Terrence Williams v. Sherry Burt

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0042p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TERRENCE JAMAL WILLIAMS, aka Terrance Jamal ┐
Williams (State Prisoner #588573), │
Petitioner-Appellant, │
> No. 18-1461
│
v. │
│
│
SHERRY L. BURT, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 1:13-cv-14493—Thomas L. Ludington, District Judge.
Argued: January 30, 2020
Decided and Filed: February 11, 2020
Before: SUTTON, BUSH, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Yaira S. Dubin, O’MELVENY & MYERS LLP, New York, New York, for
Appellant. Scott R. Shimkus, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. ON BRIEF: Jennifer Sokoler, Anton Metlitsky, Catherine
Nagle, O’MELVENY & MYERS LLP, New York, New York, for Appellant. Scott R. Shimkus,
MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. Terrence Williams (often referred to as “Terrance
Williams” in court documents) was sentenced to life imprisonment without parole for his role in
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a drive-by shooting outside a Detroit nightclub. That verdict and sentence came at the close of
an eventful trial—one marked by outbursts, threats toward witnesses, and offensive language—
transgressions committed by witnesses, spectators, and counsel alike. After a particularly
contentious incident involving a witness and defense counsel, the court took protective action,
temporarily closing the courtroom to spectators before reopening it a few days later.
On direct appeal, and now in this habeas proceeding, Williams argues that the temporary
closure violated his Sixth Amendment right to a public trial. Terry Price, Williams’s trial
counsel, failed to object to the closure, however, meaning that Williams defaulted his public trial
claim in the state proceeding. And he has not overcome that failure by showing that his counsel
was constitutionally ineffective, which might otherwise constitute cause and prejudice excusing
the default. We accordingly AFFIRM the judgment of the district court.
BACKGROUND
Following an evening at a nightclub in southwest Detroit, Carl Hairston, Jerrance Lewis,
and Thomas Cook left the club together in the same vehicle. As they drove away, a light-blue
minivan pulled up next to them. From an open door, a passenger inside the minivan wielding an
AK-47 fired more than twenty shots into the neighboring vehicle. The vehicles collided, tearing
off the open minivan door. The minivan then sped off, leaving Hairston dead, Lewis severely
injured, and Cook unharmed.
Following an investigation, officers recovered a burned minivan with its rear passenger-
side door missing. Tracing the minivan, and aided by a lead that “Joe Green” was involved in
the shooting, officers discovered that the vehicle was registered to Juanita Williams, the mother
of Terrence Williams and Joseph Green.
When he recovered from his wounds, Lewis identified Williams and Green as his
assailants. The two were well-known to Lewis. In addition to seeing them driving the same
minivan previously, Lewis had fought with Williams and Green on prior occasions. During one
of those engagements, Williams shot Lewis in the hand.
No. 18-1461 Williams v. Burt Page 3
Williams and Green were indicted on charges for murder and assault with intent to
murder. A four-week trial followed. But irregularities emerged almost right away, starting with
the testimony of Cook, who served as the prosecution’s first witness. Though Cook had signed a
pre-trial statement indicating that his assailants were driving a light-blue minivan, at trial Cook
claimed not to know what vehicle the assailants were driving. The prosecution attributed Cook’s
inconsistent testimony to intimidation from spectators in the courtroom. The trial court,
however, found no basis to believe there had been “any overt attempt to influence [Cook’s]
testimony.”
Improper spectator participation also became a concern during the testimony of
Williams’s mother and of his maternal aunt. On each occasion, the court was informed that
spectators were coaching the witnesses and having inappropriate conversations with them about
their respective testimony. The court warned the spectators that improper communication or
other interference would result in exclusion from the remainder of the trial. Despite this
warning, the court did not exclude a spectator who, a few days later, was seen “making gestures
and mouthing words” during the testimony of the mother of the deceased victim.
