Williams v. Burt

• Decision Date: 11 February 2020
• Docket Number: No. 18-1461,18-1461
• Citation: 949 F.3d 966
• Parties: Terrence Jamal WILLIAMS, aka Terrance Jamal Williams (State Prisoner #588573), Petitioner-Appellant, v. Sherry L. BURT, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

949 F.3d 966

Terrence Jamal WILLIAMS, aka Terrance Jamal Williams (State Prisoner #588573), Petitioner-Appellant,

v.Sherry L. BURT, Warden, Respondent-Appellee.

No. 18-1461

United States Court of Appeals, Sixth Circuit.

Argued: January 30, 2020

Decided and Filed: February 11, 2020

ARGUED: Yaira S. Dubin, O’MELVENY & MYERS LLP, New York, New York, for Appellant. Scott R. Shimkus, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Jennifer Sokoler, Anton Metlitsky, Catherine Nagle, O’MELVENY & MYERS LLP, New York, New York, for Appellant. Scott R. Shimkus, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

Before: SUTTON, BUSH, and READLER, Circuit Judges.

CHAD A. READLER, Circuit Judge.

Terrence Williams (often referred to as "Terrance Williams" in court documents) was sentenced to life imprisonment without parole for his role in a drive-by shooting outside a Detroit nightclub. That verdict and sentence came at the close of an eventful trial—one marked by outbursts, threats toward witnesses, and offensive language—transgressions committed by witnesses, spectators, and counsel alike. After a particularly contentious incident involving a witness and defense counsel, the court took protective action, temporarily closing the courtroom to spectators before reopening it a few days later.

On direct appeal, and now in this habeas proceeding, Williams argues that the temporary closure violated his Sixth Amendment right to a public trial. Terry Price, Williams’s trial counsel, failed to object to the closure, however, meaning that Williams defaulted his public trial claim in the state proceeding. And he has not overcome that failure by showing that his counsel was constitutionally ineffective, which might otherwise constitute cause and prejudice excusing the default. We accordingly AFFIRM the judgment of the district court.

BACKGROUND

Following an evening at a nightclub in southwest Detroit, Carl Hairston, Jerrance Lewis, and Thomas Cook left the club together in the same vehicle. As they drove away, a light-blue minivan pulled up next to them. From an open door, a passenger inside the minivan wielding an AK-47 fired more than twenty shots into the neighboring vehicle. The vehicles collided, tearing off the open minivan door. The minivan then sped off, leaving Hairston dead, Lewis severely injured, and Cook unharmed.

Following an investigation, officers recovered a burned minivan with its rear passenger-side door missing. Tracing the minivan, and aided by a lead that "Joe Green" was involved in the shooting, officers discovered that the vehicle was registered to Juanita Williams, the mother of Terrence Williams and Joseph Green.

When he recovered from his wounds

, Lewis identified Williams and Green as his assailants. The two were well-known to Lewis. In addition to seeing them driving the same minivan previously, Lewis had fought with Williams and Green on prior occasions. During one of those engagements, Williams shot Lewis in the hand.

Williams and Green were indicted on charges for murder and assault with intent to murder. A four-week trial followed. But irregularities emerged almost right away, starting with the testimony of Cook, who served as the prosecution’s first witness. Though Cook had signed a pre-trial statement indicating that his assailants were driving a light-blue minivan, at trial Cook claimed not to know what vehicle the assailants were driving. The prosecution attributed Cook’s inconsistent testimony to intimidation from spectators in the courtroom. The trial court, however, found no basis to believe there had been "any overt attempt to influence [Cook’s] testimony."

Improper spectator participation also became a concern during the testimony of Williams’s mother and of his maternal aunt. On each occasion, the court was informed that spectators were coaching the witnesses and having inappropriate conversations with them about their respective testimony. The court warned the spectators that improper communication or other interference would result in exclusion from the remainder of the trial. Despite this warning, the court did not exclude a spectator who, a few days later, was seen "making gestures and mouthing words" during the testimony of the mother of the deceased victim.

These episodes came to a head when Lewis took the stand. The night before his preliminary examination, Lewis’s home was firebombed. Undeterred, Lewis gave testimony consistent with his prior statement to officers, testifying on direct that Green and Williams were the shooters. While off the stand, Lewis told the prosecutor that, as he was testifying, he felt he was being threatened by glares and gestures from defense counsel. And on the third day of his testimony, after completing a portion of cross-examination, Lewis openly accused defense counsel of threatening behavior. As Lewis left the stand, the following exchange occurred between Lewis, defendant Green, the prosecutor, and defense counsel:

Lewis. You see that?

