Terrance TUCKER v. SUPERINTENDENT GRATERFORD SCI, Appellant
No. 15-2170
United States Court of Appeals, Third Circuit
February 3, 2017
Argued: June 7, 2016
Second, we agree with the District Court that there is no per se rule of hostile work environment when a plaintiff is forced to work in proximity with a former harasser. A plaintiff must prove hostile work environment using the five prong test described above, which includes showing the conduct was “severe or pervasive.” Mandel, 706 F.3d at 167. Kokinchak cites to Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 718 (3d Cir. 1997), for the proposition that “[i]n order to establish a case for hostile work environment, a Plaintiff who has already been the victim of sexual harassment by the same person, does not have to establish that she suffered severe and pervasive acts of harassment at the hands of the perpetrator, if the perpetrator had engaged in such a severe and pervasive conduct in the past.” Appellant Br. at 9. But Konstantopoulos actually rejected this proposition, and there is no such theory in the Third Circuit. 112 F.3d at 717. While Konstantopoulos affirms that the presence of a former harasser is a relevant factor in assessing the totality of the circumstances, a factor the District Court considered, it rejected the notion that “requiring [the plaintiff] to work in proximity to [former harassers] constituted illegal sexual harassment per se.” Id.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
Arianna J. Freeman, Thomas C. Gaeta [ARGUED], Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellee
Before: CHAGARES, KRAUSE, and SCIRICA, Circuit Judges
OPINION *
SCIRICA, Circuit Judge.
Petitioner Terrance Tucker contends in this habeas corpus petition that he was denied effective assistance of counsel because his counsel on direct appeal did not raise the potential claim that Tucker‘s Sixth Amendment right to a public trial was infringed during his state-court trial. The United States District Court for the Eastern District of Pennsylvania granted Tucker‘s habeas petition, finding the Superior Court of Pennsylvania had unreasonably applied Supreme Court precedent, and ordered the Commonwealth of Pennsylvania to release Tucker or grant him a new trial. The Commonwealth appealed. We will reverse and remand for proceedings consistent with this opinion.
*I.
A.
The charges against Tucker stem from the February 20, 2002 homicide of Mikal Scott. Scott provided statements to police against two members of a rival gang during a prior murder investigation in 2000, but recanted his statement prior to trial. According to the Commonwealth‘s theory of the case and evidence adduced at trial, in retaliation for Scott recanting his statement, Tucker and a co-conspirator shot and killed Scott.
B.
The Commonwealth charged Tucker with murder and several other offenses. His trial in the Court of Common Pleas of Philadelphia County began on November 12, 2003. J.A. 87. After holding an off-the-record discussion with counsel in chambers, the trial judge closed the courtroom to the public. The judge said, “I have determined that I am going to close the courtroom for the balance of this proceeding. No citizens will be permitted to observe this trial until I decide otherwise.” Id. at 182. The judge gave two reasons for closing the courtroom—courtroom disruptions and witness tampering and intimidation.
As to the first reason, the judge explained:
During the beginning instructions I noticed many, many citizens coming into the courtroom whose behavior was not cooperative. They were attempting to talk to Mr. Tucker. Mr. Tucker was attempting to communicate with them at points in time when [defense counsel] was focused on the jury, and to such a degree that I had to have a message sent to [defense counsel] to have Mr. Tucker stop.
As to the second reason for closing the courtroom—witness tampering and intimidation—the trial judge explained that “[the court had] previously documented in this record that there may have been attempts at witness tampering.” Id. at 182. Specifically, an eyewitness to the murder, Tonaysha Austin,2 failed to appear on the first scheduled day of trial because, as the Commonwealth‘s attorney explained during the pretrial colloquy, one of Austin‘s relatives who had recently been in jail with Tucker, and “who she would not identify ... because she was scared,” had given her a message from Tucker. Id. at 168. Tucker allegedly told Austin‘s relative to tell her that “if [Austin] comes to court that she shouldn‘t say he was the one that did it because he wasn‘t the one who did it.” Id. The Commonwealth acknowledged this threat was “oblique,” id., but because Austin was “afraid about coming to testify” and “concerned about herself, her family, and ... this relative,” the Commonwealth placed her in a hotel “out of Philadelphia” for “her to feel like she [was] going to be safe,” id. at 169. In her testimony at Tucker‘s trial, Austin expressed she was still “scared” “to be in the room with [Tucker].” Id. at 197.4
Tucker‘s attorney objected to the closure. Id. at 183. The trial judge overruled the objection, but stated the issue was preserved for review. Id. The jury heard testimony from fourteen witnesses over the course of three days. Aside from Austin, who testified on the first and second days of trial, the other testifying witnesses were Anne Williams (another eyewitness), id. at 259, a medical examiner, id. at 291,
Although the record is unclear, it appears the courtroom was not entirely closed during the entirety of witness testimony. On the first day of witness testimony, during the first half of Austin‘s direct examination, there was a detective in the courtroom who was on another case as well as an intern for the Commonwealth. Id. at 185. The intern, who we do not consider a member of the public, was allowed to stay, but the detective was asked to leave for the remainder of Austin‘s direct examination and the first half of her cross examination. Id. at 198. At the start of the second day, which continued with Austin‘s cross examination, the trial judge noted that her friend, a professor from Drexel University, and her students were in attendance, taking notes. Id. at 227. It is unclear from the record how long they stayed. It is also unclear whether any members of the public were present during the third day of witness testimony.
