Johnson v. Sherry

• Decision Date: 13 November 2009
• Docket Number: No. 08-1322.,08-1322.
• Citation: 586 F.3d 439
• Parties: William JOHNSON, Petitioner-Appellant, v. Jeri Ann SHERRY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

586 F.3d 439 William JOHNSON, Petitioner-Appellant,
v.
Jeri Ann SHERRY, Warden, Respondent-Appellee. No. 08-1322. United States Court of Appeals, Sixth Circuit. Argued: August 7, 2009. Decided and Filed: November 13, 2009.

[586 F.3d 440]

ARGUED: Elizabeth L. Jacobs, Law Office, Detroit, Michigan, for Appellant. Andrew L. Shirvell, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Elizabeth L. Jacobs, Law Office, Detroit, Michigan, for Appellant. Brian O. Neill, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.

Before: COLE, CLAY, and KETHLEDGE, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which COLE, J., joined. KETHLEDGE, J. (pp. 448-50), delivered a separate dissenting opinion.

OPINION

CLAY, Circuit Judge.

Petitioner William Johnson ("Johnson") appeals the district court's judgment denying

586 F.3d 441

his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On appeal, he argues that the state violated his Sixth Amendment right to a public trial when it excluded the public from the courtroom during portions of his jury trial and that his Sixth Amendment right to effective assistance of counsel was violated when his trial attorney failed to object to the closure. For the reasons that follow, we VACATE the judgment of the district court and REMAND for an evidentiary hearing.

I. BACKGROUND

A. Procedural History

On January 10, 2003, a jury convicted Johnson of one count of second degree murder in violation of Michigan Compiled Laws ("MCL") § 750.317; three counts of assault with intent to commit murder in violation of MCL § 750.83; and possession of a firearm during the commission of a felony in violation of MCL § 750.227b. Johnson was sentenced to concurrent prison terms of thirty-five to sixty years for the murder conviction and twenty to forty years each for the assault convictions, to be served consecutive to a two-year term for the felony firearm conviction.

Johnson timely filed a motion for a new trial and requested an evidentiary hearing, but his motion was denied. His convictions were affirmed on direct appeal, and the Michigan Supreme Court denied his application for leave to appeal. Johnson timely filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan and his petition was denied on February 12, 2008. Johnson timely filed a notice of appeal, along with a request for a certificate of appealability ("COA") on numerous issues. The district court granted a partial COA, certifying Johnson's claims that he was denied his right to a public trial and that his attorney was ineffective in failing to object to the closure of the courtroom. This Court entered an order stating that only the claims certified by the district court would be heard.

B. Substantive Facts

The Michigan Court of Appeals outlined the facts underlying Johnson's convictions as follows:

Defendant's convictions arise from the fatal shooting of Carlos Davis and non-fatal shooting assaults of James Mathis, Larry Lewis and Robert Richards outside a dance hall in Hamtramck on March 3, 2002. The shootings occurred after the victims and several other persons left the hall after a large brawl broke out among partygoers. Only two persons, Robert Richards and Damon Ramsuer, reported seeing the shooter.

Richards told the police that he saw the shooter, and he gave a detailed description of his clothing. The police obtained photographs taken by a hired photographer before the fight broke out, and showed the photographs to Richards, who identified defendant as the shooter from one of these photographs. Richards identified [Johnson] at the preliminary examination, but Richards was killed before defendant's trial. His preliminary examination testimony was read [to the jury] at trial.

The police also interviewed Ramsuer, who signed a statement declaring that he saw the shooter. Ramsuer also identified defendant from the party photographs. Ramsuer failed to appear for the preliminary examination. When he testified at trial, he denied seeing the shooter, denied telling the police that he saw the shooter, and denied making an identification. The prosecutor impeached him with the signed statement,

586 F.3d 442

and with the testimony of the officer who took the statement....

