342 F.

3d 69

Salih SEVENCAN, Petitioner-Appellant,

v.
Victor HERBERT, Superintendent, Attica Correctional
Facility, Respondent-Appellee,
Docket No. 01-2491.

United States Court of Appeals, Second Circuit.

Argued: June 13, 2002.
Decided: December 30, 2002.
Amended: August 7, 2003.

COPYRIGHT MATERIAL OMITTED GEORGIA J. HINDE, New York,

NY, for Petitioner-Appellant.
PHYLLIS MINTZ, Leonard Joblove, Sholom J. Twersky, Assistant
District Attorneys (Office of the District Attorney, Kings County,
Brooklyn, NY), for Respondent-Appellee.
Before: MINER, CABRANES, and POOLER, Circuit Judges.
JOS A. CABRANES, Circuit Judge.

Salih Sevencan appeals from an Opinion and Order of the District Court for the
Eastern District of New York (Allyne R. Ross, Judge) entered on August 3,
2001, denying his petition for a writ of habeas corpus. The District Court
granted a Certificate of Appealability on the issue of whether the trial court's
refusal to except Sevencan's wife from a limited courtroom closure order
violated Sevencan's Sixth Amendment rights.

We hold that (1) the District Court properly conducted a Nieblas hearing in
order to determine that the exclusion of Sevencan's wife was justified and (2)
the state trial court's decision to exclude Sevencan's wife was not "an
unreasonable application of[] clearly established Federal law, as determined by
the Supreme Court of the United States," 28 U.S.C. 2254(d).

I. BACKGROUND

We assume familiarity with the background facts of this case as set forth in the
District Court's opinion, Sevencan v. Herbert, 152 F.Supp.2d 252
(E.D.N.Y.2001). We briefly set forth here only those facts necessary to our
disposition.

Between June and September 1993 Sevencan and four co-defendants were tried
in the Supreme Court for Kings County, New York, on various charges
stemming from their participation in a conspiracy to import heroin from Turkey
and sell it in the United States. Among the crimes that the defendants were
charged with were weapons possession and conspiracy to commit murder.

The chief witness against Sevencan was an undercover police officer. Before
the officer testified, the prosecution moved to seal the courtroom during the
officer's testimony. Defense counsel for Sevencan objected. The trial court held
a hearing, and, on June 16, 1993, it granted the motion to seal the courtroom
during the officer's testimony. In so ruling, the trial judge noted the importance
of an open courtroom, but found the need to protect the identity of the
undercover officer for his safety compelling, in light of the officer's continuing
undercover work. The judge made an exception for attorneys and law student
interns working with defense counsel, stating:

a lawyer is a lawyer, and we'[re] sorry about spectators, family, I mean, another
matter, something that [the prosecutor] can't exclude from the courtroom is the
two defendants on bail, they're going to walk out, I mean, the family there's
always a certain amount of risk in everything we do and we try to do it.

152 F.Supp.2d at 255 (alterations in original).

On June 24, 1993, the court informed counsel that both the undercover officer
and the assistant district attorney had received death threats connected to the
trial. Twelve days later, Sevencan's wife attempted to attend the trial. Defense
counsel sought an exception to the sealing order at sidebar, which the Court
denied as follows:

[Defense Counsel]: Judge, the defendant's wife is here and works all the time.
This is practically the only day she can get here and would like to come in. I
understand

10

The Court: The courtroom is sealed.

11

[Defense Counsel]: Yes, it is. That's why I'm applying to you [so that] it be

11

[Defense Counsel]: Yes, it is. That's why I'm applying to you [so that] it be
allowed

12

The Court: The reason we seal it is to protect the undercover. I don't think she
falls within the exceptions I've created. What's the district attorney's position?

13

[The Prosecutor]: I would object.

14

The Court: Your application is denied.

15

Id. at 255-56.

16

After Sevencan was convicted, he argued on appeal, inter alia, that the closure
of the courtroom, including the exclusion of his wife, deprived him of this Sixth
Amendment rights. The Appellate Division of the Supreme Court rejected his
arguments as follows:

17

The defendant contends that he was denied his right to a public trial when the
trial court closed the courtroom during the testimony of two undercover police
officers. However, his present claim was waived by his failure to object to the
closures at trial, and, in any event, is without merit.

