     13-1117
     Contreras v. Artus


 1                                UNITED STATES COURT OF APPEALS

 2                                       FOR THE SECOND CIRCUIT

 3                                                    ------

 4                                             August Term, 2013

 5   (Argued: April 7, 2014                                                    Decided: January 23, 2015)

 6                                             Docket No. 13-1117

 7   _________________________________________________________

 8   WALKINS CONTRERAS,

 9                                                    Petitioner-Appellant,

10                                           - v. -

11   DALE ARTUS, Superintendent, Clinton Correctional Facility,

12                                       Respondent-Appellee.
13   _________________________________________________________

14   Before: KEARSE, JACOBS, and LYNCH, Circuit Judges.

15                   Appeal from a judgment of the United States District Court for the Southern District

16   of New York, Jed S. Rakoff, Judge, dismissing habeas corpus petition alleging that the state trial court

17   violated petitioner's constitutional rights to be present during critical stages of trial and to effective

18   assistance of counsel by (1) holding a closed hearing in petitioner's absence to consider the

19   disclosability and admissibility of certain evidence and (2) ordering defense counsel not to disclose

20   that evidence to petitioner during the trial. Giving AEDPA-mandated deference to the state-court's

21   rejection of these claims, as did the district court, we affirm.
 1                                   ANDREW C. FINE, New York, New York (Steven Banks,
 2                                       The Legal Aid Society, Criminal Appeals Bureau, New
 3                                       York, New York, on the brief), for Petitioner-
 4                                       Appellant.


 5                                   ALYSON J. GILL, Assistant Attorney General, New York,
 6                                        New York (Eric T. Schneiderman, Attorney General of
 7                                        the State of New York, Barbara D. Underwood,
 8                                        Solicitor General, Nikki Kowalski, Deputy Solicitor
 9                                        General, New York, New York, on the brief), for
10                                        Respondent-Appellee.



11   KEARSE, Circuit Judge:

12                   Petitioner Walkins Contreras, a New York State ("State") prisoner convicted of, inter

13   alia, rape in the first degree, unlawful imprisonment in the first degree, and burglary in the first

14   degree, appeals from a judgment of the United States District Court for the Southern District of New

15   York, Jed S. Rakoff, Judge, dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C.

16   § 2254. The petition alleged principally that the trial court denied Contreras (1) his due process right

17   to be present during critical stages of his trial when it held a closed hearing in his absence to consider

18   the disclosability and admissibility of a note written by the complaining witness and found at the

19   crime scene, and (2) his Sixth Amendment right to the effective assistance of counsel when it barred

20   his trial attorney from disclosing to him the note and the substance of the hearing until after the trial

21   ended. The district court, applying the Antiterrorism and Effective Death Penalty Act of 1996

22   ("AEDPA"), dismissed the petition on the ground that the New York Court of Appeals' rejection of

23   these claims was neither contrary to nor an unreasonable application of precedents of the United

24   States Supreme Court. On appeal, Contreras contends principally that the New York Court of

25   Appeals' decision was an unreasonable application of the Supreme Court's decisions in (A) Geders

                                                         2
 1   v. United States, 425 U.S. 80 (1976) (limitations on mid-trial communications between the accused

2    and his attorney), and Perry v. Leeke, 488 U.S. 272 (1989) (same), and (B) Kentucky v. Stincer, 482

 3   U.S. 730 (1987) (the accused's right to be present at critical stages of trial), United States v. Gagnon,

 4   470 U.S. 522 (1985) (same), and Snyder v. Massachusetts, 291 U.S. 97 (1934) (same). We affirm.



 5                                             I. BACKGROUND



 6                  Contreras's convictions resulted from his violent conduct on February 10, 2004, against

 7   his estranged wife in her apartment, where they previously lived together. Contreras's apparent

 8   motive was his anger that his wife--referred to herein as "Y.A."--had filed for divorce and begun a

 9   romantic relationship with another man. There is no dispute as to what evidence was given and what

10   proceedings were held at Contreras's state-court trial.

11                  At trial, Y.A. testified that on the morning of February 10, Contreras arrived at her

12   apartment, confronted her as she was about to leave with her 7-year-old son James, and forced them

13   back into the apartment. Contreras brandished a knife, claimed he had a gun, and told Y.A. that he

14   had come to kill her. Once inside, Contreras and Y.A. struggled in the living room, causing her to

15   drop her purse, scattering its contents. One of the items that fell out was a cellular telephone; when

16   Contreras allowed Y.A. to clean up the mess, she was able to conceal the phone and hide it in the

17   bathroom. Contreras ordered James to his bedroom and Y.A. to hers. Contreras followed Y.A. and

18   forced her, at knifepoint, to have sex.

19                  Contreras then left the bedroom but returned in time to interrupt Y.A.'s attempt to use

20   her bedroom phone to call 911. Contreras proceeded to, inter alia, choke Y.A. with a cord, question


                                                        3
1    her about her new boyfriend, question James about the boyfriend, force Y.A. to have sex again, and

2    force her to write farewell letters to her mother and James. Eventually, Y.A. was able to flee to the

3    bathroom with James and lock the door; she used the cell phone to call 911. The police arrived to find

4    Y.A. in the bathroom and Contreras hiding in a closet.

5                    Contreras's principal strategy at trial was to attack Y.A.'s credibility, arguing that Y.A.

6    had consented to sex and then fabricated accusations against him after she changed her mind. Defense

7    counsel also argued that Contreras was not guilty of burglary because he had a right to be in the

8    marital home.



 9   A. The Note Found in the Apartment

10                   The police collected various items of possible evidence from Y.A.'s apartment,

11   including a notepad containing a note in Y.A.'s handwriting (the "Note"). The trial court would later

12   describe the Note for the record as follows:

13                           The pad seems to have four bullet points on it. The first one says, I
14                   want you to open yourself more to me. The second one acknowledge me in
15                   bed. When you are sleeping, parenthesis even though you are getting better,
16                   end parenthesis. Third one is take me and fuck the shit out of me. And the
17                   fourth one is get tested for.

18   (Trial Transcript ("Tr.") at 153-54.)

19                   Following proceedings that are the subject of this habeas petition, the Note was

20   excluded from evidence at Contreras's trial. The nature of the Note was not disclosed to defense

21   counsel until after the trial had begun and was not disclosed to Contreras until well after the trial had

22   ended.




