Lead Opinion
Concurrence by
ORDER
The opinion filed October 17, 2016 is amended as follows:
1. At page 48, footnote 15 of the opinion, delete “Because we conclude that counsel’s performance was not deficient, we do not consider the prejudice prong of the Strickland, analysis.” Add the following text in its place:
The Supreme Court has recently held that a petitioner claiming that trial counsel was ineffective for failing to object to the closure of voir dire bears the burden of demonstrating prejudice. Weaver v. Massachusetts, No. 16-240, — U.S. -,137 S.Ct. 1899 ,198 L.Ed.2d 420 ,2017 WL 2674158 , slip op. at 11-14 (U.S. June 22, 2017). Because of our holding that counsel’s performance was not ineffective, we need not determine whether Visciotti could demonstrate prejudice. We note, however, that it is extremely dubious that he could.
With the aforementioned change, the panel has unanimously voted to deny appellant’s petition for rehearing. Judge Ber-zon has voted to deny the petition for rehearing en banc. Judges Pregerson and Tashima recommend denial of the- petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing is denied and the petition for rehearing en banc is rejected. No new petition for panel rehearing or petition for rehearing en banc will be entertained.
OPINION
In 1983, an Orange County jury convicted John Visciotti of first-degree murder, attempted murder, and robbery. The same jury then sentenced Visciotti to death.
On direct, automatic appeal, the California Supreme Court affirmed the judgment in its entirety. People v. Visciotti,
Visciotti next brought a federal habeas petition, alleging, among many other claims, ineffective assistance of counsel during the guilt and penalty phases of his trial. The district court granted Visciotti’s habeas petition as to the penalty phase and denied it as to his conviction. We affirmed. See Visciotti v. Woodford,
Following remand and further proceedings, the district court denied Visciotti’s remaining claims. Visciotti appeals that denial. He asserts two species of claims. First, he contends that his counsel’s ineffective assistance during the guilt and penalty phases of trial requires habeas relief as to his death sentence. Acknowledging that the Supreme Court expressly denied relief on his ineffective assistance of counsel claim, he argues that the Court did not' decide the particular claims he now appeals. Second, he claims that the trial judge’s closure of the death qualification voir dire proceedings violated his Sixth Amendment right to a public trial.
I. BACKGROUND
Visciotti I extensively details the facts of this case.
[Visciotti] and a co-worker, Brian Hefner, devised a plan to rob two fellow employees, Timothy Dykstra and Michael Wolbert, on November 8, 1982, their payday. They invited the pair to join them at a party. As the four were driving to that supposed destination in Wolbert’s car, [Visciotti] asked Wolbert to stop in a remote area so that he could relieve himself. When all four men had left the car, [Visciotti] pulled a gun, demanded the victims’ wallets (which turned out to be almost empty), and got Wolbert to tell him where in the car the cash was hidden. After Hefner had retrieved the cash, [Visciotti] walked over to the seated Dykstra and killed him with a shot in the chest from a distance of three or four feet. [Visciotti] then raised the gun in both hands and shot Wolbert three times, in the torso and left shoulder, and finally, from a distance of about two feet, in the left eye. [Visciotti] and Hefner fled the scene in Wolbert’s car. Wolbert miraculously survived to testify against them.
Visciotti IV,
A. Trial
Visciotti’s parents retained Roger Aga-janian for representation in the pretrial proceedings, at the trial, and on appeal. Agajanian was admitted to the bar in July 1973, had never before the Visciotti case tried a capital case that went to a jury, and had never conducted a penalty phase trial. See Visciotti II,
At the outset of Visciotti’s 1983 trial, the court mentioned that it would conduct “sequestered voir dire.” The court explained to the pool of prospective jurors that, because the state could seek the death penalty, “we must ... inquire of each prospective juror individually to determine in private with just the court, the two attorneys, possibly the defendant and the court personnel present, your attitudes and ... attempt to determine if there exists any prejudice or bias that may affect your attitude toward the imposition of the capital punishment.” On July 5, 6, 7, 11, 12, 13, and 14, the court conducted the death qualification voir dire. The clerk’s transcript for each day reveals that the examinations were conducted “in chambers,” in the presence of only the court, counsel, court reporters, and, some of the time, Visciotti.
The prosecution’s case was “based in major part on the testimony of Michael Wolbert, and on [Visciotti’s] confessions.” Visciotti I,
In his guilt phase testimony, [Visciot-ti] claimed that the 1978 incident occurred when two men who had a problem with his roommate, Doug Favello, kicked in the door of the apartment he shared with Favello, ran in, and cut Favello’s throat. A third person with a gun remained at the door. [Visciotti] testified that he picked up the knife dropped by the person who had stabbed Favello, ran after the fleeing intruders, and stabbed the one who had slashed Favello’s throat just as that person (Sco-field) was trying to enter his own room. On cross examination [Visciotti] conceded that he and several friends went to Scofield’s room later that night, denied that they had kicked in the door to that room or that anyone had been in bed in the room, and denied seeing, let alone stabbing, a woman who had been in the room.
