Bickham v. Winn

• Decision Date: 23 April 2018
• Docket Number: No. 16-2174,16-2174
• Citation: 888 F.3d 248
• Parties: Martez Romal BICKHAM, Petitioner–Appellant, v. Thomas WINN, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

888 F.3d 248

Martez Romal BICKHAM, Petitioner–Appellant,

v.Thomas WINN, Warden, Respondent–Appellee.

No. 16-2174

United States Court of Appeals, Sixth Circuit.

Argued: December 7, 2017

Decided and Filed: April 23, 2018

ARGUED: Michael L. Mittlestat, STATE APPELLATE DEFENDER OFFICE, Detroit, Michigan, for Appellant. Bruce H. Edwards, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Michael L. Mittlestat, STATE APPELLATE DEFENDER OFFICE, Detroit, Michigan, for Appellant. Bruce H. Edwards, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

Before: SILER, WHITE, and THAPAR, Circuit Judges.

SILER, J., delivered the opinion of the court in which THAPAR, J., joined in part and in the result. THAPAR, J. (pg. 253), delivered a separate opinion concurring in part and in the judgment. WHITE, J. (pp. 253–56), delivered a separate dissenting opinion.

Petitioner Martez Bickham appeals the district court's denial of his petition for habeas corpus, in which he argues that the Michigan trial court violated his Sixth Amendment right to a public trial by closing the courtroom during voir dire.

We affirm the district court's denial of Bickham's petition because he failed to comply with Michigan's contemporaneous-objection rule and is, therefore, procedurally barred from pursuing his Sixth Amendment habeas claim.

FACTUAL AND PROCEDURAL BACKGROUND

Following a jury trial in Michigan state court, Bickham was convicted of second-degree murder, armed robbery, assault with intent to commit armed robbery, and possession of a firearm during the commission of a felony. As voir dire was about to commence at Bickham's trial, court officers began to clear the public from the courtroom. Bickham's counsel objected to the public's removal, citing Presley v. Georgia , 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010), which established that a criminal defendant's Sixth Amendment right to a public trial is violated when a trial court excludes the public from jury selection. In response to Bickham's objection, the trial court stated:

The Court is not excluding people from being in the courtroom. Right now the deputies are removing the spectators or people who are in the courtroom in order to allow ... the jury panel of over fifty people be allowed in, and so that they are not intermixed with the audience, and so once the whole panel is in, those who fit separately from the jury can be allowed in. But we cannot bring a jury in with the number of people in this courtroom. They fill the bleachers, and in order to conduct voir dire, we need the jury panel to fit into the courtroom.

[BICKHAM'S COUNSEL]: I understand, Judge, I just wanted to bring that to your attention.

THE COURT: I'm well aware of it. Thank you.

After jury selection concluded, Bickham's attorney asserted:

Judge, I would just once again under [ Presley ], the other family members of the defendant, supporters and possible witnesses were not allowed to come back in, or were not allowed to be seated in the courtroom during voir dire after they were excluded for the seating.

THE COURT: All right. Thank you. I would state that there was no additional request made after the court explained the situation, and that the jury panel being [a] fifty-two member panel filled the entire courtroom, except for the small bench that can hold two people. If there was a request for two people to be in, specifically because there was a crowd of probably fifty people in the courtroom, some may be family or friends, or some having to do with other cases, I have no idea who they were. But there was no ruling made on any request. It was not made.

Bickham appealed his conviction, arguing that his Sixth Amendment right to a public trial was violated when the public was removed from the courtroom during jury selection and was not permitted to reenter. See People v. Bickham , No. 300952, 2012 WL 4840675, at *3 (Mich. Ct. App. Oct. 11, 2012). The Michigan Court of Appeals affirmed Bickham's convictions, finding that Bickham procedurally defaulted his Sixth Amendment claim when he did not make a contemporaneous objection to the closure of the courtroom. Id. at *1, *5. The Michigan Supreme Court denied leave to appeal. People v. Bickham , 494 Mich. 860, 830 N.W.2d 773 (2013).

In 2014, Bickham filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254. On behalf of the warden, Thomas Winn, the State argued in response that Bickham had procedurally defaulted by failing to make a timely objection to the exclusion of the public, but the district court chose to decide the case on the merits. The district court ultimately dismissed the petition and declined to issue a certificate of appealability ("COA"). We then granted Bickham's application for a COA. Bickham v. Winn , No. 16-2174, 2017 WL 1661419 (6th Cir. Apr. 3, 2017).