18

People v. Sevencan, 258 A.D.2d 485, 685 N.Y.S.2d 735, 736 (2d Dep't 1999)
(citing People v. Akaydin, 258 A.D.2d 466, 685 N.Y.S.2d 737 (2d Dep't 1999)
(companion case)). Notably, although the Appellate Division appeared to hold
that Sevencan had not objected to the closures at trial, it did not similarly hold
that his co-defendant, Akaydin, had also waived his objection to those closures.
See Akaydin, 685 N.Y.S.2d at 738. Yet it appears from the record that counsel
for Sevencan objected more vocally than counsel for Akaydin. Sevencan, 152
F.Supp.2d at 260. See generally N.Y.Crim. Proc. Law 470.05(2).1 The New
York Court of Appeals denied leave to appeal further. See People v. Sevencan,
93 N.Y.2d 1027, 697 N.Y.S.2d 586, 719 N.E.2d 947 (1999).

19

Sevencan subsequently timely filed the instant petition in the District Court. He
sought relief on various grounds, including the closure of the courtroom and
the exclusion of his wife. The proceedings subsequently focused on the
exclusion of Sevencan's wife.

20

Inasmuch as the state trial court had made no findings specific to Sevencan's
wife, the District Court held a hearing pursuant to Nieblas v. Smith, 204 F.3d 29
(2d Cir.1999) (holding that district courts have the discretion to conduct

evidentiary hearings to determine whether a courtroom closure was justified

where the record of proceedings before the trial court was not sufficient to
determine whether the closure was proper). Sevencan, 152 F.Supp.2d at 26364. At the hearing, the State submitted tapes of conversations that suggest Mrs.
Sevencan's knowledge of her husband's illegal activities and her familiarity with
several of Sevencan's associates. Id. at 258-59. The undercover officer also
testified, stating that he did business at bars in a large shopping area for
residents of Mrs. Sevencan's neighborhood, that he spent between two and five
days a week in this area, and that he intended to continue working in that area
under cover. He further testified that the leader of the drug conspiracy was still
at large at the time of trial and that Sevencan himself had previously committed
a murder.
21

Following the Nieblas hearing, the District Court held that the closure of the
courtroom to Mrs. Sevencan during one day of the undercover officer's
testimony did not deny Sevencan his right to a public trial because (1)
protection of the undercover's safety and security was an important interest
within the meaning of Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81
L.Ed.2d 31 (1984), and (2) the State demonstrated that Mrs. Sevencan was
likely to encounter the undercover officer in the course of her daily activities.
Sevencan, 152 F.Supp.2d at 264-65. Although the District Court acknowledged
that Mrs. Sevencan did not pose a direct physical threat to the undercover
officer, it held that her ability to report that officer's description to other more
dangerous individuals was sufficient. Id. at 265-66. The District Court also
found that Mrs. Sevencan is "a timid[,] pliable woman" likely to be susceptible
to requests from her husband's associates, who still were at large, to inform
them if she spotted the undercover officer. Id. at 266-67.

22

The District Court then rejected Sevencan's remaining claims and denied his
petition. Id. at 269-70. It granted a Certificate of Appealability limited to the
issue of whether the exclusion of Sevencan's wife deprived him of his Sixth
Amendment right to a public trial. See id. at 270.

23

On appeal, Sevencan principally argues that (1) the District Court erred in
holding a hearing pursuant to Nieblas v. Smith and, accordingly, the writ should
have been granted based on the lack of findings by the state trial court; and (2)
even if the evidence adduced at the Nieblas hearing was properly considered,
the District Court erred in holding that the evidence and record before it were
sufficient to support the state trial court's decision to exclude Sevencan's wife
from the courtroom.

II. DISCUSSION

24

The habeas corpus statute available to persons convicted under state law, as
amended by the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, provides, in relevant part:

25

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim

26

(1) 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.

27

28 U.S.C. 2254(d) (emphasis added). In Williams v. Taylor, 529 U.S. 362,

120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court authoritatively
interpreted the phrase "clearly established Federal law, as determined by the
Supreme Court of the United States" to mean "the holdings, as opposed to the
dicta, of [the Supreme Court's] decisions as of the time of the relevant statecourt decision." 529 U.S. at 412, 120 S.Ct. 1495. "[A]s the statutory language
makes clear, ... 2254(d)(1) restricts the source of clearly established law to [the
Supreme Court's] jurisprudence." Id.

28

In Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the
Supreme Court held that, before public access to a courtroom in a criminal case
may be restricted, "[1] the party seeking to close the hearing 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 court] must make
findings adequate to support the closure." Id. at 48, 104 S.Ct. 2210. The
violation of the constitutional right to a public trial is a "structural error"2
warranting remediation regardless of prejudice. See Id. at 49-50 & n. 9, 104
S.Ct. 2210.

