Ernest Sutton Bell v. Mack Jarvis Robert Smith

is it that its merit claims when notes BELL,

terms the endorsement “modifies insur- Ernest Sutton Petitioner- provided the ... ance under Commercial Appellant, Liability policy. Part” of Id. General that majority appears The to believe indicates that the en- language JARVIS;

“modifies” Smith, Mack Robert is a dorsement modification of Subsections Respondents-Appellees. provi-

A B rather than “stand-alone No. 98-7002. sion,” duty that and therefore to de- language ap- fend those from subsections Appeals, United States Court of plies check stop payment claims as well. Fourth Circuit. Ante, majority’s analysis at 144-45. The Argued if the policy May would be correct stated that 2000. duty to the insurer had a defend suit Decided Dec. policy provide coverage which the would judgment against

for a the insured. In case, that since is the endorsement incor- porated into policy, general duty stop pay- would apply defend check ment claims. policy imposes such defend, Rather, duty

general however. duty explicitly the insurer’s ex- defend only “bodily injury tends to claims property damage” “personal and ad- vertising injury.” Accordingly, even if special part endorsement read B,

Subsection A or Subsection does change duty not the fact that de- language fend in those unam- subsections biguously apply stop does not to check

payment claims. sum, I agree majority with the to the parties

extent concludes that have might expected agreed been to have duty would there the insurer payment regarding stop defend check Nevertheless, claims. Maryland the law of is clear a court should undertake not unambiguous to rewrite an insurance con- provide coverage tract as to so otherwise would exist. See Hankins v. Co., Public Service Mut. Ins. Md. (1949); 63 A.2d Bernhardt v. Co., Fire Md.App. Ins. Hartford (1993). Accordingly, A.2d I correctly believe the district court entered Provident, judgment against I and would affirm. WILKINSON, Judge,

Before Chief MURNAGHAN,* WILKINS, WIDENER, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, and KING, BUTZNER, Judges, Circuit Judge. Circuit Senior ’ by published opinion. Judge Affirmed opinion, in majority TRAXLER wrote Judge which Chief WILKINSON and WIDENER, WILKINS, Judges NIEMEYER, LUTTIG, WILLIAMS, joined. wrote Judge KING MOTZ dissenting opinion, which'Judge joined. Judge MICHAEL Senior opinion. dissenting wrote a BUTZNER OPINION

TRAXLER, Judge: Circuit appeals

Ernest Sutton Bell district petition decision his denying court’s corpus, of habeas see 28 writ U.S.C.A. (West Supp.2000), 1994 & which in North challenges he his convictions Car- multiple counts of olina state sexu- misconduct, rape, including al committed his against step-granddaughter.1 minor affirm. We Griffin, Jr., Phillip James ARGUED: I. Services, Legal

North Prisoner Carolina Carolina, Inc., Appel- for Raleigh, North January by In Bell was convicted Scouten, Special lant. Ellen Bradshaw fifty-eight in North jury Carolina counts General, Carolina Deputy Attorney North comprised of eight of sexual misconduct— Justice, North Department Raleigh, rape, of first four counts of degree counts Carolina, BRIEF: Ka- Appellees. for ON offense, degree first sexual nineteen North thryn VandenBerg, L. Carolina rape, twenty- of second and degree counts Inc., Services, Raleigh, Legal Prisoner taking counts of indecent liberties seven Carolina, for Michael F. Appellant. North with a minor—all of which involved his North Car- Easley, Attorney General of step-granddaughter Wendy.2 The of- olina, of Jus- Department North Carolina spanned period, two-year begin- fenses Carolina, tice, Appel- North in March Raleigh, ning Wendy when was Bell, morning a Saturday by awakened on lees. * § argument by Judge Murnaghan in to 28 U.S.C.A. 2254 effected 104 of the heard oral prior govern appeal. case but died decision of this time AEDPA the resolution McDaniel, was filed. Slack v. 1595, 1602, (2000). 146 L.Ed.2d 542 petition 1. Because Bell's for writ of habeas corpus April filed after 1996 en- twenty-seven record addi- 2. The indicates and actment of the Antiterrorism Effective ("AEDPA”), during the Penalty tional counts were dismissed Act of Pub.L. Death 104-132, of the trial. No. 110 Stat. the amendments course by Wendy to her proceeded rape vaginal who her and confide in friend. theAt time, begged him years anal intercourse while she Vicki was twelve old. After- Afterwards, wards, Wendy Bell told stop. Wendy he in continued to confide stop she loving anyone actions, would her if told kept Vicki about Bell’s but Vicki Wendy he what had done. was twelve silent. Wendy’s She also refused requests in years grade. old and the sixth Bell was go Vicki with her to In Bell’s home. old, years family fifty-five member and May however, finally Vicki agreed life, figure Wendy’s adult in trusted known home, again Wendy accompany to Bell’s to her since birth. hoping Wendy Bell would leave if alone Instead, Vicki present. Bell turned threat The was effective. For the next his attention to While Vicki. Bell’s wife Bell, nearby, years, sexually two who lived and Wendy slept, again Bell touched Vicki Wendy by and anal vaginal molested inter- places, although same this time he course, sex, oral and other indecent sexual clothing. did so beneath her Vicki was touchings once or twice each month his assault, able to avoid temporarily further home, sleeping while his wife was or at first needed telling go Bell she work, approximately and twice a week at restroom, and later the stirrings home, bed, Wendy’s and in her her Undaunted, Bell’s sleeping wife. re- Bell Wendy, too frightened after-school hours. peated day these the following actions parents abuse, her began to tell about swimming Wendy. while Vicki with sleep to withdraw from others and to friends, Like her si- Vicki continued her In the floor instead of her bed. addi- lence. schoolwork, tion, Wendy’s already made by a learning disability, began

difficult fact, girls kept quiet each of the until deteriorate. June Wendy when and Vicki attend- ed a that, party together slumber at trial and saw Evidence revealed addi- Wendy, rape television show sexually tion to Bell about the sexual had molested Wendy molestation of Vicki two other adolescent both of children. told girls, whom nearby that she it anymore, lived and were friends of “couldn’t take Wendy. [and] first, Toni, that Bell was telling parents day testified had re- the next [her] peatedly vaginal molested her got Wendy [she] anal home.” J.A. 451. intercourse, approxi- agreed over the of following course to do same. The the year, afternoon, one mately and that Bell utilized told her Wendy mother and of hurting keep abuse, threats her sister to aunt Toni about law Bell’s sexual and telling anyone. from also Toni testified enforcement were officers contacted. present thereafter, that she was at Bell’s home on Shortly Wendy one was examined sexually pediatrician occasion when he molested physical Wen- who found evi- house, dy. Locked repeated outside of the dence pen- Toni consistent with sexual that Wendy’s testified she could hear etration. years screams. Toni was old eleven day The began, before Bell’s the trial began.

the abuse judge pretrial state trial to hearing held minor, Vicki, issues, The third testified that evidentiary address several Bell’s witnesses, visiting Wendy while Bell with the motion to sequester fall the minor breasts, anus, of Bell touched which and granted, her was the state’s motion vagina through clothing. and her At charges the to consolidate involving the Wen- time, Vicki, cooking dy Bell’s wife involving was dinner and with those Toni and Vicki, occurred, of got up unsure what had which was denied. state had also from the floor where had been playing she moved to close courtroom the during the puppy with a the testimony and sat on couch. The of each but at girl, least as day, Wendy Wendy. closure, next Vicki asked if objected Bell had Bell on Sixth her, anything prompting public grounds, done like that to Amendment trial of- but refused, indicating they clo- not want temporary to the that did alternative fered no proposed by return, the state. The request judge sure after which the trial her testimony the judge, noting have Bell was entitled to stressed nature,” apparent “of an delicate would be with anyone he wanted in the courtroom closure would be temporary agreed him.6 but ruled that it would be appropriate, ultimately jury was convicted the Bell possible as so as discreetly carried out as to two seven plus and sentenced life terms J.A. jury’s to call it to the attention. ty appeal, On direct counsel select years. 281. assignments pursue four error to ed of day, the courtroom was closed The next briefing. The convictions and sentence Wendy’s testimony.3 public during the appeal. affirmed on direct See State were minimum, however, report- the court

At a Bell, N.C.App. 453 S.E.2d prosecu- er, personnel, jury, the (1995) (table). tor, attorney, family mem- Bell’s and the appropriate then filed a for Bell motion minor witnesses and friends of the bers (“MAR”), Also, see ISA- relief Gen.Stat. the testi- N.C. allowed to remain.4 were standard, (1999), County Superior and in the Pitt was recorded as was mony pub- transcription Court, for to the asserting was available that he received ineffec- transcript, 700-plus-page lic. Of appeal, on direct tive assistance counsel days, forty- approximately four spanning right of his violation Sixth Amendment comprised testimony pages four counsel, appellate because counsel his Wendy. pursue did not claim that his Sixth trial was Amendment to a testimony, Wendy’s

At the conclusion by the trial closure of the judge’s violated immediately reopened.5 courtroom testimony. during Wendy’s time, courtroom specifically judge the trial At that MAR, Superior Court his wife to The denied whether Bell wanted asked Appeals Bell’s counsel the North Carolina courtroom. return courtroom, again jury er courtroom ever closed Before the entered the —a Wendy judge would be dispute. state informed that the state Bell do not fact witness. This in the closure the first resulted petition complains for Bell's habeas relief being implemented before a short time during "the trial closed the courtroom during Wendy actually specifically, 92, and, complainant's testimony,” testified — J.A. swearing very jury and the brief event, if Bell the court- cannot show that pages comprised openings, all of which five during was closed of Toni room so, By judge pur- transcript. doing the trial Vicki, obviously he cannot show a viola- jury posely eliminated need to return that basis. tion of his trial on jury openings room and served after Accordingly, we discussion to the limit our goal carrying the closure as dis- the creetly out Wendy's tes- closure of courtroom technically possible. Although be- timony. order, scope original yond the closure objection the lodged counsel Bell’s trial no wife, points exception 6.With the of his Bell being no closure handled in this manner and actually by the one who was excluded trial appeal regard. taken in colloquy regard- judge's specific order. The press was also 4. The state contends that the _ ing return was as her follows: stay, that this permitted to Bell contends but right. All THE COURT: tran- It is unclear. The is unclear. script indeed you want in here? Do Mrs. Bell to come press the does not indicate whether Honor, don't actu- MR. O'KELLEY: Your I whether present in the or courtroom ally. just court- We’ll leave her out of the press present. to be member of Although wanted room, that will be fine. pre-trial publicity associ- there was trial, Well, you indication that COURT: welcome to ated with the there is no THE are press objected anybody to the closure. you have in here want now. Yes, sir, MR. O’KELLEY: I understand. Although clo- originally 5. the state asked for J.A. 339. sure of the courtroom Vicki, unclear as to wheth- Toni is also petition for certiora- tial subsequent standard of review set forth denied his 2254(d), interpreted § by Supreme as ri. v. Taylor, Court Williams petition for writ of Bell thereafter filed a 1495, 1518-23, 146 L.Ed.2d 389 corpus, pursuant to 28 U.S.C.A. habeas (2000): mayWe not grant federal habeas court, § federal district assert relief that unless conclude North Car- as the sole claim that his counsel was ing adjudication olina’s of the claim “was con- failing public to raise the ineffective to, trary ap- or involved an unreasonable appeal. trial claim on direct The district of, plication clearly established Federal court, rejecting magistrate judge’s rec law, by Supreme as determined a granted ommendation that Bell be either the United States.” 28 U.S.C.A. trial, appeal state dismissed Bell’s new Williams, 2254(d)(1); § see 120 S.Ct. at and, petition pursuant to 28 U.S.C.A. 1518. 2253(c)(2) (West Supp.2000), § him denied appealability. a certificate of See Bell v. Williams, In Supreme (E.D.N.C.1998). Jarvis, F.Supp.2d held a state court decision is “con trary to ... established Federal a certifi granted After this court Bell law, by as determined appealability cate of on the issue of wheth Court,” 2254(d)(1), § 28 U.S.C.A. “if the er he received ineffective assistance of opposite court state arrives at conclusion appeal, panel counsel on direct ques to that reached Court on a th[e] court the district court’s denial of reversed if tion of law or the state court decides a relief for the condi and remanded differently case than Court has on a th[e] writ, holding that the tional issuance of the facts,” materially indistinguishable set judge’s state trial closure of the courtroom Williams, 120 1523. such violated Bell’s Sixth Amendment cases, court will “a federal be uncon Bell’s counsel 2254(d)(1) § the state- strained because constitutionally failing ineffective for provision’s court decision falls within that pursue ap claim on direct ‘contrary to’ clause.” Id. at 1520. The peal appellate court. to the North Carolina principle upheld Court also Jarvis, Bell v. 198 F.3d 432 Cir. an unreasonable 1999) (vacated). “involve[s] decision A majority of the active application clearly established Federal of[ ] judges circuit thereafter to hear the voted law, determined appeal en banc. Because we conclude Court,” 2254(d)(1), § 28 U.S.C.A. rejection MAR the state court’s govern state court “identifies the correct adjudication was not unreasonable ing legal principle from Court’s deci claims, th[e] see Bell’s Sixth Amendment unreasonably applies princi but sions 2254(d), affirm U.S.C.A. we now the dis ple prisoner’s facts of the case.” deny trict court’s decision to Bell’s habeas Williams, However, 120 S.Ct. at petition. open of whether a question