These episodes came to a head when Lewis took the stand. The night before his
preliminary examination, Lewis’s home was firebombed. Undeterred, Lewis gave testimony
consistent with his prior statement to officers, testifying on direct that Green and Williams were
the shooters. While off the stand, Lewis told the prosecutor that, as he was testifying, he felt he
was being threatened by glares and gestures from defense counsel. And on the third day of his
testimony, after completing a portion of cross-examination, Lewis openly accused defense
counsel of threatening behavior. As Lewis left the stand, the following exchange occurred
between Lewis, defendant Green, the prosecutor, and defense counsel:
Lewis. You see that?
Prosecutor. I did see that. Yeah, I did see that with Mr. Price looking at
the witness.
Lewis. Telling me I’m dead and all this.
Prosecutor. Wait a minute. I’ve been watching him during the trial.
These witnesses—
Green. They just making that little n* * * * * lying.
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Green’s Counsel. Hey. Hey. Hey.
Lewis. Get the f* * * on. What you talking about, boy? Get on.
Court Officer. Have a seat. Have a seat. Have a seat.
Prosecutor. Mr. Lewis, you’re all right, don’t let these people get to
you. You should be ashamed of yourself.
Williams’s Counsel. You should be ashamed of yourself. You don’t know what
you talking about.
Lewis. I know you ‘bout to get—
Williams’s Counsel. How you gonna play me? He ain’t no boss of nothing.
To allow cooler heads to prevail, the court called a recess. When trial reconvened,
defense counsel denied any intent to intimidate Lewis, claiming that his looks and gestures were
just his way of studying Lewis as he testified. Despite an admonition from the court, defense
counsel stated his intention to continue his conduct.
At that point, the court decided that closing the courtroom was the best path forward.
Citing repeated interference from spectators, the court remarked that emotions were “running
much higher than almost any other case I’ve had . . . they have to get under control.” In the
interest of securing the courtroom and preserving the integrity of the proceedings, the court
announced that the courtroom would remain closed for the remainder of the day, with the
decision regarding the closure of subsequent proceedings to be decided at a later date. Defense
counsel did not object to the closure.
The courtroom remained closed for the remaining two days of Lewis’s testimony, as well
as during the entirety of the testimony of Williams’s cellmate, Cornelius Ware. Testifying in the
closed courtroom, Ware stated that Williams confessed to the crime while the two were in jail
together. Following Ware’s testimony, the trial was reopened to the public.
Once the prosecution rested, Williams presented his case. Williams testified along with
four others, each of whom contradicted the narrative offered by the prosecution. At the close of
its deliberations, the jury convicted Williams of first-degree premediated murder and assault with
intent to murder. The court sentenced Williams to serve life in prison without parole for the
former and twenty to thirty years in prison for the latter.
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On direct appeal, Williams argued, among other things, that the closure of the courtroom
violated his Sixth Amendment right to a public trial, and that his counsel was ineffective for
failing to object to this and other issues at trial. See generally Williams, No. 286097, 2011 WL
6004067 (Mich. App. Dec 1, 2011). In view of defense counsel’s failure to preserve the issue
through an objection, the state appeals court applied plain error review to Williams’s public trial
claim. Id. at *5. Yet even under that nominal standard, the appeals court found that counsel’s
conduct fell below Sixth Amendment standards, rendering counsel’s assistance constitutionally
ineffective. Id. at *11. Citing the strength of the government’s case, however, the appeals court
concluded that “the result of the proceeding would not have been different” if counsel had
performed differently, and accordingly denied relief on that ground. Id. The Michigan Supreme
Court denied Williams leave to appeal. People v. Williams, 812 N.W.2d 747 (Mich. 2012)
(mem.); People v. Williams, 817 N.W.2d 56 (Mich. 2012) (mem.).
Following his state court proceedings, Williams filed in federal court a petition for relief
under 28 U.S.C. § 2254. Among the claims raised in the petition were those regarding a public
trial and ineffective assistance of counsel. After the district court denied relief, we granted
Williams a certificate of appealability for his public trial claim as well as for his ineffective
assistance of counsel claim (limited to counsel’s failure to object to the courtroom closure).
