Bell v. Smith
| Decision Date | 11 June 1999 |
| Docket Number | No. 98-7002,CA-97-232-5-H,98-7002 |
| Citation | 198 F.3d 432 |
| Parties | (4th Cir. 1999) ERNEST SUTTON BELL, Petitioner-Appellant, v. MACK JARVIS; ROBERT SMITH, Respondents-Appellees. () Argued: |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. [Copyrighted Material Omitted]
[Copyrighted Material Omitted] COUNSEL ARGUED: Kathryn L. Vanden Berg, NORTH CAROLINA PRISONER LEGAL SERVICES, INC., Raleigh, North Carolina, for Appellant. Ellen Bradshaw Scouten, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Michael F. Easley, Attorney General of North Carolina, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
Before MURNAGHAN and TRAXLER, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Reversed and remanded by published opinion. Senior Judge Butzner wrote the majority opinion, in which Judge Murnaghan joined. Judge Traxler wrote a dissenting opinion.
Ernest Sutton Bell appeals the district court's dismissal of his petition for habeas corpus. Bell challenges his convictions for rape and other sexual offenses on the ground that his appellate counsel failed to argue that the trial court, despite an objection, improperly closed the courtroom. Because Bell's appellate counsel was constitutionally ineffective, we reverse and remand the case for conditional issuance of the writ of habeas corpus.
Bell was indicted for raping and otherwise sexually assaulting his step-granddaughter, Wendy Harris, between March 1990 and May 1992. Following a jury trial, Bell was convicted in the Pitt County, North Carolina, Superior Court on January 14, 1994, of eight counts of first-degree rape, four counts of first-degree sexual offense, nineteen counts of second-degree rape, and twenty-seven counts of taking indecent liberties with a minor. The trial court sentenced Bell to two life terms plus seventy years.
Bell frames the issue on appeal before this court as follows: "Whether the District Court erred in denying the petition for writ of habeas corpus based on ineffective assistance of appellate counsel, where appellate counsel failed to raise on direct appeal the issue that Petitioner's right to public trial was violated." Appellant Br. at 2. Bell raised numerous claims on direct appeal. Although Bell's counsel assigned error to the closing of the courtroom, she did not brief the issue before the state intermediate appellate court, the Court of Appeals. Deeming the claim abandoned, the Court of Appeals did not discuss it. The Court of Appeals found no merit in the contentions counsel had briefed on appeal. See State v. Bell, 117 N.C. App. 732, 453 S.E.2d 877 (1995) (table).
Bell subsequently filed a motion for appropriate relief in the Pitt County Superior Court, in which he contended that his counsel on direct appeal was ineffective for failing to raise the public trial claim. The Superior Court summarily denied Bell's motion, State v. Bell, No. 92 CRS 12536 et al. (N.C. Sup. Ct. Pitt County, Nov. 8, 1996), and the North Carolina Court of Appeals rejected Bell's petition for certiorari. State v. Bell, No. COAP96-591 (N.C. Ct. App. Dec. 31, 1996).
On April 9, 1997, Bell filed the instant petition in the District Court for the Eastern District of North Carolina. The magistrate judge concluded that Bell's counsel had provided ineffective assistance for failing to present a meritorious public trial claim. The magistrate judge recommended that Bell be granted a new direct state appeal. The district court rejected the magistrate judge's recommendation, holding that appellate counsel was not ineffective because the trial court did not err in closing the courtroom, and it granted summary judgment in favor of the State, dismissing Bell's habeas petition. Bell v. Jarvis, 7 F. Supp. 2d 699 (E.D.N.C. 1998).
Bell must exhaust his state court remedies before this court may examine the merits of his claims. See 28 U.S.C.A. § 2254(b)(1) (West Supp. 1999). Bell raised his ineffective assistance claim in his petition for state postconviction relief and his subsequently denied petition for certiorari before the North Carolina Court of Appeals.
