Habeas Corpus Blog

Habeas Corpus - Case Added to Second Circuit Page

I have added a case to the Pending Second Circuit cases page.  This oversight actually kind of bugs me a little because it is my own oversight.  I previously wrote about the COA grant here.  But then I lost track of it.  And I am happy that it's now back on my radar since it's an interesting case.

Downs v. Lape, 09-4723-pr

• Argument Date: 3/15/11
• Lower Ct Info: 08-CV-0092, 2009 WL 3698134 (EDNY Oct. 30, 2009) (RJD)
• In Circuit: Dist Ct COA
• Issues: Procedural Default/Right to a public trial

Here is what I said about the case previously:

An odd little case.  Issue concerns the exclusion of a 12-year-old member of petitioner's family from the courtroom.  The Appellate Division held that the claim was unpreserved.  DJ goes through an in-depth analysis as to whether the claim is procedurally defaulted.  DJ points out that, while defense counsel did mention something about the right to a public trial during his argument, it wasn't really enough to move the trial court to create a record as to why the family member is being excluded.  Since the defense failed to make the adequate record, then DJ was forced to say that the claim was procedurally defaulted.

Nevertheless, DJ goes on to discuss the state of the law as to the exclusion of family members from the courtroom.  DJ points out that Waller is the controlling law and Waller only analyzes establishes the four-part test, but does not specifically relate to family members.  The Supreme Court has, in dicta, mentioned a sort of heightened protection for family members in a case called Oliver.  However, the Second Circuit has recently stated that it's not a part of the AEDPA deference cases since it's dicta.  Despite that case, DJ does say that a court can't ignore the "uncompromising tone" of the language in Oliver and the Second Circuit has been "steadfast[ly] loyal" to the decision.  On the other hand, there is some Second Circuit authority that suggests that the exclusion of family members for a limited time period is "trivial."  DJ suggests that there could be two standards here that could lead to different results: (1) Waller; or (2) Waller plus Oliver minus triviality.

Due to the competing precedents and the openness of these questions, DJ says that the court shouldn't resolve them and it should be left up to the Circuit.  So grants COA on these broad questions.  Of course, the Second Circuit may never go anywhere near these questions if it should agree with the DJ that the claim is procedurally defaulted.  It's not the cleanest context in which to send a case up to the Second Circuit.  But I have been complaining about the stinginess of COA's, so I am just happy to see that one was granted.

Habeas Corpus - Going Public -- A Front-End Case

Finally got around to reading the decision last week in Presley v. Georgia (available here).

In the case, the Supreme Court set forth two holdings favorable to criminal defendants: (1) a defendant's sixth amendment right to a public trial extends to jury selection; (2) trial courts are required to consider alternatives to closure even when not offered by the parties.

The second holding will seem to have a big effect in NY, as both the state Court of Appeals and the Second Circuit have held thata defendant was required to propose alternatives and the court was not obligated to consider the issue sua sponte.  See People v. Ramos, 90 NY2d 490 (1997); Ayala v. Speckard, 131 F3d 62 (1997).

So the case will definitely have an impact on those cases still in the direct appeal pipeline.

But what about cases that have already become final, for example, any pending habeas petitions?  Here is where we find some intersection between the 2254(d) standard and Teague v. Lane (the case that sets forth the rules on retroactivity in habeasland, which I have discussed here).  If Presley is a "new rule," then a petitioner cannot get any retroactive benefit of this case.  That also would mean that prior to Presley the two holdings were not clearly established law under 2254(d).

On the other hand, if Presley is not a "new rule," but simply an application or an explanation of a "clearly established" principle, then it would apply to cases that have already become final.

I think a strong argument can be made that this was not a "new rule" but simply an explanation of a clearly established rule.  First, this was a summary disposition.  No formal briefing or oral argument was ordered.  It was vacated solely based on the cert. petition.  This was because the Court felt that it was such an obvious decision: "The Supreme Court of Georgia's affirmance contravened this Court's clear precedents."  (My emphasis).  Kind of answers the question all by itself, doesn't it?

But there's more.  When discussing the Sixth Amendment issue, the Court states that the law is "well settled" that the Sixth Amendment extends to jury selection.  The Court then discusses the two cases that show that the rule has already been established.

Then, when addressing the alternatives to closure issue, the Court stated that the answer was "clear" from its precedents and that the rule had been set forth in "explicit statements." 

That's a lot of clarity and well-settledness.  Provides much ammunition for cases that have already become final.

On the other hand, there is the dissent.  In his dissent, Thomas (joined by Scalia) states that it was improper to summarily dispose of the case because these were two previously "unanswered" questions.  He then explains why the prior precedent did not show that the questions were "well-settled" or "clear."  He believes that these were extensions of the prior precedent.

When asking whether a decision is a "new rule," the fact that there was a dissent and the substance of the dissent are things to consider.  At the same time, it was only a two-person dissent, while seven of the judges felt that this was just an explanation of a well settled principle.  And that's something, too.

I'll be curious to see if this argument gets any play in the federal courts.

Final Note: It's been a long time, but I had to add a new category.  I hope that fact doesn't get used against habeas petitioners when trying to show that this was not a "new rule."