USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 96-1856
CRAIG MARTIN,
Petitioner, Appellant,
v.
LYNN BISSONETTE, ET AL.,
Respondents, Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
_________________________
Before
Selya, Circuit Judge,
Aldrich and Cyr, Senior Circuit Judges.
_________________________
Carol A. Donovan, Committee for Public Counsel Services, for
appellant.
James S. Liebman, Elaine R. Jones, George H. Kendall, and L.
Song Richardson on combined brief for James S. Liebman and NAACP
Legal Defense & Educational Fund, Inc., amici curiae.
Ellyn H. Lazar, Assistant Attorney General, Commonwealth of
Massachusetts, with whom Scott Harshbarger, Attorney General, was
on brief, for appellees.
_________________________
July 11, 1997
_________________________
REVISED OPINION
_________________________
SELYA,
Circuit
Judge
.
Petitioner-appellant Craig Martin,
a state prisoner, sought habeas relief based on a claim that the
state court's exclusion of his mother from the courtroom during
part
of
the
testimony of a key prosecution witness deprived him of
his Sixth Amendment right to a public trial. The United States
District Court for the District of Massachusetts denied the writ.
Martin appeals.
As a preliminary matter, we must explore, for the first
time in this circuit, the interrelationship between habeas
petitions and the newly enacted Prison Litigation Reform Act of
1996 (PLRA). Once that expedition is finished, we address the
merits of Martin's claim. In the end, we affirm the judgment of
the district court.
I. PROCEDURAL HISTORY
On
May
7,
1991,
a
Barnstable County (Massachusetts) grand
jury indicted Martin on charges of breaking and entering. See
Mass. Gen. Laws ch. 266, S 18 (1990). Later that year, a petit
jury
found
the petitioner guilty as charged, and the court imposed
a substantial prison sentence. Martin's subsequent attempts to
gain surcease in the state court system proved unavailing. See
Commonwealth v. Martin, 653 N.E.2d 603 (Mass. App. Ct.), further
rev. denied, 654 N.E.2d 1202 (Mass. 1995).
On March 12, 1996, the petitioner applied for a writ of
habeas corpus in the federal district court, see 28 U.S.C. S 2254
(1994), naming as respondents various state officials (who, for
ease in reference, we call "the Commonwealth"). He premised the
2
application on a claim that the trial court's exclusion of his
mother from the courtroom during part of the testimony of a key
prosecution
witness deprived him of his Sixth Amendment right to a
public trial. The district court, without much in the way of
independent
elaboration, turned a deaf ear and thereafter denied a
certificate of probable cause. We nonetheless granted a
certificate of appealability. See 28 U.S.C.A. S 2253(c)(1) (West
Supp. 1997).
II. THE COURSE OF TRIAL
To understand the petitioner's claim, we must rehearse
his trial in the Barnstable Superior Court. We offer only a
synopsis, confident that the reader who thirsts for additional
detail can find it elsewhere. See Martin, 653 N.E.2d at 604-06.
The
Commonwealth alleged that Martin and Niles Hinckley,
his half-brother, broke into the office of the Yarmouth town dump
and
stole
a
safe. After removing the safe from the building, they
told
a
friend, Thomas Violette, that they needed help to transport
"something
big."
Violette obliged. As the three men left the dump
in Hinckley's car, with the safe aboard, they came across Linda
Rose,
whose
automobile
had failed her. She joined them. The group
proceeded to Rose's home. Once there, the men dragged the safe
into the house and tried to open it. Unsettled by this endeavor,
Rose
departed with her children. Violette also grew anxious about
his involvement; he left the premises a few minutes after Martin
and Hinckley began working on the safe, pondered his predicament,
and then made a beeline for the police. The culprits were
3
apprehended and charged in short order.
Martin and Hinckley were tried together. The
Commonwealth called Rose as a witness in its case in chief. She
stated repeatedly that she did not see (or, at least, could not
recall) much of what had transpired on the evening in question.
The
prosecutor told the judge at sidebar that Rose was nervous and
scared and suggested that her professed lapses of memory were
disingenuous. The trial adjourned in the midst of Rose's cross-
examination.