DISCUSSION

A petitioner who fails to satisfy state procedural requirements forfeits his right to present a habeas claim. Seymour v. Walker , 224 F.3d 542, 550 (6th Cir. 2000). Thus, before considering the merits of Bickham's claim, we must determine if his cause of action is procedurally defaulted. We review this issue de novo. Hodges v. Colson , 727 F.3d 517, 529 (6th Cir. 2013) (citation omitted).

A habeas petitioner procedurally defaults a claim if: (1) the petitioner failed to comply with a state rule; (2) the state enforced the rule against the petitioner; and (3) the rule is an "adequate and independent" state ground foreclosing review of a federal constitutional claim. Willis v. Smith , 351 F.3d 741, 744 (6th Cir. 2003) (citation omitted).

All three elements from Willis have been met in this case, and Bickham has procedurally defaulted his Sixth Amendment habeas claim. First, Michigan's contemporaneous-objection rule requires parties to "raise objections at a time when the trial court has an opportunity to correct the error, which could thereby obviate the necessity for further legal proceedings." People v. Grant , 445 Mich. 535, 520 N.W.2d 123, 130 (1994) ; see Mich. R. Evid. 103(a) (providing that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected" and "a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context"); see also Maupin v. Smith , 785 F.2d 135, 138 (6th Cir. 1986) ("First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule.").

Although Bickham objected when the trial court ordered members of the public to exit the courtroom, the court responded that it was only initially removing the public in order to bring in the jury panel and that some of the public would be permitted to reenter after the panel was seated. Following entry of the jury panel, the court bailiffs apparently did not allow members of the public to reenter. As noted by the Michigan trial court, Bickham did not request that the court allow members of the public to reenter after the jury panel was seated, and the trial court, therefore, was unable to rule on such a request. In order to preserve his claim, Bickham should have objected when the jury panel had been seated and members of the public were not permitted to reenter. He objected a second time following voir dire, but this objection came too late for the court to take corrective actions. See Grant , 520 N.W.2d at 130.

Bickham argues that his failure to object when members of the public were denied reentry was excusable because defense counsel reasonably relied upon the court's assurance that the public would be able to reenter after the jury panel was seated. Cases cited by Bickham in support of this proposition, however, involve trial courts' granting of evidentiary motions prior to trial. See, e.g. , People v. Hernandez , 423 Mich. 340, 377 N.W.2d 729, 735 (1985) ("The defense, having moved in limine to exclude testimony concerning K.P. and having obtained a favorable ruling, was entitled to rely upon that determination."). Unlike the rules of evidence, of which we presume courts to have great familiarity, it is implausible that the trial court in this matter could differentiate members of the jury panel from members of the public. Defense counsel likely knew his client's family members, however, and was in a better position to realize their absence. Consequently, Bickham should have objected when members of the public were not permitted to reenter after the jury panel was seated and before voir dire began. His failure to do so amounts to a failure to comply with Michigan's contemporaneous-objection rule. See Hodge v. Haeberlin , 579 F.3d 627, 642 (6th Cir. 2009) (stating that, "in determining whether to give preclusive effect to a procedural default, this court must consider whether the petitioner actually failed to comply with a state procedural rule" (citing Simpson v. Jones , 238 F.3d 399, 406 (6th Cir. 2000) ) ).

As to the second element from Willis , the Michigan Court of Appeals ruled that Bickham did not preserve his Sixth Amendment challenge with a timely objection. Bickham , 2012 WL 4840675, at *3. Thus, the state court enforced the contemporaneous-objection rule against Bickham, and the second element is satisfied. See Willis , 351 F.3d at 744.

Third, Michigan precedent makes clear that the contemporaneous-objection rule was "firmly established and regularly followed" in the public-trial context at the time of Bickham's trial. Ford v. Georgia , 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) ; see People v. Gratton , 107 Mich.App. 478, 309 N.W.2d 609, 610 (1981) ("The right to complain about an order of exclusion may be waived either expressly or by an accused's failure to object." (citation omitted) ); People v. Smith , 90 Mich.App. 20, 282 N.W.2d 227, 229 (1979) ("It is generally held that an accused may...