Williams v. Burt, No. 18-1461 (6th Cir. Aug. 30, 2018).
ANALYSIS
Part and parcel of federal habeas corpus litigation is an accompanying bevy of procedural
rules and requirements, from myriad common law standards to a variety of federal statutes.
While familiar to the federal courts, application of this body of authority is not always easy or
straightforward. Thomas v. Romanowski, 362 F. App’x 452, 455 (6th Cir. 2010) (describing the
landscape surrounding habeas procedural bars as a “complicated and changing area of law”).
Today’s case is no exception.
A. Williams’s appeal turns on the application of the procedural default bar to awarding
habeas relief. In respecting that settled rule, we must answer at the outset whether Williams has
forfeited a right he seeks to enforce in this habeas proceeding by defaulting the claim during his
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underlying Michigan state court proceedings. Wade v. Timmerman-Cooper, 785 F.3d 1059,
1068 (6th Cir. 2015). Sometimes, a petitioner neglects to raise a claim during the entirety of his
state court proceeding, yet later seeks to pursue the claim through federal habeas litigation. In
that circumstance, out of respect to the relevant state’s finality interests, the petitioner typically is
deemed to have procedurally defaulted the claim, meaning we will not then review it in a habeas
posture. Lovins v. Parker, 712 F.3d 283, 304–05 (6th Cir. 2013) (holding that the petitioner’s
claim under Chambers v. Mississippi, 410 U.S. 284 (1973), was procedurally defaulted because
he failed to raise it in state court).
But Williams’s circumstance is not so straightforward. Williams failed to preserve his
public trial issue in the state trial court, but he then raised the issue on appeal. And the reason he
gave the appellate court for his initial failure was the ineffective assistance he received from his
trial counsel, a right the Constitution, through the Sixth Amendment, ensures to him. Strickland
v. Washington, 466 U.S. 668, 685–86 (1984).
Before we find that Williams has procedurally defaulted his public trial claim, then, we
must conclude that: (1) Williams failed to comply with a state procedural rule; (2) the Michigan
state courts enforced the rule; (3) the Michigan procedural rule is an adequate and
independent state ground for denying review of Williams’s federal constitutional claim; and
(4) Williams cannot show cause and prejudice excusing the default. Guilmette v. Howes,
624 F.3d 286, 290 (6th Cir. 2010) (en banc). There is little doubt Williams’s circumstances meet
each of the first three markers: The Michigan courts enforced a well-recognized procedural rule
requiring that a litigant, to preserve an issue for appeal, first raise the issue below.
True, in enforcing its procedural bar, the Michigan Court of Appeals did not entirely
“deny review” of Williams’s claim, in the strictest sense of the phrase. As is common practice in
the Michigan courts (and in other courts too, including ours), the appeals court instead gave
Williams’s public trial claim truncated consideration, reviewing the claim only for plain error in
view of the fact that Williams raised the claim for the first time on appeal. See People v.
Carines, 597 N.W.2d 130, 137–39 (Mich. 1999). For purposes of federal habeas review,
however, a state court’s decision to employ plain error review to otherwise abandoned arguments
does not excuse a petitioner’s default. Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006)
No. 18-1461 Williams v. Burt Page 7
(citing Scott v. Mitchell, 209 F.3d 854, 866 (6th Cir. 2000)). Across many cases, we have
consistently held that application of the plain error standard to an unpreserved claim does not
save a petitioner from a defense of procedural default raised at the habeas stage. See, e.g., id. at
765; Fleming v. Metrish, 556 F.3d 520, 530 (6th Cir. 2009) (citing Seymour v. Walker, 224 F.3d
542, 557 (6th Cir. 2000)).