Visciotti I,
On rebuttal, the prosecution called Robert D. McKay, a Crime Scene Investigator for the Anaheim Police Department, to contradict Visciotti’s testimony concerning the 1978 incident. McKay had investigated the scene of the 1978 incident, including Scofield’s room. He testified with respect to the door to the apartment that it “appeared it had been forced open,” as the door molding and latching had been partially destroyed and there was a hole in the adjoining wall from “where the doorknob would have struck the wall.” He authenticated several photographs he had taken of the crime scene, including images of two knives, blood-stained bedding, and the damaged door to the apartment.
That same night, at a hospital, McKay observed and photographed two injured parties: Scofield and Kathy Cusack. He authenticated at trial a photograph he had taken of several of Cusack’s stab wounds while she lay half naked on a table in the hospital emergency room. McKay testified that Cusack suffered from seven wounds, including “a deep laceration to the lower right breast area, a deep long cut to the inside of the right thigh, a cut to the right side, and four cuts to the back of the right arm.” McKay later returned to the police department, where he observed Favello. He testified that Favello “did not have blood on his clothing or on his body,” nor any evidence of an injury to his neck.
On July 29,1983, the jury found Visciotti guilty of first degree murder of Dykstra, attempted murder of Wolbert, and robbery. Visciotti I,
B. Penalty Phase
Visciotti’s penalty trial began several days later. As the California Supreme Court recounted, “[t]he only evidence presented by the [prosecution] in the initial phase of the penalty trial was the testimony of William Scofield, the victim of the June 15, 1978, assault with a deadly weapon offense to which [Visciotti] had pleaded guilty and for which he had served a prison term.” Visciotti I,
Scofield testified as follows: At the time of the incident, he lived with Kathy Cusack in the same complex as Doug Favello. The dispute between him and Favello had arisen out of Favello’s “loss” of Cusack’s cat. At Cusack’s request, Scofield spoke with
The following night, “five or six guys kicked the door [to Scofield’s room] down,” dragged him out of the room, and assaulted him with some combination of baseball bats, sticks, knives, and an ice pick. Sco-field testified that Visciotti, part of this group, stabbed him in his back. During the altercation, Cusack remained in the room. When Scofield returned to the room, he saw her “covered with blood.” Scofield’s back required surgery.
The prosecution next called Cusack to testify. Agajanian objected on the ground that Visciotti had pleaded guilty only to stabbing Scofield and was not charged in the criminal information with assaulting Cusack. The court initially overruled the objection.
Just after Cusack was sworn in but before the prosecution began to examine her, the court again called counsel to the bench. The court asked the prosecutor whether the Notice of Evidence of Aggravation informed Visciotti that the prosecution would rely on Cusack’s testimony during the penalty phasé. The prosecutor replied that Cusack’s testimony related to facts “that are an integral part of the transaction concerning [Visciotti’s] prior felony conviction,” which was included in the Notice.
The court noted that the Notice “refers strictly to a conviction for which the defendant stands accused ... that is, the assault with a deadly weapon upon William Sco-field. ... [It] talks about what appears to be a single violation ... and it talks about a conviction.” In the end, the court precluded Cusack from testifying at all. The prosecution offered no further evidence in its aggravation case-in-chief.
Agajanian’s “theory was to invoke jury sympathy for [Visciotti’s] family.” In particular, Agajanian presented evidence from various family members and friends that Visciotti “had never been violent toward anyone in [his] family,” and that “he was violent only when under the influence of drugs.” Visciotti I,
Midway through Visciotti’s mitigation presentation, the prosecution moved for permission to introduce Cusack as a rebuttal witness at the close of Visciotti’s case. The court granted the motion, holding “that the evidence introduced by the defense is opinion evidence by every defense witness offered [during the penalty phase] ... that the defendant is in fact a nonviolent person. The people are entitled as a matter of law to rebut that by competent evidence. Specific acts of violence and rebuttal are relevant and are appropriate to rebut an opinion that the defendant is in fact a non-violent person, so the court shall allow the witness to testify as requested.”
