Guillory v. Allen

• Decision Date: 01 July 2022
• Docket Number: 19-55290
• Citation: 38 F.4th 849
• Parties: Jemere GUILLORY, Petitioner-Appellant, v. Trent ALLEN, Acting Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

38 F.4th 849

Jemere GUILLORY, Petitioner-Appellant,

v.Trent ALLEN, Acting Warden, Respondent-Appellee.

No. 19-55290

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 13, 2021 Pasadena, California

Filed July 1, 2022

Tony Faryar Farmani (argued), Farmani APLC, Rancho Santa Fe, California, for Petitioner-Appellant.

Christopher P. Beesley (argued), Deputy Attorney General; Daniel Rogers, Supervising Assistant Attorney General; Julie L. Garland, Senior Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, San Diego, California; for Respondent-Appellee.

Before: Ronald M. Gould, Marsha S. Berzon, and Daniel P. Collins, Circuit Judges.

COLLINS, Circuit Judge:

After a jury trial in California state court, Petitioner Jemere Guillory was convicted of multiple offenses arising from an investigation into a shooting in San Diego. In Guillory's direct appeal from his conviction, the state appellate court rejected his argument that his Sixth Amendment right to a public trial had been violated by the alleged exclusion of his family members from the courtroom during jury selection. In subsequent state habeas proceedings, Guillory sought to re-raise this claim, but this time with new evidence consisting of declarations from two family members who had been excluded from the courtroom, as well as his own declaration. The state court of appeal denied his petition on the state law grounds that it was untimely and that his public trial claim had previously been raised and rejected on the merits. Guillory then sought federal habeas relief under 28 U.S.C. § 2254, but the district court denied the petition. According to the district court, Guillory's procedural default in his state habeas petition barred any federal review of his Sixth Amendment public trial claim. We agree that the augmented version of Guillory's public trial claim presented in his state habeas petition is procedurally defaulted, but the same cannot be said of the properly exhausted public trial claim that Guillory presented on his direct appeal in state court. We therefore vacate the district court's order and remand for further proceedings.

I

A

In May 2012, Guillory allegedly shot a man near a market in San Diego after the man inappropriately touched Guillory's girlfriend. Guillory was subsequently arrested, and police searched the home at which he was staying pursuant to a warrant. They found, among other things, several firearms and ammunition, nearly four pounds of cocaine base, and approximately $28,500 in cash. Guillory was charged with a variety of offenses related to the shooting and to his drug and weapons possession.

Guillory's trial commenced in California superior court on January 27, 2014. Before jury selection began, defense counsel raised his concern about whether Guillory's family members would be permitted in the courtroom:

[Defense Counsel]: Your Honor, just so you know, too, your bailiff has been so—so kind to allow family members of my client to come in previously. I'm going to hope that there will be no future issue at all.

The Court: Well, I, ah—first of all, during the jury selection, we're just not going to have room for them because the court is going to be full of prospective jurors. But once—certainly once we get the jury selected, they'll be free to be here. As long as—I think the bailiff did have a little—had to talk a little bit with one of the family members the other day. But I think hopefully that was effective and that won't be—won't be a problem.

But, no, same rule. As long as they follow the rules and don't cause any problem, they're welcome to be here. I say, not during the jury selection because we just don't have room for them.

After this exchange, jury selection began and continued for the remainder of the day without apparent incident.

Jury selection resumed the following day. Although the voir dire was not transcribed, the clerk's minutes of the trial reflect that, shortly after 11:00 AM, "the bailiff inform[ed] the Court and counsel of the disruption in the audience." The record, however, does not disclose the nature of the incident. The trial transcript shows that, about 30 minutes after the bailiff's comment, the court made the following remarks to the prospective jurors then in the courtroom:

There are some folks here who have an interest in the case. And they have a right to be here in or about the courtroom. But I think you recognize who they are. And don't have any contact with them. Don't let them have any contact with you. I'm not suggesting they [don't] have a right to be here and they haven't done anything improper. But just to maintain some distance from them so you don't inadvertently overhear what they might be discussing which may have something to do with the case or Mr. Guillory but won't be any part of the evidence upon which you have to base your finding.