Court left represents appli decision an unreasonable II. precedent cation of if the state court deci A. princi “unreasonably legal extend[s] sion analysis ple precedent our with the rec from our new context begin We (or apply unreasonably not ognition, recently highlighted by the Unit where it should Court, principle to Supreme may legal ed that we to extend a refuse[s] States apply).” de Id. review Bell’s Sixth Amendment claims new context where should 1521; French, Rather, at see Green v. 143 F.3d novo. because Bell’s ineffective (4th denied, Cir.1998), adjudicated was 869-70 cert. assistance of counsel claim 1090, 142 L.Ed.2d 698 by on the merits the North Carolina state U.S. (1999). Instead, court, held that “[f]or our review is limited the deferen- the Court “ whether ‘independently to hold that when a ascertain it is sufficient now unreasonably petition- applies [the record reveals violation’ of state-court decision rights i.e., facts of a whether er’s] constitutional th[e] the law — case, applying denying court court erred in a federal state prisoner’s 2254(d) 2254(d)(1) § that turning the state- to the may § conclude writ” —before provision’s that court deter- question within of whether state court decision falls clause,” in a that id. at resulted decision application’ mination ‘unreasonable to, made it clear or an unreasonable Finally, contrary the Court involved 1521. of, application application applicable of feder- law. at “an unreasonable that Infra appli- disagree. an incorrect al law is different from 176-77. We 1522 (empha- Id. at cation of federal law.” added). Thus, “a federal habeas court

sis simply because that may not issue the writ argument In of the that federal support independent judg- court concludes its independent must render an habeas courts that the state-court decision ment relevant court, the state determination whether er- clearly federal law applied established denying judgment, its “erred in Rather, ap- incorrectly. or roneously writ,” upon our primarily the dissent relies unrea- [objectively] must also be plication Greene, in Cardwell F.3d decision Id. sonable.” (4th Cir.1998). Cardwell, panel In failure of a this court held state case, the North Carolina In articulate rationale for its the rationale court did not articulate adverse determination of a constitutional underlying rejection its of Bell’s Sixth claim renders “review court’s [of] However, we may not Amendment claim. ‘application clearly established Federal summary in order is “presume [the] ” impossible law’ that fed- necessitates cursory haphazard dicative of a or review “independently eral courts ascer- Wright v. petitioner’s claims.” [the] tain whether the record reveals a violation (4th Cir.1998). Angelone, 151 F.3d petitioner’s rights. of’ constitutional Rather, the decision is no less state court circumstances, Id. 339. Under these “adjudication” merits the claim an held, “the the court distinction between de under deferen and must reviewed novo review be- review and reasonableness 2254(d)(1). provisions § See id. tial (internal insignificant.” quota- comes Id. cases, we an 156-57. such conduct omitted). tion marks and alterations of the record and independent examination law, established a. (4th Lee, see Bacon Corcoran, Cir.2000); Baker v. premise, As an initial note that Card- Cir.2000), 291-92 n. 14 but we require well does not federal habeas courts must still our review whether “confine pris- independently ascertain whether in a the court’s ‘resulted determination rights vio- oner’s constitutional have been to, contrary decision that involved step lated an interim “reasonable- of, clearly application es determination, unreasonable ness” as the dissent would law, as determined tablished Federal Rather, interpret now us it effec- have it. ” the United Court of States.’ tively accords no to state court deference Bacon, (quoting at 478 unaccompanied by decisions articulated 2254(d)(1)). U.S.C.A. reasons, nowhere more evident is this explicit than in its such statement

B. cases significance there is difference of colleagues pre-AEDPA take with between the de novo review Our dissent issue review, called that we reasonableness review asserting this standard of e.g., also the AEDPA amendments. See require should federal habeas courts 2254(d) § Aycox Lytle, 196 F.3d 1177-78 with quality “the the reason (10th Cir.1999) (noting ing process conflict between by articulated the state court determination,” n, “look arriving those circuits which to the state in at the Henno to it court's result and defer even where at thereby adopting pre the analysis lacking” require- rejected. is and Cardwell’s approach just cise we had that federal habeas reviewing Angelone, ment courts Jones v. Cir.1996) summary “indepen- (noting state court decision panel of this court

dently ascertain re- whether the record cannot “overrule the decision of another petitioner’s panel; only veals violation of consti- may the en banc court over decision”). rights). panel tutional rule a prior The Card- well decision is now also inconsistent with issued, When Cardwell was inconsistent Court’s interpretation recent prior our in opinion Wright, with in which of the standard of called by review for had summary we declined to review state 2254(d)(1). § AEDPA amendments to adjudications de Wright, court novo. See F.3d at In Wright, 156-57. held criterion of reasonable determi- b. 2254(d) § purposes nation for is not Prior enactment of the AEDPA “whether court [the state is well decision] amendments, required federal courts were reasoned,” but “whether the determination independent judgment exercise when minimally at least consistent with entertaining a prisoner’s application state facts and circumstances the case.” Id. Williams, for habeas relief. See at 157 (quoting Cooper, Hennon (O’Connor, J., at 1516 concurring). “In (7th Cir.1997)). Thus, while words, a other federal court habeas owed we noted that “a detailed state court order no deference a state court’s resolution” likely is more judicial withstand federal “questions of constitutional law [or] scrutiny,” we, too, id. at declined to (ie., mixed questions appli- constitutional interpret the term “unreasonable” fact),” id., cation of constitutional law 2254(d) § having qual- “as reference to the precedent that a “dictated federal process ity reasoning articulated grant prisoner’s court peti- should arriving the state court in at the determi- tion for relief if that court were to nation,” Hennon, 109 F.3d at 334. Such independent judgment conclude its interpretation, recognized as erred,” the relevant state court had id. at place court Hennon “would the federal in just kind of tutelary relation state courts that the recent amend- Williams, however, 335; designed ments to end.” [were] Id. at expressly rejected the view that “ Aycox, also see 196 F.3d at n. 3 2254(d)(1) does previ- th[is] not alter (although explanation “[a] state court’s review,” ously settled rule of independent reasoning its would avoid the risk that we court, as well the notion that if a federal might misconstrue the basis for the deter- “carefully after all the weighing reasons mination, and consequently diminish accepting judgment, a state ... court’s risk that we might conclude the action prisoner’s remains convinced that a custo- unreasonable at law or under the facts Constitution, dy that indepen- violates hand, ... presented summary with a judgment prevail.” dent Id. should ... disposition, we will do our under best (internal omitted). marks quotation standard of review mandated held, interpretation, Such an the Court AEDPA.”) “gives the amendment no effect what- soever,” id., Without mention of the confronting decision and “avoid[s] Wright, court improperly eq- specific meaning Cardwell of the statute’s ‘unreason- uated the inquiry application’ “reasonableness” able and its ramifica- clause rule,” independent-review 2254(d)

tions for the id. an part § essential of the inqui- at 1519. ry, independently ascertain whether the state court has “erred” turning before since our Accordingly, decision in the question of whether the state court Cardwell, Supreme Court has made it contrary decision is to or an involves un- novo, independent, plena clear that de application reasonable controlling ry adjudications review of state court is no Supreme precedents. Court We find none. longer appropriate, that there are indeed important distinctions between the “rea foremost, First and language sonableness” review called for 2254(d) §of support does not such a re-'

AEDPA and the de novo review of the 2254(d) quirement. requires Section fed past, corpus and that a writ of may eral habeas courts to ascertain whether longer simply no a issue because federal underlying adjudication state court independent habeas “court concludes its a claim on the merits “resulted in a deci judgment that the relevant state-court de to, contrary sion that was or involved an applied clearly cision established federal of, application unreasonable clearly estab erroneously law or incorrectly.” Id. at precedent. lished” attempts Despite 1522. it characterize 2254(d)(1) added). § (emphasis U.S.C.A. otherwise,7 plain the decision in Cardwell It require does not that a state court cite ly just for calls such review when the to federal law in order for a federal court state court decision fails to articulate the to determine whether the rationale behind its denial of a state court deci claim. It one, sion an objectively reasonable requires federal habeas courts to “inde nor require does it pendently ascertain whether federal habeas court to record independent offer an petitioner’s opinion reveals a violation” of the con as whether Cardwell, believes, rights, upon stitutional based own reading F.3d at its thereby pass judgment controlling Supreme on wheth precedents, er the state court has erred. Accordingly, that rights defendant’s constitutional requires to the extent that Cardwell feder were violated during pro the state court al habeas courts conduct de novo or ceedings. The recent Court de effectively novo of a summary de review cision Williams also against counsels adjudication, grant state court or to habe imposing an requirement upon inflexible upon independent as relief based deter federal habeas court to independently as mination that the state court has violated certain whether it would find a constitu rights petitioner, the constitutional of the tional violation were it presented with an it must be overruled. identical factual situation. Such a deter statutory duty

mination fulfills no and runs contrary 2254(d)(1), § spirit to the aside, turn question Cardwell to the writ corpus may of habeas longer of whether persuasive there are other rea- simply issued because a federal court con courts, for requiring sons federal habeas independent cludes its judgment Angelone, 7. See Barnabei v. "adjudica- tioner’s constitutional claim is an (4th Cir.), denied - U.S.-, 2254(d), purposes § cert. tion” for we must (2000) (recognizing 147 L.Ed.2d 1047 nonetheless "review claims under the th[e] "de novo review a federal habeas court [is] Cardwell standard” of review which considers 2254(d),” inappropriate under but “the distinction between de novo review and requires ”) Cardwell insignificant nonetheless federal habeas ‘reasonableness’ review [to be] reviewing summary courts (emphasis original); Angelone, state court deci Goins v. " (4th Cir.2000) 'independently sions to ascertain (holding whether ” peti the record reveals a violation’ because the state court "decided claims the[] Catoe, rights); analysis, tioner’s constitutional Green v. without written the distinction be- (4th Cir.2000) 2254(d) (noting section tween 'reasonableness’ review although "perfunctory rejection” peti- insignificant”). and de novo review becomes (9th Williams, Cir.), 212 F.3d 1154-55 cert. sey, See court erred. the state — U.S.-, denied, at 1521-22.8 S.Ct. S.Ct. (2000), in L.Ed.2d 274 which the Ninth per- with other presented Nor are we cases, imposed, in all non- expressed this purposes, not Circuit reasons or suasive statute, our support would determining in the which of statutory requirement and upon our district imposing ourselves the state court “erred” before whether in of “methodology” review courts to necessitated the turning inquiry 2254(d) determina- requires § cases federal courts to “Requiring AEDPA. court has “erred” of whether the state tion the court’s first determine whether state of whether a determination before erroneous, prior consider decision light in unreasonable court result is state contrary it to or involved ing whether was pre- clearly Supreme Court of established application controbing of an unreasonable into provides insight cedents. Cardwell AEDPA,” held, “pro court law under require we why of should question ju in clarity our own constitutional motes a de novo courts to conduct federal habeas guidance for risprudence provides and also conducting a reasonable- prior review courts, which can look our deci state questions of constitutional ness review the persuasive for their value.” Id. sions it, it likely because did before most these rationales are 1155. To extent independent deter- require purport support its step an towards deter- in of mination as interim offered dissent mining reasonableness. adopt likewise that we should view in cases proposed methodology, least

