Johnson v. Sherry

KETHLEDGE, Circuit Judges.

CLAY, J., оpinion delivered the court, COLE, J., joined. which KETHLEDGE, 448-50), (pp. J. delivered separate dissenting opinion. OPINION CLAY, Judge. Circuit (“Johnson”) Petitioner William Johnson appeals the district judgment deny- attorney ineffective corpus for a of habeas and that his petition writ On the court- appeal, to 28 U.S.C. to the closure of pursuant violated his he Sixth room. an order stat- argues This Court entered right a trial when it to that ing Amendment the claims certified the public from the courtroom excluded the district court would heard. jury of trial that his and

during portions to Amendment effective his Sixth B. Facts Substantive violated his of was when assistance The of Michigan Apрeals Court outlined attorney object to clo- trial failed to the underlying the convictions facts follow, that sure. For the reasons we as follows: the judgment district VACATE evidentiary REMAND an court and for convictions arise from the Defendant’s hearing. shooting fatal of Davis and non- Carlos Mathis, shooting fatal assaults of James BACKGROUND

I. Larry Lewis and Robert Richards out- side a hall Hamtramck on dance History A. Procedural shootings March 2002. The occurred January jury a On convicted after per- the victims and other several degree of one count of second Johnson large sons left the hall after a brawl Michigan Compiled murder violation of among Only broke two partygoers. out (“MCL”) 750.317; § three counts of Laws persons, Robert Richards and Damon with intent to commit murder assault Ramsuer, reported seeing the shooter. 750.83; § possession of MCL and violation police Richards told the that he saw of the commission of a during a firearm shooter, gave and he a detailed de- in violation felony of MCL 750.227b. scription clothing. police of his The ob- to pris- Johnson was sentenced concurrent tained a hired photographs taken sixty years thirty-five on of terms out, photographer fight before the broke twenty forty murder conviction and photographs and showed the to Rich- convictions, years for the each assault ards, who identified defendant as the two-year a be served consecutive to term one of photographs. shooter from felony for the firearm conviction. pre- Richards identified at the [Johnson] timely filed a motion for a new Johnson examination, liminary Richards was but requested evidentiary hearing, trial and an pre- killed His before defendant’s trial. His but his motion was denied. convic- testimony liminary examination appeal, were affirmed on direct and tions jury] read [to the trial. Michigan Supreme Court denied his Ramsuer, The appеal. police for leave to Johnson also interviewed application declaring who timely petition signed filed a for a writ habeas a statement in the District he shooter. also iden- corpus United States Court saw the Ramsuer party photo- tified from the for the Eastern District and defendant graphs. appear Ramsuer petition February denied on failed his preliminary a When he timely filed notice of examination. trial, seeing for a he along request with a certifi- testified at denied appeal, (“COA”) shooter, telling that he appealability police on denied cate of numerous shоoter, making saw granted par- The district court denied issues. im- COA, certifying prosecutor Johnson’s claims that identification. tial statement, peached signed his him with the denied he was defaulted, with the of the officer procedurally provid- claim was following explanation: took the statement.... who case, Respondent’s this procedural [I]n trial, prosecutor At the start argument upon default is not based de- specta- to close the courtroom to moved object, fendant’s failure to based pros- tors consent, counsel, upon through Lewis, witnesses, Mathis, ecution Respondent argues courtroom closure. Ramsuer, testify who were afraid to acquiescence constituted a explained prosecutor publicly. of this waiver claim. The Court finds other two had that Petitioner right waived his to a suspicious killed under circum- been by public acquiescence, trial his through bed, in stances: Richards was killed his attorney, his to the closure. Elvin Robinson killed before (R. 1602.) at The district court also ex- preliminary the examination. Defense alternative, the plained, in claim that the agreed spectators counsel to exclude for on the would fail merits: witnesses, the these but asked trial The Court finds that the state court’s nоt jury’s presence. court to do so the conclusion was a application reasonable anyone The trial court never removed of While Waller. the trial court’s find- courtroom, the but instead in- ings clearly could have been more artic- structed defendant’s not to ar- relatives record, was, ulated on the as observed day rive before 11:00 a.m. on the Michigan the Appeals, Court of Mathis, Lewis, testified, and Ramsuer reasonable suspicious conclusion that the and to remain outside the courtroom had, of two deaths in the trial