                                                         4
 1   B. The Proceedings With Respect to the Note

 2                   On the morning of jury selection, the State applied in open court for a protective order

 3   ruling that "some person[al] papers of the complainant"--by which it meant the Note--were

 4   inadmissible in evidence and need not be disclosed to the defense. (Tr. 2.) Contreras's trial attorney,

 5   Barry Apfelbaum, asked for an opportunity to see the Note and oppose the State's motion. (See id.

 6   at 3.) The court read the Note and decided to hold an in camera hearing, with a sealed record, to

 7   consider the State's application (the "Admissibility Hearing"). At the commencement of the

 8   Admissibility Hearing, which was initially ex parte, the court stated that it would consider whether

 9   the Note should be disclosed to the defense either under New York law as a witness's prior statement

10   relating to the subject matter of the witness's testimony, see People v. Rosario, 9 N.Y.2d 286, 290, 213

11   N.Y.S.2d 448, 451 (1961) ("Rosario"), or under the federal Constitution as material evidence

12   favorable to the defendant, see Brady v. Maryland, 373 U.S. 83, 87 (1963). (See Tr. 153.)

13                   The State represented that the Note was "a personal letter that [Y.A.] wrote to her . . .

14   boyfriend at the time of the incident." (Id. at 154.) It argued that because the Note was "very much

15   a private person[al] letter relating to something [sic] totally different than the defendant" (id. at 155),

16   and because "[t]he defendant has not made any allegations of knowledge" of the Note (id. at 154), "[i]t

17   doesn't have anything to do with the instant case" (id. at 155). Thus, the State contended (1) that the

18   Note was inadmissible at trial pursuant to New York's so-called "rape shield" law, which excludes

19   certain "evidence of [a] victim's sexual conduct in sex offense cases," N.Y. Criminal Procedure Law

20   § 60.42 (McKinney 2004) (see Tr. 154), and (2) that the Note should not be disclosed to the defense

21   because its disclosure would both "embarrass the victim" and permit Contreras to "fabricate further

22   the defense . . . [of] consent" (id. at 155).


                                                         5
 1                  After hearing this ex parte presentation, the court informed both sides that it would

 2   reserve decision on the State's application until it could hear testimony from Y.A. the next morning,

 3   in camera. (See Tr. 157.) Although Apfelbaum objected to the delay, the court stated that it wanted

 4   "to corroborate that the People have not been lied to" by Y.A. (Id. at 159.)

 5                  On the following day, the court began by questioning Y.A. under oath in a closed

 6   hearing attended by the State, but from which Contreras and his counsel were excluded. Y.A. testified

 7   that she had written the Note "for [her]self" at least a month before February 10, 2004, and that the

 8   Note was about a new romantic partner, not Contreras. (Tr. 187.) She testified that the notepad had

 9   been in her purse when, during her February 10 struggle with Contreras, the purse's contents scattered

10   onto the floor. (See id.) She stated that she did not know whether Contreras had seen the Note. (See

11   id.)

12                  The court called Contreras's attorney into the hearing room before making its ruling

13   and stated that,

14                          [i]n the interest of disclosure and in the interest of moving this trial
15                  along, I am going to disclose to Mr. Apfelbaum the contents of the term [sic]
16                  but I am going to place him under the order of court not to disclose that to his
17                  client or to any other person without prior order of the court.

18   (Tr. 188 (emphases added).) The court then ruled that

19                  this was a pad that was kept by [Y.A.] in her pocketbook and related to notes
20                  that she apparently makes before writing longer letters or collecting her
21                  thoughts with respect to her boyfriend, who is not the defendant.

22                          ....

23                          Because it does not relate to this event and is [in] the nature of those
24                  things covered by the rape shield law, I am excluding it.

25   (Id. at 189-90 (emphasis added).)


                                                       6
 1                  Apfelbaum objected to the ruling, arguing first that the Note could be relevant to refute

2    the burglary charge by indicating that Contreras had entered the apartment lawfully, see N.Y. Penal

 3   Law § 140.30 (McKinney 2004) (to be guilty of first-degree burglary, the defendant must have, inter

 4   alia, "knowingly enter[ed] or remain[ed] unlawfully in a dwelling with intent to commit a crime

 5   therein"). (See Tr. 191-92.) Counsel theorized that after Contreras arrived in the apartment to make

 6   a peaceful visit, he might have learned something from the Note about Y.A.'s new relationship that

 7   set off his temper, leading him to commit the violent acts with which he had been charged (see id.

 8   at 191); counsel argued that "the issue is what the effect of reading this[] may have had on the

 9   defendant while he was in the apartment" (id. at 198). The court responded, "[a]ssuming he read it";

10   and when counsel acknowledged that there was no evidence that Contreras had read the Note, the

11   court said, "Well, the answer is you can't give it to him so he will create the evidence." (Id.) The

12   court indicated, however, that Contreras could seek reconsideration of the court's ruling if the defense

13   produced evidence consistent with counsel's theory: "If in fact it turns out that absent your showing

14   it to him he voluntarily says that among the things that got me totally annoyed was that [I] picked this

15   up and I read it, I picked up something and read it, well, that's another story." (Id. at 199.)

16                  Apfelbaum also objected that the nondisclosure order interfered with his duties to his

17   client, especially if he would need to decide whether to have Contreras testify without his having

18   disclosed to Contreras the contents of the Note and thus without knowing what Contreras's testimony

19   would be. (See Tr. 192-93.) Apfelbaum argued that he should at least be allowed to question Y.A.,

20   and the court agreed. (See id. at 200.) Y.A. was recalled to the hearing room and reminded that she

21   was still under oath (see id. at 200-01), and she was then questioned by Apfelbaum.



                                                        7
 1                         MR. APFELBAUM: . . . [W]e have been talking about what looks like
 2                  a note pad with some notes on it on the top page. Can I, I guess we have
 3                  already established that this is your writing on the pad?

 4                          THE WITNESS: Yes.

 5                          THE COURT: She has said she has written it, she has answered she
 6                  was [sic] written it, she has stated that it was written substantially before the
 7                  date in question. That it was something that she was jotting down her notes
 8                  with respect to a new relationship and that it was in her purse at the time of the
 9                  incident.

10                          And that she believes it fell out of her purse at the time everything fell
11                  out of the purse during the incident.