Once witness testimony had concluded, the trial judge reopened the rest of the proceedings to the public.5 Id. at 333. On November 19, 2003, the jury found Tucker guilty of third-degree murder, possessing an instrument of crime, reckless endangerment, and criminal conspiracy. Id. at 378. He was sentenced to an aggregate prison term of thirty to sixty years. Id. at 519.
C.
Tucker appealed his conviction and sentence to the Superior Court of Pennsylvania. Tucker, represented on appeal by his trial counsel, raised six challenges,6 but did not challenge the courtroom closure. Id. at 806-07. Tucker‘s conviction and sentence were affirmed, id. at 73-84, and the Supreme Court of Pennsylvania denied review, Commonwealth v. Tucker, 590 Pa. 660, 911 A.2d 935 (2006) (table).
Tucker filed a petition for collateral relief under the Pennsylvania Post-Conviction Relief Act (PCRA) in the Court of Common Pleas of Philadelphia County. J.A. 768. Among various ineffectiveness claims, Tucker claimed his appellate counsel was ineffective for failing to challenge the courtroom closure. Id. at 772. The closure, he contended, violated his Sixth Amendment right to a public trial because it failed to pass the standard set by the Supreme Court of the United States in Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). Id. at 772-75. The PCRA court denied Tucker‘s petition, explaining the trial court‘s reasoning for not closing the courtroom as follows:
This case grew out of a dispute between two rival gangs. It was preceded by at least two other murders. The relationship between these groups was complex and not completely clear. It involved documented violent incidents of witness intimidation and retaliation. During opening statements a large group of young men entered the courtroom and attempted quite obviously to have inappropriate contact with [Tucker], who also attempted to communicate with the people in the courtroom. As a result, both counsel were advised of the necessity to close the courtroom in order to preserve the sanctity of the proceedings.
Id. at 68 (internal citations to the trial record omitted).7
On appeal, the Superior Court of Pennsylvania affirmed the PCRA order, citing the above language. Id. at 58, 104 S.Ct. 2210. Instead of applying the Waller test, however, it analyzed the legality of the closure under a state-law standard, and found the closure permissible. Id. at 57-59, 104 S.Ct. 2210. Accordingly, the Superior Court of Pennsylvania held Tucker‘s appellate counsel was not ineffective. Id. The Supreme Court of Pennsylvania again denied review. Commonwealth v. Tucker, 608 Pa. 622, 8 A.3d 345 (2010) (table).
D.
Tucker reasserted his ineffective assistance claim in a timely habeas petition. See
The District Court disagreed with the Magistrate Judge‘s Waller analysis, declined to adopt his recommendation, and issued a writ of habeas corpus, ordering the Commonwealth to either release Tucker or grant him a new trial. Tucker v. Wenerowicz, 98 F.Supp.3d 760, 781 (E.D. Pa. 2015). The court reasoned the courtroom closure violated the rule announced by the Supreme Court of the United States in Waller, see id. at 765-66, and held appellate counsel was ineffective for failing to appeal this “plainly-meritorious claim,” id. at 779. The Commonwealth appealed. J.A. 1.
II.8
The Commonwealth contends we must reverse the District Court‘s decision because the Superior Court of Pennsylvania‘s resolution of Tucker‘s ineffective assistance claim was not contrary to a clearly established holding of the Supreme Court of the United States. We disagree. The Superior Court applied a standard contrary to established federal law that was less favorable to Tucker in evaluating the
A.