permitted until to enter. opinion, sparked court’s enough fеar in (R. 85-86.) placed three witnesses and sufficiently well-being their at risk to Peti- override Following conviction, his Johnson filed a right public tioner’s to a trial. The trial claiming motion a new trial denial of court limited the closure just three right public the to a denying trial. the witnesses and ensured that closure motion, the trial court noted would not evident to jury. Con- agreed to suggested closure sidering circumstances, the Court counsel asked members of Johnson’s fami- finds that application court’s of ly to appear in the courtroom until the Waller factors was not unreasonable. after 11:00 a.m. following day. After 1603.) (R. at exhausting this clаim and an ineffective of assistance counsel claim in the respect state With to Johnson’s ineffective as- courts, Johnson petition filed a habeas sistance of counsel pursuant relief federal district court Appeals Court of “trial concluded that claims, 2254. Among U.S.C. other acquiescence objec- counsel’s was neither Johnson claimed to a right unreasonable, that his tively nor outcome-determi- (R. 1148.)1 was violated and that counsel was native.” The district court ineffective for that right. to assert agreed, holding that because “the decision In the district opinion denying ha- to close the courtroom for a limited time relief, beas the court held that Johnson’s was not an application unreasonable 1. It is unclear what unjustified necessary, "outcome determinative” broader than means, because, below, as discussed if the presumed. would be counsel's actions resulted in a closure that Amendment to estab- The Sixth has failed ... Petitioner Waller guarantees Constitution United States to the closure that the failure lish that, prosecutions, all criminal “[i]n range professional- the wide fell ‘outside ” enjoy speedy accused shall required by assistance’ as ly competent Const, VI; trial.” U.S. amend. Washington, 466 U.S. Strickland Oliver, see also re (1984). (1948) (holding 92 L.Ed. 682 1611.) (R. at through the states binding to be on process the due clause of the Fourteenth II. DISCUSSION Amendment). requirement pub “The of a accused; lic trial is for the benefit of the of Review A. Standard public may fairly that the see he is dealt filed his habeas ‍‌‌​​‌‌​‌‌‌​​‌​‌​‌‌‌​‌​‌​‌​​​‌‌​​‌​​‌‌‌​‌‌‌​‌​‌​​‍Because Johnson condemned, unjustly and not and that petition governed petition presence spectators may of interested Antiterrorism and Effective Death keep keenly his triers alive to a sense of (“AEDPA”). Act See Penalty responsibility importance their and to the (6th Johnson, 236, 241 474 F.3d Benge v. Georgia, v. 467 of their functions.” Waller Cir.2007). AEDPA, Under thе 46, 39, 2210, 104 S.Ct. 81 L.Ed.2d 31 relief if he can show may obtain (internal (1984) quotation marks and cita “ to, “contrary the state court’s decision omitted). ‘great, tions Because of the of, application involved an unreasonable or though intangible, societal loss that flows’ law,” 28 U.S.C. clearly established Federal doors,” closing courthouse the denial 2254(d)(1), state court relied § or right public to a trial is considered a determination of the on an “unreasonable prejudice pre structural error for which is presented in light facts in of the evidence 9, n. 104 2210 sumed. Id. 50 S.Ct. proceeding,” Jones, 409, court 28 U.S.C. the State (quoting People v. 47 N.Y.2d 2254(d)(2). 359, 1335, reviewing In a district 391 N.E.2d 1340 418 N.Y.S.2d (N.Y.1979)). concerns, deny light habeas of these to grant decision to justify the closure of a courtroom over the relief, of fact questions reviews Court defendant, objections party of a “the seek “clearly erroneous” standard and under hearing must ad ing public] to close [a de novo. Carson questions law overriding likely interest that is vance (6th Cir.1999). Burke, 434, 436 the closure must be no prejudiced, to be that in necessary protect than broader Analysis B. terest, rea the trial court must consider interre- appeal presents two proceed closing alternatives to sonable (1) whether his Sixth Amend- lated issues: adеquate to ing, findings and it must make trial was violated right public ment the closure.” Id. at 104 S.Ct. support the courtroom dur- the court closed when in Press- the test set forth (applying wit- prosecution Court, of three 464 U.S. Enterprise Superior Co. v. (2) nesses; 501, 510, whether trial counsel was L.Ed.2d 629 104 S.Ct. (1984), public trial constitutionally to ob- to a Sixth Amendment ineffective claim).2 ject to the closure. adopted the test in the four-part was first The Waller Court test discussed above The public right to a the Sixth Amendment developed Press-Enterprise, 464 U.S. at text of trial, explaining can be little doubt that "there the First which addressed right of the jury explicit that the Sixth Amendment right public selection. Amendment case, prosecution object instant when a defendant fails to to the courtroom,