29

Prior to the enactment of AEDPA, we set forth a standard in our own Circuit
governing the constitutionality of excluding a defendant's family members from
the courtroom. See Vidal v. Williams, 31 F.3d 67 (2d Cir.1994). In Vidal, we
reversed a District Court's denial of a habeas petition on the ground that the
closure of a courtroom to a defendant's parents was improper. In that case, the
defendant's parents were in the courtroom at the time the prosecutor sought
closure, and defense counsel requested that they be allowed to remain. Id. at 68.
The state trial court had rejected that request because the parents lived within

three miles of the area in which the officer conducted undercover operations,
and it closed the courtroom. Id. We held that the proximity of the parents'
residence to the officer's area of operation was insufficient to justify their
exclusion, relying in part on the Supreme Court's "specific[] not[ation, in dicta,
of] a special concern for assuring the attendance of family members of the
accused" in In re Oliver, 333 U.S. 257, 271-72 & n. 29, 68 S.Ct. 499, 92 L.Ed.
682 (1948). Vidal, 31 F.3d at 69.
30

Since Vidal, we have often noted in pre-AEDPA cases that particular attention
must be paid to the exclusion of family members. See English v. Artuz, 164
F.3d 105, 108 (2d Cir.1998) (granting a habeas petition in a pre-AEDPA case
where the prosecutor sought closure of the courtroom, the defendant asked that
his family be allowed to remain, and the state trial court denied the defendant's
request and closed the courtroom); Guzman v. Scully, 80 F.3d 772, 775-76 (2d
Cir.1996) (similar, citing Oliver); see also Bowden v. Keane, 237 F.3d 125, 130
n. 1 (2d Cir.2001) ("Special concerns may apply when the spectators
selectively barred from the courtroom are the defendant's family members."
(citing Vidal)); Brown v. Kuhlmann, 142 F.3d 529, 538 (2d Cir.1998) (similar,
citing Vidal and Oliver); Ayala v. Speckard, 131 F.3d 62, 72 (2d Cir.1997) (en
banc) (similar, citing Vidal and Guzman).

31

In Yung v. Walker, 341 F.3d 104, 111 (2d Cir.2003) the first and only
decision of our Court on the exclusion of family members applying the AEDPA
standard (as informed by Williams v. Taylor) we held that "Waller prevents
a court from denying a family member's request to be exempted from a
courtroom closure order unless the court is convinced that the exclusion of that
particular relative is necessary to protect the overriding interest at stake."3 We
noted, however, that the particular showing required in Vidal was not mandated
by "clearly established" Supreme Court law. Because the District Court had
relied on Vidal, we vacated the judgment and remanded for application of "the
more general teachings of Waller as informed by Oliver." Id.

32

In the case now before us, the District Court likewise followed Vidal and
analyzed the issue as if "clearly established" law includes our Circuit's preAEDPA jurisprudence regarding the consideration due to family members in
such circumstances. See Sevencan, 152 F.Supp.2d at 262-63. This was error. As
we recognized in Yung, the only "clearly established" law within the meaning
of 28 U.S.C. 2254(d)(1) relevant to this case is Waller's four-factor test for
closures generally. See Yung, 341 F.3d at 111. Accordingly, Sevencan is
entitled to relief only if he can demonstrate that the state court's decision
"resulted in a decision that was contrary to, or involved an unreasonable
application of," Waller. See 28 U.S.C. 2254(d)(1).

33

A state court's decision is "contrary to" clearly established law, within the
meaning of 2254(d)(1), if "the state court applies a rule that contradicts"
governing Supreme Court law, or if it "confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [Supreme Court] precedent."
Williams, 529 U.S. at 405, 406, 120 S.Ct. 1495. Ordinarily, a "run-of-the-mill
state court decision applying the correct legal rule from our cases to the facts of
a prisoner's case would not fit comfortably within 2254(d)(1)'s `contrary to'
clause," even if a federal court believes that the state court reached the wrong
result. Id. at 406, 120 S.Ct. 1495. This is just such a "run-of-the-mill" case
indeed, petitioner does not contend that the result is "contrary to" federal law,
but, rather, that the state appellate court "fail[ed] to [properly] apply" federal
law. See Pet'r's Br. at 29. This claim is properly analyzed pursuant to the
"unreasonable application" clause of 28 U.S.C. 2254(d). See Williams v.
Taylor, 529 U.S. at 407, 120 S.Ct. 1495.