Because Tucker‘s ineffective assistance claim was adjudicated on the merits by the Superior Court of Pennsylvania, it is subject to the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214 (“AEDPA“). Under AEDPA, habeas relief is unavailable unless the state court‘s decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
A decision by a state court is “contrary to ... clearly established law if it applies a rule that contradicts the governing law set forth” in Supreme Court precedent. Price v. Vincent, 538 U.S. 634, 640, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003) (quotations and citations omitted). A state court need not have cited any particular Supreme Court decisions, and this standard affords considerable latitude to the state court, “so long as neither the reasoning nor the result of the state-court decision contradicts” federal law. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam) (emphasis added). In this regard, the state court‘s decision need not even be accompanied by an explanation, as long as there was a “reasonable basis for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
However, “when the state court pens a clear, reasoned opinion, federal habeas courts may not speculate as to theories that ‘could have supported’ the state court‘s decision.” Dennis v. Sec‘y, Pa. Dep‘t of Corrs., 834 F.3d 263, 283 (3d Cir. 2016) (en banc). If a state court does provide reasoning, the state court decision is not entitled to deference if no “fairminded jurist[]” could “disagree that those arguments or theories are inconsistent with the holding in a prior decision of” the Supreme Court. Richter, 562 U.S. at 102. The state court may not add or remove a factor from a clearly established federal law test. Dennis, 834 F.3d at 307 (concluding that adding an admissibility requirement to Fourteenth Amendment Brady inquiry constituted “an unreasonable application of” and was “contrary to” clearly established federal law); see also Benn v. Lambert, 283 F.3d 1040, 1051 n.5 (9th Cir. 2002) (“The addition, deletion, or alteration of a factor in a test established by the Supreme Court ... constitutes a failure to apply controlling Supreme Court law under the ‘contrary to’ clause of AEDPA.“).
B.
The federal claim here is an ineffective assistance of counsel claim, which
Under Supreme Court precedent, closing a courtroom is permissible only if the following requirements are met: (1) there is “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 considers “reasonable alternatives” to closure, and (4) the trial court makes “findings adequate to support the closure.” Waller, 467 U.S. at 48.9
The Superior Court of Pennsylvania did not apply Waller, but instead applied a less rigorous standard from Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226 (1985). Under this standard, “[w]here trial courts perceive a threat to the orderly administration of justice in their courtrooms by an unmanageable public, they may always place reasonable restrictions on access to the courtroom, so long as the basic guarantees of fairness are preserved....” Berrigan, 501 A.2d at 234. The Superior Court explained it “is the responsibility of the court to maintain not only the control but also the security of the courtroom,” J.A. 672 (citing Commonwealth v. Pantano, 836 A.2d 948 (Pa. Super. Ct. 2003)), and that the right to a public trial “serves two purposes: (1) it prevents the accused from being subject to a Star Chamber proceeding; and (2) assures the public that the standards of fairness are being observed.” Id. at 682, 104 S.Ct. 2052 (citing Commonwealth v. Constant, 925 A.2d 810, 817 (Pa. Super. Ct. 2007)).
The standard applied by the Superior Court of Pennsylvania is contrary to Waller. Specifically, the Superior Court failed to consider the second, third, and fourth prongs of the Waller test. The Superior Court identified an overriding interest that would be prejudiced, specifically “disruption caused by the spectators in the courtroom, particularly since this case had its genesis in a gang-related dispute.” Id. at 683, 104 S.Ct. 2052. However, having identified this interest, the Superior Court concluded its analysis, because “by no means did the trial resemble a proceeding in the Star Chamber and we have a record of the proceedings to review on appeal.” Id. at 683, 104 S.Ct. 2052.
We are deeply concerned that Pennsylvania courts, including the Superior Court in Tucker‘s case, are not applying Waller when analyzing defendants’ Sixth Amendment public-trial claims. In the first few years after Waller, two Pennsylvania courts of appeal concluded the closures in those cases violated the defendant‘s Sixth Amendment right to a public trial because the trial courts had failed to make specific findings in support of the closure as required under Waller. See Commonwealth v. Penn, 386 Pa.Super. 133, 562 A.2d 833, 836-39 (1989); Commonwealth v. Murray, 348 Pa.Super. 439, 502 A.2d 624, 627-29 (1985). But more recent Pennsylvania decisions, even those with thorough discussions on closure, have reverted to Pennsylvania‘s less rigorous Berrigan standard. See, e.g., Commonwealth v. Tirado, No. 3088 EDA 2010, 2013 WL 11259149, at *2 (Pa. Super. Ct. July 12, 2013) (applying Berrigan in a Sixth Amendment public-trial challenge); Commonwealth v. Constant, 925 A.2d 810, 817 (Pa. Super. Ct. 2007) (same); Commonwealth v. Conde, 822 A.2d 45, 50 (Pa. Super. Ct. 2003) (same). So too here. Although Tucker cited and argued Waller in both his PCRA petition and in his appellate brief, the Superior Court of Pennsylvania ignored the Waller standard and applied the less rigorous Pennsylvania standard. J.A. 58 (concluding the trial court did not abuse its discretion when it closed the courtroom because the trial court was “acutely—and justifiably—concerned about the disruption caused by the spectators in the courtroom“).
