      14-4778
      Manning v. Rock
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE
A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2    the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3    on the 5th day of February, two thousand sixteen.
 4
 5    PRESENT: GUIDO CALABRESI,
 6             GERARD E. LYNCH,
 7             RAYMOND J. LOHIER, Jr.,
 8                           Circuit Judges.
 9
10    ———————————————————————
11
12    TROY MANNING,
13
14                                       Petitioner-Appellant,
15
16                         v.                                         No. 14-4778-pr
17
18    DAVID ROCK, Superintendent at Upstate
19    Correctional Facility,
20
21                                       Respondent-Appellee.
22
23    ———————————————————————
24
25    FOR APPELLANT:                     JOSEPH M. NURSEY (Richard M. Greenberg, on the
26                                       brief), Office of the Appellate Defender, New York, New
27                                       York.
28
29    FOR APPELLEE:                      DAVID P. STROMES (Christopher P. Marinelli, on the
30                                       brief), Assistant District Attorneys, for Cyrus R. Vance,
31                                       Jr., District Attorney of New York County, New York,
32                                       New York.
33
 1          Appeal from the United States District Court for the Southern District of New

 2   York (Thomas P. Griesa, J.).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 4   AND DECREED that the judgment of the district court is AFFIRMED.

 5          Petitioner-Appellant Troy Manning, who is currently serving a sentence of 18

 6   years’ imprisonment following a conviction in New York Supreme Court on eleven

 7   counts of criminal sale of marijuana in the second degree, five counts of criminal sale of a

 8   controlled substance in the second degree, and two counts of criminal sale of a controlled

 9   substance in the first degree, appeals from the district court’s denial of his petition under

10   28 U.S.C. § 2254 for a writ of habeas corpus. We granted a certificate of appealability on

11   the question whether Manning’s “right to a public trial under the Sixth Amendment was

12   violated when the state trial court closed the courtroom to the general public during the

13   testimony of an undercover officer without sua sponte considering reasonable

14   alternatives.” J.A. 6. We assume the parties’ familiarity with the underlying facts and

15   procedural history of this case, as well as with the issues on appeal.

16          A federal court may grant habeas relief under § 2254 only if the state court’s

17   decision “was contrary to, or involved an unreasonable application of, clearly established

18   Federal law, as determined by the Supreme Court of the United States,” or “was based on

19   an unreasonable determination of the facts in light of the evidence presented in the State

20   court proceeding.” 28 U.S.C. § 2254(d). A petitioner seeking such relief must

21   demonstrate that the state court’s decision was “so lacking in justification that there was

                                                   2
 1   an error well understood and comprehended in existing law beyond any possibility for

 2   fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

 3          The district court erred in holding that Manning had procedurally defaulted on his

 4   claim that the trial court failed to consider reasonable alternatives to closing the

 5   courtroom and thus violated the third prong of the four-prong test set out by the Supreme

 6   Court for evaluating the constitutionality of a courtroom closure. See Waller v. Georgia,

 7   467 U.S. 39, 48 (1984). The Appellate Division held that Manning had failed to preserve

 8   only “his specific complaint that the court failed to set forth adequate findings of fact to

 9   justify closure,” J.A. 57, under the fourth prong of the Waller test, and dismissed

10   Manning’s third-prong claim on the merits. Because the Appellate Division’s decision on

11   the third-prong claim “fairly appeared to rest primarily on resolution of [that] claim[] . . .

12   and did not clearly and expressly rely on an independent and adequate state ground,”

13   Coleman v. Thompson, 501 U.S. 722, 735 (1991), we may address it here.

14          On the merits, however, Manning has not shown that he is entitled to habeas relief

15   under the exacting standard set forth above. The Appellate Division concluded that

16   Waller’s third prong was satisfied, because “the closure only applied during the

17   undercover officer’s testimony, and the [trial] court stated it would permit defendant’s

18   family members to attend and would consider admitting other persons on an individual

19   basis.” J.A. 58. A trial court’s consideration of all “reasonable alternatives,” in

20   conjunction with its fulfillment of the other Waller factors, may conceivably lead to a

21   limited closure such as that ordered by the state court in this case. Waller, 467 U.S. at

                                                    3
 1   48–49 (suggesting, as an alternative to immediate closure of an entire suppression

 2   hearing, “closing only those parts of the hearing that jeopardized the interests advanced”);

 3   see also Brown v. Kuhlmann, 142 F.3d 529, 538 (2d Cir. 1998) (stating that “closure of

 4   the courtroom during the testimony of a single witness is itself a narrower alternative than

 5   closure for the duration of the proceeding”). The Appellate Division’s decision was thus

 6   not “an error . . . beyond any possibility of fairminded disagreement.”

 7          We have considered Manning’s remaining arguments and find them to be without

 8   merit. Accordingly, we AFFIRM the judgment of the district court.

 9
10
11                                      FOR THE COURT:
12                                      CATHERINE O’HAGAN WOLFE, Clerk of Court
13




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