On the next trial day, the prosecutor voiced concern
about
possible witness intimidation and the judge conducted a voir
dire outside the presence of the jury. During that proceeding,
Rose
admitted
that
portions of her previous testimony had been less
than truthful. She also stated that she had been frightened by
James
Martin
(the petitioner's brother, who, she said, had pointed
at her from the back of the courtroom), by the petitioner's
girlfriend,
and by an unidentified woman (who, she said, had given
her
dirty
looks,
"scaring [her] from testifying"). Rose went on to
recount
that
the
petitioner's girlfriend had signalled her to "come
over and talk" outside the courtroom; that the petitioner himself
had accosted her shortly after his arrest and instructed her to
testify (falsely) that Hinckley had acted alone in expropriating
the safe; and that, on another occasion, the Martin brothers
ordered her to deny the petitioner's role in the burglary.
Based
on
Rose's statements, the court determined that it
was
"in
the
interest of justice that the Commonwealth be permitted
4
to reopen and redirect on Miss Rose." In so ruling, the judge
witnesses (including Rose) and that the petitioner had been found
uilty
of
intimidating Rose. The judge then ordered the courtroom
c
noted
that
James Martin already had pleaded guilty to intimidating
glosed
during
the
remainder of Rose's testimony and refused to make
an exception for the petitioner's mother.1 During her reopened
testimony, Rose described the petitioner's attempts to intimidate
her,
but
her
recollection of the evening in question did not differ
materially from her original testimony.
III. THE PRISON LITIGATION REFORM ACT
We begin with the PLRA, Pub. L. No. 104-134, tit. VIII,
110
Stat.
1321, 1366 (1996), which, among other things, amended 28
U.S.C. S 1915 to require convicts to pay the full amount of the
filing
fees
in civil actions. See PLRA, S 804, 110 Stat. at 1373-
1375. The petitioner did not pay a filing fee to the district
court and has not paid any other fees associated with the
maintenance
of his suit.2 Thus, the threshold question is whether
the PLRA applies to habeas petitions brought in federal court by
state prisoners.
Though
habeas proceedings are technically civil actions,
see
Ex
parte
Tom Tong, 108 U.S. 556, 559 (1883), the Supreme Court
has long recognized that the label is ill-fitting and that habeas
1Although the closure order exempted the press, there is no
evidence
in
the
record
that any reporters were in attendance during
Rose's reopened testimony. See Martin, 653 N.E.2d at 605.
2The petitioner did file a motion to proceed in forma
pauperis, and although the district court did not grant that
motion, he appears eligible for such a dispensation.
5
is
in
fact
a
unique
creature of the law. See Harris v. Nelson, 394
U.S. 286, 293-94 (1969). Here, despite the undiscriminating
reference
to
"civil
actions," no fewer than four pieces of evidence
indicate
that Congress did not intend the PLRA to intrude into the
habeas
realm.
First,
Congress, in enacting the PLRA, took dead aim
at suits challenging conditions of confinement, and nothing in
either the PLRA's text or its legislative history suggests that
habeas cases were perceived to comprise a part of this problem.
Second, Congress specifically addressed what it perceived to be
habeas
abuses in the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), Pub. L. No. 104-132, tit. I, 110 Stat. 1216
(1996),
which it enacted contemporaneous with passage of the PLRA,
and the abuses it enumerated did not include the non-payment of
filing
fees.
See Reyes v. Keane, 90 F.3d 676, 678 (2d Cir. 1996).
Third,
extending the PLRA to habeas cases would deny habeas review
to any prisoner proceeding in forma pauperis who had previously
filed three groundless (though unrelated) civil suits while
incarcerated,
see 28 U.S.C.A. S 1915(g) (West Supp. 1997), thereby
frustrating a storied tradition of reasonable access to habeas
review.
See
Martin
v.
Un
ited States, 96 F.3d 853, 855-56 (7th Cir.
1996). We seriously doubt that Congress would have purposed to
narrow the habeas gateway in so restrictive a manner without some
explicit reference to that effect. Last, but not least, this
drastic
curtailment
is
largely unnecessary because the AEDPA itself
effectively curbs frivolous habeas litigation through limits on
successive petitions. See 28 U.S.C.A. S 2244 (West Supp. 1997).
