

                 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 &amp; 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

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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

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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

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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.

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