Thus, to be with the appear we left adjudica- court involving summary state upon Van Tran v. Lind dissent’s rebanee adjudica- summary nature the stale court’s points Supreme to the Court’s of 8. The dissent below, gave that the stan- no indication Angelone, tion in decisions Weeks 2254(d) by § (2000) required was to dard of review L.Ed.2d 727 120 S.Ct. extensively the altered how state Layne, Wilson underlying for its articulated the basis has (1999) as that the 143 L.Ed.2d 818 indicators determination, could have—but did not— “independent impose Court would such upon methodology of review impose such simply do requirement. We determination” courts. itself or lower federal appropriate. not find these inferences Layne upon dissent’s Wilson v. reliance denial of The Weeks Court affirmed our Wilson, unpersuasive. equally the Court is relief, concluding petitioner that the habeas addressing courts claims clarified federal viola had not constitutional demonstrated (West Supp.1998) § under 42 U.S.C.A. 1983 Supreme Court clearly under established fortiori[,] tion plaintiff’s decide constitu- must whether adjudica precedents and "a that the turning to rights before were violated tional Virginia of affirm Supreme tion of the Court question whether the state official ing petitioner’s and sentence conviction rights violating plaintiff's charged with to,' 'contrary nor did involve an neither it qualified immunity because entitled of,’ application any our deci ‘unreasonable clearly estab- was not constitutional that, claims Id. at 734. The dissent sions.” alleged See at the time of the violation. lished Court an inde Supreme because the rendered 1692. This order id. at upon its pendent held, on the merits based decision clarity "promotes procedure, Court involving conduct, precedents a case a sum own in legal standards for official in the pre mary disposition, state court we should general officers and the the benefit both the require fed However, that the Court would lower sume public.” Id. unlike the doctrinal- However, well. we eral courts to do so as qualified immunity, our ly area distinct just easily imply opposite conclu could cases do not cre- decisions in federal habeas Despite explicit to the "clearly sion. our reference law for courts ate established” state summary disposition, deciding Only the state court Su- nature of future cases. Angelone, "clearly Cir. Weeksv. preme see Court can create established” 2254(d)(1). 1999) Wright's holding purposes § (reiterating "[a] law Williams, (holding that perfunctory court's decision is reason 120 S.Ct. at 1523 2254(d) minimally explicitly § with "restricts the source if it 'is at least consistent able ”), Supreme] [the case’ law the facts and circumstances of the established jurisprudence”). made no mention of Court’s tions, unpersuaded.9 we are tion of jurisprudence, precedent, not circuit court any indepen- 2254(d), By amending Con opinions dent offer the merits of the gress prohibited federal courts from grant constitutional will claims have no determi- ing habeas relief to state court defendant us, native effect the case nor before adjudication unless the state court resulted precedential effect for state courts fu- contrary a decision that was to or in best, ture At body cases. constitutes volved an application unreasonable of Su of constitutional dicta. preme precedents, thereby explicitly Court “restrict[ing] clearly the source estab Nor persuasive is there Supreme] juris lished law to Court’s [the require need to federal habeas courts to Williams, 1523; prudence.” 120 S.Ct. at opinions offer on significant constitutional Stovall, see also Harris v. 212 F.3d questions simply in provid the interest of (6th Cir.2000) (The 944 “clearly estab ing “guidance” to the state courts within lished” of the AEDPA provision “marks a our circuits. pre We have reason to ‘significant change’ prevents and the dis sume that state are in courts need our looking trict court from to lower federal guidance in interpreting applying determining court decisions in whether the controlling Supreme precedents. to, contrary state court is decision or an of, charge only Our under the statute application is unreasonable estab law.”). adju determine whether the federal state court’s lished Because a federal may grant court now if dication of the claims before it was a only habeas relief rea it determines that the sonable in light controlling state decision one of the Su to, contrary applica- is or an preme unreasonable law.10 error, Although explicitly 9. the dissent does not ad- not whether the state court decision require we pass wrongness vocate that federal courts to beyond reveals an increment of error”); Hennon, (“[T]he judgment whether the state court has 109 F.3d at 334 erred in cases where the state court has artic- statute commands deference to the state rationale, judgment by using ulated its Van Tran court has court's the word 'unrea- sonable,' required predecessor stronger which is than determination in all ‘erroneous’ seems, maybe stronger 'clearly requirement, cases. The than it stems from errone- ”) event, ous.’ In equate to have not been court's decision to an “unreason- adopt "clearly asked to purposes able” state erroneous” stan- court decision for 2254(d) § dard “clearly as the standard for reasonableness un- with one which is errone- 2254(d), § der today. ous.” and we decline do so long See id. at 1153-54. So as the court is “left with a ‘definite and firm convic- committed,” occasion, tion' that an error has been id. at panel On at least one of this 10. application will be considered “un- court has indicated that in cases where we 2254(d)(1) § reasonable” might contrary under and the writ reach a conclusion on a issue, issue, will see id. at 1153-54. This adjudication circuit has "close” the state court is equated Catoe, not the “unreasonable” standard of not unreasonable. See Tucker v. 221 2254(d) § dard; (4th Cir.2000). "clearly with a erroneous” stan- Today, F.3d we hold Williams, nor did the Court in that a federal court conclusion that a state although the Court did opinion make clear that an court has "erred” in its on a "close” erroneous or required. incorrect decision is case is not A federal habeas court equivalent "close,” of an may unreasonable one and determine that the issue is unreasonable, reject seemed "firmly convinced” line therefore not without render- Williams, reasoning. ing opinion 120 S.Ct. at 1518 an as to whether it would reach court, (rejecting notion that if a federal presented after the same conclusion if with the "carefully weighing accept- all appeal by way the reasons for identical issue on direct or of a ing Williams, judgment, § state court’s ... application. e.g., remains con- Vickv. prisoner’s' (4th Cir.2000) vinced custody that a (noting violates the 233 F.3d "that Constitution, independent judgment may objectively state court's decision (internal prevail.”) should omitted); quotation marks reasonable even ... where a federal court Stone, deciding see also appeal Francis v. 221 F.3d the issue on direct would (2d Cir.2000) conclusion.”); (noting that Van Tran’s come to a different Sanders v. "approach (4th Cir.2000) ... Easley, focuses on how sure habe- 230 F.3d 686-87 as court (noting is that the question state court has committed that the is not whether the grant erential we cannot relief because legally the state court’s result is unless consistently held We have factually or unreasonable. court decision on the summary state claim federal constitutional merits of a added); Harris, (emphasis Id. see also “adjudication” purposes of the claim for (“Where n. F.3d at 943 a state court 2254(d), holding and we reaffirm that by form decides a constitutional issue or- Bacon, 478; Bak 225 F.3d at today. See discussion, a ha- der without extended er, Wright, n. 14. on the beas court should then focus result 156-57; Cardwell, 152 at 339. decision, applying court’s state court fails articulate When the AEDPA) (em- by the standard articulated” ruling, we must inde rationale behind its added). phasis appli record and the pendently review the Bacon, 478; 225 F.3d at cable law. See summary, “independent- we have not However, Baker, n. 14. this 291 ly whether Bell’s Sixth ascertained” ap independent review of the record rights Amendment were violated distinguished from plicable law must be proceedings the court an state or rendered of petitioner’s novo review the claims de “independent determination” as to whether make requirement and from a that we an if we would find constitutional violation independent determination on the merits with identical fac- presented we were this See, Aycox, 196 e.g., of those claims. F.3d tual the context of either a scenario It render difference at 1178. does not at the district criminal trial held federal novo between de review reasonable brought court or a motion under 28 level to insignificant equate or ness review (West § Supp.2000). We U.S.C.A. federal court requirement inde have done it is not an not so because whether, in its pendently judg ascertain part inquiry essential of under ment, has of the there been violation 2254(d). Thus, § our cannot be choice prior petitioner’s rights constitutional to construed, colleagues suggest, as our as court’s deci determining whether state “implicit recognition that counsel’s failure Rather, sion was reasonable. appeal the blatant trial violation sum uphold we must the state court’s law,” violated federal 183- clearly infra independent our mary decision unless 84, interpreted be as may acceptably but pertinent of the record and fed review explicit we recognition that accord state persuades eral law us that its result for judiciaries the deference called applies unreasonably or contravenes 2254(d) are, by § we virtue of law, or clearly established federal is 2254(d), Congress’ § amendments based on unreasonable determination novo longer permitted to review de their in light of the facts of the evidence presented.... Our review in fact decisions on merits. is def- Lee, (2000); view, v. state has erred in our bul whether L.Ed.2d McCarver court contrary 583, (4th Cir.2000). the decision simply We 594 n. 6 application or involved an unreasonable of federal courts to dictate to decline Indeed, law). represents Supreme Court they methodology by which are to arrive strict 2254(d)(l)'s spirit § to state of deference ultimate, statutorily determi- at the mandated court decisions on federal constitutional adjudication the state court nation of whether claims. to, contrary has in decision that is resulted mean, however, not This does is applica- an unreasonable which involves unacceptable for a federal habeas court to of, clearly Supreme tion established conclude that the state court decision was Francis, (noting 221 F.3d at 110 law. See and, therefore, not an unreasonable correct Supreme wake Court’s deci- that in the application precedent. Williams, applied courts tire have sion Clearly, e.g., acceptable it is so. See do Cir.1999), phrase (4th application” “unreasonable Angelone, Weeks F.3d 249 v. 2254(d) ways). 'd, in varied 528 U.S. 120 S.Ct. aff ..., C. pre- reasonable failure would he have on appeal”). vailed his mind, With these standards turn identify applying this test now to established fed- to claims of ineffective on law, ap determined assistance counsel eral as however, Court, peal, governs reviewing which Bell’s claim courts must ac that his appellate “presumption cord counsel the right Amendment to effective Sixth assis- that he decided which issues tance of counsel was violated his coun- were most likely to afford relief pursue, appeal.” on on Pruett appeal, sel’s failure to direct v. Thompson, 996 F.2d Cir. claim his Sixth Amendment 1993). obligated Counsel assert public trial 'was violated when the trial all on appeal, nonfrivolous issues judge temporarily closed the courtroom hardly any question “[t]here can Wendy about while related details importance upon appellate having sexual attacks her. ad vocate examine record with a view to selecting the most promising issues Barnes, review.” Jones The Sixth Amendment re (1983); 77 L.Ed.2d 987 quires that all criminal prosecutions, “[i]n Carolina, see also Smith South enjoy ... accused shall “ (4th Cir.1989). Indeed, ‘Win have the Assistance Counsel for his out nowing arguments appeal weaker Const, defence.” U.S. amend. VI. In ad focusing and pre on’ those more to likely dition, that requires satisfy case law to the vail, far from being evidence of incom right, the assistance must be effective. petence, is the hallmark appel of effective Washington, See Strickland v. 466 U.S. advocacy.” late v. Murray, Smith 477 668, 686, 2052, 104 S.Ct. 80 L.Ed.2d 674 527, 536, 2661, U.S. 106 S.Ct. 91 L.Ed.2d (1984). right This to effective assistance (1986) Jones, (quoting 751, 434 463 at U.S. require of counsel extends such assis 3308); Smith, 103 S.Ct. see also 882 F.2d appeal a tance direct of criminal convic (counsel’s at 899 failure to raise a weak Lucey, 387, v. tion. Evitts 469 U.S. constitutional may claim an ac constitute 396, 830, (1985). 105 83 L.Ed.2d 821 S.Ct. ceptable strategic designed decision “to diverting appellate avoid the court’s atten In order to establish a claim that tion from what stronger felt were [counsel] appellate counsel was ineffective for failing claims”). Although recognizing claim pursue appeal, on direct the Barnes, “Notwithstanding (1) possi is still applicant normally must demonstrate bring ble to claim Strickland based on his representation “counsel’s fell be failure particular counsel’s to raise a objective low standard of reasonable claim” on appeal, direct the light prevailing professional ness” the recently Court'has norms, Strickland, reiterated that “it 688, [will 466 U.S. at 104 (2) difficult be] to demonstrate that 2052, counsel S.Ct. and “there is reason Robbins, incompetent.” that, 120 at probability S.Ct. able but for counsel’s un “ ‘Generally, only 765. errors, ignored is professional pro the result of the sues are clearly stronger pre than different,” those ceeding would have been id. at sented, will 694, 104 presumption of effective Robbins, 2052. S.Ct. See Smith v. ” assistance of 259, counsel be Id. 746, 764, overcome.’ 528 U.S. 120 S.Ct. 145 Greer, 644, (2000) (quoting Gray v. 800 F.2d 646 (holding L.Ed.2d 756 that habeas (7th Cir.1986)). applicant must demonstrate that “counsel objectively failing unreasonable” in file addressing a merits brief a nonfrivo

lous issue and that there is “a reasonable The Amendment Sixth is also the that, probability origin but for his counsel’s un- “right speedy the accused’s to a Const, trial, right jury waived amend. VI. accused his public and trial.” U.S. law, all home heard English common Finding its roots and in always eighty-seven- the bedroom of recognized guarantee has been “the year-old prosecutrix, bedridden and even attempt to em- safeguard against any aas to leave neighbors were told the bed persecu- ploy our courts as instruments person room make room the court Oliver, 257, 270, for In tion.” re nel); Inc. Newspapers, see also Richmond (1948) 499, (granting L.Ed. S.Ct. 580, 555, Virginia, v. 448 U.S. 100 S.Ct. relief to accused con- convicted 2814, (1980) that, (holding 65 L.Ed.2d 973 tempt judge acting of court a state Amendment, under of a the First session). grand jury secret one-man ordinarily open criminal defendant must be origin Anglo traditional “[t]he press). The public to the violation of trials has American distrust secret the constitutional to a trial is variously ascribed to notorious been error, subject structural to harmless practice Inquisi- Spanish use of analysis. error See Neder v. United tion, English excesses States, 1, 1827, 119 S.Ct. Chamber, French mon- of Star (1999); Waller, 467 L.Ed.2d 35 U.S. at 49- cachet.” Id. archy’s abuse of lettre de 2210; n. 104 S.Ct. Sherman (footnotes omitted). 268-69, Smith, Cir.1996); 89 F.3d Today, constitutional Stenberg, see also McGurk v. in the grounded trial remains “ (8th Cir.1998) (noting preju witnesses, ‘judges, lawyers, belief component analysis dice of the Strickland jurors perform respective their will may if presumed the nature of open in an responsibly functions more of a performance deficient is that structur ” proceedings,’ than Waller in secret error). al 4, 104 Georgia, 467 U.S. 46 n. light general princi these (1984) (quoting 81 L.Ed.2d 31 Estes Supreme has ples, recognized Texas, 532, 1628, 588, 85 S.Ct. 381 U.S. in of presumption there is a favor (1965) (Harlan, J., 14 L.Ed.2d concur 543 Waller, 45, “ open 467 at trials. See U.S. ‘contemporaneous and that ring)), review 2210; Newspapers, 104 S.Ct. Richmond public opinion forum is an in the effec 573, 448 at 100 Yet U.S. S.Ct. judicial possible tive restraint on abuse absolute, ” and the right is not Oliver, power,’ (quoting In re 333 id. long recognized judges Court has trial 499). 270, at “The central U.S. 68 S.Ct. to limi impose have discretion reasonable try proceeding aim of a criminal to [is] overriding tations on access to a trial when public guaran and the trial fairly” accused interests, right “such as the defendant’s purpose “ensuring tee serves the government’s in a fair trial or the interest prosecutor carry and out judge their disclosure of sensitive informa inhibiting ..., responsibly encouraging] wit duties tion,” likely unprotected if clo go are forward[,] nesses to come and discour Waller, employed. is at sure not 46, aging] perjury.” Id. at 104 S.Ct. 2210. 2210; Evatt, 45, 104 Bell v. S.Ct. see also Hence, to a trial is right public “[t]he not (4th Cir.1995) 421, (“Although only protect protect the accused but in strong presumption there favor right much know what public’s not openness, right open to an trial is liberty lives goes when men’s are may rea impose The trial absolute. stake, for a trial can result favor secret limitations on access a trial sonable unjust prosecution of a to as well as defen administration of the interest of fair Peyton, dant.” Lewis justice.”). (4th Cir.1965) (granting habeas relief in the of a upon the denial Examined context based accused’s public challenge press First Amendment right rape trial case where “ closure, i.e., to a courtroom ings, Court first whether ‘findings there were recognized press public specific “that the enough have that a reviewing court can qualified First Amendment to at- determine whether the closure order was ” Waller, tend a criminal trial.” properly 467 U.S. at entered.’ Id. at 104 S.Ct. Specifically, I, 104 S.Ct. 2210. (quoting the Court Press-Enterprise 464 U.S. 819). held that: Ultimately, judge rejected district the claim that a presumption openness [t]he may be reasonably competent attorney would have only by overcome an overriding interest public raised the conversely issue and on findings based that closure is essen- competent concluded that “a attorney like- preserve higher tial to values and is ly recognized would have futility narrowly tailored to serve that interest. an argument considering such the factual along interest is to be articulated Bell, present circumstances in this case.” with findings specific enough that a re- F.Supp.2d at 704-05. viewing court can determine whether properly the closure order was entered. appeal, we too must review Court, Press-Enterprise Superior Co. v. requirements Waller’s for courtroom clo 501, 510, 104 S.Ct. 78 sures, in doing but so always remain mind (1984) V). (“Press-Enterprise L.Ed.2d 629 ful of the limited inquiry. nature of our Applying principles same these the con- Both the state court’s determination of text of a defendant’s Sixth Amendment whether appellate perfor counsel’s challenge complete to the closure of a level, mance fell an acceptable below see proceeding, courtroom Court Strickland, 466 U.S. at likewise held that the and our review of the state court’s deter may if: give way reasonableness, mination for see 28

