Downs v. Lape

657 F.3d 97, 2011 U.S. App. LEXIS 18921, 2011 WL 4057173
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 14, 2011
DocketDocket 09-4723-pr
StatusPublished
Cited by160 cases

This text of 657 F.3d 97 (Downs v. Lape) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Downs v. Lape, 657 F.3d 97, 2011 U.S. App. LEXIS 18921, 2011 WL 4057173 (2d Cir. 2011).

Opinions

Judge CHIN dissents by separate opinion.

LOHIER, Circuit Judge:

Everett Downs appeals the District Court’s denial of his petition for habeas [100]*100corpus brought under 28 U.S.C. § 2254, which claimed a violation of his Sixth Amendment right to a public trial. The claim rests on the New York state trial judge’s failure to make specific findings justifying the removal of Downs’s relative from the courtroom during trial. The appeal requires us to consider whether New York’s intermediate appellate court exorbitantly misapplied New York law when it held that Downs failed to preserve this claim for state appellate review.

BACKGROUND

1. Facts and State Court Proceedings

Downs was arrested and indicted for robbing an auto body shop in 2003. His jury trial in New York State Supreme Court lasted six days. This appeal focuses solely on what happened at the start of the second day of Downs’s trial when immediately after jury selection, but just before opening statements, the government and Downs’s counsel attended an off-the-record court conference. Although we have no transcript of what occurred during the conference, no one disputes that the trial judge excluded Downs’s twelve-year-old brother, Nathaniel Clarke, from the courtroom. The lack of a transcript prevents us from knowing if the trial court justified the exclusion or considered alternatives. Our only record evidence of what transpired comes from the following statement by Downs’s counsel in open court after the off-the-record conference:

I do want to note for the record that there was a young man who, a family member of the defendant who had been asked by the Court to leave because of his age. He is 12 years old and the Court is indicating that it sets a limit of approximately 16 or 17 years of age. I informed the family of that and I’m sure they will comply. However, I do want to note, for the record, that I believe the young man is a suitable age and that he would not have been an obstruction to the proceedings.
But be that as it may, I have also spoken to the assistant district attorney earlier to apprise her of the following list of things that I believe that I am entitled to and have not yet received

Counsel made no other statement about Downs’s brother or his exclusion; he failed specifically to ask that the judge give reasons for the exclusion or to solicit comment from the judge or the prosecutor, neither of whom interrupted or responded to counsel’s statement.

After trial, Downs was convicted of robbery, burglary, and criminal mischief, and sentenced principally to eight years’ imprisonment. He appealed to the Appellate Division of the Supreme Court of New York, arguing that his Sixth Amendment right to a public trial was violated because the trial judge closed the courtroom to Clarke without making findings to support the exclusion as required by Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).

The Appellate Division never reached the merits of Downs’s Sixth Amendment claim, however, because it found that “[t]he defendant’s claim that he was denied the right to a public trial by the court’s request that a 12-year old boy be removed from the courtroom is unpreserved for appellate review.” People v. Downs, 34 A.D.3d 596, 825 N.Y.S.2d 103, 103 (2d Dep’t 2006). Downs’s application for leave to appeal to the New York Court of Appeals was denied. People v. Downs, 8 N.Y.3d 880, 832 N.Y.S.2d 492, 864 N.E.2d 622 (Table) (2007).

2. Federal Habeas Corpus Proceedings

Downs then filed his habeas corpus petition in the District Court, reasserting the [101]*101arguments set forth above. The District Court (Dearie, J.) denied the petition on the ground that the sparse trial record justified the Appellate Division’s conclusion that Downs’s claim was not preserved, since defense counsel’s statement provided no “meaningful opportunity for the [trial] court to take corrective action.” Downs v. Lape, No. 08-CV-0092, 2009 WL 3698134, at *4 (E.D.N.Y. Oct. 30, 2009). The District Court found that “[although counsel spoke in time for the trial court to change its ruling,” his remarks did not “occasion[ ], as they should have, a meaningful opportunity for the [trial] court to take corrective action.” Id. (emphasis in original). Because the issue was sufficiently close, however, the District Court granted Downs a certificate of appealability. See 28 U.S.C. § 2253(c)(2) (certificate granted upon “a substantial showing of the denial of a constitutional right”).

This appeal followed.

DISCUSSION

We review the District Court’s denial of Downs’s petition for a writ of habeas corpus de novo. See Gibbons v. Savage, 555 F.3d 112, 115 (2d Cir.2009). In rejecting Downs’s petition, the District Court declined to address the merits of his Sixth Amendment claim. We recently explained that, on the merits, four criteria need to be satisfied under Waller to “overcome [the] presumption” of openness created by the Sixth Amendment’s public trial guarantee and to “justify closure of a courtroom during a criminal proceeding: (1) ‘the party seeking to close the [proceeding] must advance an overriding interest that is likely to be prejudiced’; (2) ‘the closure must be no broader than necessary to protect that interest’; (3) ‘the trial court must consider reasonable alternatives to closing the [proceeding]’; and (4) the trial court ‘must make findings adequate to support the closure.’ ” United States v. Gupta, 650 F.3d 863, 866-67 (2d Cir.2011) (quoting Waller, 467 U.S. at 48, 104 S.Ct. 2210) (alterations in original).

1. Federal Review Under § 225U

Our function on habeas review of a state court proceeding is not to reenact the proceeding or peer over the shoulder of the state court judge ruling on questions of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Instead, federal court review of a state’s application of its own rules is deferential. We recently reaffirmed that we are to determine only whether the state ruling falls within the state’s usual practice and is justified by legitimate state interests, not whether the state court ruling was correct. See Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir.2011) (“Our task is not to determine whether [the state] ruling was correct, but to determine its adequacy to preclude federal habeas review.”) (quoting Cotto v. Herbert, 331 F.3d 217, 247 (2d Cir.2003)). We therefore “will not review questions of federal law presented in a habeas petition when the state court’s decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.’ ”1 Cone v. Bell, 556 U.S. 449, 129 S.Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

McGriff v. Reardon
E.D. New York, 2025
Baez v. Royce
E.D. New York, 2024
Green-Faulkner v. Lowerre
E.D. New York, 2024
Vazquez v. Miller
E.D. New York, 2024
Velez-Garriga v. Bell
E.D. New York, 2024
Megnath v. Royce
E.D. New York, 2024
Davis v. Royce
E.D. New York, 2024
Ratliff v. Capra
E.D. New York, 2024
Castello v. Bell
E.D. New York, 2023
Gutierrez v. Johnson
E.D. New York, 2023
Fields v. N.Y.S.D.O.C.C.S.
E.D. New York, 2023
Mack v. Collado
S.D. New York, 2023
Upson v. Capra
E.D. New York, 2023
Gregory v. Coveny
E.D. New York, 2023
Wingate v. Titus
E.D. New York, 2023
Hansen v. Johnson
E.D. New York, 2023
Leach v. Superintendent
E.D. New York, 2023
Beniquez v. Johnson
S.D. New York, 2023
Abdul-Aleem v. Griffin
E.D. New York, 2023

Cite This Page — Counsel Stack

Bluebook (online)
657 F.3d 97, 2011 U.S. App. LEXIS 18921, 2011 WL 4057173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/downs-v-lape-ca2-2011.