12                          MR. APFELBAUM: So, let me, is that basically true what the Judge
13                  just said?

14                          THE WITNESS: Yes.

15   (Id. at 201-02.)

16                  Apfelbaum proceeded to ask a number of questions about the Note, the answers to

17   which were generally consistent with Y.A.'s earlier testimony. He was also allowed, over the State's

18   objection, to ask about the events of February 10. Y.A. testified, inter alia, that "[w]hen [Contreras]

19   pushed us back inside the apartment . . . my bag fell on the floor" (Tr. 204); that Contreras did not

20   "mention the pad or the contents of the pad" (id. at 204-05); that Contreras had her new boyfriend's

21   "telephone numbers . . . with him in his wallet" and said something to her indicating that he was upset

22   about her new relationship (id. at 205); that at some points during the incident Y.A. and Contreras

23   were in separate rooms (see id.); and that Y.A. never saw Contreras reading the Note (see id.

24   at 205-06). In addition, Y.A. stated that the last item in the Note, "get tested for," was unfinished and

25   had been intended to say get tested for HIV (see id. at 208). She testified that the Note concerned



                                                        8
 1                  a new person that I was, you know, beginning to know when [Contreras] could
 2                  tell you that he was HIV tested also.

 3                       MR. APFELBAUM: So, this was something you intended to
 4                  communicate to another person?

 5                          THE WITNESS: Yes . . . .

 6   (Id.) The court adhered to its rulings that the Note was inadmissible and was not to be disclosed to

 7   Contreras.

 8                  Contreras was found guilty of most of the charges against him, including one count

 9   each of first-degree rape, first-degree burglary, attempted first-degree assault, and endangering the

10   welfare of a child, and two counts of first-degree unlawful imprisonment. He was sentenced to 20

11   years' imprisonment.



12   C. Contreras's Challenges to His Conviction

13                  After Contreras was sentenced, his appellate counsel received permission from the trial

14   court to discuss the Note and the substance of the Admissibility Hearing with Contreras. Contreras

15   appealed his conviction, challenging the trial court's rulings relating to the Note. The Appellate

16   Division disagreed with the trial court's ruling that the Note was inadmissible under New York's rape

17   shield law but affirmed Contreras's conviction on the ground that the Note was irrelevant and hence

18   need not have been disclosed to Contreras. See People v. Contreras, 47 A.D.3d 411, 412, 848

19   N.Y.S.2d 650, 652 (1st Dep't 2008) ("Contreras I"). The court found that "[a]ll of [Contreras's]

20   theories of relevance are based on far-fetched, speculative scenarios with no evidentiary support."

21   Id.



                                                       9
 1                  Contreras was granted leave to appeal to the New York Court of Appeals, which

 2   affirmed in an opinion that rejected his arguments under state and federal law. See People v.

 3   Contreras, 12 N.Y.3d 268, 272-73, 879 N.Y.S.2d 369, 371-73 (2009) ("Contreras II"). The Court of

 4   Appeals stated that

 5                          [i]t is important to understand at the outset the purpose of the
 6                  proceedings about which defendant complains. It was to determine whether
 7                  the notes were either Rosario material (i.e., prior statements of the complainant
 8                  relating to the subject of her testimony) or Brady material (i.e., evidence
 9                  favorable to defendant). Nothing in the record suggests that they were either.
10                  There is no reason to doubt that they were exactly what the complainant said
11                  they were--notes written at a different time on another subject. There is no
12                  evidence that defendant ever saw them, much less that they motivated his
13                  conduct.

14   Id. at 272, 879 N.Y.S.2d at 371 (emphasis added). The Court held that "[i]n light of the notes'

15   apparent irrelevance to the case, defendant did not have a right to any hearing on the Rosario or Brady

16   issue." Id. (emphasis in original).

17                  The Court found that the trial court's choice of procedures, "allow[ing] defense counsel

18   to know the contents of the document, to argue for the right to use it at trial and to question the

19   complainant about it, so long as defendant himself was not told what the document said," was

20   "reasonable" in light of the Note's irrelevance, its "significant tendency to embarrass the complainant,"

21   and its "potentially inflammatory" nature. Id. at 273, 879 N.Y.S.2d at 372. Although acknowledging

22   that "ex parte proceedings are undesirable, and they should be rare," the Court stated that "where the

23   issue to be decided is whether a document should or should not be disclosed to the defense, the initial

24   consideration of the question must be ex parte, almost by its nature . . . ." Id.




                                                        10
 1                   The Contreras II Court concluded that although "[a] defendant is entitled to be

 2   personally present at all critical stages of his trial if his presence would contribute to the fairness of

 3   the procedure," "that rule is inapplicable here, where the hearing was not only noncritical, but, as a

 4   matter of law, unnecessary." Id., 879 N.Y.S.2d at 372-73. Further, while stating that "communication

 5   between attorney and client should generally be unrestricted," the Court noted that "there are

 6   occasions where restrictions may legitimately be applied," and it rejected Contreras's right-to-counsel

 7   claim on the ground that "disclosure by lawyer to client of an embarrassing and inflammatory

 8   document having nothing to do with the case is not a constitutionally protected communication." Id.,

 9   879 N.Y.S.2d at 373 (emphasis added).

10                   Contreras then brought the present habeas corpus proceeding, pursuing his claims of

11   denial of his rights to be present at the Admissibility Hearing and to effective assistance of counsel.

12   A magistrate judge recommended that the habeas petition be denied on the ground that the New York

13   Court of Appeals had not unreasonably applied either the Supreme Court's rulings in Geders and Perry

14   as to the permissibility of limiting communications between a defendant and his attorney during a

15   criminal trial, or the Supreme Court's rulings in Stincer and Snyder with respect to a defendant's right

16   to be present at critical stages of his criminal proceeding. See Contreras v. Artus, No. 09 Civ. 7940,

17   2012 WL 4044872, at *8-*11 (S.D.N.Y. Sept. 11, 2012) ("Contreras III").

18                   The magistrate judge also observed that, "despite the availability of post-conviction

19   remedies under New York Law, see N.Y. Crim. Proc. Law § 440.10, Contreras has never indicated

20   to the state courts that he, in fact, saw the Note on the date of his arrest, much less that it led him to

21   engage in any of the conduct giving rise to his conviction." Contreras III, 2012 WL 4044872, at *9.