(1) 2254(d), require inquiry U.S.C.A. party seeking to close into the hear- strength underlying,

ing advances an defaulted overriding interest However, trial claim. the ultimate likely prejudiced, that is to be underlying public success of the trial claim (2) the closure is no broader than neces- determinative before the review interest, sary to’protect that court, ing in this case the North Carolina (3) reasonable alternatives to closing the court, appellate “only which need [have] proceeding are considered the tri- whether determine[d] [counsel] made a court, al reasonable in refusing decision to raise the (4) findings adequate support the clo- Smith, (em claim.” 882 F.2d at 898-99 by sure made are the trial court. added). And, phasis this court does not Waller, See 467 at U.S. 104 S.Ct. 2210. review Bell’s ineffective assistance of coun sel claim under Strickland or his underly D. ing public claim trial under on a Waller de case, In this the North Carolina novo basis. may We reiterate that we not rejected appel Bell’s claim that grant his habeas relief even if we were in late counsel failing was ineffective for clined to decide those differently issues pursue a public claim that his trial than the North Carolina courts. was Williams, violated the temporary Rather, closure of 120 S.Ct. at 1522. in the courtroom during Wendy’s testimony. relief, order to obtain federal habeas Bell magistrate The judge, and district in must demonstrate that North Carolina’s reviewing petition, Bell’s habeas rejection focused of his ineffective assistance of claim, public on the trial agreeing that post-conviction the counsel claim in pro state temporary complied “unreasonable,” closure with ceedings Waller's an involved and first requirements, three disagreeing just but an “erroneous[ ] incorreet[ ]” adequacy the judge’s application of find- precedent. the of such Id.

167 spectators not III. ence of concerned with the trial”). Circuit, As noted the Seventh A. justification “[p]rimary prac- the for protection in personal tice lies of the digni- Turning requirements to the now Latimore, ty complaining of the witness.” by the for courtroom closure articulated F.2d at Waller, in with begin Rape upon an constitutes intrusion areas the state question the of whether advanced life, physical the of victim’s both and justifying tempo overriding an interest which psychological, society our at- in case. rary of courtroom this closure deepest privacy. taches the sense of interest, course, the protection of The dignity, loss of un- Shame and however she the details of Wendy of while related justified standpoint, from a moral are repeated sexual abuse she sustained attempt of byproducts natural an to re- difficulty no in of Bell. We have hands rape of a count details before curious determining that the state advanced and disinterested audience. ordeal closing interest in the court compelling describing of an unwanted sexual en- Wendy nei room while testified and that persons counter before with more Bell ther court nor counsel for the state prurient aggravates than a interest in it failing to unreasonable in conclude original injury. Mitigation of the otherwise. justifiable is a ordeal concern of that, long recognized It been has and the trial court. of homicide, [rape] of the ‘ultimate “[s]hort Id. 694-95. ” Georgia, violation of self.’ Coker support his of claim L.Ed.2d sufficiently compelling failed advance (1977). Indeed, few question would in closing during interest courtroom recognition Supreme Court’s testimony, primarily Bell Wendy’s relies type nature of this “highly reprehensible” upon Court’s decision crime, a moral sense and its “both Court, Superior Co. v. Newspaper Globe personal in contempt almost for the total 607-08, of the female victim tegrity autonomy (1982), in L.Ed.2d which privilege choosing latter’s down, on First Amendment struck relationships are those with whom intimate re- grounds, Massachusetts statute that Thus, practice to be Id. established.” exception, to judges, without quired closing courtrooms to members of the testimony during close the courtroom public while a victim of sex crimes testifies specified of- of minor victims sexual has not been uncommon. See United support fail to find sufficient fenses. We Sielaff, States ex rel. Latimore Globe, however, for Bell’s claim that his (7th Cir.1977) (noting that “exclu trial was violated spectators sion during Wendy’s courtroom closure rape victim ‘is a alleged frequent testimony. accepted practice the lurid details of Although rejected a Court in Globe by young such crime must be related ”) trial lady’ v. 361 removal of the court’s (quoting Stephens, Harris Massachusetts’ (8th Cir.1966)); 888, by requiring see also discretion courtroom closures 891 cases, Kobli, 919, in all the Court made clear that 172 F.2d 923 such United States (3d Cir.1949) physical psychologi- and (noting practice “safeguarding the common victim well-being of the cal of minor” of sex closing the courtroom to members crimes, them from including protecting directly concerned with the embarrassment, pre- further is witness is of such trauma prosecuting wrhen “the seriously cisely type compelling embar interest years tender to be presumption favor of testimony pres- her can overcome the giving rassed in 168 607, open trial. Id. at 102 Accordingly, S.Ct. 2613. we are satisfied that

Indeed, explicitly the Court took care to state demonstrated an over-riding, compel- ling point protecting the limited nature of interest holding: out its child victim from the embarrassment and trauma asso- emphasize We that our holding is a nar- relating ciated with multiple details of mandatory row one: that a rule of clo- rapes and sexual family molestation respecting testimony sure of minor member, meeting the first Waller require- constitutionally sex victims is infirm. ment, and that neither the state court nor cases, individual and under appropriate Bell’s counsel was unreasonable so con- circumstances, the First Amendment Indeed, cluding. if the facts underlying not necessarily does stand as a bar to this case are insufficient to establish an the exclusion from the courtroom of the interest, overriding we can think of.none. press general public during the tes- timony of minor sex-offense victims. B. rule, mandatory But a requiring par- We are likewise satisfied that it was ticularized determinations in individual reasonable to conclude that Waller’s sec- cases, is unconstitutional. requirement ond the closure be no —that Globe, 457 n. 102 S.Ct. broader than necessary protect added); (emphasis see also Press- compelling interest at stake —was met in Court, Enterprise Superior Co. v. this case. Because the compelling inter- I, n. S.Ct. L.Ed.2d closing est for pro- the courtroom was the (1986) II”) (“Press-Enterprise (noting tection Wendy testimony, her recognition Globe’s protection “[t]he limiting the closure to her was of victims of sex crimes from the trauma imminently tailored to serve that interest. of public scrutiny may embarrassment Additionally, the courtroom not un- justify closing aspects certain of a criminal necessarily personnel, restricted. Court Thus, proceeding”). closing the courtroom attorneys, reporter and the court re- indisput- circumstances such as these is and, course, mained jury, comprised ably appropriate ju- under public, present. of the The entire risprudence, provided the trial “de- recorded, proceedings were recording case-by-case on a termine[s] basis [that] transcription was available for pub- to the legitimate lic, State’s concern for the well- and there is no claim anything oc- being of the minor victim necessitates clo- curred which is not reflected in tran- Globe, sure.” 457 U.S. at script. Ayala Speckard, Cf. (2d Cir.1997) (en ) 2613.11 banc (noting that, recognize 1984) curiam). 11. We (per while the Similarly, par where a involved, rigorous has never set forth a less stan tial closure courts have closures, partial dard for some particular circuits have to the 'look[ed] circumstances to relaxed requirement the first Waller where a see if the defendant still received safe " temporary partial proceeding or guards closure of a guarantee.' Sher lock, Specifically, is at issue. these (quoting Douglas, circuits have 962 F.2d at 1357 However, required only 532). that the state advance a "sub F.2d at we need not consider closing stantial proceeding reason” for stringent complete whether Waller’s test for because, involving unlike those applies equally situations closures in the context aof closure, complete closure, partial temporary partial closure does not or whether the acutely threaten as the historical something concerns state could have shown less than a sought to be compelling addressed the Sixth Amend justify temporary interest to Osborne, e.g., ment. See United States v. during Wendy's closure of the courtroom tes Cir.1995); timony, 98-99 United States because we it to believe be settled Farmer, 369, (8th 1994); 32 F.3d Cir. protecting that the state’s interest in minor Sherlock, United States v. rape compelling victims is a one. See Globe (9th 1992); Sullivan, Court, 1356-57 Newspaper Superior Cir. Nieto v. Co. v. 457 U.S. (10th Cir.1989); 596, 607, Douglas 102 S.Ct. 73 L.Ed.2d 248 (1982). Wainwright, 739 F.2d 532-33 Cir. Wendy protecting of with goal anee the transcript as a consideration of availability public to a trial. right Bell’s constitutional closure de a limited deciding whether suggest any alterna- The failure of Bell a witness protect single signed to temporary, narrowly-tailored tives to the of the Sixth testimony was violative his only at issue bolsters our conclu- closure trial), public cert. Amendment sion. denied, 118 S.Ct. 524 U.S. I, (1998); Press-Enterprise L.Ed.2d 747 response to the state’s motion as a (noting, closure, Bell’s counsel ob temporary for a Amendment chal in a First consideration Amend jected on the basis the Sixth jury voir limited closure lenge to the provided provision, trial but ment dire, sought values “the constitutional nothing way argument. in the Once open proceed by holding protected to be that the interest in judge trial determined by making a later ings may be satisfied Bell’s inter protecting Wendy outweighed proceedings avail transcript of the closed courtroom, pro open again in an Bell est time, judge if the a reasonable able within to the limited clos posed no alternative can be accom that disclosure determines circumstances, we these ure.12 Under juror’s val safeguarding while plished judge failed presume cannot that the interests”). privacy id to the one any alternatives to consider temporary nature

The limited he simply the state because proposed during Bell’s trial was courtroom closure open others in court. Wal did not discuss protecting Wendy fully consistent with alter trial courts to consider ler counsels And, we are satis- testimony. during her a complete closure of natives to the state it reasonable for fied that But, not unreasonable proceeding. was» and Bell’s counsel to conclude require does not conclude that Waller limited and nar- properly closure was minimal, court, per faced with indeed pur- to achieve the intended rowly tailored request that a functory, opposition to while she protecting young girl pose of temporarily closed in a child courtroom be the details being testifies, asked to discuss abuse case while the victim sex upon assaults her. repeated sexual pro to the reject alternatives invent See, Ayala, 131 F.3d e.g., posed closure. C. in the First Amend “nothing (finding indicate that or Waller to Next, that trial courts ment cases provides Waller determined judge a trial has alternatives to once are to consider reasonable protect single witness limited closure [to likewise find closing the courtroom. We as an testimony] is warranted during his deficiency regard. in this closure, complete alternative to think it reason- premise, As an initial further alterna sponte must sua consider nature of conclude that the limited able to appropri to the alternative deemed tives judge, the trial the closure directed ate”). that it carried out his concern case, closure under consider- In this way possible, suggests most discreet only extended and deter- ation he considered the situation protection, and it witness for her appropriate single means to bal- mined the most could have possible on the exclusions alternatives what limitations 12. Bell now asserts that excluding only people, employed. certain or from clear that included been It is far remain, using allowing press And, or two the latter press was ever excluded. Wendy's privacy or device to block screen failed to serve alternatives would have audience, using a view of the closed-circuit a dis- purpose carrying out the closure in sugges- post We find these hoc television. and, course, raise the differ- creet manner pro- unpersuasive Bell did not tions at best. his accus- issue of Bell's to confront ent prior pose these or other alternatives er. specify he does not the closure. Even now utterly pointless would be to require the decision Globe or otherwise fall Wallet's, conjure judge up findings trial alternative meth- short requirement. protecting only reject ods of witness case, In this before ruling on the motion proposals. Obviously, own his courtroom, to close the judge the trial was judge superior position is not in a sug- aware of the nature of the charges against gest may alternatives which be more ac- Bell, including extraordinary number ceptable to the defendant and his counsel. of span counts and the of time over which certainly We cannot conclude that North committed, they were age of the vic- adjudica- Carolina was unreasonable in its tim, and the defendant’s familial relation- tion of Bell’s claim on this basis. ship to the victim. The judge was aware