6
We are not alone in finding these indicia persuasive.
the circuits that have addressed this question to date hav
not apply to habeas petitions. Smith
v
All e
agreed
that
the
PLRA
does See
.
Angelone
,
111 F.3d 1126, 1131 (4th Cir. 1997); United States v.
Levi
,
111
F.3d 955, 956 (D.C. Cir. 1997) (per curiam); Anderson v.
Singletary, 111 F.3d 801, 805 (11th Cir. 1997); United States v.
Simmonds, 111 F.3d 737, 743 (10th Cir. 1997); Naddi v. Hill, 106
F.3d 275, 277 (9th Cir. 1997); United States v. Cole, 101 F.3d
1076,
1077
(5th Cir. 1996); Santana v. United States, 98 F.3d 752,
756
(3d
Cir.
1996); Martin, 96 F.3d at 855; Reyes, 90 F.3d at 678.
We concur with these courts and endorse their reasoning.
Accordingly, we hold that the PLRA does not apply to habeas
petitions prosecuted in federal courts by state prisoners.
IV. STANDARD OF REVIEW
On April 24, 1996 over a month after Martin filed his
petition the President signed the AEDPA into law, thereby
altering
the
legal framework which governs federal judicial review
of habeas corpus applications. See Pub. L. No. 104-132, tit. I,
110
Stat.
1216 (1996). The Supreme Court has now decided that the
AEDPA
does
not apply to habeas petitions which were pending at the
time the new law took effect. See Lindh v. Murphy, No. 96-6298,
1997 WL 338568, at *8 (U.S. June 23, 1997).3 The petitioner is
3
Prior
to
the
Court's resolution of the question by a five-to-
four margin in Lindh, the circuits had divided on the issue of
retroactivity. Compare Hunter v. United States, 101 F.3d 1565,
1573 (11th Cir. 1996), cert. denied, 117 S. Ct. 1695 (1997) and
Drinkard v. Johnson, 97 F.3d 751, 766 (5th Cir. 1996), cert.
denied, 117 S. Ct. 1114 (1997) and Lindh v. Murphy, 96 F.3d 856,
867 (7th Cir. 1996) (all holding that the judicial review
7
therefore entitled to plenary review of his claim that the stat
See Dubois
, 9 (1st Cir. 1994) (explaining that federal court
e
court
abridged
his
constitutional rights. Scarpa v. , 38
F.3d 1 s
traditionally
afford de novo review in respect to habeas petitions
brought by state prisoners), cert. denied, 115 S. Ct. 940 (1995);
Siegfriedt v. Fair, 982 F.2d 14, 16 (1st Cir. 1992) (similar);
Chakouian v. Moran, 975 F.2d 931, 934 (1st Cir. 1992) (similar).
V. THE MERITS
Refined
to
bare essence, the petitioner's constitutional
claim is that his Sixth Amendment right to a public trial was
offended by the exclusion of his mother from the courtroom during
Rose's reopened testimony.
A.
This claim rests primarily on the petitioner's
interpretation of Waller v. Georgia, 467 U.S. 39 (1984). In
Waller,
the
Supreme Court set forth a quadripartite test that must
be passed to justify closing a courtroom in a criminal case:
[T]he 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
provisions
of the AEDPA applied to habeas petitions pending on its
effective date) with Jeffries v. Wood, No. 95-99003, 1997 WL
253326, at *11 (9th Cir. May 12, 1997) (en banc) and Burkett v.
Love, 89 F.3d 135, 138 (3d Cir. 1996) and Edens v. Hannigan, 87
F.3d
1109,
1112
n.1
(10th Cir. 1996) (all holding to the contrary).
We had chosen the former path in an earlier iteration of this
opinion. Because Martin's case was still pending before us on a
petition for rehearing when Lindh was decided, we withdrew our
earlier opinion and now reevaluate Martin's claims under the pre-
AEDPA standard.
8
proceeding,
and it must make findings adequate
to support the closure.
Id.
at
48.
