Owens v. U.S.

• Citation: 517 F.Supp.2d 570
• Decision Date: 09 October 2007
• Docket Number: Civ. Action. No. 01cv10061-NG.
• Parties: Dwayne OWENS, Petitioner, v. UNITED STATES, Respondent.
• Court: U.S. District Court — District of Massachusetts

517 F.Supp.2d 570

Dwayne OWENS, Petitioner, v. UNITED STATES, Respondent.

Civ. Action. No. 01cv10061-NG.

United States District Court, D. Massachusetts.

October 9, 2007.

Allison D. Burroughs, Nutter, McClennen & Fish, LLP, Theodore B. Heinrich, United States Attorney's Office, Boston, MA, for Respondent.

Peter B. Krupp, Lurie and Krupp, LLP, Boston, MA, for Petitioner.

MEMORANDUM AND ORDER

GERTNER, District Judge.

This case comes before this Court on remand from the First Circuit, addressing Dwayne Owens' ("Owens") petition for habeas corpus pursuant to 28 U.S.C. § 2255. The only remaining claim is Owens' argument that his Sixth Amendment right to a public trial was violated by the trial court's effective closure of the courtroom during voir dire. For the reasons given herein, the motion is GRANTED.

I. BACKGROUND

A. Procedural History

On March 27, 1997, following a trial in federal district court for the District of Massachusetts, a jury found Dwayne Owens guilty of murder, conspiracy to commit murder, racketeering, interstate travel in aid of racketeering, conspiracy to possess and distribute cocaine, the use of a firearm in the commission of a violent crime, possession of a firearm while a fugitive of justice, and money laundering. Two months later, Owens was sentenced to life imprisonment. Owens' convictions and sentence were affirmed by the First Circuit, United States v. Owens (Owens I), 167 F.3d 739 (1st Cir.1999),¹ and the Supreme Court denied certiorari, 528 U.S. 894, 120 S.Ct. 224, 145 L.Ed.2d 188 (1999).

Owens then filed a timely motion to overturn, vacate, or modify his sentence. See 28 U.S.C. § 2255. In doing so, he asserted eleven distinct arguments based on claimed violations of his Fourth, Fifth, and Sixth Amendment rights. The original trial judge, Owens v. United States (Owens H), 236 F.Supp.2d 122 (D.Mass. 2002), and this Court, Memorandum and Order of November 30, 2004 (document # 59), addressing separate grounds, denied his petition. The First Circuit reversed in part, affirmed in part, and remanded. Owens v. United States (Owens III), 483 F.3d 48 (1st Cir.2007). Specifically, the First Circuit reversed the district court's decision on two of the eleven grounds.² First, it found it an abuse of discretion not to grant an evidentiary hearing on Owens' Sixth Amendment claim that his counsel had failed to inform him of his right to testify. Id. at 60-61. Second, it similarly found an abuse of discretion in the decision not to grant an evidentiary hearing on Owens' Sixth Amendment contention that the closure of the courtroom during voir dire violated his right to a public trial. Id. at 66. The denial of other grounds for relief was affirmed.

Owens later waived the first of those grounds before this Court. Pet.'s Pre hearing Br. (document # 94) at 2. Thus, the only remaining ground for the petition is the public trial claim. That claim was procedurally defaulted, Owens having failed to object at the time of the closure or to raise the issue on direct appeal. See Owens III, 483 F.3d at 61. Therefore, to make out his claim, Owens must show not only that his Sixth Amendment rights were in fact violated, he must also demonstrate "cause" for his failure to raise the claim earlier, and that he was "prejudiced" by the violation. E.g., Coleman v. Thompson, 501 U.S. 722, 746-47, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Owens argues cause is given by the ineffectiveness of his trial and appellate counsel, since they failed to raise the issue. Prejudice, in this case, does not stem from a particularized showing that, absent error, there would have been a reasonable probability of a different trial outcome. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rather, it comes from the cascading effects that an unfair jury selection may have on the remainder of the trial. See Owens III, 483 F.3d at 64-65.

B. The Closure of the Courtroom

This Court held the evidentiary hearing ordered by the First Circuit on August 31, 2007. The petitioner called several witnesses. The Court finds credible the testimony of each, although noting that ten years on, details are understandably fuzzy.