That settled practice seeks to balance two weighty—but sometimes competing—virtues
of our legal system: avoiding injustice on the one hand, and preserving comity on the other. As
to the former, it is well understood that preventing manifest injustice is a core function of any
reviewing court. See Lundgren, 440 F.3d at 765 (“Plain error analysis is more properly viewed
as a court’s right to overlook procedural defects to prevent manifest injustice, but is not
equivalent to a review of the merits.”). Plain error review plays a critical role in helping avoid
such injustice, and so we understandably do not seek to encourage state courts to forego such
efforts. Id. But by the same token, the procedural default bar honors fundamental features of our
federal system of government. With an eye on state-federal comity concerns, we, sitting as a
federal tribunal, customarily refuse to disturb state court judgments on grounds neglectfully not
raised in state court. Williams v. Anderson, 460 F.3d 789, 799 (6th Cir. 2006) (citing Coleman v.
Thompson, 501 U.S. 722, 731 (1991)). Enforcing the procedural default bar against the
backdrop of a state court’s earlier plain error review thus respects the interests of justice in the
state’s legal system while honoring the federalism and comity principles that animate many
habeas procedural limitations. See id.; see, e.g., 28 U.S.C. § 2254(d).
B. With the first three procedural default factors resolved against him, Williams
emphasizes the fourth. That is, he contends there is cause and prejudice to excuse his procedural
default in state court. The reason? Williams says his counsel was constitutionally ineffective.
Generally speaking, counsel’s deficient performance in state court can serve as grounds
for excusing a petitioner’s procedural default. Kelly v. Lazaroff, 846 F.3d 819, 829 (6th Cir.
2017) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). In assessing whether counsel
functioned in such a deficient manner as to constitute cause and prejudice excusing the default,
we measure counsel’s performance against the familiar backdrop of Strickland. As the Supreme
Court explained there, the right to effective assistance of counsel is grounded in the Sixth
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Amendment’s fundamental guarantee of the right to counsel for criminal defendants. 466 U.S. at
686 (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). In view of that fundamental
right, counsel will be deemed constitutionally “ineffective” where she commits errors so serious
as to effectively deny a defendant the right to counsel, if those errors result in prejudice to the
defendant. Id. at 687. Satisfying the Strickland standard, however, is difficult. Padilla v.
Kentucky, 559 U.S. 356, 371 (2010) (“Surmounting Strickland’s high bar is never an easy
task.”).
Before making that assessment, we note one issue regarding the lens through which we
view the Strickland factors as part of the broader procedural default analysis. Because the
Michigan Court of Appeals addressed Williams’s ineffective assistance of counsel claim on the
merits, and as we sit in collateral review of those proceedings, the State contends that our review
is governed by the exacting standards set forth in the Antiterrorism and Effective Death Penalty
Act (or AEDPA). See 28 U.S.C. § 2254(d). Satisfying AEDPA’s standards is difficult by
design. Harrington v. Richter, 562 U.S. 86, 102 (2011). Before we may award habeas relief,
AEDPA requires not just that we find the state court’s decision to be wrong. Rather, we must
conclude that its decision was so far off the mark as to constitute “an unreasonable application of
clearly established Federal law.” Johnson v. Genovese, 924 F.3d 929, 933 (6th Cir. 2019)
(quoting 28 U.S.C. § 2254(d)). Coupling that deferential standard with the demanding
Strickland standard would put in place a nearly insurmountable obstacle to Williams’s path to
relief. See Harrington, 562 U.S. at 105 (“The standards created by Strickland and § 2254(d) are
both highly deferential, and when the two apply in tandem, review is doubly so.”) (internal
quotations and citations omitted).
Unlike when reviewing Williams’s habeas claim on the merits, however, we have
sometimes said that AEDPA deference does not cabin our review of the cause and prejudice
aspect of procedural default. Hall v. Vasbinder, 563 F.3d 222, 236–37 (6th Cir. 2009). We need
not decide whether this position is correct today. Cf. Stewart v. Trierweiler, 867 F.3d 633, 638
(6th Cir. 2019); Richardson v. Lemke, 745 F.3d 258, 273 (7th Cir. 2014). Williams’s claim fails
even under the more friendly de novo standard of review.
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Trial Counsel’s Performance Was Deficient. We first consider whether Williams was
effectively deprived of his right to counsel by his attorney’s errors. In doing so, we “indulge a
strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689.