that Bell had been eighty indicted for over misconduct, counts of sexual including D. multiple counts for first degree statutory rape thirteen, of minor age under the Finally, determining whether the de- degree rape, second taking and indecent pub- fendant’s Sixth Amendment liberties with a minor. During pre-trial violated, lic trial has Waller requires been hearing, conducted while the state’s motion findings the trial court “make ade- temporary pending, closure was Waller, quate support the closure.” judge had the opportunity to fa- become at U.S. 104 S.Ct. 2210. Bell contends miliar with the heinous nature of the al- inadequate findings were made to crimes, silence, leged long the child’s support the trial judge’s closure of the her testimony, forecasted as well as the and, Wendy’s courtroom during opportunity to observe the minor witness that, in particular, asserts because the trial and Bell Specifically, courtroom. judge explicit, did not articulate detailed judge was made aware that the case findings Wendy’s about maturity, under- alleged involved the sexual molestation of standing, and willingness testify, one children, princi- three minor and that the must also conclude that the trial judge did pal victim had been abused over the course not make an individualized determination two-year period, of a beginning when she need close the courtroom in Wen- twelve, by was fifty-eight-year-old her dy’s applied case and a per instead se rule step-grandfather. judge was aware type of closure of the condemned Globe. that Bell’s victims were friends with one Globe, 102 S.Ct. 2613 another, wife, neighbors of Bell and his that, (holding although mandatory occasion, and that on at least one one of courtroom closure statute violated the girls present at Bell’s home while Amendment, First closure of the court- Wendy being judge molested. The room while a child victim of sexual abuse provided, had also been in the context of testifies will appropriate provided the state’s motion to consolidate of- judge case-by-case “determine^] on a fenses, summary with a of when and how concern, [that] basis legitimate State’s occurred, including repeated abuse well-being for the of the minor victim ne- sexual Wendy abuse of both Toni. Waller, closure”); cessitates addition, judge the trial was aware that (“The presumption of Wendy kept quiet had about the abuse openness may only by be overcome an from the years time that she was twelve overriding interest based on findings that until, later, years old two she and Vicki closure is preserve higher essential to val- prompted were come forward ues is narrowly tailored to serve that television show on child molestation and (internal quotation interest.” Also, marks omit- rape. when the courtroom was ted)). court, Like the closed, district we believe it the trial was aware that reasonable temporary to conclude that the Wendy’s performance lag- at school was closure of Bell’s trial did not run ging significantly. afoul of with the discretion to judge, judge the vested knowledge, trial With this basis, evaluate, case-by-case on the pro a testimony would be “of noting that the nature,” temporary priety of closure. also agreed J.A. apparent delicate Globe, 22, 102 n. at 608 S.Ct. 2613 request temporary for a U.S. with the state’s Wendy (noting “intimate[d] tes- that the Court view while closure of the courtroom of ... tified, constitutionality the state regarding that the closure would but ruled statutes,” specifically N.C. possible including so as Gen. discreetly as carried out 15-166, § a trial to judge attention. He which allow jury’s to it to the Stat. not call trial the only during be character- close a criminal sex-offense what could did so over victim, do testimony of a minor but not Amendment perfunctory ized as a Sixth closure).13 mandate objection, argu- offered without public trial Nor, for that mat- ment or alternatives. Additionally, although sets forth Globe ter, object to the lack of find- did counsel judge factors that a trial should consider at time. ings the determining propriety closing the of First, testimony the Bell’s a courtroom of unpersuaded by are crime, that, not victim a sex such as “the judge the trial did minor of claim because maturity age, psychological about minor victim’s explicit, findings detailed articulate understanding, the nature of the maturity, understanding, and and Wendy’s crime, victim, must the desires of the and the willingness testify, to one conclude relatives,” parents not an indi- interests id. judge that trial did make the (footnote omitted), to 102 S.Ct. 2613 the determination of need vidualized case, ap- prescribe any did that Wendy’s in were close the courtroom and, fact, recognized in mandatory per or se rule determinative also plying instead necessarily judges in that trial would need type closure of the condemned Globe. in weighing “exercise discretion” judge granted [their] trial the state’s When the closure, factors, not yet North as well as others temporary motion these for defined, id. We provided “[i]n law Carolina state ..., which conclude that upon sex find no rape trial of cases for or offense basis carefully taking judge the trial failed consider judge may, during the trial case the individual facts before prosecutrix, of the exclude decision, his or he otherwise persons except making from courtroom all court, regard. his in this On the duty and shirked officers of the the defendant he pos- contrary, in trial of case.” the record reveals those engaged (1999) great concern- (emphasis deal information N.C. 15-166 sessed GemStat. added). him, Hence, certainly the case before ing unlike statute Globe, knowledge sufficient exercise discre- imposed no manda- North Carolina Rather, trial him under both federal and tory tion afforded rule of closure. having upon to recount details of rely seeks an affidavit the child from 13. The dissent addressing judge, activity court- of the state trial on her unnatural sexual committed closure, However, the trial room as an indication that person an adult.” J.A. 168. judge carefully decision did not consider the were memorandum because affidavit the time that it was the courtroom at close after the state the state court issued affidavit, and in a similar writ- done. In the MAR, upon and were sub ruled Bell's court memorandum, fact con- ten time federal habeas for the first mitted from the record: firms that which obvious support of its review the state motion indictments, was aware He had reviewed the summary judgment, we did not reference unusually mo- vile nature of this child Moore, upon rely e.g., See Wilson them. case, observed the defendant and the lestation denied, (4th Cir.), cert. 272-73 him, discretionary child and made the before L.Ed.2d 160 “partial closure the court- decision (1999) (federal may not take courts necessary child room was to enable minor presented to evidence not into account new testify freely poten- victim to and to minimize court). tial embarrassment and emotional harm Wendy’s nature of read graphic nothing require state law. The Waller would testimony only serves to bolster reviewing ultimate to evaluate the trial that the trial judge the obvious conclusion judge’s solely closure order on the basis acceptable tempo- course in followed and, explicit findings thereby, the factual And, rarily closing the courtroom. al- ignore fully facts of record which support understated, he though perhaps was cer- the decision and belie claim that Bell’s tainly correct when he concluded that the right public actually to a trial was violated “ap- nature the was delicate of reject the urg- closure. We also' parent.” ing that we should no signifi- attribute Waller, Globe, Second, cance the fact that unlike say we cannot that the trial limited, not address a of findings, although temporary court’s other does closure afoul requirement proceedings wise ran of Waller' s that courtroom the testimo- “findings adequate the trial court make ny of a'child victim of sexual Nor abuse.15 Waller, support the closure.” 467 U.S. at controlling Supreme do the other 48, 104 S.Ct. 2210. This requirement cases, have which considered “closure” directly previous from stems the Court’s challenges brought press pursuant by the I, holding, Press that Enterprise the to the First Amendment where the defen- “ overriding along interest ‘be articulated requested dant has closure in order to findings enough with specific that a re protect impartial the to a fair and viewing court determine can whether the I, Press-Enterprise trial. See 464 U.S. ” properly closure order was entered.’ 629; 104 S.Ct. 78 L.Ed.2d Press- Waller, S.Ct. 2210 II, Enterprise 478 U.S. 106 S.Ct. I, (quoting Press-Enterprise 92 L.Ed.2d 1. In a involving long- case 819). 510, 104 S.Ct. We are satisfied that standing sexual abuse of a minor aby we requisite can make the determination member, family judge when the trial has and that the North Carolina court could as obviously particularized amade determina- well. tion appropriate that closure is and has premise,