moved to close the courtroom assuming closure of the witnesses. justification for closure is sufficient informed the court that prosecutor overcome the and media’s First very two had been killed “under open Amendment to an suspicious grounds” near the time of the proceeding. Freytag See v. Commis preliminary examination and that a num- sioner, 868, 896, 501 U.S. S.Ct. remaining ber of the witnesses were afraid (1991) (“[T]he 115 L.Ed.2d 764 Sixth (R. 138-39.) testify at trial. ‘public,’ Amendment to a trial that is expressed regarding trial court concerns provide[s] soсiety benefits to the entire closure, prosecutor stating more important many than structural “treading very dangerous on some guarantees; litigant but if the does not “[w]ell, if ground,” inquired per- fashion, timely assert in a [it] he is fore ... essentially being protected sons are closed.”) cases); (collecting see also Peretz (R. what is their concern about?” at 138— States, 923, 936-37, v. United 501 U.S. 40.) Nonetheless, defense counsel ac- (1991) (citing quiesced stating: States, Levine v. United Judge, very simple. let me make this (1960)). 4 L.Ed.2d 989 Be I Mr. Johnson and have discussed this cause Johnson failed to to the clo prosecution] brought issue [the since sure, his claim procеdurally defaulted my If attention. the Court wants to unless he can show cause and that, [i.e., courtroom], do close the we Thompson, the default. Coleman v. really any objection don’t have it to 722, 750, 111 U.S. S.Ct. 115 L.Ed.2d those certain witnesses. The thing (1991). 640 I’m concerned about is that we do it well procedural The doctrine of default away from jury; that either we ex- provides: cuse, you know, so it doesn’t look like mean, it’s some weird circumstance. I I In all cases in which a prisoner state has any problem. don’t have defaulted his in federal claims state pursuant court to an independent and (R. 387.) at The court acceptеd defense rule, adequate procedural state federal position counsel’s making without further habeas review of the claims is barred inquiry findings, and defense counsel prisoner unless the can demonstrate instructed members of family Johnson’s cause for the default preju- and actual remain outside during of the courtroom ‍‌‌​​‌‌​‌‌‌​​‌​‌​‌‌‌​‌​‌​‌​​​‌‌​​‌​​‌‌‌​‌‌‌​‌​‌​​‍dice as a result of the alleged violation of at issue. law, federal or demonstrate that failure attorney Johnson concedes that his to consider the claims will result closure, acquiesced to argues but that miscarriage justice. fundamental right public because the to a trial ais Here, Id. undisputed fundamental is right constitutional and a guarantee, contemporaneous structural failed to make a attorney’s objec- state ments tion required by were insufficient to constitute waiv to the which is an agree er. While we “independent adequate procedur- and state public trial important is an al Frady, structural rule.” United States v. right, it is also one that can be waived 102 71 S.Ct. protective press public.” accused is no less aof trial 467 U.S. at implicit added). than the (emphasis First Amendment 2210