One indicator of counsel’s deficiencies, says Williams, was counsel’s combative behavior
during and after Lewis’s testimony. Counsel indisputably argued with Lewis, then sixteen years
old, as Lewis left the witness stand. Counsel may also have been mouthing threats to Lewis
during his testimony. These misdeeds, the record suggests, were the proverbial straw that broke
the court’s back. Following this episode, and after additional contemplation, the trial court
closed the proceedings temporarily.
Counsel’s actions fell well outside the acceptable range of conduct. It is difficult to
imagine a legitimate strategic objective counsel sought to achieve through his combative
conduct, in particular, openly confronting a minor who, after barely surviving a murder attempt,
seeing a friend shot and killed, and having his home firebombed on the eve of his testimony,
bravely testified for multiple days in the ensuing murder trial. Even if one could divine such a
strategy, counsel’s methods for executing it were neither reasonable nor professional. See id.
These antics alone, however, are not enough to demonstrate constitutionally deficient
performance. Satisfying the Strickland standard requires more than just demonstrating
deficiency; it also requires demonstrating a cause-and-effect relationship between the deficient
performance and any prejudice suffered by the defendant. Id. at 687. And while counsel’s
conduct towards Lewis reflected deficient performance, that is not the prejudicial event Williams
says demonstrates ineffective assistance under Strickland. Rather, says Williams, it was the trial
court’s decision to close the courtroom during the remainder of Lewis’s testimony (and the
entirety of Ware’s).
That turns our attention, then, to counsel’s failure to object to that decision. In
challenging that aspect of his counsel’s performance, Williams faces the same hurdle: Counsel’s
decision not to object to the closure is presumed to have been a reasonable strategic decision
under Strickland. Johnson v. Sherry, 586 F.3d 439, 446 (6th Cir. 2009). Turning back the clock
No. 18-1461 Williams v. Burt Page 10
to the period following Lewis’s testimony, there are reasons why counsel might have objected to
closing the courtroom, including to allow the defendant’s family to be present at all points of the
trial. But there are also reasons why counsel might have chosen, as he did, not to object to
closing the courtroom. One would be to keep the victim’s relatives out of the jury’s view.
Another would be to keep sensitive proceedings private. And yet another could be the desire to
avoid drawing the jury’s attention to the intimidation of witnesses that allegedly had been
occurring in the courtroom to that point.
Absent other indicators, counsel’s failure to object could fairly be described as a
judgment call by counsel, something that rarely amounts to constitutionally ineffective
assistance. See Strickland, 466 U.S. at 689. But here, there is one other indicator to consider—
one that may have served as a less appropriate reason for counsel to forgo objecting to the
closure. That is counsel’s role in causing the closure. While an objection would have honored
Williams’s right to a public trial, it also may well have put the spotlight on counsel’s
questionable courtroom antics that precipitated the closure. In that way, counsel may have been
conflicted in his motives; his decision may have been influenced as much by his personal
interests as those of his client. Taking all of this together, counsel’s failure to object, combined
with the specter of a conflict of interest, constituted deficient performance in this specific setting.
See Whiting v. Burt, 395 F.3d 602, 610–11 (6th Cir. 2005) (explaining that conflicts of interest
that adversely affect counsel’s performance can sustain a claim for ineffective assistance).
The failure to object, moreover, may have precipitated a constitutional error by the trial
court. Closing the courtroom is in tension with the “presumption of openness” favoring public
trials. United States v. Simmons, 797 F.3d 409, 413 (6th Cir. 2015) (quoting Waller v. Georgia,
467 U.S. 39, 46 (1984)). Only rare circumstances justify courtroom closures. Waller, 467 U.S.
at 44–45. One notable example is the repeated disruption of courtroom proceedings. Drummond
v. Houk, 797 F.3d 400, 401 (6th Cir. 2015). With the scales thus tipped dramatically in favor of
open proceedings, a trial court must explain in detail its reasoning for closing the courtroom,
including whether it considered alternative measures, and how it narrowly tailored the remedy it
is imposing to achieve the specific interests it seeks to protect. Simmons, 797 F.3d at 413
(quoting Waller, 467 U.S. at 48).
