Lead Opinion
KETHLEDGE, J., delivered the opinion of the court, in which COLE, C.J., joined, and GRIFFIN, J., joined in the result. GRIFFIN, J. (pp. 405-09), delivered a separate opinion concurring in the judgment. ■
OPINION
John Drummond killed a three month-old girl when he fired an assault rifle at her home. An Ohio jury convicted Drum-mond of murder and sentenced him to death. The Ohio Supreme Court affirmed. Drummond thereafter sought federal ha-beas relief, which the district court granted on the ground that the trial court had violated Drummond’s Sixth Amendment rights when it partially closed the courtroom for the testimony of three witnesses during his trial. A divided panel of this court affirmed, but the Supreme Court vacated our decision and remanded the case for reconsideration in light of White v. Woodall, — U.S. -,
I.
Our prior decision recites most of the relevant facts. See Drummond v. Houk,
The trial court also limited Drummond’s ability to cross-examine three other witnesses for the prosecution: Nathaniel Morris, Dean Thomas, and James Rozen-blad. Drummond sought to ask each of those witnesses about criminal charges that were either pending against them or had previously been dismissed. The trial court barred those questions, however, because the witnesses had not been convicted of any of the charges.
The jury ultimately convicted Drummond of aggravated murder, among other crimes, and sentenced him to death. The Ohio Supreme Court affirmed on direct review. State v. Drummond,
Drummond then filed a habeas petition in federal district сourt, arguing that the partial closure violated his right to a public trial; that the trial court violated his rights under the Confrontation Clause by limiting his cross examination of Morris, Thomas, and Rozenblad; and that his attorney was constitutionally ineffective during the penalty phase of the trial. The district court denied relief on Drummond’s ineffective-assistance and Confrontation Clause claims, but granted a conditional writ of habeas corpus based on his public-trial claim. Drummond v. Houk,
We affirmed, holding that the Ohio Supreme Court had unreasonably applied the holding of Waller v. Georgia,
II.
Under the Antiterrorism and Effective Death Penalty Act, a court may grant habeas relief only if the state court’s adjudication of the petitioner’s claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United StatestJ” 28 U.S.C. § 2254(d)(1). In Woodall, the Supreme Court made clear that “relief is available under § 2254(d)(l)’s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no fair-minded disagreement on the question[.]”
A.
Unlike this case, Waller concerned a full, rather than partial, closure of the courtroom to the public. (By full closure we mean a closure where the entire public, including the media, is excluded from the courtroom.) But the Supreme Court began its analysis by stating a general rule ' that applies to any type of courtroom closure, to wit: a trial court must balance the interests for and against closure. See
But Waller also laid down a cluster of more-specific rules — “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closurе” — that the Court held were applicable to the full-closure at issue there.
Drummond’s arguments are by no means frivolous, as our decision tоday in a direct-review case makes clear. See United States v. Simmons, — F.3d - (2015). But Drummond’s case comes to us on habeas review rather than direct. Per the Supreme Court’s precedents, therefore, the relevant question is not whether we agree with Drummond’s arguments, but whether any “fairminded jurist” could disagree with them. Woodall,
Drummond’s arguments are ■ premised on the assertion that we should extend Waller’s more specific rules — in their entirety, with no alteration — from the full closure at issue there to the partial closure at issue here. What was not obvious at the time of the Ohio Supreme Court’s decision, however — and thus not сlearly established for purposes of the habeas statute— is whether and how these more specific rules apply in cases, like this one, where some spectators but not all are removed from the courtroom. The Supreme Court’s caselaw does not clearly establish, for example, whether in such cases the trial court must identify an “overriding” interest favoring closure, as in Waller, or instead only a “substantial” interest, as some circuit courts havе inferred, or perhaps even some lesser interest. Likewise unclear — and thus not clearly established — is whether the closure, must be “narrowly tailored,”
Woodall itself provides some parallels. That case concerned the so-called “no-adverse-inference rule,” which the Supreme
The same reasoning applies here. Just as in Woodall, the factual context in the relevant Supreme Court cаse and the petitioner’s case are meaningfully different: Carter involved the guilt phase, Woodall the sentencing; Waller involved a full closure, Drummond a partial one. And for the reasons discussed above, “there are reasonable arguments,” id., that Waller does not apply to partial-closure cases in the wholesale manner that Drummond says it does. The only principle from Waller that was clearly established for purposes of the partial closure here was the general one that the trial court must balance the interests favoring сlosure against those opposing it. The Ohio courts applied that principle; and they did so reasonably, in the capacious sense of “reasonable” as used for purposes of the habeas statute. The Ohio Supreme Court’s application of Waller to Drummond’s case therefore was not unreasonable within the meaning of the habeas statute, which means that he is not entitled to relief on this claim.