34

A decision is an "unreasonable application" of clearly established Supreme

Court law if a state court "identifies the correct governing legal principle from
[the Supreme Court's] decisions but unreasonably applies that principle to the
facts of [a] prisoner's case." Id. at 413, 120 S.Ct. 1495. Under this standard, "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. Rather, that application must
also be unreasonable." Id. at 411, 120 S.Ct. 1495. In order to grant the writ
there must be "[s]ome increment of incorrectness beyond error," although "the
increment need not be great; otherwise, habeas relief would be limited to state
court decisions so far off the mark as to suggest judicial incompetence."
Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (internal quotation marks
omitted).

35

In this case, the state trial court's initial decision to close the courtroom to the
general public clearly comported with Waller: (1) the prosecutor advanced an
"overriding interest" that was "likely to be prejudiced" by a public hearing
the safety of the undercover officer; (2) the closure was "no broader than
necessary to protect that interest," as it was solely for the officer's testimony;
(3) the trial court considered reasonable alternatives proposed by the defense
the admission of other lawyers and legal interns and (4) the trial court
made "findings adequate to support the closure," in that it found that the
undercover officer would indeed be in danger if he were publicly identified. See
Waller, 467 U.S. at 48, 104 S.Ct. 2210. Accordingly, Sevencan is entitled to
relief only if the trial court's refusal to make an exception to its general closure
order for his wife was an "unreasonable" application of Waller.

36

In Yung, we set forth the standard for determining whether a state court has
unreasonably applied Waller by excluding a relative of the defendant from the
courtroom. We held that "it would be an unreasonable interpretation of Waller
for a court to deny [the] request [of a member of the defendant's family to be
exempted from a courtroom closure order] if the exclusion of that particular
relative, under the specific circumstances at issue, is not necessary to promote
the overriding interest [at stake]." Yung, 341 F.3d at 111.

37

In this case, the state trial court did not make express findings regarding
whether the exclusion of Mrs. Sevencan was necessary to protect the
undercover officer's safety. Accordingly, the District Court held a Nieblas
hearing to determine whether Mrs. Sevencan's exclusion was justified. As a
preliminary matter, Sevencan argues that the District Court's decision to hold
the Nieblas hearing was in error. He advances several justifications for this
assertion, each of which we consider in turn.

38

First, Sevencan maintains that evidence adduced at a Nieblas hearing cannot

satisfy Waller because the fourth prong of the Waller test requires the state
trial court itself to make "findings adequate to support the closure." Waller,
467 U.S. at 48, 104 S.Ct. 2210. We have previously rejected this argument. See
Nieblas, 204 F.3d at 31-32; see also Yung, 341 F.3d at 112; Gonzalez v.
Quinones, 211 F.3d 735, 738 (2d Cir.2000).

39

Sevencan also argues that 2254(d)(1) precludes district courts from

conducting any ex post evidentiary hearings in habeas cases. But 2254(d)(1)
sets forth a legal standard governing when a writ can and cannot be granted: It
does not explicitly or implicitly invalidate the district courts' long-standing
practice of holding evidentiary hearings to supplement an incomplete state
record. Moreover, although Nieblas itself is a pre-AEDPA case, our opinions in
both Yung and Gonzalez recognized the validity of Nieblas hearings in habeas
cases filed after AEDPA's enactment. Accordingly, Sevencan's argument that
2254(d)(1) precludes the use of Nieblas hearings is without merit.

40

Finally, Sevencan argues that even if Nieblas hearings are permissible in postAEDPA cases generally, the facts of his case in particular did not justify a
Nieblas hearing. This argument also fails: The hearing in this case was well
within the scope of the District Court's discretion as described in Nieblas. Two
factors supported our affirmance in Nieblas of the district court's decision to
hold a hearing. First, the petitioner had made only a perfunctory objection at
trial to the courtroom closure. Second, the law changed after trial, creating a
greater necessity for a fully-developed record. We held that "where either of
the above two reasons or any other similar reason exists, it is particularly

appropriate for a habeas court to gather additional evidence rather than

granting the defendants the `windfall' of a new trial where the alleged
constitutional violation does not affect the fairness of the outcome at trial, as in
courtroom closure cases like this one." Nieblas, 204 F.3d at 32 (quoting Waller,
467 U.S. at 50, 104 S.Ct. 2210).
41