                                                        11
 1   The district judge, adopting the magistrate judge's reasoning in full, dismissed the petition and denied

 2   Contreras's request for a certificate of appealability.

 3                    Contreras then moved for a certificate of appealability from this Court ("COA

 4   Motion"),

 5                    seek[ing] permission from this Court to raise both issues that [h]e raised in the
 6                    District Court: (1) the New York Court of Appeals unreasonably applied
 7                    United States Supreme Court right-to-counsel precedent by affirming the trial-
 8                    long ban on communication between defense counsel and petitioner regarding
 9                    the subject of a potentially relevant and mitigating Note found in the
10                    complainant's apartment after the crimes were allegedly committed there; and
11                    (2) petitioner was denied his right to be present, in violation of due process and
12                    confrontation, when he was excluded during an in camera examination of the
13                    complainant regarding the Note in question, during which the complainant
14                    previewed substantive testimony about the incident.

15   (COA Motion at 2, ¶ 3 (emphasis added).) The motion also argued that "the unreasonableness of the

16   state courts' factual determination that the Note was irrelevant [was] an independent basis for granting

17   the writ. See 28 U.S.C. § 2254(d)(2)." (COA Motion at 10.) We granted the certificate of

18   appealability.



19                                               II. DISCUSSION



20                    Under AEDPA, a federal court may not grant a state prisoner's petition for habeas relief

21                    with respect to any claim that was adjudicated on the merits in State court
22                    proceedings unless the adjudication of the claim--

23                                   (1) resulted in a decision that was contrary to, or involved an
24                            unreasonable application of, clearly established Federal law, as
25                            determined by the Supreme Court of the United States; or



                                                         12
 1                                  (2) resulted in a decision that was based on an unreasonable
 2                          determination of the facts in light of the evidence presented in the State
 3                          court proceeding.

 4   28 U.S.C. § 2254(d) (emphases added). "This is a 'difficult to meet[]' . . . and highly deferential

 5   standard for evaluating state-court rulings, which demands that state-court decisions be given the

 6   benefit of the doubt . . . ." Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (quoting Harrington v.

 7   Richter, 131 S. Ct. 770, 786 (2011) (other internal quotation marks omitted)); see, e.g., Felkner v.

 8   Jackson, 131 S. Ct. 1305, 1307 (2011) (where, on a Batson challenge, "the trial court credited the

 9   prosecutor's race-neutral explanations, and the California Court of Appeal carefully reviewed the

10   record at some length in upholding the trial court's findings[, t]he state appellate court's decision was

11   plainly not unreasonable"); Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (state court's

12   determination that a claim lacks merit precludes federal habeas relief so long as "fairminded jurists

13   could disagree" on the correctness of the state court's decision). In reviewing a district court's

14   decision on a state prisoner's habeas petition, we review the district court's legal rulings de novo, but

15   "we cannot grant habeas relief where a petitioner's claim pursuant to applicable federal law, or the

16   U.S. Constitution, has been adjudicated on its merits in state court proceedings in a manner that is not

17   manifestly contrary to common sense." Anderson v. Miller, 346 F.3d 315, 324 (2d Cir. 2003).

18                  On this appeal, Contreras principally contends that the district court erred in rejecting

19   his arguments that the New York Court of Appeals unreasonably applied Supreme Court precedent

20   as established in Geders, 425 U.S. 80, and Perry, 488 U.S. 272, with regard to Sixth Amendment

21   constraints on prohibitions against mid-trial communications between an accused and his attorney,




                                                        13
 1   and as established in Stincer, 482 U.S. 730, Gagnon, 470 U.S. 522, and Snyder, 291 U.S. 97, with

 2   regard to an accused's due process right to be present at critical stages of the proceedings.

 3                  Contreras also contends, as "an independent basis for granting the writ," that "the state

 4   courts' factual determination that the note was irrelevant" was unreasonable. (Contreras brief on

 5   appeal at 41; see also id. at 36-37 (the New York "Court of Appeals' finding of fact that the note was

 6   irrelevant . . . is not merely unreasonable, but indefensible"); id. at 29, 47 (New York Court of

 7   Appeals' rejections of Contreras's right-to-counsel and right-to-be-present claims were "based on an

 8   unreasonable determination of the facts").) Given the significant deference owed to state-court

 9   decisions under AEDPA, we hold that Contreras has not sustained his burden and that his petition

10   must be denied.



11   A. The Claimed Unreasonable Determination of the Facts

12                  Preliminarily, we note that the State argues that Contreras's present contention that he

13   was entitled to have the writ granted on the ground that the state courts' decisions as to relevance were

14   based on an unreasonable determination of facts, see 28 U.S.C. § 2254(d)(2), is not properly before

15   us because it was not a contention presented to the district court. This argument has considerable

16   merit: Although Contreras cited § 2254(d)(2) to the district court (see Petitioner's Memorandum of

17   Law in Support of Petition for a Writ of Habeas Corpus at 21) and took exception to the findings of

18   the state courts--for instance by maintaining that "there was no indication either way whether

19   [Contreras] saw the note" (id. at 34)--we do not see that he presented an argument that any state-court

20   decision amounted to an unreasonable determination of the facts relating to the relevance of the Note.



                                                        14
 1   Rather, he argued that the New York Court of Appeals misapplied Supreme Court precedent "[e]ven

 2   assuming arguendo that the note was not relevant" (id. at 33-34), and he asserted that the State's

 3   "emphasis on relevance is entirely misplaced" (Petitioner's Reply Memorandum of Law in Support

 4   of Petition for a Writ of Habeas Corpus at 4; see also id. at 4-5 (the state court's

 5   "procedural/constitutional errors must be reviewed independently of the ultimate determination of

 6   relevancy")).

 7                   "In general, 'a federal appellate court does not consider an issue not passed upon

 8   below.'" Baker v. Dorfman, 239 F.3d 415, 420 (2d Cir. 2000) (quoting Singleton v. Wulff, 428 U.S.

 9   106, 120 (1976)). However, that rule is not jurisdictional but prudential, and we retain discretion to

10   consider such an issue "(1) where consideration of the issue is necessary to avoid manifest injustice

11   or (2) where the issue is purely legal and there is no need for additional fact-finding." Baker v.