Jury selection continued without further disruption, and a jury was empaneled several hours later.

At the conclusion of the trial, the jury found Guillory guilty of simple mayhem, assault with a firearm, and multiple offenses related to firearms and drug trafficking. The jury also found that various sentencing enhancements applied. In June 2014, Guillory was sentenced to prison for 25 years to life, plus a term of 29 years and eight months.

On direct appeal to the California court of appeal, Guillory argued that his Sixth Amendment right to a public trial had been violated by the trial court's exclusion of his family members from the courtroom during jury selection. In October 2015, the court rejected this claim (among others) and affirmed Guillory's conviction. The court cited People v. Bui , 183 Cal.App.4th 675, 107 Cal. Rptr. 3d 585, 590–91 (2010), for the proposition that a "de minimis" exclusion of persons during voir dire "did not violate a defendant's public trial right." Examining the limited record on this point in Guillory's case, the court concluded that there was a "lack of any evidence in the record to support [his] contention that his family members were actually excluded from the courtroom during voir dire or that their exclusion was not de minimis." Accordingly, the court stated that, "on this record," it rejected Guillory's "contention he was deprived of the right to a public trial by the alleged exclusion of his family members from the courtroom." Given that holding, the court stated that it did not need to resolve the State's "alternate contention" that Guillory assertedly "acquiesced" in the trial court's suggestion that his family members should be excluded in order to make room for prospective jurors. Guillory petitioned for review in the California Supreme Court, but that petition was denied in February 2016.

B

Guillory filed a petition for a writ of habeas corpus in the state superior court exactly one year later. In it, Guillory again argued that his Sixth Amendment right to a public trial was violated, and he augmented his claim with three declarations—one from himself and two from family members. The declarations stated that Guillory's friends and family members were not allowed into the courtroom during jury selection even though seats were available. Guillory stated that, after the court of appeal held that there was insufficient evidence in the record to show that a non-de-minimis exclusion had occurred, he attempted to obtain declarations by contacting 12 of the "20 supporters" who had been excluded. He stated that, given the time constraints for pursuing collateral relief, he was filing his state habeas petition after having received only "two of the 12 promised declarations." On June 2, 2017, the superior court denied the petition, but on grounds different from those invoked by the court of appeal on direct appeal. Relying instead on the alternative ground that the court of appeal had expressly declined to consider, the superior court held that "the record demonstrates [Guillory] acquiesced in the process used by the court during jury selection" and thereby "waived any alleged violation of the right to a public trial." As a result, the superior court expressly "decline[d] to conduct further proceedings in this matter to determine whether [Guillory's] family members were actually excluded from the courtroom during voir dire or whether their exclusion was de minimis."

Guillory then promptly filed a further habeas petition in the California court of appeal, again raising his public trial claim and relying on the same three declarations.¹ The court of appeal denied that petition in a four-page order on June 29, 2017. That order did not rely on the superior court's view that Guillory had acquiesced in the exclusion of his friends and family, but instead denied the petition on two state law procedural grounds. First, citing In re Reno , 55 Cal.4th 428, 146 Cal.Rptr.3d 297, 283 P.3d 1181, 1207–08 (2012), superseded by statute on other grounds as stated in In re Friend , 11 Cal.5th 720, 280 Cal.Rptr.3d 313, 489 P.3d 309, 314–24 (2021), the court held that Guillory had been insufficiently diligent in pursuing this claim. Specifically, the court held that Guillory had "not explain[ed] why it took him so long to obtain declarations from the family members and friends who were allegedly excluded from the courtroom during jury selection." Second, citing In re Waltreus , 62 Cal.2d 218, 42 Cal.Rptr. 9, 397 P.2d 1001, 1005 (1965), the court held that Guillory's petition was "further barred because it asserts a claim that was raised and rejected on appeal." The court acknowledged that California law recognized certain exceptions to these procedural rules, but it concluded that Guillory had failed to make the necessary showing.²

Guillory then filed a further habeas petition in the California Supreme Court in July 2017, but that court summarily denied it two months later.

C

In October 2017, Guillory filed a federal habeas petition in the district court pursuant to 28 U.S.C. § 2254. The district...