445 of reasonable- (1982). objective standard the last below It is also evident ness,” performance аnd that “the deficient sought from which Johnson state court defense.” 466 prejudiced [his] rule as procedural the state review invoked 687-88, at 104 S.Ct. 2052. U.S. reject review of its decision a basis for case, agree that defense coun- instant we 86) (state (See at court of R. the claim. object to the closure of sel’s failure to “expressly- that Johnson appeals stated may fallen below an assenting to the trial right by waived his “objective of reasonableness” as standard courtroom dur- to close the court’s decision have been required Strickland. Courts (cita- testimony.” witnesses’ ing the three may closure of a trial clear that while the omitted).) Thus, the district court tions cases, cir- justified in certain “[s]uch be denied claim was found that Johnson’s ... and the bal- cumstances will be rare adequate independent on an based spe- of interests must be struck with ance rule.3 procedural Waller, at cial care.” U.S. circumstances, ha- federal Under 2210; Press-Enterprise, see also S.Ct. trial claim of Johnson’s beas review (holding that a U.S. can “demonstrate unless Johnson is barred justified only by “an over- may closure and actual cause for the default riding findings on that clo- interest based of feder- alleged violation a result of the as highеr values preserve sure is essential to law, that failure to or demonstrate al that in- narrowly tailored serve in a fundamen- the claims will result sider States, terest”); Owens United Coleman, justice.” miscarriage of tal Cir.2007) (1st (holding that the fail- ar- 2546. Johnson object to the courtroom closure for ure cause for that he has demonstrated gues jury deprived defendant day selection his counsel was inef- default because right). of a substantial fair trial Counsel’s object to the closure of fective closure of the court- failure to Consequently, both of Johnson’s the trial. key room turn on whether his coun- appeal claims on witnesses, arguably the most constitutionally ineffective.4 sel was trial, denied important phase of Johnson’s fair trial to establish ineffective as Johnson a substantial order counsel, approached have the issue must dem counsel should defendant sistance caution. fell with representation that “counsel’s onstrate 1038, 10, 308 procedural n. 109 S.Ct. 103 L.Ed.2d argues 264 3. Johnson that the state adequate (1989) ("[A] independent and was an need not fear reach- default state court barring re- ground subsequent federal state ing claim in an alterna- the merits of a federal "regularly courts view because holding.... of the fed- tive [Rеconsideration contemporaneous objection defaults waive as [is curtailed] eral issue on federal habeas perceived to concern where the issue long explicitly invokes a as the state court that, here, rights” process stitutional due separate procedural bar rule as a basis did so when it reached the state court decision.”) (emphasis original). for (Johnson's trial claim. merits of However, 4.) Reply while the state court Br. if Attorney can constitute cause it error the merits of Johnson's did discuss ineffective assistance of constitutes claim, clearly alternative did so as an trial Strickland, under the test enunciated procedur- denying basis for 2052, 80 L.Ed.2d 674. U.S. (See ("[D]e- applies. R. at 86 al default rule 2546; Coleman, 501 U.S. at See right by expressly waived his assent- fendant Carrier, Murray v. also see Moreover, trial decision.... to the (1986). public trial is not absolute Reed, ....”)); U.S. Harris v. see also might