12   Dorfman, 239 F.3d at 420 (internal quotation marks omitted); see id. at 421 ("choos[ing] to reach the

13   merits" of "a pure question of law"). In the present case, although Contreras did not argue to the

14   district court that his habeas petition should be granted on the ground that the state courts' decisions

15   as to relevance rested on an unreasonable determination of the facts, he did explicitly so argue in his

16   COA Motion to this Court (see COA Motion at 10). As our order simply said "the motion is

17   GRANTED," Contreras v. Artus, No. 13-1117 (2d Cir. July 15, 2013), Contreras's unreasonable-

18   determination-of-the-facts argument is technically within the scope of this appeal. In any event, the

19   argument presents us with pure questions of law, which we address.

20                   First, to the extent that Contreras views relevance as a "fact" (Contreras brief on appeal

21   at 36-37 (referring to "the [New York] Court of Appeals' finding of fact that the note was irrelevant");



                                                        15
 1   see, e.g., id. at 41 (referring to "the state courts' factual determination that the note was irrelevant")),

 2   his view is analytically flawed. "Evidence is relevant if it has any tendency in reason to prove the

 3   existence of any material fact, i.e., it makes determination of the action more probable or less probable

 4   than it would be without the evidence." People v. Giles, 11 N.Y.3d 495, 499, 873 N.Y.S.2d 244, 246

 5   (2008) (internal quotation marks omitted) (emphasis added); see, e.g., Fed. R. Evid. 401 ("Evidence

 6   is relevant if . . . it has any tendency to make a fact" that is "of consequence in determining the action"

 7   "more or less probable than it would be without the evidence."). But relevance itself is not a fact:

 8                   Relevancy is not an inherent characteristic of any item of evidence but exists
 9                   only as a relation between an item of evidence and a matter properly provable
10                   in the case. Does the item of evidence tend to prove the matter sought to be
11                   proved? Whether the relationship exists depends upon principles evolved by
12                   experience or science, applied logically to the situation at hand.

13   Fed. R. Evid. 401 Advisory Committee Note (1972) (emphases added).

14                   Assessment of relevance thus involves an exercise of judgment, "call[ing] for an

15   answer to the question whether an item of evidence, when tested by the processes of legal reasoning,

16   possesses sufficient probative value to justify receiving it in evidence." Id. A trial court's

17   determination of whether such evidence is to be excluded on the ground of lack of relevance is

18   therefore reviewed under the abuse-of-discretion standard, rather than the standard of review for

19   factual findings. See, e.g., United States v. Gupta, 747 F.3d 111, 137 (2d Cir. 2014) ("The

20   assessment of the relevance of evidence for the purpose of its admission or exclusion is committed

21   to the sound discretion of the district court."); Contreras I, 47 A.D.3d at 412, 848 N.Y.S.2d at 652

22   ("the [trial] court properly exercised its discretion in precluding the use of the note on the ground of

23   relevance").



                                                         16
 1                   Second, to the extent that Contreras instead argues that the state courts' judgment as

 2   to relevance was based on unreasonable findings of historical fact, his arguments ignore experience,

 3   logic, principles of testimonial competency, and the trial court record. To begin with, we note that

 4   Contreras does not argue that the Note actually had relevance. His application to this Court referred

 5   to the Note as "potentially relevant" (COA Motion at 2 (emphasis added)), and being of "potential

 6   importance to the defense" (id. at 8 (emphasis in original)). Contreras's argument that he was not

 7   required to make any showing of actual relevance because he was excluded from the Admissibility

 8   Hearing and not allowed to be informed of the Note or the substance of the hearing (see Contreras

 9   brief on appeal at 40-41) simply disregards the deference to which state court decisions are entitled

10   under AEDPA.

11                   Contreras suggests two bases on which the Note could have been deemed relevant if

12   only he had been allowed to attend the Admissibility Hearing. He argues that the Note could have

13   been relevant "even if [he] had not seen the note" because its contents would have "increas[ed] the

14   likelihood that the sexual intercourse that day . . . was consensual" if the Note "described [Y.A.'s]

15   relationship with petitioner, rather than another man" (Contreras brief on appeal at 34; see id. at 36

16   ("if the note related to petitioner, rather than a new boyfriend")); and he argues that, other than Y.A.,

17   Contreras was "the only individual . . . in a position to shed light on th[at] issue" (id.). But the author

18   of the Note was Y.A. Only she was competent to say what was in her mind when she wrote the Note

19   and to whom she was referring. Contreras has provided no foundation for his assertion that he was

20   in a position to shed light on whether the Note was about him, given the "fundamental general rule

21   of evidence that a witness must confine his testimony to matters within his personal knowledge,"



                                                         17
 1   People v. Mingey, 190 N.Y. 61, 64, 82 N.E. 728, 730 (1907); see, e.g., Fed. R. Evid. 602 ("A witness

 2   may testify to a matter only if evidence is introduced sufficient to support a finding that the witness

 3   has personal knowledge of the matter."); Rios v. Selsky, 32 A.D.3d 632, 633, 819 N.Y.S.2d 622, 623

 4   (3d Dep't 2006) (affirming denial of "request to call certain witnesses since those witnesses had no

 5   personal knowledge of the incident" and "[t]heir testimony, therefore, would have been irrelevant").

 6                   Contreras also suggests, as to the Note's potential relevance, that he could have

 7   testified that the Note, "with its lurid description of a sexual relationship, . . . triggered [his] anger,

 8   increasing the possibility that the motive for the sexual assault arose after a lawful entry--making

 9   petitioner not guilty of burglary"--"had petitioner been advised of the note's contents." (Contreras

10   brief on appeal at 33-34 (emphasis added).) But this suggestion has no basis in logic. To provide a

11   foundation for such testimony by Contreras as to his motivation, he would have had to know of the

12   Note prior to the assaults, not learn of its contents for the first time at trial. And it defies logic and

13   experience to speculate that his attorney would not have asked him at the outset "What happened,"

14   or that Contreras, if he knew of and was motivated by the Note, would not have so informed his

15   attorney.

16                   If Contreras knew of the Note prior to his violent conduct and became so inflamed by

17   its contents that he was motivated to commit assault and rape, he was free to so testify even if he had

18   no knowledge of the substance of the Admissibility Hearing. Further, the ban on counsel's making

19   Note-related disclosures to Contreras was plainly subject to reconsideration; the order itself barred

20   a disclosure "without prior order of the court" (Tr. 188), and the trial court at the hearing clearly

21   indicated to Contreras's attorney that if, without disclosure by counsel of the Note or the substance



                                                         18
 1   of the hearing, Contreras informed his attorney that he knew of the Note, Contreras could seek

 2   reconsideration of the court's nondisclosure order and exclusion of the Note from evidence (see id.