No. 18-1461 Williams v. Burt Page 11
This is where we find some fault with the trial court. No one doubts the difficult situation
the court faced in trying this murder case. Even from a cold record, one can easily feel the hot
tempers in the courtroom. The trial participants had a lengthy history of animosity, the
courtroom was crowded, and the spectators were animated. The court had admonished at least
three spectators, and other spectators were raising security concerns. See Williams, 2011 WL
6004067, at *8. To the court’s eye, passions in the courtroom were “running much higher than
almost any other case I’ve had.” Id. But in then taking the considerable step of closing the
courtroom altogether for some of Lewis’s (and all of Ware’s) testimony, the court’s explanation
was wanting. It did not explain, for instance, how closing the courtroom to the public would
prevent another altercation between Lewis and defense counsel, the event that precipitated the
closure. It did not explain how closing the courtroom would tamp down emotions for the
participants, who would still engage with each other and with observers once the participants left
the courtroom.
Nor did the court appear to consider any alternatives to complete closure, or to justify the
remedy it employed. Cf. United States v. Brazel, 102 F.3d 1120, 1155 (11th Cir. 1997)
(requiring courtroom spectators to show identification before entering the courtroom where
spectators were allegedly engaging in conduct that might intimidate witnesses). For instance, in
justifying the closure for Ware’s testimony, the court cited vague security concerns shared by
courtroom security officers surrounding transporting a prisoner. Those concerns might fairly be
a basis for modifying courtroom procedures, and we appropriately afford deference to security
officers and others in how to run a courthouse. See Pa. Bureau of Corr. v. U.S. Marshals Serv.,
474 U.S. 34, 49–50 (1985) (recognizing that courtroom security officers have “considerable
expertise in transporting prisoners”); see also United States v. Moonda, 347 F. App’x 192, 201
(6th Cir. 2009) (finding that a district court properly “heeded [a] Marshal’s warning” regarding
“logistical difficulties and safety hazards” in structuring a criminal trial). But to take the
dramatic step of closing a courtroom, especially for one or more reasons that might otherwise
appear to be rather customary aspects of everyday courthouse life, the trial court needed to say
more. In the absence of a more fulsome record, the closure seemingly was not “narrowly
tailored” to the ends the court sought to achieve. Waller, 467 U.S. at 45. And given those flaws,
counsel likely would have been justified in objecting to that procedure, or, at the very least, in
No. 18-1461 Williams v. Burt Page 12
suggesting alternative measures or demanding additional explanation. Whether an error
occurred, however, ultimately does not affect today’s outcome, as Williams cannot establish that
his defense was prejudiced by the closure.
Williams Fails To Establish Prejudice Resulting From The Courtroom Closure.
Williams claims he was prejudiced by what he alleges was a deprivation of his public trial right.
Like the right to effective counsel, the public trial right is also secured by the Sixth Amendment.
“In all criminal prosecutions,” the Sixth Amendment commands, “the accused shall enjoy the
right to a . . . public trial.” U.S. Const. amend. VI. The right serves to promote the interests of
fairness, accuracy, and transparency for the defendant, and for the public more broadly. Waller,
467 U.S. at 46. With its constitutional pedigree, the public trial right is considered a fundamental
aspect of criminal trial proceedings, meaning that violations of the right typically are recognized
as structural errors, for which prejudice to the defendant is presumed. Weaver v. Massachusetts,
137 S. Ct. 1899, 1908 (2017).
In Weaver, however, the Supreme Court retreated from its historical practice of uniformly
treating a public trial violation as a structural error that presumes prejudice to the defendant. It
concluded that a different approach was appropriate in instances where a defendant ties together
public trial and ineffective assistance of counsel claims. Unnecessary trial closures, while
structural errors, the Supreme Court explained, “[do] not lead to fundamental unfairness in every
case.” Id. at 1908. And in the specific posture in which the defendant seeks a second chance at a
public trial claim, having passed on the claim once before, the defendant carries the burden to
demonstrate prejudice. Id. at 1913. That result strikes “the proper balance between the necessity
for fair and just trials and the importance of finality of judgments.” Id.