William Owens, the petitioner's uncle, testified that he attended the first day of the trial, but that when he attempted to enter the courtroom, "there were two court officers at the door, and they did not permit me to go in." Tr. of the August 31, 2007, Evidentiary Hrg. ("Hrg.Tr.") at 54. He further testified that he identified himself as a relative, but was still denied access. Id. at 55. He saw people — perhaps dismissed jurors — leaving the courtroom, id. at 56, but was still not permitted into the courtroom, id.; see also id. at 71 (stating that court security personnel told him that he could enter the courtroom "when the Judge says so"). Indeed, according to William Owens, the door to the courtroom's antechamber was locked, and he had to knock on it to get the attention of security personnel.

Similarly, Evelyn Bynoe, the petitioner's mother, stated that she met William Owens at the courthouse every day of the trial, including the first day. She also testified that she was denied access at the door of the courtroom. Id. at 83. She testified that court security told her that the "Judge did not want anyone in the courtroom." Id. at 91.³

The government also called Elizabeth ("Bonnie") Smith, the courtroom deputy clerk present the day of the voir dire. Smith testified that she was certain there were spectators in the courtroom the day of the voir dire, but she could not recall what they looked like. Id. at 12-13. She indicated that she had announced that spectators could come in as seats became available, although this comment was apparently off the record. Although Smith stated that she thought William Owens and Bynoe were present in the courtroom and left when voir dire began, she understandably admitted she could not recall precisely whether they had been there. Id. at 17, 35. Furthermore, she could not recall when, or even whether, seats began to become available for the public. See id. at 42-43.

The transcript of the proceeding indicates that the following colloquy took place between the trial court and the marshal on the morning of the voir dire:

THE COURT: We're going to get 72 jurors here. That will mean we'll have a number of jurors. Now, let me ask the marshals. It look[s] like we're going to need all the row[s] except for this first row. Is that going to be sufficient for you?

THE MARSHAL: I think so, your Honor. I just spoke to Bonnie [Smith] about it and ... [I will] have whatever spectators leave until there's a sufficient amount of room.

THE COURT: We'll need every seat with 72 people.

Tr. of United States v. Dwayne Owens, Feb. 10, 1997 ("Trial Tr.") at 4-5. At some point later, Judge Young found the panel indifferent. Id. at 79. Still later, the parties finished exercising their peremptory challenges. See id. at 109.

The accounts of all of the witnesses are thus consistent with one another,⁴ as well as with the transcript of the trial. Whatever the trial court's intent or the instructions of his clerk, at no point in the interim were spectators notified that they could return to the courtroom. (Indeed, the Court credits William Owens' account that the court security officers blocked their entry.) The trial court then took a recess for lunch. Id. at 115. There is no later indication in the transcript that the courtroom remained cleared, or — conversely — that the spectators were notified they could return.

II. FINDINGS ON THE MERITS OF THE PETITION

A. The Violation Vel Non

In its opinion, the First Circuit ordered this Court to "determine the nature and extent of the trial closure," leading to a conclusion regarding whether "the trial was actually closed." Owens III, 483 F.3d at 66. Although memories have understandably faded in the intervening ten years, the trial transcript and the witnesses' testimonies coalesce around a single narrative. Judge Young ordered the courtroom cleared, as was standard practice, in order to make sufficient room for the entire venire so that he would only have to swear in the potential jurors and ask the panel questions a single time. William Owens and Evelyn Bynoe were thus asked to leave the courtroom. After jurors were excused, there was room available in the courtroom for them to return. However, out of a misunderstanding of Judge Young's order, court security personnel continued to bar William Owens and Bynoe from the courtroom for the rest of the day. They were not permitted to return to the trial until the following morning. Because the entire jury was selected that day, see Trial Tr. at 109, they were — albeit inadvertently — barred from the voir dire process.

Before the First Circuit, and before this Court, the government argued that this was a "trivial, inadvertent courtroom closure," Bowden v. Keane, 237 F.3d 125, 129 (2d Cir.2001), which did not affect Owens's substantial rights. That argument pertains both to whether the violation actually occurred and whether the defendant was prejudiced by it.

As to whether the closure was indeed trivial and inadvertent, this Court must follow the holding of the First Circuit. It noted, "[j]ury selection is ... crucial part of any criminal case," Owens III, 483 F.3d at 63, and rejected the contention that the closure must be deliberate to violate the defendant's rights, see id. (citing Walton v. Briley, 361 F.3d 431, 433 (7th Cir.2004)) ("Whether the closure was intentional or inadvertent is constitutionally irrelevant."). The First Circuit's command was unmistakable: "[I]f the trial court barred spectators from the courtroom as Owens alleges, he was denied his Sixth Amendment right to have a public trial." Id.

This Court finds that Owens' allegations were accurate, and, consequently, that his Sixth Amendment right to a public trial was violated.⁵

B. Cause

Because his...