008 WL 4748658, at *1 (Ohio Ct. App. Oct. 30, 2008). The Court of Appeals of Ohio affirmed this sentence. Id. at *4.
Petitioner timely filed a federal habeas petition, presenting five grounds for relief. The third ground was that he was denied his Sixth Amendment rights to be present and to a public trial when the court conducted an examination of Martin in the court‘s chambers and excluded him. In a report and recommendation, the magistrate judge found Petitioner was not entitled to habeas relief. Petitioner filed objections, but the district court agreed with the magistrate judge‘s conclusion, although upon different grounds with respect to the third ground for relief, and denied the petition.
Petitioner timely appealed, and this court remanded the case to the district court for the sole purpose of determining whether to grant a certificate of appealability. The district court found Petitioner made “a substantial showing of the denial of a constitutional right with respect to an issue raised by Ground Three in his Petition[,]” namely, “whether Petitioner was denied his Sixth Amendment right tо be present and his right to a public trial when
Petitioner then filed with this court a motion to expand the certificate of appealability to include three other issues. This court denied Petitioner‘s request and ordered that the case proceed only on the issue certified by the district court. Petitioner thereafter filed a motion for reconsideration of the order, which this court denied.
II. STANDARD OF REVIEW
We review de novo the legal basis for a district court‘s dismissal of a habeas petition. Davis v. Coyle, 475 F.3d 761, 766 (6th Cir. 2007). The factual findings underlying the district court‘s analysis, on the other hand, will not be set aside unless those findings are clearly erroneous. Id.
Because Petitioner filed his petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA“), that statute governs our review of the case. A writ of habeas corpus may not be granted under AEDPA for any claim that was adjudicated on the merits in state court unless the adjudication of thаt claim:
- resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
- resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Under the “contrary to” clause of
Under the “unreasonable application” clause, a federal court may grant the writ only if the state court identified the correct governing legal principle from the Supreme Court‘s decisions but unreasonably applied that principle to the facts of the petitioner‘s cаse. Williams, 529 U.S. at 413, 120 S.Ct. 1495. When assessing unreasonableness, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411, 120 S.Ct. 1495. Rather, the application must be “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495.
In determining whether a state-court decision is contrary to or an unreasonable application of clearly established Supreme Court precedent, a federal court mаy look only to the holdings of the Supreme Court‘s decisions “as of the time of the relevant state-court decision.” Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (internal quotation mark omitted); see also Greene v. Fisher, — U.S. —, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011) (holding that clearly established federal law as determined by the Supreme Court under AEDPA is the law at the time of the state-court adjudication on the merits, not at the time the conviction becomes final). The reviewing court, however, may look to lower courts of appeals decisions “to the extent [they] have already reviewed and interpreted the relevant Supreme Court case law to determine whethеr a legal principle or right had been clearly established by the Supreme Court.” Landrum v. Mitchell, 625 F.3d 905, 914 (6th Cir. 2010) (alteration in original and internal quotation marks omitted).
III. DISCUSSION
Petitioner argues he was denied his Sixth Amendment right to a public trial when the trial court conducted an examination of the primary witness against him in the court‘s chambers and excluded him from that hearing.2 The Court of Appeals of Ohio determined that the right to a public trial was not violated because the closure of the portion of the hearing during which Martin testified “did not affect the fairness, integrity, or public reрutation of the trial....” Nolan, 2007 WL 853217, at *5. In reaching this conclusion, the state appellate court relied upon Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), in which the Supreme Court analyzed whether a suppression hearing was improperly closed. The state appellate court reasoned:
Here, the prosecuting attorney requested closure of the voir dire hearing because Martin became frightened and fled the line up after observing defendant, who stopped and tried to look through the glass at the witness. The police officers testified in court and in the presеnce of defendant but the trial court adjourned the proceedings in order for Martin to testify in chambers and outside of the presence of defendant. The trial court held that the action was necessary “in order to accommodate the potential intimidation of the witness and the balance of the defendant‘s right to confrontation, which this is simply a hearing and not a trial.”
The trial court then instructed that defendant had 30 days in which to file a motion to suppress the identification but he did not do so. Moreover, later at trial, Martin did identify dеfendant in open court, with defendant present and she again testified to seeing defendant at the bus stop and to identifying him in the line up. We therefore find that the closure did not affect the fairness, integrity, or public reputation of the trial ... and there is therefore no reason to suspect that a new voir dire hearing would materially change the position of the parties. We find the foregoing sufficient to meet the guidelines set forth in Waller....
Id. (citations omitted).
The Sixth Amendment provides that a defendant shall enjoy “the right to a ... public trial.”
Violation of the right to a public trial is a structural error, meaning it is not subject to harmless-error review. Waller, 467 U.S. at 49 n. 9, 104 S.Ct. 2210; Johnson v. Sherry, 586 F.3d 439, 443 (6th Cir. 2009). A structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). While an important structural right, Johnson, 586 F.3d at 444, the right to a public trial is not absolute, and closure of a courtroom may be justified by “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest,” Press-Enter. Co. v. Superior Court of Cal., Riverside Cnty., 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (internal quotation marks omitted).