B.
Drummond also argues that the trial court viоlated his rights under the Confrontation Clause when it barred him from cross-examining Morris, Rozenblad, and Thomas about pending or previously dismissed criminal charges. But so far the Supreme Court has recognized a defendant’s right to cross-examine a witness about criminal charges only in one circumstance: when the government has agreed to give the witness favorable treatment in exchange for his testimony. Delaware v. Van Arsdall,
C.
Finally, Drummond argues that he is entitled to relief because his attorney was constitutionally ineffective. Specifically, Drummond says that his lawyer should have interviewed Drummond’s hаlf-brother, Michael Brooks, and called Brooks to testify during the penalty phase of the
A defense lawyer need not interview every member of a defendant’s family when gathering mitigation evidence. Bobby v. Van Hook,
Here, Drummond’s lawyer retained an investigator and a psychologist to seek out mitigation evidence. And Drummond’s lawyer himself obtained evidencе that Drummond was unsupervised as a teenager, that his parents divorced when he was 14, that he stayed with his father, until they had a falling out, that he later moved in with his half-brother, that he had failing grades, that he dropped out of school, and that he joined a gang. Thus, the decision of Drummond’s defense counsel “not to seek more mitigating evidence from the defendant’s background than was already in hand” — by interviewing Drummond’s half-brother as well — “fell well within the range of professionally reasonable judgments.” Id. at 11-12,
Moreover, Brooks’s affidavit merely recites facts about Drummond’s background that the jury already knew. Drummond therefore cannot show a reasonable probability that, if Brooks had testified, the jury would not have sentenced him to death. The district court properly denied relief on this claim.
The district court’s conditional grant of the writ of habeas corpus is reversed. The district court’s judgment is otherwise affirmed.
Concurrence Opinion
concurring in the judgment.
CONCURRING IN THE JUDGMENT
In the seminal case In re Oliver, the Supreme Court granted a petition for a writ of habeas corpus and held that the' Sixth Amendment’s guarantee of the right to a public trial applied to the states through the Due Process Clause of the Fourteenth Amendment.
This nation’s accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage. The exact date of its origin is obscure, but it likely evolved long before the settlement of our land as an accompaniment of the ancient institution of jury trial. In this country the guarantee to an accused of the right to a public trial first appeared in a state constitution in 1776. Following the ratification in 1791 of the Federal Constitution’s Sixth Amendment, which commands that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial * * * ” most of the original states and those subsequently admitted to the Union adopted similar constitutional provisions. Today almost without exception every state by constitution, statute, or judicial decision, re*406 quires that all criminal trials be open to the public.
Id. at 266-68,
Writing for the Court,. Justice Black elaborated on the reasons for, and importance of, the right to a public trial:
The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, аnd to the French monarchy’s abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty. In the hands of despotic groups each of them had become an instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our sociеty, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.
Id. at 268-70,
In the present ease, Ohio death-row inmate John Drummond petitions for the Great Writ of Habeas Corpus
In a 4-3 decision, the Supreme Court of Ohio rejected Drummond’s Sixth Amendment claim and affirmed his convictions and death sentence. The three dissenting Justices would have reversed on the grounds that Drummond’s structural right to a public trial was violated. In dissent, Chief Justice Moyer, joined by Justices Pfeifer and O’Donnell, wrote in pertinent part:
As to the first Waller factor, there is little evidence that courtroom security and witness safety justified closing the courtroom on February 4.