be as a threat perceived of on-the-record find- viduals who Given the absence court, it is difficult for us to the witnesses. Under these circum- ings by the necessary stances, acquiescence whether it was for defense counsel’s to discern spectators unjustified.6 closed to all appears courtroom to be the closure However, testimony at issue. on the sure, To be counsel’s decision us, far from con- record before we are if would be owed deference it could be circum- vinced that this was the “rare” strategic, may viewed as and counsel justified, or that stance where closure privy been to information of which we are “no broader than neces- the closure was unaware. See 466 U.S. at sary” protect the interest advanced (explaining 104 S.Ct. 2052 that a defendant Waller, the state under 467 U.S. at that, presumption must overcome the un prosecution S.Ct. 2210. While made circumstances, challenged der the ac general allegations prosecution that two might tion be considered sound trial strat witnesses —Elvin Robinson and Robert egy). example, may For defense counsel murdered, been Richards —had family have known that Johnson’s mem stresses another individual was history bers had of contact with the charged stabbing with the of Elvin Robin- may relevant witnesses or he have known son, prosecution proof and the offered no alleged more about the nature of the wit any that Johnson or member of Johnson’s killings ness than the record revealed. family was involved the death of those However, if counsel had additionаl relevant Waller, individuals. See information, it is not evident from the rec (requiring party seeking 104 S.Ct. 2210 ord. No court below conducted an eviden provide specific the closure to evidence of tiary matters, hearing explore these an overriding likely interest that was to be and, us, on the record before it is difficult ‍‌‌​​‌‌​‌‌‌​​‌​‌​‌‌‌​‌​‌​‌​​​‌‌​​‌​​‌‌‌​‌‌‌​‌​‌​​‍prejudiced). prosecution presented no to see how the failure to support witnesses or evidence in id; strategic. closure could have been See point any and did not incidents Owens, (remanding see also 483 F.3d at 66 in which the witnesses at issue had been an evidentiary hearing when there was thrеatened or by any otherwise contacted no indication counsel’s failure to ob fact, family. member of Johnson’s both ject to a closure strategic). Conse the court and the acknowl- quently, evidentiary hearing is warrant edged request thin was on ed to determine if trial failure counsel’s dangerous ground.5 Notwithstanding object to the closure constitutes deficient circumstances, defense counsel made performance. no effort to limit the closure to less than witnesses, three or to ensure that the ex- If can Johnson establish that counsel’s deficient, cluded individuals be performance limited to those indi- was he will also be prosecutor 5. alleges family stated that "[t]he case the members really aunts, law I found deals with small children rang- who were excluded included four wejre by present [who intimidated someone years age, from 38 to 50 in and a female cases,” acknowledged in those that his motion years first cousin who was 38 old. Johnson's "very ground,” was on thin and noted that he Oliver, Br. 7. In In re 333 U.S. 68 was sure that defense counsel would have an 499, (1948), Supreme S.Ct. 92 L.Ed. 682 the (R 138-39.) objection to the closure. at explained partic- Court that a defendant ahas prosecution requested When the the ularly compelling having family interest in prosecutor trial court stated that the was present at his trial. "treading very dangerous ground.” on some 138.) (Id. at