The
petitioner does not challenge the judge's authority
to exclude from the courtroom those whose presence actually
intimidates
a witness. Rather, emphasizing Waller's second prong,
he posits that the exclusion of his mother was broader than
necessary to protect the overriding interest of ensuring the
integrity of the ongoing trial.
We
do
not
agree. Nothing in Waller or in any other case
cited
by
the
petitioner
suggests that a trial judge, presented with
evidence of repeated attempts at witness intimidation and a live
witness who harbors a plausible fear of testifying before
spectators known and unknown to her, must undertake an assessment
of the exact level of affrightment created by each specific
spectator, one by one, before closing a courtroom to the public.4
Rose
already
had
been
frightened and intimidated by the petitioner,
the petitioner's brother, the petitioner's girlfriend, and an
unidentified woman. The trial court's closure order was neither
broader nor longer than was reasonably necessary to end this
4
On
direct review, the Massachusetts Appeals Court summarized
the matter as follows:
While
we
think the judge should have expressly
rather than implicitly determined whether the
witness would have had difficulty testifying
with the defendant's mother present, it was
not
constitutional error requiring a new trial
not to do so in the particular circumstances
of
recent
intimidation by other family members
and persons sympathetic to the defendant.
Martin, 653 N.E.2d at 606. We believe that this is a correct
synthesis of applicable constitutional principles.
9
widespread reign of harassment and secure the witness's accurate
testimony.
Our judgment that the trial court's closure order does
not run afoul of Waller is buttressed by the Second Circuit's
decision
in
W
oods v. Kuhlmann, 977 F.2d 74, 78 (2d Cir. 1992). In
Woods, a prosecutor informed the judge that one or two members of
the defendant's family had visited a witness at her house and
warned her not to testify, and the judge then excluded all family
members from the courtroom during the witness's testimony. The
Woods
defendant
argued,
as does the petitioner here, that the trial
court's order swept too broadly. The court of appeals rejected
this argument, concurring with the trial judge that "the closure
order
was
no
broader than was necessary to enable [the witness] to
testify" and that a narrower closure would have been ineffective.
Id.
at
77.
In
short,
Woo
ds strongly supports the result reached by
the district court in this case.
B.
The petitioner has one last string to his bow. He
insists that we should consider the exclusion of his mother from
the
courtroom under a "heightened" standard which presumably would
be applicable whenever a court excluded a family member from a
criminal
defendant's
trial. The short, entirely dispositive answer
to this plaint is that the Supreme Court opinion on which the
petitioner relies, In re Oliver, 333 U.S. 257 (1948), does not
10
contain any such requirement.5 Nothing in Oliver or, for that
matter,
in
Vidal
v.
Willi
ams, 31 F.3d 67, 69 (2d Cir. 1994) (noting
"a
special
concern
for
assuring the attendance of family members of
the accused"), suggests that a trial court need go beyond the
already stringent requirements of Waller before removing a
defendant's
family members from the courtroom. Those requirements
including
the existence of an overriding interest that is likely
to be prejudiced in the absence of closure and that the closure
must be no more expansive than necessary to protect that interest
adequately safeguard a defendant's interest in permitting his
family to be present in the courtroom.
In
sum,
we
not only reject the petitioner's assertion of
a
heightened
standard for the exclusion of family members from the
courtroom, but we also note the exquisite irony of Martin raising
the argument where, as here, his relatives played prominent roles
in menacing a witness. On these peculiar facts, it seems
especially reasonable for the trial court to have concluded that
the
witness's founded fears would only be quelled if the courtroom
were cleared of spectators associated with those persons who
already had threatened her.
VII. CONCLUSION
We
need
go
no further. Since the PLRA does not apply in
the habeas context, Martin's application was properly before the
5Oliver dealt with an entirely secret trial in which the
defendant was denied both counsel and proper notice. See Oliver,
333
U.S.
at
258-59. It is altogether dissimilar to this case, and
cannot
begin
to
bear
the
load that the petitioner so casually piles
upon it.
11
district court notwithstanding his failure to pay a filing fee.
Accordingly,
we reach the merits. Once there, however, we discern
no constitutional error in the state trial court's decision to
close the courtroom during the testimony of Linda Rose.
Affirmed.
12