 3   at 199).   Contreras apparently did not so inform his trial counsel, for no such motion for

 4   reconsideration was made. And indeed, as the district court here noted, Contreras has never

 5   contended that he saw the Note on February 10, even in state-court posttrial proceedings that were

 6   available after his appellate counsel revealed the contents of the Note to him.

 7                  Given this record, we cannot conclude that the New York Court of Appeals' affirmance

 8   of the exclusion of the Note for lack of relevance was based on an unreasonable determination of the

 9   facts. The Court found that "[t]here is no reason to doubt that the[ notes] were exactly what the

10   complainant said they were--notes written at a different time on another subject," and that "[t]here

11   [wa]s no evidence that defendant ever saw them, much less that they motivated his conduct."

12   Contreras II, 12 N.Y.3d at 272, 879 N.Y.S.2d at 371. Although Contreras argues that the state courts

13   and the district court could not properly reach these conclusions because he was excluded from the

14   Admissibility Hearing, he has provided no basis for impeaching the state courts' factual findings. His

15   contention that the state courts' determinations as to relevance were based on unreasonable factual

16   findings is meritless.



17   B. AEDPA Standards on Application of Supreme Court Precedents

18                  The AEDPA requirement that a habeas petitioner show that the state court has

19   contravened or unreasonably applied "clearly established Federal law, as determined by the Supreme

20   Court of the United States," 28 U.S.C. § 2254(d)(1), means that the petitioner must show that the state



                                                       19
 1   decisions were contrary to or an unreasonable application of Supreme Court "holdings, as opposed

 2   to . . . dicta." Williams v. Taylor, 529 U.S. 362, 412 (2000). To meet this standard, "a state prisoner

 3   must show that the state court's ruling on the claim being presented in federal court was so lacking

 4   in justification that there was an error well understood and comprehended in existing law beyond any

 5   possibility for fairminded disagreement." Harrington v. Richter, 131 S. Ct. at 786-87.

 6                  In determining whether a state court's application of Supreme Court precedent was

 7   unreasonable, a habeas court must be guided by the level of specificity of the relevant precedent's

 8   holding, because "the range of reasonable judgment can depend in part on the nature of the relevant

 9   rule." Yarborough v. Alvarado, 541 U.S. at 664.

10                  If a legal rule is specific, the range may be narrow. Applications of the rule
11                  may be plainly correct or incorrect. Other rules are more general, and their
12                  meaning must emerge in application over the course of time. Applying a
13                  general standard to a specific case can demand a substantial element of
14                  judgment. As a result, evaluating whether a rule application was unreasonable
15                  requires considering the rule's specificity.

16   Id. "The more general the rule, the more leeway courts have in reaching outcomes in case-by-case

17   determinations." Id.

18                  In light of these principles, we conclude that Contreras has not met his burden.



19          1. Communications Between Defendant and Counsel

20                  The Sixth Amendment right of an accused to effective assistance of counsel includes

21   broad, but not unlimited, protection for consultation between the accused and his attorney. In Geders,

22   the Supreme Court considered an order, issued at the end of a trial day when the defendant was in the

23   process of testifying, that prohibited the defendant from having any communications with his attorney


                                                       20
 1   during the overnight recess. See 425 U.S. at 81. The Supreme Court held that this order, given its

 2   length and breadth, impermissibly interfered with the defendant's right to effective assistance of

 3   counsel. Stressing the normal occurrence of consultations between criminal defendants and their

 4   attorneys during overnight recesses to exchange information and adjust trial strategies, see id. at 88,

 5   the Court held that the

 6                   conflict . . . between the defendant's right to consult with his attorney during
 7                   a long overnight recess in the trial, and the prosecutor's desire to cross-
 8                   examine the defendant without the intervention of counsel, with the risk of
 9                   improper "coaching," . . . must, under the Sixth Amendment, be resolved in
10                   favor of the right to the assistance and guidance of counsel,

11   id. at 91. The Geders Court's holding was expressly limited to the facts of that case:

12                           The challenged order prevented petitioner from consulting his attorney
13                   during a 17-hour overnight recess, when an accused would normally confer
14                   with counsel. We need not reach, and we do not deal with, limitations
15                   imposed in other circumstances. We hold that an order preventing petitioner
16                   from consulting his counsel "about anything" during a 17-hour overnight
17                   recess between his direct- and cross-examination impinged upon his right to
18                   the assistance of counsel guaranteed by the Sixth Amendment.

19   Id. (emphases added).

20                   In Perry, the Court considered an order barring any communication between a

21   testifying defendant and his attorney during a 15-minute recess; the Court ruled that that order did not

22   violate the defendant's right to effective assistance of counsel. The Court explained that in such a

23   short recess it was "a virtual certainty that any conversation between the witness and the lawyer would

24   relate to the ongoing testimony," 488 U.S. at 283-84, and indeed that "it is appropriate to presume that

25   nothing but the testimony will be discussed," id. at 284; but a "defendant [does not] ha[ve] a

26   constitutional right to discuss [his] testimony while it is in process," id.



                                                        21
 1                   Thus, although the Court acknowledged that "the line between the facts of Geders and

 2   the facts of [Perry] is a thin one," it found that line to have "constitutional dimension." Perry, 488

 3   U.S. at 280. That line was between the Geders ban for an interval that was so long that the covered

 4   period was one in which the defendant and his attorney would normally discuss matters other than the

 5   defendant's testimony, and the Perry ban for an interval that was so short that it was a virtual certainty

 6   that any discussion would concern only the defendant's testimony.