In view of Weaver’s clear command, it is nonetheless fair to ask whether the rule in
Weaver applies in today’s setting. Weaver, it bears noting, involved a courtroom closure during
voir dire, not during the trial’s guilt phase, a fact not lost on the Supreme Court. The Supreme
Court went out of its way to explain that its decision represented binding authority only when
trial proceedings are closed during jury selection. Id. at 1907. We thus have some room to
consider Weaver’s applicability to trial proceedings other than the voir dire phase.
No. 18-1461 Williams v. Burt Page 13
Before Weaver, a fractured panel of this Court held on collateral review, in considering
whether counsel’s ineffective assistance excused the petitioner’s procedural default, that
prejudice is presumed for trial closures during the guilt phase. Sherry, 586 F.3d at 443; but see
id. at 450 (Kethledge, J., dissenting) (arguing that “clearly established Supreme Court precedent
[did not] require[] the Michigan state courts to apply a presumed-prejudice standard” in
examining the petitioner’s public trial claim). Today appears to be our first occasion to revisit
this landscape in Weaver’s aftermath. Honoring intervening Supreme Court authority is a critical
duty for any lower court, including ours. See, e.g., Northeast Ohio Coalition for the Homeless v.
Husted, 831 F.3d 686, 720 (6th Cir. 2016) (“Although one panel may not disturb the ruling of a
prior panel absent en banc review, an intervening Supreme Court decision gives us the right to
revisit [the] question.”) (citations omitted).
Turning to Weaver, the Supreme Court, in requiring a defendant to establish prejudice
resulting from the closed proceeding, emphasized the need to balance the twin goals of fairness
and finality. 137 S. Ct. at 1913. We see no reason why those same principles are not equally in
play during the guilt phase. Just as much as during voir dire, and perhaps even more, given the
time and resources invested in a trial proceeding, and given the judgment that ensues, the interest
in finality is substantial, if not at its apex, following a jury verdict. See id. at 1912. Fairness
concerns, of course, are also of critical importance during the guilt phase, and the public trial
right helps ensure that judges, counsel, and witnesses alike perform properly their designated
functions in the criminal justice process. See Waller, 467 U.S. at 46. But that is seemingly no
less true for voir dire, which ensures the proper functioning of perhaps the most vital part of the
criminal justice process, the impartial jury. See U.S. Const. amend. VI (“In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury
. . . .”); Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (“Without an adequate voir
dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially
to follow the court’s instructions and evaluate the evidence cannot be fulfilled.”). There is no
reason to think, then, that the jury (like the judge and the parties), must not also operate under the
public eye. After all, the scrupulous eyes of the public put key trial players through their paces
during voir dire just as they do during the guilt phase. We see no sufficient distinction between
No. 18-1461 Williams v. Burt Page 14
the two phases that would justify setting aside Weaver and imposing a different prejudice
standard for public trial violations during the guilt phase.
We note one other distinction between Weaver and today’s case. While today’s case
arises in a habeas posture, Weaver was a direct review case. That Weaver was decided on direct
review proves all the more why Williams is not entitled to habeas relief today. If finality
interests justify raising the prejudice bar when a public trial violation is couched in a claim for
ineffective assistance of counsel on direct review, Weaver, 137 S. Ct. at 1913–14, that bar should
not be any lower when we sit in collateral review of a state criminal conviction (and one over a
decade old at that).