447 (2006) proposi- (citing for the prej- 409 Waller that he to demonstrate required Coleman, 501 guar- error. See public-trial of the udiced tion that “violation a 750, (requiring 2546 111 S.Ct. U.S. subject to harmlessness re- antee procedural to excuse showing prejudice of a public ‘the benefits of view because Strickland, claim); of a default intangible, prove, difficult to frequently are showing of 687, a (requiring 2052 104 S.Ct. ”). if Consequently, chance’ or a matter of ineffective assistance to establish prejudice that counsel’s failurе to evidence reveals counsel). preju- would be no There of object objective below an standard of fell in- to Johnson’s respect with dice—either reasonableness, strong there is a likelihood claim or assistance of counsel effective would performance that counsel’s deficient showing prejudice of respect prejudicial.7 deemed be procedural default—if necessary to excuse in closure was so interest government’s sum, deeply we are concerned at issue would that the closure compelling fun- lack of attention afforded to Johnson’s notwithstanding coun- have been ordered trial and con- public damental However, in objection. light sel’s exploration that further of this issue clude in a trial and the public interest compelling record, it is virtual- is warranted.8 On this Waller, we are test set forth rigorous ly impossible to determine whether that the closure would far from confident justifiable. closure of the trial Once suggested by as implemented been available, further facts are the district objections. over Johnson’s equipped court will be better to determine public trial is a Because justified, of the trial was whether closure were if the closure guarantee, structural constitutionally trial counsel was whether necessary, than unjustified broader object, and wheth- ineffective for Waller, See presumed. would be prejudice prejudice components and er the cause 2210; 9,104 n. see also at 50 U.S. trial claim can be satis- public Gonzalez-Lopez, 548 U.S. v. United States 4, 2557, 165 L.Ed.2d fied. 149 n. Owens, agreeing ducting inquiry detailed before at 64 n. 7. As discussed showings preju- prosecutor’s request. Supreme make two Court Johnson must First, fail- he must show that counsel’s infringe dice. has made clear that trial closures prejudiced to the trial closure ure guarantee upon important structural dеtermining whether purposes of him for Waller, they 467 U.S. at should be rare. of counsel. there was ineffective assistance Moreover, First S.Ct. 2210. while 687, 104 S.Ct. 2052. 466 U.S. at were not raised in this Amendment issues Second, excuse his he must show case, press also have a public trial claim. procedural default on the compelling Amendment interest in a First Coleman, S.Ct. 2546. As 501 U.S. at Press-Enterprise, 464 U.S. at trial. See Owens, believe that these "[w]e was true in 509-10, ("[The] S.Ct. 819 circumstances prejudice overlap, and we showings [ad- press public can be under which the simultaneously.” F.3d at 64 dress] them limited; a criminal trial are barred from Greene, 13; n. Strickler Cf. justification denying aсcess must State’s (1999) 144 L.Ed.2d one.”) (internal quotation weighty marks a case, ("In proce- [for cause omitted). great, Given the and citation parallel the three com- two of default] dural though intangible, loss that flows societal itself.”) ponents alleged error] [trial Waller, doors, closing courthouse from triggers objection counsel’s 8. While defense prudent n. a U.S. at 50 findings duty to make factual the trial court’s party’s carefully a re- should scrutinize court Waller, ‍‌‌​​‌‌​‌‌‌​​‌​‌​‌‌‌​‌​‌​‌​​​‌‌​​‌​​‌‌‌​‌‌‌​‌​‌​​‍the could have averted under court agreeing to close a courtroom. quest before by appeal presented in this the issues 2254(d)(1), U.S.C. which that we CONCLUSION means рower impose are without to it on the above, stated we VA- For the reasons in state courts this habeas case. deny- judgment the district court’s CATE respectfully I dissent. REMAND an ing relief and habeas whether evidentiary the trial closure was proceeding justifiable, determine ^{[*] [*] [*]} I constitutionally majority agree The that Johnson’s whether trial counsel was object, petition prove habeas fails unless he can ineffective for and wheth- his ineffective-assistance-of-counsel claim. prejudice components er the cause and prove can To that Johnson must first public trial claim be satis- show that his “counsel’s were so fied. errors trial, to deprive serious as of a fair a [him] KETHLEDGE, Judge, Circuit trial whose result is reliable.” dissenting. 466 U.S. 104 S.Ct. 2052. That course, showing requires, proof that defending charge, a murder it is a in place. committed errors the first idea, think, judge I a bad to leave the Second, Johnson “must show there is smoldering suspicion your client had a that, probability reasonable but for coun- key in killing prosecution’s role two of the errors, unprofessional sel’s the result of lawyer before trial. A who mini- witnesses proceeding would have been different.” to, danger by consenting mizes that rath- — Id. at We review for fighting, er than closure of the cоurtroom an abuse of discretion a district court’s during testimony surviving of three evidentiary decision whether to hold witnesses, testifying out of a total of 18 hearing Ivory on these issues. See thereby the case—does not Jackson, (6th Cir.2007). constitutionally render ineffective assis- tance of counsel. That is all the more The district court did not its abuse dis- true, my opinion, there not a when is here, cretion because Johnson’s claim shred of evidence that the closure had the First, clearly grounds. fails on both prior slightest effect on the trial’s outcome. trial, two witnesses identified Johnson majority