As an initial that articulated for closing we note the basic rationale courtroom, prescribed particular Waller “findings” no for- additional would mat to which a trial must adhere be little more that a of the statement And, satisfy findings requirement, and certainly say we obvious.16 cannot nature, graphic pur- brought 14. Georgia Given its we see no under the Racketeer Influ- pose discussing precise testimony Corrupt Organizations enced and Act and oth- detail, more which would seem to serve the gambling Although er commercial statutes. type prurient same of interests that the clo- protect for stated basis the closure was to sure was say intended avoid. Suffice it to privacy non-parties of and the admissibili- Wendy upon was called to discuss in law, ty of the evidence under state evi- touchings detail the method Bell's indecént sought protected comprised dence to be less her, rape vaginal and ultimate both and tape than two and one-half hours of and the intercourse, beginning anal she specific privacy state was not as to whose years continuing years. twelve old and for two Thus, infringed. might interests the trial reject We summarily also note that we judge's findings were deemed too broad and upon Wendy, reliance Bell fact general justify complete closure trial, years who was sixteen old at answered hearing. See U.S. at 48-49, questions directed to her the witness 2210. stand, including distressing those of a nature. course, Wendy Of necessary it was to do I, Press-Enterprise 16.In the Court vacated so in order for the state convict Bell. But deny copy press state court's decision transcript certainly does not indicate that transcript jury highly of the voir dire in a Wendy did so stress-free. case, publicized where the voir dire lasted six Waller, findings and propri- beyond the Court weeks the court made no addressed the ety concluding complete seven-day of the closure of a that disclosure would threaten the hearing, admissibility juror's privacy held to address the interests the defendant’s wiretap proceeding impartial other evidence Sixth Amendment fair are if we necessary for a court can unreasonable district it would be to conclude for a tem glean support partial or defendant’s counsel sufficient trial violation based record”); there from the see also porary closure find- detailed upon the absence more Kuhlmann, Brown Osborne, 68 ings. United States Cir.1998) (2d grant (refusing to (5th Cir.1995) (upholding trial alleged relief for an Sixth Amendment the courtroom partial court’s closure of violation, holding even twelve-year-old victim sexual while a are en given where reasons “neither because, despite pauci- assault testified tirely particularly nor compelling, accurate explicit ty findings, court’s findings the strength judge’s the of must [the was able to “infer that trial very evaluated reference the lim partial the clo- eventually ordered court] scope support they of the that ited closure the protect young the victim from sure” to standard, the trial by that [and that] that her public trauma and intimidation adequate”); were findings court’s Woods produce); United testimony would States (2d Kuhlmann, 74, 977 F.2d 77-78 Cir. Cir.1994) (8th Farmer, 32 F.3d 1992) that, despite lack (holding the of (rejecting defendant’s Sixth Amendment fact, the “infor specific findings upon trial public challenge trial based the ... gleaned [from record] mation the exclusion, defen- temporary court’s the support partial, sufficient to tem [was] aggravated sexual abuse dant’s trial trial,” porary petitioner’s closure the spectators than kidnaping, and of all other satisfied); factor but fourth Waller see family during the members of the victim’s Reynolds, Davis v. portion seventeen-year-old of a victim’s Cir.1989) (10th that “specific findings (holding the defendant’s because Waller, diately apparent. opinion, In re the also In our latest trial. As in found Association, significant 946 F.2d the closure "was not South Carolina Press that six-week 1991), (4th upheld actually we the that was sensi- Cir. limited to information protection." deserving privacy complete media from in cam tive and exclusion of the case, Similarly, involving in 464 U.S. at S.Ct. 819. voir in extortion era dire II, legislators, Press-Enterprise charges brought against the Court reversed state transcript of the holding right state court's wholesale denial to a that the defendants’ fair forty-one day preliminary hearing when right of a outweighed the to disclose trial media's court did not demonstrate that already highly publicized state in the information unfair, open proceeding Earlier, would result in one- proceeding. in In re Charlotte Ob publicity prejudice server, (4th Cir.1989), de- which would sided 854-55 right impartial to a fair and trial. fendant's complete change we held closure of "preliminary that such hear- The Court held hearing and venue federal mail wire —in specific, ings be closed unless on ... cannot prosecutions arising from the PTL reli fraud demonstrating findings the record are made gious organization Amend First —violated higher preserve that 'closure is essential to rights public press and because ment narrowly values and is tailored serve court was not con de novo review this specifically, that "there is a sub- interest’ right to a fair trial vinced that the defendants' right probability that stantial the defendant’s prejudiced by publicity, or that clo would be prejudiced publicity to a fair trial will be already highly publicized case sure prevent” closure would and that "reason- And, prevent prejudice. in In re would such adequately able alternatives to closure cannot Publishing Knight Company, 743 F.2d rights.” protect the defendant's fair trial 1984), we held that the com 234-35 Cir. 14-15, (quoting Press- U.S. at 106 S.Ct. 2735 sealing plete and order courtroom closure I, 819). Enterprise 464 U.S. at excising and in the certain records others circuit, prosecution of a Carolina criminal North context of First Our also in the First senator violated the Amendment. challenges state courtroom clo- Amendment sures, findings support judge made no The district requirement find- has reiterated and considered no alternatives ings Press-Enterprise I closure set forth in and Press- Yet, satisfy conflicting interests they II. that would better Enterprise too involved First right a fair challenges to defendant's trial courtroom closures between the Amendment press. rights overriding Amendment where the First cases interests justifying the closure were not imme- Id. reasons trial public was violated in a case a conclusion that victim, involving part a minor sex crime simply was violated because the trial judge made “specific, because the trial failed exhaustively every to recite fact and findings adequate support renewable justified inference which the obvious.18 closure”).17 general case, Under circumstances summary, although the better course are satisfied the record and factual trial judge would have been for the to findings underlying judge’s the state trial made, findings, findings make detailed decision to close the courtroom during conjunction viewed with known cir- Wendy’s testimony are sufficient for us to the, cumstances of case the record determine prop- closure order was developed, provide a sufficient basis for erly entered and that this was not a situa- (the court, reviewing courts the dis- purposes tion where the behind the court) court, trict and this to assess the guarantee in jeopardy. were Bell was propriety of the Clearly closure. estab- subjected proceedings” “secret or to precedent lished governing “persecution” sought prevented to be require appel- courtroom closures does not by public Waller, trial guarantee. review late courts to closure orders in record, 2210; isolation of the nor does it mandate 467 U.S. at n. In S.Ct. re courts, 17. The we many dissent asserts that have afoul run reasoned decisions of it would rejection judicial ignore Court’s of our hold- myopia be of the first order to ing unreasonably in Green that state courts assessing objec- the force of consensus in apply clearly only particular established federal law tive reasonableness in the case.” " they interpret apply or such law 'in a Id. jurists manner that reasonable would all ” unreasonable,' Williams, declined, agree is 18. This court has also 120 S.Ct. in the context Green, 870), § (quoting petition, place by at 1521 F.3d at to undue such citing emphasis explicit findings by from decisions other circuit courts of on made appeal. supported We find have trial court when the facts of record the assertion we improperly upon supportive challenged ruling. the trial relied court’s See Fields circuit Murray, (4th jurisprudence evaluating objec- court 1036-37 Cir. 1995) Fields, (en ). rejected tive reasonableness of banc we the state court decision given allegation surprising, be state court to that the has defendant’s that his dissent upon right arguably contrary self-representation relied Sixth court Amendment to circuit jurisprudence contrary judge's to been violated trial refusal reach conclusion. had to allow him to However, personally we are satisfied does cross-examine mi that Williams prohibition alleged act as against an absolute nor victims of his sexual Not our abuse. use, use, ing protecting or precedent. that the state's child dissent’s of circuit interest abuse from was victims emotional trauma suf Habeas ap relief under the "unreasonable ficiently important outweigh the defen 2254(d)(1) plication" provision § requires right personally, dant’s to cross-examine them we find the state court decision to we declined to find a Sixth viola Amendment objectively light reasonable in simply tion because the court trial failed to jurisprudence, juris not circuit court finding,” "a make more elaborate id. at Williams, prudence. See at 1523. support sup his decision where sufficient And, rejecting jurists” "reasonable port present in the record: being subjective, standard as too the Williams made it clear that federal courts We habeas think it reasonable for the trial court may not base the “on reasonableness decision have on basis concluded of the facts simple that at through fact least one of the Na the[ ] before it that eleven thirteen- jurists applied year-old girls experienced tion’s has the relevant federal who had re- peated law in the emotionally same manner the state did in sexual abuse would be petitioner's they case.” personally Id. 1522. How harmed if were cross-exam- ever, defendant], "suggestf open Williams decision did not ] ined in their [the alleged adequate ] this court make rea We [the abuser. therefore find commandf sonableness] determination in a vacuum.” the trial court's determination that denial of Williams, personal Vick v. Cir. this cross-examination was neces- 2000). objectively sary ... prevent "Where the otherwise emotional trauma to the girls. interpreta reasonable for a state bases court's given precedent tion are common to Id. 499; temporary closure of ed court’s Oliver, cf. recounted the Wendy the courtroom while Lewis, We cannot con- F.2d at 792. attacks repeated Bell’s sexual details of unreasonably state court clude North Carolina’s de- upon her.19 Because claims on Amendment rejected Bell’s Sixth was neither con- regard termination this basis. application of trary to nor an unreasonable law, federal see 28 clearly established IV. 2254(d), deny request Bell’s U.S.C.A. established Having reviewed appealability and affirm for a certificate of precedents which would Supreme Court peti- the district court’s dismissal of Bell’s Sixth Amendment governed have corpus. tion for writ of habeas unconstitutionally de- that he was claim AFFIRMED. public trial —had of his prived appeal it direct pursued his counsel MOTZ, DIANA Circuit GRIBBON court—we appellate the North Carolina Judge, dissenting: issue before us: Was turn to the ultimate guarantees every The Sixth Amendment rejection Bell’s Sixth North Carolina’s how person accused of a crime—no matter claim that his counsel Amendment guilt crime or how clear the ugly the —“the unreasonable, in- and therefore objectively public trial.” speedy effective, pursue failing Const, A trial “en- amend. VI. an unrea- appeal claim on direct itself prosecutor carry sur[es] precedents? application of those sonable responsibly ... and dis- out their duties are that was not. We satisfied Georgia, v. 467 courages perjury.” Waller appeal, appellate Bell’s counsel On direct 46, 2210, 39, 31 104 S.Ct. 81 L.Ed.2d U.S. four of pursue decision to out made the (1984). reasons, these the Su- For as twenty-six assignments of error. Under to a preme recognized, right has Court Strickland, appellate counsel was Bell’s trial is critical to central aim public “[t]he that he presumption decided entitled proceeding” affording criminal of a — to afford likely were most which issues Accordingly, Id. there accused a fair trial. and Bell must demonstrate appeal relief on that a trial will be strong presumption is a pursue not to that counsel’s decision that can public; presumption to the open objective trial claim “fell below an public in “rare” circum- only be “overcome” those light in standard of reasonableness” “the balance of interests stances where Strickland, prevailing professional norms. special care.” Id. struck with [has been] 688, added). For the 45, 466 at 104 S.Ct. 2052. (emphasis 104 S.Ct. discussed, trial, Thus, presiding we cannot previously prior closing reasons to (1) party court unrea- that the say judge that the North Carolina must: determine concluded, rejecting in Bell’s “an over- sonably seeking closure has advanced MAR, likely preju- in to be did not act an interest that is riding that Bell’s counsel (2) diced,” “no a closure that manner when he fashion objectively unreasonable in- protect that necessary claim than to appeal on broader pursue failed to direct (3) terest,” reasonable alterna- violat- “consider public trial was to Bell’s we consider distinguishable from the ones reliance unpersuaded We are also Bell's 19. 520, Jenkins, obviously effect today, had no N.C.App. and Jenkins upon v. State 622, subsequent (1994), upon appellate court’s the state decided after Bell’s S.E.2d post-con- disposition application for appeal, held of Bell’s before his which conviction but Furthermore, question be- closing relief. in the court- viction that the court erred rejection North Carolina's during testimony fore us is whether of an adult victim room light in of making is unreasonable sufficient of Bell’s claim of a sexual offense without facts, precedent, not whether findings support. The which in- prece- properly applied its own alleged to have been state volved an adult woman boyfriend, are dent. raped by former live-in her (4) closing proceeding,” relief in tives North Carolina —the state courts’ adjudication findings adequate support “make of Bell’s ineffective assistance closure.” Id. 104 S.Ct. claim perfunctory, counsel at best. judge’s state trial order stated simply; Ernest Sutton Bell was tried When “The undersigned, having reviewed the County Superior Pritt North Carolina Relief, Motion Appropriate for that it finds January presiding judge upon fails to state claim which relief can press removed the from the is, therefore, granted. be It denied.” courtroom entire This was followed an signed by Order most prosecution critical witness1 the Clerk of the North Carolina Court making findings sup- without adequate to stated, Appeals petition “The filed in Indeed, port such nothing drastic action. 9th day cause of December in the even record evidences that the 1996 designated ‘Petition for Writ of Cer- controlling, recognized Waller as let alone tiorari’ is .” denied “special considered alternatives or took care” be that the closure “advanced sure precedent, “perfunc Under circuit such likely prej- an ... overriding interest tory rejection” a claim constitutes an udiced” and was “no broader than neces- “adjudication” purposes for protect sary that interest.” 2254(d)(1). Catoe, Green v. (4th Cir.2000). appeal, direct On Bell’s counsel failed to See also Cardwell Greene, argue Cir.), that the closure violated the Sixth denied, Amendment trial. On cert. review, (1998); Wright North Carolina courts 142 L.Ed.2d 491 Ange lone, (4th Cir.1998).

summarily, explanation, and without re- 156-57 jected Nonetheless, claim pur- that this failure to we made clear- Cardwell ap- recently sue the Sixth Amendment violation on reiterated in Green: peal constituted ineffective assistance [Bjeeause the state court decision fails counsel. I Because believe the state court articulate rationale its adverse to, holding was “contrary or involved claim, determination of Cardwell’s application unreasonable estab- “application cannot review that court’s law, lished Federal as determined the law,” clearly established Federal but Court,” Supreme respectfully I dissent independently must ascertain1 whether majority’s grant from the refusal to Bell’s the record reveals violation of con- [a petition corpus. for a writ of habeas right]. stitutional Green, 223; Cardwell, 220 F.3d at 152 I. Lee, 339. See also Bacon A federal may grant habeas relief (4th 470, Cir.2000); Baker v. only adjudication peti- a state’s of a Corcoran, 276, 291 n. 14 to, tioner’s claim or contrary “was involved Cir.2000). of, an application clearly unreasonable es- law, tablished Federal as determined the pro- Because North Carolina courts Supreme Court of the United they States.” vided no indication of applied how 2254(d)(1). 28 U.S.C.A. On state habeas federal law the facts of Bell’s constitu- claim, appropriate review—termed a motion tional we must review their decision majority ''700-plus- 1. The long notes that of the which was more than twice as as that of page transcript, spanning days, ap- four witness, prosecution other constituted the proximately forty-four pages comprised the Yet, against most critical evidence Bell. over 156; however, testimony Wendy,” ante at objection, Bell’s closed the days transcript two trial pages and more than 400 during testimony, courtroom this crucial selection, argu- jury were devoted to citing any precedent making without ade- counsel, non-evidentiaiy ment of and other findings. quate testimony, matters. Undoubtedly, Wendy’s articulated in overriding In- an interest standard. under Cardwell/Green find- criminal case must be ings, the trial of a are deed, analysis, we without state court 580-81, Id. at open public.” to the independently but to with no choice left added). (emphasis S.Ct. if a record and determine evaluate the Thus, occurred. constitutional violation Supreme again focused on The Court (1) what law Su- must ascertain ac public’s right First Amendment as to has established preme Court Newspaper to criminal trials Globe cess public trial and right constitutional Court, 596, 457 U.S. Superior Co. v. (2) counsel, “inde- effective assistance (1982). 2613, L.Ed.2d 248 The S.Ct. re- whether the record pendently ascertain (“Globe”) Newspaper unsuccess Globe Co. of these constitutional veals a violation” rape attempted gain access to fully the state court erred whether rights i.e., underage trial in which the victims were — (3) writ, finally deter- denying 2613. females. Id. 102 S.Ct. decision—if errone- mine if the state court request gain access denying Globe’s to, contrary or involves ous—is also trial, cited a state stat trial court of, estab- application unreasonable press requiring ute the exclusion Supreme as determined lished law public during of a and the completely the majority The omits Court. See id. at minor-victim of a sexual assault. part analysis. of this 599, 602, 102 second objected Globe S.Ct. 2613. statute, mandatory arguing closure

A. First Amend that the statute violated its to criminal trials be ment of access prior to eight years at least Since case-by-ease require it did not cause trial, clear and abundant press should of whether determination necessity precedent established be excluded. removing the specific findings before trial. The Court noting from a criminal public agreed, The press which the initially addressed “the circumstances under criminal in the context of the First from a trial in 1980 can be barred limited; justification in Newspapers, In Richmond the State’s Amendment. trial are one.” weighty must be a Virginia, denying access Inc. (1980) held 2613. The Court (plurality L.Ed.2d 973 Id. at 102 S.Ct. “cannot be mandatory court- closure rule trial court closed the that a opinion), the trial, narrowly tailored means of refusing to as a a murder viewed room asserted inter proceedings. accommodating the State’s press to witness the allow Instead, Supreme Court Id. at before the est.” question the court should close press general and the whether a trial whether the case-by- a analyzed of be right Amendment courtroom must public had a First weighs an- in which the trial court trials. The Court case basis access to criminal affirmative, psychological ma age, minor victim’s question the “the swered this the the nature of turity understanding, and are bound to conclude noting that “we victim, the crime, the and in the the desires of penness inheres presumption a of Id. at parents and relatives.” criminal trial under our interests very nature of a omitted). (footnote 573, 608, 102 justice.” Id. at 100 S.Ct. S.Ct. system of 2814. later, 1986, Supreme the years Four addressed a criminal specifically that the trial court Court

The then held Court right to a Amendment Sixth Newspapers’s First violated Richmond defendant’s Georgia, 467 Waller v. public murder trial. See of access to the right Amendment 39, 2210, 81 L.Ed.2d 31 104 S.Ct. during the U.S. by closing the courtroom trial (1984). Waller, court, over the the trial “the trial made proceeding, because closed the court- objection, Absent defendant’s findings support to closure.... hearing room on a motion to B. suppress in criminal ease. See id. at It is clear under prece- Court 104 S.Ct. 2210. Court considered public dent that the removal of the from whether trial court’s closure of the the courtroom specific findings without violated the courtroom defendant’s Sixth supporting the decision violated public to a right