We thus hold that a criminal defendant, to satisfy the Strickland standard in the context
of a failure to object to a potential public trial violation during the guilt phase, must show
prejudice by demonstrating that, as explained in Weaver, but for the alleged error, there is “a
reasonable probability of a different outcome in [his] case or . . . that the . . . violation was so
serious as to render the trial fundamentally unfair.” Id. at 1911. This burden, we recognize, is a
heavy one. Id. at 1910 (noting the “difficulty” a court faces in “assessing the effect of the error”
(quoting United States v. Gonzales-Lopez, 548 U.S. 140, 149 n.4 (2006))). And here, it is too
much for Williams to bear. The vast majority of his trial took place in an open setting,
transcripts were made available from the limited sessions that took place behind closed doors,
and the closure had no discernable effect on the judge, counsel, or jury. In that sense, the error
here “did not pervade the whole trial.” Id. at 1913. Nor did the temporary closure “lead to basic
unfairness,” id., in the way other structural errors have been deemed to do, for instance, where a
judge is improperly biased, or where jurors are excluded on the basis of race. Id. at 1911
(collecting cases). In other words, much like the defendant in Weaver, Williams has not alleged
that the jury, judge, or prosecutor “failed to approach their duties with the neutrality and serious
purpose that our system demands.” Id. at 1913.
Having forcefully advanced many arguments to this point, Williams’s argument
addressing the public trial violation’s effect on his conviction is less persuasive. Perhaps the
only evidence that might suggest prejudice to Williams is a purported affidavit from Lewis
recanting his trial testimony. In that affidavit, Lewis attested that he relied largely on rumors in
No. 18-1461 Williams v. Burt Page 15
testifying against Williams, and that he now believes that testimony to be false. Recantations are
understandably viewed with a skeptical eye. Matthews v. Ishee, 486 F.3d 883, 895 (6th Cir.
2007) (citing United States v. Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991)). And that
skepticism is all the more appropriate here given that the affidavit is not a part of our record, was
apparently filed only in state court, and even then, was filed after the underlying district court
decision here. But even accepting Lewis’s claim as true, it is difficult to see how the courtroom
remaining open would have done much, if anything, to remedy the earlier problem with his
testimony. All of Lewis’s direct examination, and part of his cross examination too, occurred in
the traditional courtroom setting, fully open to the public. During that time, Lewis testified
consistently that Green and Williams were the assailants in the nightclub shooting. And he said
the same in the closed courtroom; Lewis’s story did not change from open proceedings to closed.
Having had some opportunity to change his testimony once the proceedings were held in the
absence of spectators, the consistency in Lewis’s testimony undercuts the idea that the closed
proceedings emboldened Lewis to lie. And more to the point, to accept Williams’s contention
today, one would need to believe that Lewis, had he concluded his testimony in an open
courtroom, would have contradicted his earlier three days of testimony. We see no evidence to
that effect.
All of this, moreover, must be considered in the context of the broader evidentiary record.
Setting Lewis’s testimony aside, there remained substantial indicia of Williams’s guilt. Chief
among them, Williams had a long history of conflict with the victims, police recovered a burned
minivan with a missing rear door that traced to Williams’s mother, and Ware testified that
Williams admitted to the crime while they were incarcerated together.
All told, we see no basis to conclude that Williams was prejudiced by the closure of the
courtroom such that his procedural default should be excused. See Weaver, 137 S. Ct. at 1910
(“[I]n some cases an unlawful closure might take place and yet the trial still will be
fundamentally fair from the defendant’s standpoint.”). Nor will we order the significant
undertaking of an evidentiary hearing when a claim of prejudice is based on little more than
speculation. Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the
applicant’s factual allegations . . . a district court is not required to hold an evidentiary
No. 18-1461 Williams v. Burt Page 16
hearing.”); see also Weaver, 137 S. Ct. at 1912 (recognizing that “the rules governing
ineffective-assistance claims ‘must be applied with scrupulous care’”) (quoting Premo v. Moore,
562 U.S. 115, 122 (2011)).
* * * * *
Williams has failed to clear Strickland’s high bar. That means he cannot demonstrate
cause and prejudice excusing his procedural default. That also means we may not review the
merits of his public trial claim. Coleman, 501 U.S. at 750. And as his claim for habeas relief on
ineffective assistance grounds, all agree, is measured against the demanding AEDPA standard of
review, it likewise fails. See Harrington, 562 U.S. at 102.
For these reasons, we AFFIRM the judgment of the district court.