The concludes otherwise. as the in bаrrage shooter that left Carlos majority dead, suggests fight Larry the closure Davis Lewis and James Math- wounded, here having indeed, was one worth that it and Robert Richards un- — was constitutionally mandated —its ethere- touched the bullets that Johnson fired upside al and concrete him. downside notwith- toward Richards was unavailable to standing. majority sidesteps testify then at trial —because he had been shot death, any bed, absence of prejudice resulting actual after preliminary Johnson’s consent to the closure— Johnson’s exam. Another it, witness, Robinson, plainly and with actual-preju- stated Elvin requirement testify dice of Strickland v. shоt to death he Wash- before was able to ington, trial, prosecu- 80 at Johnson’s exam. At (1984) by holding that John- tion moved to the courtroom close — any prejudice son need not at all in surviving show witnesses: Ramsuer, support of his ineffective-assistance-of- Damon who was the sole surviv- holding sup- counsel claim. That is not witness have identified Johnson as ported by law, shooter; Mathis, “clearly Federal established and Lewis and two of Court,” Supreme persons as determined 28 the support Johnson shot. Instead, holds, majority motion, explained that the the “[b]ecause the its guar- to a trial is a structural “literally terri- were all three witnesses antee, unjustified if the closure were “cowering, refusing to come were fied” and necessary, prejudice broader than would court, being arrest- even under threat Maj. Op. at 447. presumed.” so afraid for their ed, they [were] because majority holding right past drives pick not to counsel chose lives.” Johnson’s distinction between a Waller claim and a strategic de- fight truly a particular — majority says one. Strickland What and, if after cision there ever one— for a but enough true Waller John- Johnson, affirmatively consulting turns on a petition undisputedly son’s the three-witness closure. agreed to one; reрeatedly Strickland and Strickland us is whether that question before says that unequivocally preju- actual far outside the bounds of decision was so See, required. e.g., dice is as to amount to competent representation (“The defendant must show S.Ct. assistance of constitutionally ineffective that, probability that there is reasonable decision can counsel. I do not think the errors, unprofessional but for counsel’s way. re- Having seen that possibly be proceeding result would been transcript, it seems to me viewed the ”) added); (emphasis id. at different was correct. instead that the decision (“It enough is not for the essentially agreed defendant to show that the errors had close the courtroom some conceivable effect on the outcome of witnesses, a total of 18 out of proceeding”). net Strategically at trial. jurists disagree can as to Reasonable de- of that as Johnson now effect whether, when a defendant asserts inef- it, that several of his “female scribes was fective-assistance claim based on an under- not witness the relatives” did trial, lying violation of his return, three witnesses. John- those the Waller definition of should judge the trial son’s counsel deflected one, trump the Stricklаnd or vice versa. why, exactly, inquiry a line of —as issue, lengthy analysis very In a of this testify three witnesses were so terrified that the Eleventh Circuit held Strickland certainly almost against Johnson —that requirement applies. See actual-prejudice on client. poorly have reflected would (11th Crosby, Purvis appears given all the wiser That avoidance Cir.2006). (Our today directly decision emerged sentencing— at Johnson’s decision.) The First conflicts with sooner, emerged perhaps could have definition Circuit has held that the Waller fought the closure— had Johnson’s counsel States, prevails, see Owens v. United am- was shot to death with Richards (1st Cir.2007)— n. 14 F.3d 64-66 & lot that Johnson munition from the same although, critically, considering it did so kill Davis and wound Lewis and used to challenge underlying to an federal Constitution, say, it to Mathis. The suffice viction, § thus see 28 U.S.C. strategic choice. permitted this here, limited, deciding as we are Second, law, evidence in the rec- “clearly there is no established Federal whether transcript Court,” Supreme includes the entire ord—which as determined 2254(d)(1) (em- consent that result. Id. requires of Johnson’s trial —that Johnson’s added). not see any simply had But I do phasis to closure as to three witnesses how, presents a Strickland of his murder trial. when Johnson effect on the outcome imposes its terms contrary. claim and Strickland majority not assert the does standard, canwe hold actual-prejudice Supreme Court clearly established ‍‌‌​​‌‌​‌‌‌​​‌​‌​‌‌‌​‌​‌​‌​​​‌‌​​‌​​‌‌‌​‌‌‌​‌​‌​​‍required the precedent presumed-prejudice stan- apply

courts to dard instead. clearly established for

What has been indulge must decades is that “a court presumption that counsel’s conduct strong range the wide of reasonable falls within professional assistance[.]” 104 S.Ct. 2052. Johnson has I presumption not touched that here. re- spectfully dissent.

In re Michael Mark NOWAK and Nowak,

Christina Susan Debtors. Financial, Plaintiff-Appellant, PCFS Lydia Spragin, Defendant-Appellee. E.

No. 08-3690. Appeals, United States Court Circuit. Sixth Argued: Oct. 2009. Decided Filed: Nov.

Case Details

Case Name: Johnson v. Sherry

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 13, 2009

Citation: 586 F.3d 439

Docket Number: 08-1322

Court Abbreviation: 6th Cir.