Garcia v. Bertsch, 05-4378.

• Decision Date: 12 December 2006
• Docket Number: No. 05-4378.,05-4378.
• Parties: Barry Caesar GARCIA, Petitioner-Appellant, v. Leann K. BERTSCH, Director of the North Dakota Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 748

470 F.3d 748

Barry Caesar GARCIA, Petitioner-Appellant, v. Leann K. BERTSCH, Director of the North Dakota Department of Corrections, Respondent-Appellee.

No. 05-4378.

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2006.

Filed: December 12, 2006.

James G. Wolff, argued, Mohall, ND, for appellant.

Ken R. Sorenson, argued, Asst. Attorney General, Bismarck, ND, for appellee.

Before ARNOLD, BYE, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Barry Caesar Garcia was convicted in North Dakota state court of murder and aggravated assault and was sentenced to life in prison without the possibility of parole with a concurrent five-year sentence. Garcia exhausted all of his state court remedies and then filed this habeas petition in federal district court. The district court¹ denied his petition. Garcia is appealing three claims: violation of his Sixth Amendment public-trial right, ineffective assistance of counsel in failing to adequately address alleged juror misconduct, and ineffective assistance of counsel in failing to present mitigating information at sentencing. We now affirm.

I. Background

We adopt the following facts from the North Dakota Supreme Court's decision on direct review. State v. Garcia, ("Garcia I") 561 N.W.2d 599 (N.D.1997).

On the evening of November 15, 1995, a group of young men, including Barry Garcia, Jaime Guerrero, and Michael Charbonneau, drove around the Fargo-Morehead area in a brown, 1975 Ford sedan owned by one of their mothers. In the car they had ten to fifteen red and green shotgun shells and a sawed-off shotgun owned by the Skyline Piru Bloods, a gang to which Guerrero and some of the other young men belonged. Around 10 p.m., while driving through a West Fargo residential neighborhood, Garcia asked the driver to stop. Garcia and Charbonneau, who was much taller than Garcia, got out of the car. Garcia took the gun with him. The car continued down the street and came to a stop. Garcia and Charbonneau began walking around the neighborhood.

At the same time, Pat and Cherryl Tendeland were dropping off their friend, Connie Guler, who lived in the West Fargo neighborhood. After Pat pulled into Guler's driveway, Guler noticed two young men walking toward them. Guler thought that the shorter of the two was carrying a gun. Pat disagreed, thinking it was an umbrella. After standing near Guler's driveway for awhile, the two young men turned around and walked back toward the brown Ford. Finding their behavior suspicious, Pat decided to back out of the driveway and follow the boys "`to see where they [were] going.'" Guler remained in the car with Pat and Cherryl.

As the Tendeland car approached the brown Ford, Charbonneau walked briskly toward the Ford while Garcia lagged behind. The Ford began to pull away. Guler testified at trial that at that moment something caught her eye, she turned, and she saw the shorter boy standing right outside the Tendeland car. She saw him raise the gun and shoot. Cherryl was shot in the forehead and shotgun pellets struck Pat's face. Cherryl was pronounced dead at the emergency room.

Garcia's trial prompted much publicity in the area, and the trial court had granted expanded media coverage. At the trial, the state called Jaime Guerrero as a witness. When asked his name, Guerrero responded, "I am not going to say nothing." The court called a recess. Away from the jury, Guerrero asked to speak with a lawyer, and the court appointed a lawyer who was already representing Guerrero in juvenile court. While Guerrero was still conferring with his lawyer, the State's attorney requested to clear the courtroom of media and anyone other than the families of Garcia and the victim. The State's attorney cited concerns over the television coverage and the large number of spectators. The State's attorney urged the court to "present a more friendly environment . . . for the testimony of this child, who is only fifteen years of age." Garcia's lawyer objected, arguing that there was "no compelling reason to shut things down at this point."

The court then held a conference in chambers with Garcia and his lawyer, Guerrero's lawyer, and the State's attorney. Guerrero himself was not present. The State's attorney explained that he had just promised to dismiss with prejudice the juvenile charges against Guerrero in exchange for Guerrero's truthful testimony in Garcia's trial. Guerrero's attorney stated that Guerrero was reluctant to testify in front of all the cameras and that he was "intimidated by the whole spectacle of the trial." After Garcia's lawyer objected again, the State's attorney alluded to the fact that another potential witness who had been subpoenaed "has indicated a reluctance to provide testimony . . . because of actual repercussions that he's already experienced." The State's attorney stated, however, that he had no personal knowledge of those events.