 7                   Focusing on the difference between the lengths of the bans in Geders and Perry,

 8   Contreras argues principally that the New York Court of Appeals' rejection of his Sixth Amendment

 9   challenge was contrary to, or unreasonably applied, Geders and Perry because the trial court's ban on

10   his attorney's informing him of the Note and the substance of the Admissibility Hearing was longer

11   than the communications ban found unconstitutional in Geders, spanning the entire duration of

12   Contreras's trial. Given the substantial differences between Contreras's case and the two Supreme

13   Court cases, we disagree.

14                   First, the New York Court of Appeals' rejection of Contreras's Sixth Amendment

15   challenge cannot be said to be contrary to the holdings of Geders and Perry. The communication bans

16   at issue in each case have two major aspects: substantive scope and duration. As to substance, the

17   orders in Geders and Perry prohibited, for their respective covered periods, all communications

18   between the defendant and his attorney. See, e.g., Geders, 425 U.S. at 91 (communications "'about

19   anything'"). In contrast, the order at issue here was not a prohibition against communications on all

20   topics but instead was narrow in scope, barring Contreras's attorney only from disclosing to Contreras

21   the existence and contents of the Note and the substance of the Admissibility Hearing on the Note.



                                                        22
 1   The Supreme Court in Geders and Perry did not address a communications ban that had a narrow

 2   substantive scope. Cf. Morgan v. Bennett, 204 F.3d 360, 368 (2d Cir. 2000) (trial court's prohibition

 3   against counsel's informing the defendant that the complainant, despite her prior reluctance following

 4   threats from the defendant, had decided to testify against him the next day was "not an unreasonable

 5   application of the principle established in Geders and Perry"), cert. denied, 531 U.S. 819 (2000). In

 6   Perry, the Court observed that a trial judge, in order to preserve "the truth-seeking" efficacy of cross-

 7   examination of a witness whose testimony is interrupted by a short recess, 488 U.S. at 282, must have

 8   discretion to "permit consultation between counsel and defendant" during the recess "but forbid

 9   discussion of ongoing testimony," id. at 284 n.8 (emphases added). This observation finds resonance

10   in part of the trial court's rationale for the nondisclosure order in Contreras's case. Focusing on the

11   truth-seeking function of a trial, the court was concerned that Contreras--having evinced no prior

12   knowledge of the Note--should not be handed new information that would help him to present a

13   defense that was fabricated.

14                  In sum, even viewing the duration of the trial court's order here as longer than that of

15   the order disapproved in Geders, the ban with regard to the Note was not contrary to the holdings in

16   Geders and Perry.

17                  Second, we also cannot conclude that the New York Court of Appeals' rejection of

18   Contreras's Sixth Amendment challenge involved an unreasonable application of Geders and Perry.

19   To begin with, we see two additional differences between the prohibition in this case and those in

20   Geders and Perry. One is that the prohibitions in Geders and Perry were total bans against any

21   communications between the defendant and his attorney during the period at issue, whereas here, the



                                                        23
 1   trial court's order prohibited Note-related communication in only one direction. Contreras's attorney

 2   was prohibited from making such disclosures to Contreras; but that order in no way prevented

 3   Contreras from raising the matter of the Note--if in fact Contreras was independently aware of the

 4   Note--with the attorney. Thus, the court told counsel that if, "absent your showing it to him[,] he

 5   voluntarily says that among the things that got me totally annoyed was that [I] picked this up and I

 6   read it, . . . well, that's another story." (Tr. 199.)

 7                   Moreover, that statement by the court affects the proper perception of the prohibition's

 8   duration, because it suggested that if, without disclosures by counsel, Contreras indicated that he was

 9   already aware of the Note, the prohibition against Note-related disclosures by the attorney to

10   Contreras could be lifted. And as discussed above, the nondisclosure order itself indicated that

11   disclosure could be made if there were a further order of the court. It was likely within Contreras's

12   power, therefore, to shorten the duration of the ban on disclosures by counsel if Contreras had in fact

13   known of the Note.

14                   In sum, the prohibition in Contreras's case differed from those at issue in Geders and

15   Perry in both substance and potential duration. The ban here was limited as to subject matter, did not

16   prohibit discussion of that subject matter if initiated by Contreras from his independent knowledge,

17   and was subject to termination if Contreras showed that he had such knowledge. Given these

18   differences, along with the Geders Court's explicit refusal to "deal with[] . . . other circumstances"

19   than a 17-hour ban on defendant-attorney communications "'about anything,'" 425 U.S. at 91, and

20   Perry's endorsement of a defendant-attorney communications ban directed at one topic while allowing

21   discussion of all others, Contreras has failed to satisfy the highly deferential AEDPA standard.



                                                          24
 1          2. Attendance at the Admissibility Hearing

 2                  Contreras also argues that, in excluding him from the Admissibility Hearing on the

 3   Note, the trial court violated his right under the Due Process Clause to be present at a critical stage

 4   of his trial and that, in rejecting this claim, the New York Court of Appeals unreasonably applied

 5   Supreme Court precedent as established in Stincer, 482 U.S. 730, Gagnon, 470 U.S. 522, and Snyder,

 6   291 U.S. 97. We reject this contention as well.

 7                  Although at common law, "[a] leading principle that pervade[d] the entire law of

 8   criminal procedure [wa]s that, after indictment . . . , nothing shall be done in the absence of the

 9   prisoner," Lewis v. United States, 146 U.S. 370, 372 (1892), the federal constitutional right has been

10   held to be less sweeping. In Snyder, the Supreme Court ruled that there was no due process violation

11   when the jury was taken, with the judge and defense counsel but without the defendants, to view the

12   scene of the crime of which the defendants were accused. See 291 U.S. at 103-05, 122. In Gagnon,

13   the Court found no violation when the trial court held an in camera conference, unattended by the

14   defendants and most of their attorneys, to question a juror who had expressed concern that one of the

15   defendants during the trial was making a sketch of the juror's face. See 470 U.S. at 526-27. And in

16   Stincer, the Court found no violation when the trial court--in the absence of the defendant but in the

17   presence of his attorney, who was permitted to conduct cross-examination--conducted an in camera

18   hearing to determine whether the young children the defendant was accused of molesting were

19   competent to testify at trial. See 482 U.S. at 747.

20                  The test applied in each case was whether, in light of the record as a whole, see, e.g.,

21   Gagnon, 470 U.S. at 526-27; Snyder, 291 U.S. at 115, the defendant's presence at the proceeding in



                                                       25
 1   question would have contributed to his opportunity to defend himself against the charges. Where a

 2   review of the record makes clear that the defendant "could have done nothing had [he] been at the

 3   [proceeding], nor would [he] have gained anything by attending," Gagnon, 470 U.S. at 527, no

 4   constitutional violation will be found on the basis of his absence. Thus, the Court has stated that "due

 5   process clearly requires that a defendant be allowed to be present 'to the extent that a fair and just

 6   hearing would be thwarted by his absence'"; that is, he "is guaranteed the right to be present at any

 7   stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the

 8   fairness of the procedure." Stincer, 482 U.S. at 745 (quoting Snyder, 291 U.S. at 108). But "the Court

 9   has emphasized that this privilege of presence is not guaranteed 'when presence would be useless, or

10   the benefit but a shadow.'" Stincer, 482 U.S. at 745 (quoting Snyder, 291 U.S. at 106-07).