At the start of trial, the prosecutor moved to close the courtroom to spectators during the testimony of three prosecution witnesses, Mathis, Lewis, and Ramsuer, who were afraid to testify publicly. The prosecutor explained that two other prosecution witnesses had been killed under suspicious circumstances: Richards was killed in his bed, and Elvin Robinson was killed before the preliminary examination. Defense counsel agreed to exclude spectators for these witnesses, but asked the trial court not to do so in the jury's presence. The trial court never removed anyone from the courtroom, but instead instructed defendant's relatives not to arrive before 11:00 a.m. on the day that Mathis, Lewis, and Ramsuer testified, and to remain outside the courtroom until permitted to enter.

(R. at 85-86.)

Following his conviction, Johnson filed a motion for a new trial claiming denial of the right to a public trial. In denying the motion, the trial court noted that counsel agreed to the suggested closure and that counsel asked members of Johnson's family not to appear in the courtroom until after 11:00 a.m. the following day. After exhausting this claim and an ineffective assistance of counsel claim in the state courts, Johnson filed a petition for habeas relief in federal district court pursuant to 28 U.S.C. § 2254. Among other claims, Johnson claimed that his right to a public trial was violated and that counsel was ineffective for failing to assert that right. In the district court's opinion denying habeas relief, the court held that Johnson's claim was procedurally defaulted, providing the following explanation:

I]n this case, Respondent's procedural default argument is not based upon defendant's failure to object, it is based upon his consent, through counsel, to the courtroom closure. Respondent argues that this acquiescence constituted a waiver of this claim. The Court finds that Petitioner waived his right to a public trial by his acquiescence, through his attorney, to the closure.

(R. at 1602.) The district court also explained, in the alternative, that the claim would fail on the merits:

The Court finds that the state court's conclusion was a reasonable application of Waller. While the trial court's findings could have been more clearly articulated on the record, it was, as observed by the Michigan Court of Appeals, a reasonable conclusion that the suspicious deaths of two witnesses had, in the trial court's opinion, sparked enough fear in three witnesses and sufficiently placed their well-being at risk to override Petitioner's right to a public trial. The trial court limited the closure to just three witnesses and ensured that the closure would not be evident to the jury. Considering these circumstances, the Court finds that the state court's application of the Waller factors was not unreasonable.

(R. at 1603.)

With respect to Johnson's ineffective assistance of counsel claim, the Michigan Court of Appeals concluded that "trial counsel's acquiescence was neither objectively unreasonable, nor outcome-determinative." (R. at 1148.)¹ The district court agreed, holding that because "the decision to close the courtroom for a limited time was not an unreasonable application of

[586 F.3d 443

Waller ... Petitioner has failed to establish that the failure to object to the closure fell `outside the wide range of professionally competent assistance'" as required by Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). (R. at 1611.)

II. DISCUSSION

A. Standard of Review

Because Johnson filed his habeas petition in 2006, his petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Benge v. Johnson, 474 F.3d 236, 241 (6th Cir.2007). Under the AEDPA, Johnson may obtain relief only if he can show that the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law," 28 U.S.C. § 2254(d)(1), or that the state court relied on an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(2). In reviewing a district court's decision to grant or deny habeas relief, this Court reviews questions of fact under a "clearly erroneous" standard and questions of law de novo. Carson v. Burke, 178 F.3d 434, 436 (6th Cir.1999).

B. Analysis

Johnson's appeal presents two interrelated issues: (1) whether his Sixth Amendment right to a public trial was violated when the court closed the courtroom during the testimony of three prosecution witnesses; and (2) whether trial counsel was constitutionally ineffective for failing to object to the closure.

The Sixth Amendment to the United States Constitution guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI; see also In re Oliver, 333 U.S. 257, 278, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (holding this right to be binding on the states through the due process clause of the Fourteenth Amendment). "The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions." Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (internal quotation marks and citations omitted). Because of the "`great, though intangible, societal loss that flows' from closing courthouse doors," the denial of a right...