Wilder v. United States

Citation806 F.3d 653
Decision Date20 November 2015
Docket NumberNo. 14–1815.,14–1815.
PartiesDarren F. WILDER, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
CourtU.S. Court of Appeals — First Circuit

Michael R. Schneider, with whom Jeffrey G. Harrisand Good Schneider Cormier were on brief, for appellant.

Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Opinion

LYNCH, Circuit Judge.

Darren Wilder was convicted in March 2006, after a jury trial, of transportation, receipt, and possession of child pornography in violation of 18 U.S.C. § 2252. We affirmed his conviction on direct appeal and noted that the evidence against him was very strong. See United States v. Wilder,526 F.3d 1, 7–12 (1st Cir.2008), cert. denied,555 U.S. 1050, 129 S.Ct. 626, 172 L.Ed.2d 618 (2008).

Wilder now appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2255, in which he claimed, for the first time, that the jury selection process for his trial violated his Fifth Amendment right to be present and his Sixth Amendment right to a public trial. Because Wilder cannot overcome his procedural default from not pursuing either claim at trial or on appeal, we affirm the denial of habeas relief.

I.

The facts surrounding Wilder's underlying conviction are set forth in our prior opinion. Wilder,526 F.3d at 3–5. We summarize only the facts relevant to this appeal.

On December 1, 2009, Wilder filed a motion under 28 U.S.C. § 2255seeking to vacate his conviction on numerous grounds. On May 14, 2012, Judge O'Toole denied the motion, with the exception of two constitutional claims regarding jury selection that he reserved for an evidentiary hearing. The matter was then reassigned to Judge Casper so that Judge O'Toole could serve as a fact witness concerning the conduct of voir dire. On July 22, 2014, after an evidentiary hearing involving testimony and affidavits from trial participants, including Judge O'Toole, the district court denied both remaining claims.

The district court (Judge Casper) made the following findings of fact. Trial began on March 13, 2006. Wilder and Wilder's girlfriend, parents, stepmother, and mother's friend were present in the courtroom when the jury venire was brought into the courtroom. In open court, the trial judge (Judge O'Toole) explained the nature of the charges against Wilder and then asked the jury venire a series of questions as a group. After all of the potential jurors responded affirmatively to the question of whether he or she was a regular or frequent internet user, the trial judge indicated that we're going to end up talking to all of you in the back.”

The trial judge and counsel for both parties then proceeded to meet with potential jurors one by one in the jury deliberation room behind the courtroom. That room is not open or visible to those in the courtroom. However, those in the courtroom could see potential jurors as they left from and returned to the courtroom. It took the rest of the morning and most of the afternoon to go through the individual voir dire of each juror. In the back room, each individual potential juror was asked follow-up questions to those asked in open court as well as a question about whether child pornography evidence would so emotionally disturb the potential juror as to make him or her incapable of remaining impartial. Counsel exercised for-cause challenges as each juror left the room. The reason for conducting this portion of voir dire in the jury deliberation room, the trial judge attested, was to “support[ ] the juror's interest in privacy and thus promote[ ] full and candid answers.” While he did not have any recollection specific to this case, this was his general practice in “a small number of cases,” including child pornography cases. There was no objection to this procedure from either counsel.

Neither Wilder nor his family was present for that portion of the individual voir dire that took place in the jury deliberation room. Counsel was certainly present. Indeed, Wilder's counsel instructed Wilder and his family to stay in the courtroom in case Wilder was needed. Neither Wilder nor any other person ever made a request to enter and be present in the jury deliberation room.

After the individual questioning was completed, the jury selection proceedings resumed in open court. Defense counsel conferred with Wilder before exercising peremptory challenges. Both the prosecution and defense counsel then exercised peremptory challenges at sidebar. The trial judge then gave some cautionary instructions to the jury and excused the jury for the day.