Like Nieblas, Sevencan made only a perfunctory objection to the exclusion of

his wife. He did not alert the trial court that a different standard might govern
his wife's exclusion. In addition, after Sevencan's trial in 1993, the New York
Court of Appeals decided People v. Nieves, 90 N.Y.2d 426, 660 N.Y.S.2d 858,
683 N.E.2d 764 (1997), in which it held that, in order to exclude a defendant's
wife and children, the People must establish "a `substantial probability' that the
officer's safety would be jeopardized by [their] presence." Nieves, 660
N.Y.S.2d at 861, 683 N.E.2d 764. As in Nieblas, it is likely that the State would
have built a stronger case for the exclusion of Mrs. Sevencan had the rule of
Nieves been New York law at the time of trial. Thus, the District Court did not
err by holding a Nieblas hearing.

42

We also agree with the District Court's conclusion, based on the evidence
adduced at the Nieblas hearing, that the exclusion of Sevencan's wife was
"necessary to protect the overriding interest" in the safety of the undercover
officer. Yung, 341 F.3d at 111. At the hearing, the undercover officer testified
that, at the time of Sevencan's trial, he had intended to return to the same
general area in which Sevencan plied his narcotics trade. The officer stated that
he had conducted undercover work at bars in a large shopping area for
residents of Mrs. Sevencan's neighborhood and that he had spent between two
and five days a week in this area. Based on this evidence, the District Court
properly determined that Mrs. Sevencan was likely to have encountered the
undercover officer in the course of her daily activities.

43

Nor do we find error in the District Court's conclusion that Mrs. Sevencan is "a
timid[,] pliable woman" likely to be susceptible to requests from her husband's
associates to inform them if she spotted the undercover officer. Sevencan, 152
F.Supp.2d at 266-67. At the Nieblas hearing, the State submitted tapes of
conversations that suggest Mrs. Sevencan's knowledge of her husband's illegal
activities and her familiarity with several of his associates. Id. at 258-59. The
evidence also plainly established that Sevencan and his associates were highly
dangerous: The undercover officer and the assistant district attorney both
received death threats several days before Mrs. Sevencan asked to be admitted
into the courtroom. There is no reason to believe that Sevencan's associates
would not make similar threats in order to force Mrs. Sevencan to identify the
undercover officer. Accordingly, the evidence adduced at the Nieblas hearing

overwhelmingly supports the necessity of excluding Sevencan's wife from the

courtroom in order to protect the undercover officer's safety. In conformity with
our decision in Yung, we hold that the state trial court reasonably applied the
Supreme Court's decision in Waller when it declined to exempt Mrs. Sevencan
from the courtroom closure order.
III. CONCLUSION
44

In sum, we hold that (1) the District Court properly conducted a Nieblas
hearing in order to determine that the exclusion of Sevencan's wife was justified
and (2) the state trial court's decision to exclude Sevencan's wife was not "an
unreasonable application of[] clearly established Federal law, as determined by
the Supreme Court of the United States," 28 U.S.C. 2254(d).

45

Accordingly, the judgment of the District Court is affirmed.

Notes:
1

Section 470.05(2) of New York's Criminal Procedure Law provides, in relevant

part:
For purposes of appeal, a question of law with respect to a ruling or instruction
of a criminal court during a trial or proceeding is presented when a protest
thereto was registered, by the party claiming error, at the time of such ruling or
instruction or at any subsequent time when the court had an opportunity of
effectively changing the same. Such protest need not be in the form of an
"exception" but is sufficient if the party made his position with respect to the
ruling or instruction known to the court, or if in [response] to a protest by a
party, the court expressly decided the question raised on appeal.

See Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d
718 (1997) ("A `structural' error, we explained in Arizona v. Fulminante, [499
U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991),] is a `defect affecting
the framework within which the trial proceeds, rather than simply an error in
the trial process itself.'").

Although this language does not appear in the original opinion inYung v.
Walker, 296 F.3d 129, 136 (2d Cir.2002), it is included in an amended version
of that opinion filed on August 1, 2003. See Yung v. Walker, 341 F.3d 104, 111
(2d Cir.2003). The amended opinion in Yung was filed in conjunction with our
amended opinion in the instant case in order to resolve any arguable

disagreement within our circuit regarding the standard for analyzing, under
AEDPA, a Waller Sixth Amendment claim pertaining to the exclusion of
relatives from the courtroom.