Amendment trial. Ac right public Sixth Amendment to a trial. prior precedents that its con knowledging such, As appellate failure of Bell’s right public cerned the trial under counsel to raise claim constituted inef- Amendment, First the Court nonetheless fective assistance. held can little doubt “there explicit Amendment ac Sixth protective

cused less is no 1. implicit than the First Amendment right of The following colloquy represents press public.” and Id. at 104 S.Ct. only analysis conducted by the state trial thus adopted The Court the follow court before closing courtroom: ing closing standard for a courtroom: “the Judge, PROSECUTOR: And we have party seeking hearing to close the must an outstanding forgot I bring motion overriding advance an interest that is like up earlier that the State had about clos- ly prejudiced, to be the closure must be no ing Wendy the courtroom when at least necessary protect broader than that in or all testify testifies children terest, court mtíst consider rea the appropriate time. to closing proceed sonable alternatives ing, findings and it must make adequate THE objection COURT: Is there support closure.” Id. that motion? added). (emphasis Moreover, S.Ct. sir, Yes, BELL’S COUNSEL: we would findings supporting closure cannot be object to closing courtroom. We id.; rather, general,” “broad and believe impact that would on our client’s closing state’s interest the courtroom constitutional trial. must be with along findings “articulated We oppose would it. specific enough a reviewing court can THE COURT: Well— determine whether the closure order was properly entered.” Id. at I argue PROSECUTOR: would (quoting Press-Enterprise Co. v. Su that is contrary to case in this law state. California, perior Court 464 THE COURT: The is going (1984)) L.Ed.2d 629 allow that motion we’ll do it in the added). (emphasis way possible most discreet so that the Thus, here, particular well relevance jury doesn’t even notice it unless some- trial, prior to Bell’s 1994 one calls else it to their attention. We Waller, precedent Globe, Richmond recess, — can I take a short can excuse Press-Enterprise Newspapers, —clear- jury I tell and can the others —other (1) ly established that: trial court cannot people the courtroom that this is tes- close public during the courtroom the timony an apparent delicate nature. specific, criminal trial without on-the-ree- I anything don’t I wrong see with that. closure; (2) ord findings supporting a am to going allow that motion. may per trial court a not enforce se rule added). (emphasis J.A. 280-81 mandating simply closure of a courtroom because the is a The sup- witness minor-victim a trial court made no findings to sexual assault. port closure courtroom.2 The above, considered, 2. As presiding judge noted because the the record demonstrates that he adequate findings, nothing failed make to

179 excluding trial court’s order the that the testi- The conclusory statement court’s testimony, public from the witness’ with- nature” “apparent delicate mony was an any findings concerning “findings” inquiry out not obviously does constitute specific of the witness the condition reviewing that a “specific enough that are case, essentially equivalent to the is the closure can determine whether court Waller, rejected in legislative blanket closure 467 properly was entered.” order 45, (quoting Newspaper. Globe 104 2210 Press- U.S. at S.Ct. 819). 510, 464 U.S. S.Ct.

Enterprise, 1105, Reynolds, Davis acknowledge to judge The trial failed even (10th Cir.1989). closing the counsel’s assertion defense judge The trial also failed to consider impact constitu- courtroom would Bell’s excluding to reasonable alternatives Indeed, public to a trial. right tional public press from courtroom. anything he judge stated that “didn’t see Waller, 2210. S.Ct. clearing courtroom with- with” wrong however, unsurprising, is because it is This open if an asking the witness out ever difficult to alternatives to solve consider testimony, her courtroom would inhibit Moreover, yet-to-be problem. determined first failing requirement. thus Waller judge’s certainly the trial “solution” was for her He did not ask whether she feared necessary” protect any than “broader Kuhlmann, see, safety, e.g., Woods v. 977 possible could have been ar- interest (2d. Cir.1992) (upholding clo- id., by Wendy, the judge ticulated because judge questioned the wit- sure because the only cleared the courtroom specific if fears of ness to determine testimony, closed the Wendy’s but also credible), or whether she felt threats were opening prior courtroom statements.3 as to warrant the drastic so intimidated result, contrary to established As a Su- see, public, e.g., Guz- banning action of preme precedent, state trial Scully, (finding man 775-76 court violated Bell’s Sixth Amendment public trial violation because the public right by closing court- never the witness whether she felt asked necessary making room without find- intimidated, or whether intimidation ings. presump- to overcome the sufficient trial). open tion anof if a is threat- knowing Without witness public Because Bell’s intimidated, so, why, if ened or violated, clear that equally so it is impossible determine whether pub- failure to appellate counsel’s raise or intimidation is so drastic threat appeal lic rendered his assis- trial issue on removing the

warrant closure or whether The constitutionally tance ineffective. problem. For would even cure assistance of counsel effective instance, Wendy if had indicated that ap- to a criminal defendant’s first extends her, presence removing intimidated Lucey, 469 peal right. as of See Evitts v. not have would alleviated 387, 396, L.Ed.2d inquiry lack of judge’s intimidation. (1985). “special required care” falls far below of counsel An ineffective assistance presumption that court to overcome the counsel’s usually claim has two elements: public. open proceedings should performance must have fallen “below reasonableness,” fact, objective standard of see imagine it is hard to Washington, 466 U.S. close a courtroom Strickland v. grant could motion to (1984), L.Ed.2d 674 manner. perfunctory in more Indeed: or correctly applied, 3. is no indication let the other Waller There alone press ever the courtroom. re-entered factors. 180 probabili

and there must be “reasonable ure to raise the one issue that have would that, ty unprofessional but for counsel’s been a “dead-bang winner” renders his errors, proceeding the result would constitutionally assistance ineffective. See 694, have Id. 104 1508, been different.” S.Ct. Reynolds, Banks v. 54 F.3d 1515 However, (10th Cir.1995) majority (“[A]n as the properly appellate advocate when, here, recognizes, the deficient may performance deliver deficient and performance constitutes structural error prejudice by omitting defendant a ‘dead- component “the prejudice Strick winner,’ bang even though may counsel analysis may presumed.” land be Ante presented strong have but unsuccessful 165, (citing Stenberg, v. 163 McGurk F.3d appeal”) claims on (quoting United States (8th Cir.1998)). 470, Cook, (10th 473-74 See also Ned v. 45 F.3d 394-95 Cir. States, 1, 8, 119 v. 1995)); er United S.Ct. Fagan Washington, see also v. 942 (1999). Thus, (7th Cir.1991) (“His 35 if ap L.Ed.2d lawyer pellate pursue failure to counsel’s Bell’s claim, failed to raise either [meritorious] objec to a fell below an raising instead tac weaker claims.... No reasonableness, prejudice tive standard of tical reason —no reason other than over presumed representation and the is must sight incompetence or or can be been —has constitutionally held be ineffective. for the assigned lawyer’s failure to raise only substantial claims [defen course, appellate Of counsel does not had.”). dant] duty every have a to raise nonfrivolous Barnes, argument appeal, see Jones v. sum, Supreme pre- controlling Court 745, 754, U.S. cedent establishes that Bell’s (1983), petitioner “a L.Ed.2d 987 but may public appellate trial was violated and that constitutionally inadequate per- establish counsel’s failure to raise this claim consti- if he formance shows that counsel omitted tuted ineffective assistance of counsel. significant pursu- while obvious issues ing clearly signifi- issues that were C. Henderson, cantly Mayo weaker.” only question remaining The is whether Cir.1994). (2d appel- When the North clearly Carolina courts’ incor- late counsel fails raise issues that are rejection rect of Bell’s ineffective assis- “clearly than stronger presented,” those to, “contrary tance counsel claim was presumption that counsel rendered ef- of, application involved unreasonable fective will assistance Gray overcome. law, clearly established Federal as deter- Greer, Cir.1985). mined Supreme Court.” within, As prior demonstrated well 2254(d)(1). U.S.C.A. trial, Supreme Bell’s 1994 precedent required that express trial courts on-the- Court has instructed findings closing record before a courtroom. “contrary state court decision is ... Moreover, law, this not clearly a case where trial established Federal as deter- object counsel appellate failed to coun- mined United States,” sel required plumb the record if the state court “arrives at find the unconstitutional closure and con- conclusion opposite to that reached th[e tend law,” that the plain Supreme] question closure constituted er- Court on Here, ror. properly Taylor, trial counsel did Williams v. 529 object violation, (2000). 1495, 1523, to this clear constitutional 146 L.Ed.2d 389 A and yet appellate counsel still did find state court decision involves an unreason- important application issue enough brief. In- able fed- established stead, appellate counsel chose assert eral law if the state court “identifies evidentiary challenges governing that had no likeli- legal principle th[e correct from Appellate Supreme] hood of success. counsel’s fail- Court’s decisions but unreason-

181 opposite metrically to the principle to the facts conclusions ably applies that by Supreme Id. reached Court Waller.4 prisoner’s case.” course, course, case, unlikely, not it simply although we do Of seems In this (if may courts “identi- legal principles what the state habeas have governing know governing legal principles” courts’ fied the correct any) the basis the state formed controlling Supreme precedent assistance from Court rejection of Bell’s ineffective (Waller, Globe, why they Newspapers, We not know conclud- Richmond claim. do Press-Enterprise) Bell’s and concluded that that trial ed closure prosecution complied crucial the state court had with of the most witness, principles. improbable those This seems any without indication factors even been in view of the fact that the State never required Waller had considered, correctly analyzed, argued alone state habeas review that let Waller, error trial court’s accorded with did not constitute obvious reversible closure Globe, by any Newspapers, com- Richmond Press-En- that should have been raised Supreme or petent appellate terprise, prece- counsel. The North Car- other provide reasoning If the habeas cho- any olina courts did not dent. state courts had principle prece- rely argument or on an made single legal or cite sen never state, dent, likely it Supreme precedent, they let seems would alone thought support of their decision. have the issue worth more than perfunctory assuming denial. But —even suggests that the North Car record though there is no evidence this oc- likely legal prin followed olina'courts most habeas did curred —that the state courts contrary mandated ciples directly to those identify the governing legal princi- correct Bell’s opposing Court. ples, I believe that their denial of Bell’s trial, objection at as to closure the State petition ap- habeas “unreasonable grant refusal the closure serted that of, plication Federal established “contrary to would be case law'in law, by the Supreme as determined Similarly, opposing state.” Court.” relief, petition for habeas the State state recognize every I deci heavily Burney, relied on State 302 N.C. that not incorrect 537, 693, (1981), unreasonable, Williams, 529, pre- see 120 sion S.E.2d in which the state court con at and that federal habeas Waller case S.Ct. “fash its own simply cluded defendant could not court cannot substitute of the court. support judgment ion for a sixth amendment claim state Rather, case, in a uphold from a which has manifest first “close” must case if underpinnings” disagree court decision even we amendment state Catoe, event, any closing Tucker v.. proceedings with the outcome. See error (4th Cir.2000) (denying If was “harmless.” the state courts based though of these on a issue” even their decision on either both “close incorrect). rationales, certainly court was See also Fran then their decisions state (2d Stone, “clearly Feder cis v. Cir. contrary are established 2000) law, court (upholding state habeas denial al as determined 2254; question,” see a “close even Court.” 28 U.S.C.A. because Williams, might at so well have been though 1523. This is wrong). dia- because both of these rationales are specific expressly prove prejudice in to obtain In Waller the Court held "there order public-trial guaran- explicit can be doubt Sixth relief for violation of tee,” little thus, way less "the harmless error rule is no Amendment accused is no great, though intangible, protective implicit gauge societal of a than the closing' pub- press First loss that flows from courthouse Amendment lic,” & and that Id. n. 104 S.Ct. doors.” (internal omitted). quotation required "the marks defendant should

182 surely, just

But as when a state court A. its provide fails to rationale for deci- Puzzling, majority because the at- never sion, independent and when our mandated tempts an essential of part analysis, review of reveals the con- the record that i.e., independent an determination of ques- was not a stitutional violation close whether Bell’s appellate counsel was tion, duty it to correct an unrea- is our constitutionally fact ineffective. application Supreme of sonable Green, 223; Cardwell, example, Delgado v. F.3d at precedent. For Lewis, Instead, Circuit’s examination of at 339. majority simply Ninth F.3d “im- a state court denial of habeas was cites Strickland and concludes that ... for peded [the because rationale state courts’ denial Bell’s of ineffective as- supplied.” was court’s] state conclusion claim contrary sistance was “neither to nor (9th Cir.2000). 223 F.3d The an application unreasonable of es- federal court reversed the state court de- tablished federal Ante law.” at 175. The firm, cision because it had “a definite majority engages independent in no deter- error com- ha[d] conviction an been erred; of mination whether the state courts mitted.” Id. Van v. (quoting Tran Lind- error, only a conclusion if there was (9th Cir.2000)) sey, 212 F.3d not directly was unreasonable. This con- added). (emphasis tradicts mandate that Cardwell/Green