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As to the second Waller factor, the majority emphasizes that closure was no broader thаn necessary because the courtroom was closed only during the testimony of Thomas and Morris, and Rozenblad’s cross-examination. However, Thomas, Morris, and Rozenblad were key prosecution witnesses, and their testimony was crucial in securing Drum-mond’s conviction.
Drummond’s family members were not allowed to remain in the courtroom dur*407 ing closure. Defense counsel requested that Drummond’s family members be allowed to remain in court to provide support for the defendant. Despite this request, the trial court expelled from the courtroom all spectators except for news reporters. The Supreme Court of the United States has specifically emphasized the importance of allowing members of a defendant’s family to remain in court. See In re Oliver (1948),333 U.S. 257 , 272,68 S.Ct. 499 ,92 L.Ed. 682 ; see, also, State v. Washington (2001),142 Ohio App.3d 268 , 272,755 N.E.2d 422 (“The state bears a heavy burden when seeking to exclude relatives of a defendant from trial”). The record provides no justification for excluding family members from the courtroom. No evidence was presented showing that any family members posed a risk of disturbing the court or threatening any of the witnesses or jurors.
* * *
Third, nothing in the record shows that the trial court considered other reasonable alternatives to closing the courtroom, as Waller requires.
Fourth, regarding the final Waller factor, the trial court failed to make findings adequate to support the courtroom closure.
Here, the record contains little information to aid a reviewing court in determining whether the trial court’s order was reasonable and necessary.... These matters may have been considered by the court during a sidebar discussion, but no such discussions were included in the record, as Waller requires.
Key prosecution testimony was presented while the courtroom was closed. Thus, the trial court erred by failing to make specific findings before closing the courtroom.
I would reverse Drummond’s convictions and death sentence becаuse Drummond was denied his Sixth Amendment right to a public trial.
State v. Drummond,
In this regard, Drummond’s case is similar to, but more egregious than, Presley v. Georgia,
Significantly, the Presley Court reiterated that the First Amendment right of the press to observe criminal trials was previously decided in Press-Enterprise Co. v. Superior Court of California, Riverside County,
In the present case, had the trial judge excluded both press and public spectators, we would likely be addressing not only a Sixth Amendment сlaim under Waller, but also a First Amendment challenge applying Press-Enterprise.
The Warden attempts to justify the public trial deprivation and Waller violation on the grounds that the trial closure at issue was a “partial” public closure, only, rather than a complete public closure. The Warden relies on Woods v. Kuhlmann,
First, the Supreme Court has never recognized the partial-versus-total closure distinction. In my view, the holding of Waller applies to both. See generally Johnson v. Sherry,
Finally, even if a modified Waller test applied, the state trial judge failed to apply it and, for the reasons stated in our previous opinion, the attempt by the four-Justice majority of the Supreme Court of Ohio to reconcile a modified Waller analysis with what occurred in the trial was erroneous.
Nonetheless, by application of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, Drummond is entitled to habeas relief for his constitutional violation only if the decision of the Supreme Court of Ohio was “objectively unreasonable.” Wiggins v. Smith,
This case is close to an “extreme malfunction!; ]” in the state criminal justice system, Harrington v. Richter,
However, following our decision, on petition by the Warden for a writ of certiorari, the Supreme Court vacated our judgment and remanded “for further consideration in light of White v. Woodall,” — U.S. -,
In the present case, however, the refinement of the holdings of Carter v. Kentucky and Estelle v. Smith is not at issue. Accordingly, we must assume that the remand in the present case was directed at the AEDPA standard of review language contained within the majority opinion. That language, and the Court’s later admonition in Woods v. Donald, — U.S. -,
In light of AEDPA’s considerable restrictions of federal court review of state court judgments, and the decision by the Supreme Court to vacate our previous judgment, we are compelled to reverse the district court and deny Drummond’s petition for a writ of habeas corpus. The judgment of the Supreme Court of Ohio was erroneous, but not objectively unreasonable, i.e. not “beyond any possibility for fairminded disagreement.” Harrington,
Notes
. The framers of our Constitution acknowledged the fundamental importance of the Great Writ when they provided in Article 1, Section 9: "The Privilege of the Writ of Habe-as Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."