Because the Superior Court‘s Strickland analysis turned on an analysis of the right to a public trial that is inconsistent with Waller,
C.
Having determined that the state court decision is not entitled to deference under AEDPA, we proceed to a de novo evaluation of the constitutional claim on the merits. Panetti v Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (“When the requirement set forth in
In this case, to establish prejudice, Tucker must establish that but for his counsel‘s failure to raise the courtroom closure claim on direct appeal, the outcome of his appeal would have been different. Thus, Tucker must demonstrate that the underlying Waller claim would have had a reasonable probability of success—“sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The “mere possibility” that the outcome would have been different is not sufficient to establish Strickland prejudice. Rountree v. Balicki, 640 F.3d 530, 538 (3d Cir. 2011). Tucker has not met this burden.
Under the first prong of Waller, the interests cited by the trial judge—maintaining order and preventing witness intimidation and tampering—were overriding. See Codispoti v. Pennsylvania, 418 U.S. 506, 514, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974) (“[C]ases in this Court have consistently ... [recognized] the need to maintain order and a deliberative atmosphere in the courtroom.” (internal citation and quotation marks omitted)); Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) (“[I]t is of the utmost importance that the administration of justice be absolutely fair and orderly. This Court has recognized that the unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy.“). See generally
On the second prong, the scope of the closure was not overbroad based on adequate findings of fact—as required under the fourth prong of Waller. With respect to witness tampering and intimidation, on each day the courtroom was closed, witnesses testified who either had already been tampered with or intimidated, or for whom there was a strong likelihood of tampering or intimidation. Austin testified on days one and two, Anne Williams (another eyewitness who lived in the neighborhood) on day two, and Naima Scott (the sister of the victim) as well as Tucker‘s witnesses testified on day three. These witnesses had connections to rival gangs and to one another. The trial judge observed on the record that it was impossible to tell who was who in the gallery, particularly because some observers when asked provided obviously false identities. J.A. 333 (“[A]ll these different women kept coming up saying I am his mother....“). In view of these findings by the trial court, even if it is possible that an appellate court could hold that a more specific parsing of the closure throughout the day would have been feasible, we cannot say that there was a reasonable probability that the outcome of the appeal would be different. On
With respect to the third prong, at the time of Tucker‘s trial, there was some uncertainty whether this step of the Waller test compelled courts to consider reasonable alternatives sua sponte, or whether the party opposing closure had to propose them.11 In 2010, several years after Tucker‘s trial, the Supreme Court of the United States resolved this possible uncertainty, holding that “trial courts are required to consider alternatives to closure even when they are not offered by the parties....” Presley v. Georgia, 558 U.S. 209, 214, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010).
The trial court no doubt could have been more explicit in considering alternatives to closure on the record. But implicit in the trial court‘s findings and the observations she made on the record was her consideration and rejection of a number of alternatives, including addressing disruptions as they arose, J.A. 182 (trial judge explaining that her repeated admonishments to the gallery and Tucker had been unsuccessful as they continued “attempting to communicate” with each other to the point that she needed to send defense counsel “a message ... to have Mr. Tucker stop“), barring particular persons who were disruptive from the courtroom, id. at 182-83 (trial court stating that during the opening instructions “many, many citizens [came] into the courtroom whose behavior was not cooperative” and indicating exclusion of only those persons was not feasible due to the “exceedingly complex” relationships among the parties who are related both “by blood, [and] by marriage” and who “live in the same neighborhood together“), and allowing certain non-disruptive persons back into the courtroom, id. at 333 (trial court noting it was amenable to allowing Tucker‘s and victim‘s mothers back into courtroom but was unable to distinguish among the many women who represented themselves as Tucker‘s mother). In addition, the trial court‘s decision to close the courtroom was preceded by an off-the-record discussion with counsel. Id. at 182. It is apparent under these circumstances that the trial judge did consider alternatives, and, particularly given the incidents of witness tampering and complicated relationships between the people in the courtroom and the fact that Tucker was charged with the murder of a witness to a prior homicide in an ongoing gang dispute, id. at 241-42, she reasonably concluded that none would have alleviated the concerns of witness tampering and courtroom control. See Presley, 558 U.S. at 209, 130 S.Ct. 721 (“Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.“).
The fourth prong of Waller is satisfied as well. Under the fourth prong, “the
We conclude that Tucker has failed to meet his burden of showing that but for the failure of his appellate counsel to raise the Waller claim there is a reasonable probability the outcome of his appeal would have been different. For this reason, we will reverse the District Court‘s order granting Tucker‘s petition for a writ of habeas corpus and remand for proceedings consistent with this opinion.