In Waller, the Supreme Court set forth a four-part test for determining whether a courtroom closure violates a defendant‘s right to a public trial. A closure does not violate the Sixth Amendment if: (1) the party seeking to close the courtroom advances an overriding interest that is likely to be prejudiced; (2) the closure is no broader than necessary to protect that interest; (3) the trial court considered reasonable alternatives to closing the proceeding; and (4) the trial court made adequate findings to support the closure. Waller, 467 U.S. at 48, 104 S.Ct. 2210. While the state appellate court did not specifically address each part of this test, we nonetheless find that, even assuming Petitioner‘s right to a public trial was violated, the state appellate court did not unreasonably apply Waller in determining Petitioner‘s right was not violated because Petitioner‘s
In Waller, the Supreme Court instructed that “the remedy [for violation of the right to a public hearing] should be appropriate to the violation.” Id. at 49-50, 104 S.Ct. 2210. The Court addressed the closure of a suppression hearing, and finding it was unjustified, remanded the case to state court. It directed: “A new trial need be held only if a new, public suppression hearing results in the suppression of matеrial evidence not suppressed at the first trial, or in some other material change in the positions of the parties.” Id. at 50, 104 S.Ct. 2210. See also Brown v. Kuhlmann, 142 F.3d 529, 539-44 (2d Cir. 1998) (finding new trial disproportionate remedy for erroneous courtroom closure).
Here, Martin testified at trial and defense counsel had a full opportunity to cross-examine her about the line-up identification in Petitioner‘s presence. This, in conjunction with the fact that Petitioner does not contend that the trial examination of Martin revealed any basis for a suppression motion, leads us to conclude that a public examination of Martin during the voir dire hearing would be duplicative of the examination that defense conducted at trial. Any constitutional violation, therefore, did not “necessarily render the criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence,” Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (emphasis omitted), and granting a new hearing would not materially change the parties’ positions, Waller, 467 U.S. at 50, 104 S.Ct. 2210.
Moreover, courts have held that the need to protect a witness from intimidation justifies closure of the courtroom. See, e.g., United States v. Brazel, 102 F.3d 1120, 1156 (11th Cir. 1997) (finding no Sixth Amendmеnt violation where the trial court implemented a procedure requiring any individuals who wanted to enter the courtroom to first provide identification because the judge had observed individuals entering the courtroom and staring at witnesses who were on the stand). The trial court found it was appropriate for Martin to testify in chambers with defense counsel present but to exclude Petitioner “in order to accommodate the potential intimidation of the witness....” State v. Nolan, 2007 WL 853217, at *5. Although Petitioner argues there is nothing in the record to support this determination, an examination of the record reveals the contrary. The testimony of two officers who testified in open court indicated that Martin “looked very frightened” during the line-up, (R. 6-6 at 41:5-6), that Martin became “hysterical” and ran from the room upon seeing Petitioner, (id. at 22:10-20), and that Petitioner lingered after the conclusion of the line-up, appearing to “stare a hole through the window” where Martin would have been located during the identification, (id. at 43:20-44:7).
In addition, while the trial court conducted the voir dire in chambers, the duration of the clоsure was brief, as it pertained to the examination of only one of four witnesses. There was also a tran-
Accordingly, and recognizing that “fairminded jurists could disagree” whether petitioner‘s right to a public trial was violated when the trial court conducted a portion of the voir dire hearing in chambers without Petitioner, we find that the state appellate court did not unreasonably apply Waller in determining Petitioner‘s right to a public trial was not violated. See Harrington v. Richter, — U.S. —, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (“A state court‘s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court‘s decision.“).
IV. CONCLUSION
For these reasons, we AFFIRM the district court‘s judgment.
HELENE N. WHITE, Circuit Judge, concurring.
I concur in the affirmance on the basis that the Ohio appellate court‘s decision was not an unreasonable application of Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), because Nolan‘s remedy for the alleged erroneous courtroom closure would be a public voir dire hearing, and granting a new, public hearing to examine Martin would be futile.
I write separately, however, to address the trial court‘s justification for the courtroom closure. In Waller, the Supreme Court held that in order to justify a courtroom closure,
the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.
Id. at 48, 104 S.Ct. 2210. The majority correctly notes that “a trial court‘s failure to consider reasonable alternatives to courtroom closure when a defendant objects violates Waller‘s guidelines.” Maj. Op. 380 n. 3 (citing Presley v. Georgia, 558 U.S. 209, 214, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010) (per curiam)). “The conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear ... from [the Supreme] Court‘s precedents.” Presley, 558 U.S. at 214, 130 S.Ct. 721.
Here, the trial court made no findings to support a determination that the complete courtroom closure during Martin‘s examination at the hearing was necessary as opposed tо a more narrowly tailored alternative. The trial court‘s failure to consider reasonable alternatives to closure as required under Waller cannot be cured by its proper consideration of the remaining Waller factors. See id. at 216, 130 S.Ct. 721 (“[E]ven assuming, arguendo, that the trial court had an overriding interest in closing voir dire, it was still incumbent upon it to consider all reasonable alternatives to closure. It did not, and that is all this Court needs to decide [to warrant