The California Supreme Court summarized Cusack’s testimony as follows: •
She first met [Visciotti] on June 12, 1978, at a party in [Visciotti’s] apartment. She had not seen him again until the early morning hours of June 15 when he and several other men broke into the apartment she shared with Sco-field. [Visciotti] had a knife. When the other men, who were beating Scofield with bats and sticks, dragged Scofield out of the room, [Visciotti] remained in the room where Cusack was standing on the bed. He stabbed her through the right forearm, which she had raised to protect herself, stabbed her farther up that arm, and when she fell down onto the bed, slashed her leg. He then stabbed her in the ankle. When [Visciot-ti] attempted to stab Cusack in the abdomen she told him she was pregnant. He nonetheless tried again to stab her in the abdomen, but she rolled over and he stabbed her in the side. He then stabbed her in the chest, slashed her shoulder, stabbed her in the area of her breast. After stabbing Cusack eight or more times, [Visciotti] began to carve up the walls of the apartment, and to cut up the posters and pictures. When Cusack hit him over the head with a stick, [Visciot-ti] ran out of the apartment. She ... had to be hospitalized for treatment of her wounds.
Visciotti I,
During his closing argument, the prosecutor emphasized Visciotti’s attack on Cu-sack as the primary example of Visciotti’s history of violence. While the prosecutor noted that Visciotti’s conviction for assaulting Scofield qualified as an aggravating prior conviction, he emphasized Cusack’s perspective on the incident.
For his part, Agajanian delivered a closing argument that the California Supreme Court, on direct appeal, described as “a rambling discourse, not tied to particular evidence.” Visciotti I,
The jury began deliberating on the afternoon of August 3. After nearly two days
C. Direct Appeal and State Post-Conviction Proceedings
Visciotti automatically appealed to the California Supreme Court. Agajanian continued to represent him for about seven years following his conviction. During that time, Agajanian filed but a single, thirty-page brief on Visciotti’s behalf. Also during that period, Agajanian was convicted in an unrelated matter, in the District of Vermont, of two counts of criminal contempt. His representation of Visciotti ended in 1990, when the State Bar suspended his license to practice law.
Replacement counsel filed a supplemental brief following Agajanian’s suspension. That brief asserted that the closure of penalty phase voir dire violated the Sixth Amendment right to a public trial, citing Press-Enter. Co. v. Superior Court of Cal., Riverside Cty.,
The California Supreme Court affirmed the judgment on direct appeal. See Visciotti I,
Visciotti next filed a habeas petition in the California Supreme Court. That court appointed a referee to take evidence and make factual findings on certain discrete questions, most of which concerned Agaja-nian’s failure to investigate, discover, and use mitigating evidence in Visciotti’s penalty phase hearing.
At the hearing, Agajanian testified that he “did not conduct formal interviews with any members of [Visciotti’s] family in preparation for the penalty phase,” and that he “did no investigation and did not have a social worker or investigator do any investigation to seek potentially mitigating evidence.” Visciotti II,
Particularly relevant here is Visciotti’s evidence that “Agajanian did not review
[although it was the practice of the district attorney at the time of the Vis-ciotti trial to make the case files of prosecutors available to defense counsel, Agajanian was not aware that during petitioner’s 1978 assault with a deadly weapon on William Scofield, petitioner had also repeatedly stabbed Kathy Cu-sack who was pregnant. Agajanian did not send for the police report or go through the prosecutor’s file to read it in advance of trial and thus was surprised and unprepared to face that evidence.
Id. Finally, Visciotti presented at the habe-as hearing considerable evidence concerning facts relevant to mitigation that Agaja-nian failed to discover and present during the penalty phase proceedings. The California Supreme Court summarized that evidence at length in its habeas decision. See id. at 341-45,
After considering the referee’s report, a divided court denied relief for want of prejudice. Assuming that Agajanian’s performance was constitutionally inadequate, and “[njotwithstanding Agajanian’s multiple failings,”
D. Federal Habeas Proceedings
In 1998, Visciotti filed the habeas petition at issue here. The district court granted relief on the basis of Agajanian’s ineffectiveness during the penalty phase of Visciotti’s trial but expressly rejected most of Visciotti’s remaining challenges to his conviction, including his guilt phase IAC claim. Additionally, because of its ruling on the penalty phase IAC claim, the court held moot several of Visciotti’s remaining claims, including his objection to the closure of the death qualification portion of voir dire. We affirmed the district court’s judgment in its entirety. See Visciotti III,
The U.S. Supreme Court summarily reversed in a per curiam opinion, without merits briefing. The Court reasoned that the California Supreme Court’s denial of Visciotti’s state habeas petition for want of prejudice was neither contrary to, nor an unreasonable application of, clearly established federal law under 28 U.S.C. § 2254(d)(1). Visciotti IV,
On remand to this court, Visciotti asked us to consider whether the California Supreme Court’s denial of his state habeas petition rested on an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2). We remanded to the district court “to review and rule on the argument ] in the first instance.” Visciotti v. Brown,
The district court denied Visciotti’s remaining claims for relief. It issued a certificate of appealability on claim l.C (contesting trial counsel’s penalty phase effectiveness) and claim 12 (contesting closure of the death qualification voir dire). This appeal followed. After oral argument, we granted Visciotti’s request to expand the certificate of appealability to cover claim 58 of his proposed second amended petition, limited to the question whether “the cumulative effect of constitutionally ineffective representation throughout the criminal process, including both the guilt and penalty phases, prejudice[d] Visciotti in the penalty phase of his trial?”