Recently, the Supreme Court held that the exhaustion doctrine requires that state prisoners "file petitions for discretionary review when that review is part of the ordinary appellate procedure in the State." O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1733 (1999). The Court explained: "The particular question posed by this case is whether a prisoner must seek review in a state court of last resort when that court has discretionary control over its docket." Id. at 1731. The Court held that an Illinois state prisoner seeking federal habeas relief had not exhausted his state remedies when he failed to present certain claims, on direct appeal, in a petition for certiorari before the Supreme Court of Illinois. Id.
Bell did not petition the North Carolina Supreme Court for discretionary review of the Court of Appeals' decision on direct appeal. North Carolina prisoners who are convicted at trial and lose their direct appeal before the Court of Appeals may petition the state Supreme Court for discretionary review. See N.C. Gen. Stat. § 7A31(a) (1995).
Bell, however, fully litigated his ineffective assistance claim in state postconviction proceedings. North Carolina provides, by statute, that state prisoners seeking postconviction relief may petition the Court of Appeals for a writ of certiorari. See § 15A-1422(c)(3) (1997). Decisions of the Court of Appeals concerning postconviction motions are final and may not be reviewed by the North Carolina Supreme Court. See §§ 7A-28(a) (1995), 15A-1422(f) (1997). Bell has given the North Carolina courts "one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 119 S. Ct. at 1732.
The exhaustion doctrine is premised on notions of comity and is not jurisdictional. Rose v. Lundy, 455 U.S. 509, 515 (1982). The state may concede exhaustion by unconditionally waiving the requirement. Sweezy v. Garrison, 694 F.2d 331 (4th Cir. 1982). The State did so before the district court, expressly conceding:
Petitioner has raised the substance of his present claims in the courts of North Carolina as required by 28 U.S.C. 2254(b)(1)(A) (1996). He has thereby exhausted state remedies.
Procedural default is not an issue in this case; the state courts did not decide, and the State does not claim, that Bell is procedurally barred from raising the issue that is the subject of this appeal.
The Antiterrorism and Effective Death Penalty Act of 1996 establishes the applicable standard of review. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The Act provides that the writ may issue if the adjudication of petitioner's claim on the merits by state courts "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1) (West Supp. 1999). If the state court decision is in "square conflict" with a Supreme Court precedent that is controlling as to law and fact, the writ should issue. Green v. French, 143 F.3d 865, 870 (4th Cir. 1998). In the absence of controlling precedent, section 2254(d)(1) is satisfied "only when the state courts have decided the question by interpreting or applying the relevant precedent in a manner that reasonable jurists would all agree is unreasonable." Id.
The First Amendment to the United States Constitution prohibits any law "abridging the freedom of speech, or of the press." U.S. Const. amend. I. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. As Chief Justice Burger explained in an opinion for the Court, "[t]he right to a public trial is a shared right of the accused and the public, the common concern being the assurance of fairness." Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 7 (1986) (Press-Enterprise II). The Supreme Court in Waller v. Georgia, 467 U.S. 39 (1984), held that "the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public." Id. at 46. When analyzing the propriety of trial closure under either the First or Sixth Amendment, a court is required to conduct the same searching inquiry. See id. at 47-48 ().
By guaranteeing that criminal trials shall be open and public, the Constitution affirms an adjudicative tradition originating before the Norman Conquest. See Press-Enterprise I, 464 U.S. at 505. An open courtroom promotes honest testimony, the appearance of witnesses otherwise unknown, and conscientious performance by all trial participants. See Gannett Co. v. DePasquale, 443 U.S. 368, 383 (1979). With the knowledge that "every criminal trial is subject to contemporaneous review in the forum of public opinion," a defendant's triers are kept "`keenly alive to a sense of responsibility and to the importance of their functions.'" In re Oliver, 333 U.S. 257, 270 and n.25 (1948) (citation omitted). In this manner, a public trial operates "as a safeguard against any attempt to employ our courts as instruments of persecution." Id. at 270, 68 S.Ct. 499.
Although the public trial guarantee was created for the...
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