Prosecutor. I did see that. Yeah, I did see that with Mr. Price looking at the witness.

Lewis. Telling me I’m dead and all this.

Prosecutor. Wait a minute. I’ve been watching him during the trial. These witnesses—

Green. They just making that little n* * * * * lying.

Green’s Counsel. Hey. Hey. Hey.

Lewis. Get the f* * * on. What you talking about, boy? Get on.

Court Officer. Have a seat. Have a seat. Have a seat.

Prosecutor. Mr. Lewis, you’re all right, don’t let these people get to you. You should be ashamed of yourself.

Williams’s Counsel. You should be ashamed of yourself. You don’t know what you talking about.

Lewis. I know you ‘bout to get—

Williams’s Counsel. How you gonna play me? He ain’t no boss of nothing.

To allow cooler heads to prevail, the court called a recess. When trial reconvened, defense counsel denied any intent to intimidate Lewis, claiming that his looks and gestures were just his way of studying Lewis as he testified. Despite an admonition from the court, defense counsel stated his intention to continue his conduct.

At that point, the court decided that closing the courtroom was the best path forward. Citing repeated interference from spectators, the court remarked that emotions were "running much higher than almost any other case I’ve had ... they have to get under control." In the interest of securing the courtroom and preserving the integrity of the proceedings, the court announced that the courtroom would remain closed for the remainder of the day, with the decision regarding the closure of subsequent proceedings to be decided at a later date. Defense counsel did not object to the closure.

The courtroom remained closed for the remaining two days of Lewis’s testimony, as well as during the entirety of the testimony of Williams’s cellmate, Cornelius Ware. Testifying in the closed courtroom, Ware stated that Williams confessed to the crime while the two were in jail together. Following Ware’s testimony, the trial was reopened to the public.

Once the prosecution rested, Williams presented his case. Williams testified along with four others, each of whom contradicted the narrative offered by the prosecution. At the close of its deliberations, the jury convicted Williams of first-degree premediated murder and assault with intent to murder. The court sentenced Williams to serve life in prison without parole for the former and twenty to thirty years in prison for the latter.

On direct appeal, Williams argued, among other things, that the closure of the courtroom violated his Sixth Amendment right to a public trial, and that his counsel was ineffective for failing to object to this and other issues at trial. See generally Williams , No. 286097, 2011 WL 6004067 (Mich. App. Dec 1, 2011). In view of defense counsel’s failure to preserve the issue through an objection, the state appeals court applied plain error review to Williams’s public trial claim. Id. at *5. Yet even under that nominal standard, the appeals court found that counsel’s conduct fell below Sixth Amendment standards, rendering counsel’s assistance constitutionally ineffective. Id. at *11. Citing the strength of the government’s case, however, the appeals court concluded that "the result of the proceeding would not have been different" if counsel had performed differently, and accordingly denied relief on that ground. Id. The Michigan Supreme Court denied Williams leave to appeal. People v. Williams , 491 Mich. 921, 812 N.W.2d 747 (2012) (mem.); People v. Williams , 492 Mich. 859, 817 N.W.2d 56 (2012) (mem.).

Following his state court proceedings, Williams filed in federal court a petition for relief under 28 U.S.C. § 2254. Among the claims raised in the petition were those regarding a public trial and ineffective assistance of counsel. After the district court denied relief, we granted Williams a certificate of appealability for his public trial claim as well as for his ineffective assistance of counsel claim (limited to counsel’s failure to object to the courtroom closure). Williams v. Burt , No. 18-1461 (6th Cir. Aug. 30, 2018).

ANALYSIS

Part and parcel of federal habeas corpus litigation is an accompanying bevy of procedural rules and requirements, from myriad common law standards to a variety of federal statutes. While familiar to the federal courts, application of this body of authority is not always easy or straightforward. Thomas v. Romanowski , 362 F. App'x 452, 455 (6th Cir. 2010) (describing the landscape surrounding habeas procedural bars as a "complicated and changing area of law"). Today’s case is no exception.

A. Williams’s appeal turns on the application of the procedural default bar to awarding habeas relief. In respecting that settled rule, we must answer at the outset whether Williams has forfeited a right he seeks to enforce in this habeas proceeding by defaulting the claim during his underlying Michigan state court proceedings. Wade v. Timmerman-Cooper , 785 F.3d 1059, 1068 (6th Cir. 2015...