Jordan v. United States

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-1291
DAVID JORDAN,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSSETTS
[Hon. George A. O'Toole, U.S. District Judge]
Before
Selya, Circuit Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.
David J. Nathanson, with whom Dan Horowitz and Wood &
Nathanson, LLP were on brief, for appellant.
Randall E. Kromm, Assistant U.S. Attorney, with whom Carmen
M. Ortiz, U.S. Attorney, was on brief, for appellee.
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
July 14, 2015
SOUTER, Associate Justice. This is our second
consideration of David Jordan's appeal from the denial of relief
on federal habeas. The first time, we remanded for a new
evidentiary hearing, after which the district court again held
against Jordan. We affirm.
I.
Jordan was tried and convicted of federal crimes in a
joint trial with Anthony Bucci. The defendants later filed
unsuccessful habeas petitions under 28 U.S.C. § 2255, each
contending (in principal part) that his Sixth Amendment right to
a public trial was violated by a partial courtroom closure during
voir dire proceedings. Although on appeal we agreed with the
petitioners that "the courtroom closure here likely violated the
Sixth Amendment," Bucci v. United States, 662 F.3d 18, 26 (1st
Cir. 2011), we held that each had procedurally defaulted his claim
by failing to raise it at trial, id. at 27-29 (Bucci); id. at 33-
34 (Jordan). We affirmed the district court's judgment in Bucci's
case, owing to his failure to show the cause and prejudice
necessary to overcome the procedural default. Id. at 29-32. As
to Jordan, we expressed doubt that he could overcome the same
default, id. at 33-34, but we nevertheless ordered a remand because
the evidentiary hearing had not addressed his specific allegations
for excusing his failure to make a timely objection, id. at 34-
35.
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On remand, the district court held a two-day hearing and
made the following supportable findings of fact. On the day of
the voir dire, the courtroom was opened around 9 a.m. and began to
fill with family relations, members of the public, lawyers, the
defendants, and courtroom staff. At some point, the principal
attorneys (including Jordan's counsel) were handed a list of
prospective jurors, which they promptly began to study. Somewhat
later, after the jury venire arrived, the clerk realized that the
courtroom was too small to hold everyone and asked all spectators
to leave. After someone complained that family members had a right
to be present, the clerk consulted with the judge, who let Bucci's
mother and wife and Jordan's wife back into the courtroom. The
venire then entered, the judge took the bench, and the jury was
ultimately chosen.
The district court acknowledged that the evidence was
ambiguous as to whether Jordan's counsel was actually conscious of
the partial courtroom closure. Although it was undisputed that
counsel was in the room at the time, and that the clerk audibly
announced the partial closure from around the front of the section
for public seating, Jordan's lawyer testified that he had no
recollection one way or the other. Nevertheless, the district
court concluded:
That does not mean, however, that [Jordan's
counsel] was unaware of it. On the contrary,
I find that he was. Given what appears from
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the evidentiary record to be an undisputed
sequence of events, it is virtually
inconceivable that any person present in the
courtroom, as the lawyers and their clients
were, would not have observed that at some
point all the spectators in the gallery got up
and left together and shortly thereafter the
venire arrived and filled the gallery but for
one bench. Even if he did not hear the clerk
announce the clearing of the courtroom, an
experienced trial attorney like [Jordan's
counsel] would have understood that it was not
just a curious coincidence that all the
spectators exited at once and that shortly
afterwards the gallery was filled with the
venire.
II.
As mentioned earlier, for Jordan to overcome the
procedural default of his Sixth Amendment claim, he must
demonstrate "cause" excusing the default and "actual prejudice"
from the underlying error. United States v. Frady, 456 U.S. 152,
167-68 (1982). Such cause can be either of two sorts: "the factual
or legal basis for a claim was not reasonably available to counsel"
due to "some objective factor external to the defense," Murray v.