11   Accordingly, "'[t]he presence of a defendant is a condition of due process to the extent that a fair and

12   just hearing would be thwarted by his absence, and to that extent only.'" Gagnon, 470 U.S. at 526

13   (quoting Snyder, 291 U.S. at 107-08).

14                  As discussed in Part II.A. above, the record in this case is consistent with the state

15   court's conclusion that Contreras's absence from the proceeding did not materially undermine "the

16   fairness of the procedure," Contreras II, 12 N.Y.3d at 273, 879 N.Y.S.2d at 372, in violation of his

17   due process right to be present. His attorney was allowed to cross-examine Y.A. on the Note.

18   Contreras himself was not competent to speak on what was in Y.A.'s mind when she wrote the Note;

19   there is no indication that Contreras had independent knowledge of the Note; and he has not called

20   to our attention any reason to believe that his presence at the Admissibility Hearing could have




                                                       26
 1   assisted either his attorney or the court in asking questions that would have resulted in a more reliable

 2   determination as to what Y.A. had meant by the words she had written.

 3                  Contreras also summarily suggests that his exclusion from the Admissibility Hearing

 4   violated his rights under the Confrontation Clause. (See Contreras brief on appeal at 47.) That

 5   contention fails for the same reasons that his due process claim fails--and in particular because his

 6   counsel was ultimately permitted to cross-examine Y.A. about the Note, see, e.g., Stincer 482 U.S.

 7   at 739 ("[T]he Confrontation Clause guarantees only 'an opportunity for effective cross-examination,

 8   not cross-examination that is effective in whatever way, and to whatever extent, the defense might

9    wish.'" (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in Fensterer)).

10                  Finally, we note that, as the New York Court of Appeals observed in Contreras II, the

11   very purpose of a court's in camera hearing to determine the prosecution's duty to disclose evidence

12   to the defendant, under either Brady or Rosario, precludes the defendant's entitlement to be present

13   at the hearing. See 12 N.Y.3d at 273, 879 N.Y.S.2d at 372. While ex parte proceedings are generally

14   discouraged, it is well established that where "there is a question as to the relevance or materiality of

15   a given group of documents," the government may submit the documents to the court for the judge's

16   independent in camera review. United States v. Wolfson, 55 F.3d 58, 60 (2d Cir.) ("Wolfson"), cert.

17   denied, 516 U.S. 990 (1995); see also United States v. Leung, 40 F.3d 577, 582 (2d Cir. 1994)

18   ("Leung") ("[I]n some circumstances the trial court should not rely on the Government's

19   representations . . . , but should instead undertake an independent in camera review of relevant

20   Government files to determine materiality."). The nature of such proceedings precludes the

21   defendant's participation: Where the very question at issue is whether the prosecution is obliged to



                                                        27
 1   reveal certain material to the defendant, the inquiry cannot begin by revealing that material to the

 2   defendant. As we have recognized, a "defendant's Brady request for discovery of exculpatory

 3   materials or materials with which to impeach a government witness . . . does [not] give the defendant

4    the right to assess materiality himself." Wolfson, 55 F.3d at 60; see also Leung, 40 F.3d at 583 (a

 5   Brady hearing does not "provide a general discovery device for the defense," nor an opportunity to

 6   learn "the contents of Government files in order to present arguments in favor of disclosure"). Rather,

 7   the point of the court's in camera review is to ensure the disclosure of exculpatory evidence while

8    "preserv[ing] the confidentiality of those documents that the court determines need not be disclosed."

 9   Wolfson, 55 F.3d at 60 (emphasis added).

10                   That procedure is one we should encourage. In the typical case, after all, the

11   prosecution may preserve its right to reach its own determinations as to which evidence it will

12   disclose to the defendant. See Leung, 40 F.3d at 582. In some circumstances, however, where

13   disclosure can "make the difference between acquittal and conviction," we have urged that the

14   defendant's access to potentially exculpatory evidence should not depend "solely on the

15   representations of the government." United States v. Kiszewski, 877 F.2d 210, 216 (2d Cir. 1989).

16   Supplementing "the Government's assessment of materiality with the impartial view provided by the

17   trial judge," Leung, 40 F.3d at 583, the court's in camera inspection provides a check on the

18   prosecution's determinations and helps protect the defendant's rights to an effective defense at trial.

19                   Here, assuming that the Note was not in fact Brady material (as we must at this stage--

20   no Brady claim was asserted in Contreras's habeas petition, or even in his state-court appeals), the trial

21   court did more than was required in its in camera hearing, inviting Contreras's counsel to review the



                                                        28
 1   document in issue and examine the witness about its nature and relevance. These actions, which

 2   underlie Contreras's claims that he had a right to be present, reflect the court's care in insuring that

 3   it reached a full and fair in camera determination. Where, as in this case, the state holds potentially

 4   exculpatory evidence, we should not discourage prosecutors from disclosing that material for the

 5   court's impartial review, or discourage courts from examining witnesses in order to clarify the facts,

 6   by holding that such actions effectively mandate disclosure of the evidence to the defendant.

 7                  We conclude that Contreras's contention that the New York Court of Appeals violated

 8   or unreasonably applied Supreme Court precedents in rejecting his right-to-be-present claim is

 9   meritless.

10                  In sum, given our AEDPA-limited role in reviewing habeas petitions to set aside state-

11   court judgments, our consideration here is limited to the question of whether the decisions of the New

12   York courts rejecting Contreras's constitutional claims were "contrary to" or an "unreasonable

13   application of" clearly established United States Supreme Court precedent. We hold that they were

14   not. Whether one or another of us might have reached different conclusions on direct review of

15   constitutional claims such as these is irrelevant.



16                                              CONCLUSION



17                  We have considered all of Contreras's arguments in support of his appeal and have

18   found them to be without merit. The judgment of the district court is affirmed.




                                                          29