The of constitutional ineffectiveness “independently we ascertain whether appellate Bell’s counsel is not a close issue. record reveals a violation of [a constitu- There of a rea- was “no semblance tactical Green, 223; right].” tional 220 F.3d at pursuing for son” not Cardwell, 152 F.3d at 339. Smith, Washington claim. majority does contend to (7th Cir.2000). 620, 630 Bell’s counsel Rather, contrary. response my sug- arguments appeal,

raised four none of recent, gestion that it has failed to follow possessed the strength which obvious directly precedent, controlling circuit Indeed, disput- trial violation. majority ing simply precedent.5 overrules that judge’s evidentiary discretion rather complete I appealing disregard Although recognize, than his the en banc the mandates on a can destroy pre- court create circuit hardly matter of constitutional law is chooses, as it I cedent believe that action reasonable counsel. Because the majority’s today action unwise. There clear, constitutional state violation reason, except expediency, reject is no summary courts’ dismissal Bell’s habeas practice the well-established petition “objectively was an unreasonable” court—followed all of our active application of law. federal every including member to- judges, majority-of making day’s independent an II. determination of whether a constitutional evaluating has violation occurred I find the ma- puzzling unconvincing a summary whether court state decision jority’s holding that North re- Carolina’s an application” “involved unreasonable jection objectively of Bell’s claim was not 2254(d). § unreasonable. law federal under See Goins (4th Cir.2000), agree majority language I recognized with the that the 214 F.3d 463 seemingly requiring Cardwell novo re de although "de review novo a federal view AEDPA. cannot be reconciled with the inappropriate court remains under course, any way require Of this does not in 2254(d),” summary adjudica- practice disavowal of our well-established "independently tion forces us to ascertain initially making independent determina the record a violation.” Id. whether reveals tion as to a state court whether decision (internal omitted). quotations at 477 Indeed, Angelone, erroneous. in Barnabei v. in the long they engage claims as “also” Angelone, Cir. 2000) “cor AEDPA reasonableness determination. state court (finding and, Moreover, just term the rejected by defini last rectly th[e] claim tion, Court itself addressed an AEDPA claim its was not unreason conclusion Lee, able”); evaluating whether state court Bacon v. first (4th Cir.2000) erroneous, only after con- (concluding that counsel decision was not, holding cluding thus the that was that the was not ineffective and state unreasonably applied state court had not not “unreason court habeas denial was 2254(d)); Catoe, Angelone, federal law. Weeks v. 528 U.S. Tucker able” under (4th Cir.2000) 727, 734, (finding 120 145 L.Ed.2d 727 614 S.Ct. (2000). Tran, error, also 212 F.3d at concluding but nonetheless that the See Van unreasonable); (requiring 1155 courts to first de- was not Bar federal state court (discussed nabei, 214 469 at termine whether the state court’s decision F.3d at infra 5); Corcoran, “promotes clarity was because it erroneous n. Baker (4th Cir.2000) jurisprudence that a in our own constitutional (concluding jury provides guidance and an ineffective and also for state instruction was correct merit, courts, can for was which look to our decisions assistance claim without value.”)6 persuasive did un their thus the habeas court not state reasonably law in apply denying federal AEDPA, federal courts have Under writ); Cardwell, 152 F.3d at 339. perfunctory reversing no even business are state that “close” to habeas decisions Indeed, has twice Tucker, A the mark. 221 F.3d at 614. recently indicated our well-established must, however, find the mark federal court Williams, is In while not practice proper. state court fails to do so question, the addressing this exact Court’s summary At some issuing a decision. appro- is the language suggests ours point judicial process, person in the even a priate methodology. The Court instruct- rig- a convicted of heinous crimes deserves ed: complete analysis orous and his consti- 2254(d)(l)’s appli- “unreasonable Under If provides court tutional claims. no state clause, then, cation” a federal habeas this falls to analysis, such task the federal may court not issue the writ simply A conclusion that a case summary courts. in its because that court concludes inde- “close,” more, without does not afford is pendent judgment the relevant opportu- full and fair petitioners habeas a applied clearly state-court decision es- nity claims diligently to have their habeas erroneously law in- tablished federal cases, many considered. issues Rather, application must correctly. fact, inmay, show appear “close” first also be unreasonable. wrong an ex- clearly after themselves Williams, (emphasis add- S.Ct. review. acting ed). recognized The Williams Court thus appropriateness say of federal That is not that federal courts may analysis independently analyzing courts asserted substitute their for noted, approach reaching “clearly without the an- 6. As Van Tran established” only question); County is one consistent with Sacramento v. tecedent clarification, analogous Lewis, Court’s recent in the n. qualified immunity, area of a court (“[T]he (1998) ap- before 140 L.Ed.2d better employee may whether a decide stale violated proach resolving cases ... is to determine “clearly right a constitutional lished,” that was estab- depri- plaintiff alleged first whether the has it "must” decide whether constitu- right at all. Nor- vation of constitutional place. tional was violated in the first only mally, a court ask it is then that should 603, 609, Layne, Wilson v. right allegedly implicated was whether (1999) (holding 143 L.Ed.2d 818 that it established at the time the events improper simply to dismiss a claim question.”) concluding that a constitutional But, process in the al provide findings decision. eval- court did not justifying violations, uating federal constitutional ha- closure. themselves, satisfy beas courts should majority source provides sole court, reviewing petitioner and the that a suggestions for its the trial judge’s as to “close,” “close” was in fact issue and a But, pretrial is a hearing. “awareness” decision, state court no matter how curso- hearing. witnesses testified at this What- ry, was reasonable. ever information judge gleaned the trial It me majority’s seems to that the care- from it based entirely prosecu- ful question avoidance whether argument; surely tor’s lawyer’s argu- contrary the state courts’ decision was to ment not provide satisfactory does basis establish federal constitutional law can assessing guilt, denying or a implicit only explained recog- be as at least trial. by Nor does an affidavit filed the appeal nition that counsel’s failure the trial, state judge, years trial four after the trial blatant violation violat- provide a basis for the Tellingly, closure. obviously ed federal law. This undermines affidavit, in this judge merely the states majority’s the conclusion that the decision Wendy that he observed was under objectively

was nonetheless reasonable. eighteen gives assurances he took all, After the North courts Carolina enun- the embarrassment and emotional well-be- ciated no reason for their decision and ing in of the child into account deciding from be gleaned what can from the record close the courtroom. Not even in this likely they this most was because were judge after-the-fact statement does the as- unfaithful Supreme to well-established sert that “an interest overriding likely precedent. Court State courts should not prejudiced” compelled the he closure be allowed to insulate by their decisions “implicit” ordered or that he findings made reasoning. their failing express supporting the closure. Waller, in significantly, Even more the B. Supreme rejected expressly Court majority attempts The to obscure the express view that the failure to make find- clear and unreasonable ineffectiveness of ings by can be corrected hoc post analysis appellate by portraying counsel Waller, of the record. See 467 U.S. at 49 judge’s courtroom as a “prop- closure (“The post n. hoc asser- majority er” decision. The offers two tion Georgia Supreme Court that grounds portrayal. for this Neither is con- petitioners’ the trial court balanced vincing. to a public hearing against privacy principally, majority rights satisfy First and con- of others cannot the deficien- record.”). Indeed, place structs a new record to take the cies in of the trial court’s Thus, the missing findings. majority Waller made clear that trial courts must in findings “specific enough recounts some detail what the state make that a re- judge viewing was “aware of’ or “made aware of’ court can determine whether the “possessed.” or properly “information” that he closure order was entered.” Id. may may Ante at 170-72. This majority’s or not be 104 S.Ct. 2210. The anal- so; ysis what simply do not know the trial turns Waller its head. Under the majority’s of and long- was aware what information a trial court no reasoning, possessed. he More importantly, specific findings we do er has to make so that an how, all, appellate not know if at can properly matters which he court review those instead, possessed” was he findings; appellate “aware” or “information court can figured in his decision to close court- now correct the errors of the trial court because, post room. not contrary relying judge’s justifi- We do know on the hoc Supreme precedent, to clear Court cations own creating “findings,” the tri- or its complete cases involved closures a considering evidence Court albeit without courtroom, present case single a witness. while involves viewing fact, a only “partial, closure.” But aof majority’s post hoc creation The “partial dealt with a clo- of a court- support the closure record of a courtroom Press-Enterprise, sure” violating the also the effect of room has There, 104 S.Ct. 819. Globe, which holding Court’s days three of a voir dire six-week were a prohibited per a se closure of courtroom public, open the remainder of minor-victim of id. proceeding was closed. See court never sexual assault. As the trial thus proceeding “partial closure” personally Wendy’s evaluated majority’s analysis. under the The Su- inquired why into she could mind or preme required nonetheless “find- court, open only it could have testify ings specific enough reviewing upon general nature its decision based can determine whether the closure order alleged age crime 510, 104 properly entered.” Id. at decision on To base closure witness. Accordingly, S.Ct. 819. the Court held pres- characteristics are general these petitioner’s First Amendment all child abuse crimes is virtually ent in violated, access to a criminal trial was A case-by-case inqui- se apply per rule. “a because there had been failure to artic- in- ry actually to requires the court specifici- findings requisite ulate with the into a witness would quire why particular ty.” major- Id. at 819. The in difficulty testifying a encounter ity’s “partial closure” distinction thus finds courtroom. support precedent.7 in Court Supreme findings Requiring explicit on-the-record formality. re- meaningless a This not majority attempts The to buttress also quirement weigh forces trial courts “partial by relying its closure” distinction supporting opposing and closure evidence support from on decisions other circuits fashion, thereby ensuring in a systematic express findings the notion that are not per- that are not closed after courtrooms always necessary dealing with some functory dismissal of a defendant’s Sixth “partial ante at closures.” See 172-75. majority’s rights. Amendment Under majority apparently The believes that however, a court not analysis, need North decision cannot be “un- Carolina’s make an individualized determination if the reasonable” under the AEDPA deci- Rather, necessary. majority closure is in law support some case from sion finds a close the court- would allow trial court to other circuits. a rationale echoes Such every minor- room rejected by specifically the Su- reasoning a ex- victim of sexual assault without preme There Court Williams. press findings supporting closure. it made clear that federal “[t]he Court in- finding habeas court should not transform the majority’s other reason for subjective its “unreasonably by resting one quiry that the state courts did not into simple ... fact that reject” Bell’s is that the instant case determination on claim has “partial jurists clo- one of the Nation’s assertedly only involved at least applied con- federal law in the majority Ante at 172-75. The the relevant sure.” it did in the was not unreasonable same manner the tends 1521-22. apply princi- petitioner’s fail case.” Id. at North Carolina to every if had held that ples Supreme Even some circuits so articulated proceeding an entire precedent because the closure of less than portion Press-Enterprise was more of the trial —the testimo- 7. While the closure in critical case, witness, key prosecution ny whose testi- extensive than the closure in this more ju- mony necessary prospective to secure a conviction only involved the voir dire of charged. while a far for the rors the closure here involved offenses closure, partial and that specific witness, constituted such knew of no threat to any partial justified be closures do need to his nothing based decision on more such by express findings, holding “apparent than would delicate nature” of the it directly testimony. still unreasonable because See also United States Gal precedent, Cir.1991) (in loway, with conflicts 937 F.2d very Bell’s, i.e. Press-Enterprise.8 case similar reversing remanding to district court for further course, anything Of no circuit has held closure). findings regarding partial Con Rather, kind. even in those cases sequently, it is clear to a relies, majority heavily on so which public trial was violated and counsel’s fail have only courts either ordered removal of pursue argument ure to appeal family, of the defendant’s see members undeniably ineffective assistance. Osborne, United States (5th Cir.1995) (ordering only removal III. allowing spec

defendant’s sister all other including tators other relatives the de If Ernest Sutton Bell committed the court); fendant remain Woods v. ugly against him, charged crimes he merits (2d Cir.1992) Kuhlmann, stern punishment. But no matter how (permitting only exclusion of members of crimes, they dreadful his do not entitle a family during one defendant’s witness’s deny state to his constitutional of, testimony), or required findings or at trial, as North Carolina did. When of, knowledge a specific least some threat appellate Bell maintained his counsel witness, testifying order to bar provided ineffective in failing assistance press public. Ayala v. Speck argue, rejected so North Carolina courts (2d Cir.1997) (en ard, 64-65 his explanation. rejec- claim without That banc) (closure permitted of courtroom to, tion contrary was either or involved an protect security police of undercover offi application, unreasonable estab- issue); cers on the hearing after United lished law determined Farmer, States Court. Accordingly, petition Bell’s for a Cir.1994) closure (upholding because there writ of corpus granted. should be was evidence record that the defen Judge joins MICHAEL this dissent. dant had threatened the victim/witness who feared retaliation defendant BUTZNER, Senior Circuit Judge, family). and his dissenting: contrast, totally trial was Bell’s closed I dissent the reasons Bell stated in during of the most crucial Jarvis, (4th Cir.1999). prosecution witness; neither the nor press was allowed to remain to safe- guard proceeding.9 the fairness

Moreover, judge hearing, trial held no witnesses, findings, made questioned no (1994). beyond 8. To extent governing that we should look precedent Jenkins was Supreme (and precedent under the AEDPA appeal, North time Carolina at the of Bell’s not), application we should of Su- making beyond any appel- it clear doubt that preme precedent by the North Carolina late counsel’s future to raise the Appeals substantially pro- Court of has more argument was indeed failure to raise a bative value than decisions other federal and, therefore, "dead-bang winner” ineffec- circuits. And the North Carolina Court of Banks, tive assistance. See Appeals required express, has on-the-record findings allowing "partial before a testimony closure” of complaining 9. The allowed wit- courtroom of victim remain, Jenkins, family certainly ness’s but of a did sexual assault. See State v. 520, 525, N.C.App. protect nothing 445 S.E.2d fair trial.

Case Details

Case Name: Ernest Sutton Bell v. Mack Jarvis Robert Smith

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Dec 29, 2000

Citation: 236 F.3d 149

Docket Number: 98-7002

Court Abbreviation: 4th Cir.