In his petition, Wilder does not assert that the exercise of peremptory challenges at sidebar violated his constitutional rights. He challenges only those portions of the voir dire that took place in the jury room.

Wilder's defense counsel made no objection to any portion of this individual voir dire procedure. He testified that while he knew that Wilder had a Fifth Amendment right to be present at jury selection, he generally advises his criminal defendant clients against participating in individual jury selection conferences to avoid making potential jurors feel “awkward” by having to face the defendant in a small space. While he did not have a specific recollection of having advised Wilder as such, he testified that it was his general practice to do so. On the other hand, Wilder testified that he had not been advised of such a right and that if he had been advised, he would have invoked the right even against his defense counsel's advice. The prosecutor attested that defense counsel had in fact informed the trial court that Wilder did not wish to be present. Defense counsel had no recollection to the contrary. The district court found Wilder not credible and credited the testimony of his defense counsel and the prosecutor.

Wilder's defense counsel did not advise Wilder about his Sixth Amendment right to have members of the public present at jury selection because he “did not know that such a right existed.” Wilder testified that had he been advised, he would have invoked that right as well.

Upon making these findings, the district court began its analysis by noting that Wilder did not raise either the Fifth Amendment or the Sixth Amendment claim at trial or on direct appeal. Accordingly, the claims were procedurally defaulted unless Wilder could show cause for having procedurally defaulted as well as actual prejudice resulting from the alleged errors.

The district court dismissed the Fifth Amendment claim on the basis of Wilder's failure to excuse procedural default. It found that Wilder's counsel had made a reasonable strategic choice to waive the right, and it did not credit Wilder's claim that he was never advised of the right. As a result, Wilder could not show cause sufficient to excuse the procedural default. The district court also concluded that Wilder could not establish actual prejudice because his presence would not have necessarily resulted in a different jury composition or verdict, particularly given the weight of the evidence against him.

The district court also dismissed the Sixth Amendment claim on the basis of procedural default. It distinguished this case from the complete closure in Owens v. United States,483 F.3d 48, 61–66 (1st Cir.2007), which was decided a year after the trial. Unlike in Owens,the district court found, the first phase of jury selection took place in open court and Wilder and his family remained in the courtroom throughout the day. In fact, conducting the individual voir dire in the jury deliberation room was essentially “the functional equivalent” of a sidebar conference. The district court decided that defense counsel's failure to object to what was at most a partial closure did not justify an assumption of ineffective assistance of counsel that would excuse procedural default. That was because competent defense counsel could have chosen not to object as a strategic matter. The district court also declined to find a structural error that would justify a presumption of prejudice and found that no actual prejudice had been shown.

Finding the issue of procedural default of the Sixth Amendment claim “a closer call,” the district court then proceeded to also reject the claim on the merits. Noting that a less stringent standard applied to partial closures than to complete closures, it found that the partial closure was justified by the “substantial interest” in eliciting candid answers from potential jurors. The district court, based on these findings, denied the habeas claims.

On September 5, 2014, the district court granted Wilder's application for a certificate of appealability from the dismissal of his petition, but only as to the two jury selection claims. This appeal followed.

II.
A. Standard of Review and § 2255Framework

A petitioner in federal custody may seek post-conviction relief if, inter alia, his sentence “was imposed in violation of the Constitution or laws of the United States” or “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The burden of proof is on the petitioner. David v. United States,134 F.3d 470, 474 (1st Cir.1998). In reviewing a district court's denial of a § 2255motion, we review the district court's legal determinations de novo and any findings of fact from an evidentiary hearing for clear error. Owens,483 F.3d at 57.

Because Wilder is raising his Fifth and Sixth Amendment claims for the first time on habeas, he must show both “cause” that excuses the procedural default and “actual prejudice” resulting from the alleged error. Bousley v. United States,523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); United States v. Frady,456 U.S. 152, 167–68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). One way to meet the cause requirement is to show constitutionally ineffective assistance of counsel under Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). S...

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