Carrier, 477 U.S. 478, 488 (1986); or the default was attributable
to constitutionally ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), see Murray, 477
U.S. at 488-89. Jordan cannot show cause either way.1
The first is foreclosed by the district court's factual
findings. The judge expressly found that Jordan's counsel was
1 We therefore do not address "actual prejudice."
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aware of the partial courtroom closure, and reasonably should have
known of it, there being no impediment to awareness external to
the defense. Thus, the factual basis for the Sixth Amendment claim
was reasonably available to Jordan's counsel.
To avoid this conclusion, Jordan challenges the district
court's findings, but he cannot clear the hurdle of showing clear
error, necessary to set them aside. See United States v. Garcia-
Hernandez, 659 F.3d 108, 111 (1st Cir. 2011). The courtroom
closure was not conducted in secret, and it was reasonable for the
district court to conclude that "any person present in the
courtroom," especially one with legal experience, would (or
should) have sensed and observed the exodus and replacement of
those in the public seating section. While Jordan stresses
evidence that the clerk stood at the edge of the bar section and
the front of the public area of the courtroom, and argues that the
need to study newly supplied background information about the
venire was distracting, his argument falls short of showing clear
error in the district court's conclusions. See deBenedictis v.
Brady-Zell (In re Brady-Zell), 756 F.3d 69, 72 (1st Cir. 2014)
("[W]here the facts can support two plausible but conflicting
interpretations of a body of evidence, the factfinder's choice
between them cannot be clearly erroneous."). This is no less true
here, where the district court's crucial finding is an inference
about counsel's awareness on a point that he himself did not recall
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(either way) at the evidentiary hearing. The deferential nature
of clear error review means that "when the district court chooses
to draw a reasonable (though not inevitable) inference from a
particular combination of facts, that inference is entitled to
respect." Garcia-Hernandez, 659 F.3d at 111 (internal quotation
marks omitted).2
The second way Jordan might establish "cause" is
foreclosed by our prior decision in Bucci. There, Bucci claimed
cause based on his counsel's ineffective assistance for failing to
object to the partial courtroom closure, which he was admittedly
aware of. See Bucci, 662 F.3d at 29-31. We rejected the argument
because "under the applicable objective standard [for attorney
performance], competent counsel could have knowingly and
reasonably declined to raise the constitutional issue in this case
[of partial closure] because doing so would be a waste of the
defense's time, energy, and resources." Id. at 31. Specifically,
"competent defense counsel could have reasonably concluded that
the presence of Bucci's family members sufficiently mitigated the
risk of actual prejudice to Bucci to the point that . . . his
2 Jordan argues that the government should be estopped from
arguing that his trial counsel was aware of the courtroom closure,
because it originally argued that his lawyer should not have known
of the error. To the contrary, the government's prior position
was merely an arguendo assumption at that stage of litigation.
See Bucci, 662 F.3d at 33 ("The government so far has been willing
to assume that Jordan's counsel was unaware of the closure.").
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client's interests would be best served by moving the trial along
and focusing on the immediate task of jury selection." Id. at 31-
32. We see no reason for a different view here with respect to
Jordan. During the partial closure, Jordan's wife was seated in
the courtroom and counsel was studying the list of prospective
jurors; counsel's choice to focus on that important task, in lieu
of making an objection of arguably minimal value, was objectively
reasonable for the reasons we gave in Bucci, 662 F.3d at 29-32.
In attempting to distinguish his case from Bucci's,
Jordan points to testimony during the evidentiary hearing that his
lawyer, unlike Bucci's, thought it valuable to have the public
present. But it is settled law that the ineffectiveness enquiry
applies an "objective standard of reasonableness," not a
subjective one, Strickland, 466 U.S. at 688, with the consequence
that nothing turns on the general views of Jordan's lawyer. While
Jordan alternatively frames the argument as his counsel's
objective failure to "implement his own chosen strategy" to include
all of the public, the testimony Jordan relies on demonstrates
only that his attorney had a preference for the public's presence,
not a proper "strategy." Reasonable judgment may forsake a
preference in order to address a more pressing need, and a lawyer
who understands that is not constitutionally ineffective.
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III.
The judgment of the district court is affirmed.
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