United States v. Withers, 618 F.3d 1008

Withers was convicted in 1998 of drug offenses, money laundering, continuing criminal enterprise, and conspiracy to possess with intent to distribute.
Sentence initially life plus 360 months, later reduced to 365 months concurrent with 360 months.
Withers previously filed a §2241 petition (2001) and a §2255 motion (2003); the district court treated the §2255 motion as second/successive and denied it.
We remanded for merits after Castro v. United States; on remand, the district court again focused on sentencing rather than merits, prompting another remand.
In 2005 the district court issued a short order denying the §2255 motion; Withers timely appealed but district court later found his notice of appeal untimely, leading to ongoing appellate proceedings.
The Ninth Circuit reversed and remanded, holding that the district court must address the merits of non-frivolous claims, consider timely notice, and potentially reassess procedural default and reassignment issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of notice of appeal	Withers did not receive timely notice and the appeal should be reopened.	District court properly deemed the notice untimely.	Timely; district court erred in denying reopening.
District court's summary dismissal of §2255	Two non-frivolous claims warrant merits review and an evidentiary hearing.	Most claims are frivolous; summary dismissal appropriate.	District court erred; remand for merits and possible hearing on non-frivolous claims.
Public-trial right and voir dire closure	Closure violated Sixth Amendment and counsel was ineffective for not objecting.	No viable public-trial claim on direct appeal; counsel's failure to object was not deficient.	Remand appropriate to determine duration/extent of closure and compliance with precedents; not resolved on the record.
Ineffective assistance of trial counsel	Counsel's failure to object to closure caused prejudice through a structural error.	No prejudice shown and no automatic presumption of prejudice for non-preserved errors.	Non-frivolous; requires remand for fact-finding and consideration of merits.

Castro v. United States, 540 U.S. 375 (U.S. 2003) (recharacterization rule for §2255 petitions; Castro governs remand for merits)
Waller v. Georgia, 467 U.S. 39 (U.S. 1984) (public-trial requirements; foundational for closure analysis)
Presley v. Georgia, 130 S. Ct. 721 (S. Ct. 2010) (Sixth Amendment right to public voir dire extends to jury selection)
Schaflander v. United States, 743 F.2d 714 (9th Cir. 1984) (standard for evaluating §2255 petitions; distinguishing factual vs legal sufficiency)
Hearst v. United States, 638 F.2d 1190 (9th Cir. 1980) (factors for evaluating frivolous claims; early framework for review)
Nunley v. City of Los Angeles, 52 F.3d 792 (9th Cir. 1995) (Rule 4(a)(6) applicability and reopening standards; late-notice analysis)
Massaro v. United States, 538 U.S. 500 (U.S. 2003) (ineffective assistance claims may be raised in §2255 post-conviction proceedings)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel; prejudice and reasonable performance)
Puckett v. United States, U.S. (U.S. 2009) (plain-error and preservation principles; governs unpreserved claims)
Johnson v. United States, 520 U.S. 461 (U.S. 1997) (preservation of rights; forfeiture and plain-error considerations)