The court declined to rule on the motion until it had heard arguments from a media representative. Once the media had an opportunity to be heard, the court ruled:

It is the opinion of the Court that in this particular case that it is in the interest of justice to suspend the expanded media coverage order for this witness, and to suspend the rule as regards to media coverage.

Exercising the inherent powers of the Court to control the courtroom, I am going to order that the courtroom be cleared, that the feeds to the radio and the television be terminated, and that all persons [leave the courtroom], except for counsel, Mr. Garcia, and Detective Warren, and the immediate family of . . . Mr. Garcia, and the immediate family of Mrs. Tendeland.

When I say "the immediate family" of Mrs. Tendeland, I mean Pat Tendeland and the two sons. And that's it. And when I say the immediate family of Mr. Garcia, I mean Mr. Garcia's grandmother and Mr. Garcia's brother is present. And I think that's it.

The cautionary instruction I intend to give . . . will read as follows: Ladies and gentlemen of the jury, as you are aware, Mr. Guerrero has indicated an unwillingness to testify. He has expressed a concern about all the media coverage, all of the people—and all the people in the courtroom.

Taking into consideration the youth of Mr. Guerrero and his concerns, the Court has determined that in order to facilitate his testimony, the courtroom will be cleared of all persons. You are not to draw any conclusions or inferences from the clearance of the courtroom.

The court then gave the cautionary instruction, and in front of only immediate family members of Garcia and the victim and one representative chosen by the media, Guerrero testified that Garcia was the shooter. According to Guerrero, Garcia was still carrying the gun when he and Charbonneau returned to the car, and Garcia said "they got her," and "next time, don't look at me." After Guerrero's testimony, the court reopened the courtroom to the public and media.

Garcia appealed his conviction, arguing, among other things, that his Sixth Amendment right to a public trial was violated when the trial court partially closed the courtroom during the testimony of Jaime Guerrero. The North Dakota Supreme Court affirmed Garcia's conviction on April 1, 1997. Garcia I, 561 N.W.2d at 612. Garcia's petition for writ of certiorari was denied by the United States Supreme Court on October 6, 1997. Garcia v. North Dakota, 522 U.S. 874, 118 S.Ct. 193, 139 L.Ed.2d 131 (1997).

Garcia then filed a petition for post-conviction relief in state trial court. In his petition, Garcia argued that he was entitled to relief because of several instances of ineffective assistance of counsel, including a failure to adequately respond to alleged juror misconduct and a failure to present mitigating evidence during sentencing.² The trial court denied relief, and Garcia appealed to the North Dakota Supreme Court. While on appeal, Garcia filed a second petition for post-conviction relief in state trial court. The North Dakota Supreme Court temporarily remanded his first application to allow the trial court time to act on Garcia's second petition. After the trial court dismissed Garcia's second petition, the North Dakota Supreme Court took up both petitions and affirmed the trial court's denials of the petitions. Garcia v. State, ("Garcia II") 678 N.W.2d 568, 578 (N.D.2004).

Garcia then filed this petition for a writ of habeas corpus in the United States District Court for the Southern District of Illinois, which was later transferred to the District of North Dakota. The district court denied all of Garcia's claims, but granted a certificate of appealability for the following claims: violation of Sixth Amendment public-trial rights, ineffective assistance of counsel in failing to adequately address alleged juror misconduct, and ineffective assistance of counsel in failing to present mitigating information during sentencing. We review these claims in turn.

II. Standard of Review

When reviewing the district court's denial of a habeas petition, "`[w]e review the district court's findings of fact for clear error and its conclusions of law de novo.'" Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.2005) (quoting Hall v. Luebbers, 341 F.3d 706, 712 (8th Cir.2003) (alteration in original)). If an issue has been adjudicated on the merits in state court, we will only grant habeas relief if the state court proceeding "(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). "A state court's decision is `contrary to' . . . clearly established law if it `applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or if it `confronts a set of facts...