II. STANDARD OF REVIEW
We review a district court’s denial of a petition for writ of habeas corpus de novo. Deck v. Jenkins,
(1) 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 States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Under AEDPA, “[w]e review the last reasoned state court opinion.” Musladin v. Lamarque,
III. DISCUSSION
A. Ineffectiveness of Counsel (IAC)
Ordinarily, “[a] convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components.” Strickland v. Washington,
Visciotti presents two IAC claims in this appeal. First, he raises a penalty phase IAC claim, focused on the allegation that key aggravating evidence, Cusack’s testimony, was introduced only as a result of Agajanian’s errors during the penalty proceedings. Second, as a new IAC claim, Visciotti contends that the cumulative effect of Agajanian’s ineffectiveness during both the guilt and penalty phases of trial ultimately prejudiced the penalty proceedings. We conclude that, whether or not these claims have merit, they are foreclosed by the Supreme Court’s decision in Visciotti TV, so we may not grant habeas relief.
1. Claim 1C — penalty phase IAC
The California Supreme Court denied Visciotti’s penalty phase IAC claim, concluding that, assuming that Agajanian’s performance was constitutionally deficient, “it is not probable that the jury would have found” the mitigation evidence Agaja-nian failed to present was “mitigating or sufficiently so that the evidence would have affected the jury determination that the aggravating factors outweighed the mitigating in this ease.” Visciotti II,
Visciotti now argues that the California Supreme Court’s decision deserves no deference for a different reason — because it “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). The thrust of Visciotti’s refashioned penalty phase argument is as follows: The California Supreme Court specifically assumed that Agajanian performed deficiently by “fail[ing] to prepare, which left him unaware of the scope of the aggravating evidence to be introduced.” Visciotti II,
Visciotti’s central § 2254(d)(2) contention is that in its prejudice analysis, the California Supreme Court unreasonably assumed that Cusack’s testimony was admissible without regard to Agajanian’s IAC, yet the trial court had initially excluded her testimony. Cusack’s testimony was eventually admitted only as rebuttal to
Visciotti called attention to these circumstances in his state habeas petition, arguing that Agajanian performed deficiently by choosing a mitigation case that opened the door to Cusack’s previously precluded penalty phase testimony.
Going in and taking a woman alone in her bedroom after you’ve kicked in the door in the middle of the night for no apparent reason. She couldn’t offer any motivation why he would have done this and none was presented to you. There is no reason. It’s a totally senseless, vicious, brutal attack on this woman who again is isolated by herself, totally defenseless in her bedroom that night.
The statements about her saying I’m pregnant, don’t stab me, don’t hurt the baby, then [Visciotti] immediately thereafter stabbing her right in the stomach. It’s almost too cold and brutal to comment on....
[Visciotti] reenters the room where she’s all by herself; she doesn’t know what’s going on; she’s totally defenseless. And [Visciotti] stabs her seven or eight times for no apparent reason.
The only conversation is she tells him, “My god. I’m pregnant. Don’t hurt the baby.”
That’s what really happened. That’s the basis for his prior felony conviction. That’s why he went to state prison. Now, to possibly think that’s not aggravating, it’s hard to believe.
Moreover, the California Supreme Court in its prejudice analysis lingered over the image of a “pregnant Kathy Cusack as she lay in bed trying to protect her fetus.” Visciotti II,
Cusack’s testimony would not have been admitted had Visciotti been properly represented, Visciotti argues. And, he goes on, had Cusack’s testimony been precluded, that omission would have significantly affected the California Supreme Court’s determination on state habeas as to whether Agajanian’s deficiencies prejudiced Visciot-
Visciotti’s § 2254(d)(2) arguments are not without substance. Were we writing on a blank slate, we would likely find them meritorious. But we are not writing on a blank slate.
“According to the law of the case doctrine, on remand a lower court is bound to follow the appellate court’s decision as to issues decided explicitly or by necessary implication.” United States v. Garcia-Beltran,
In deciding Visciotti’s prior appeal, the U.S. Supreme Court broadly concluded that “[h]abeas relief is ... not permissible under § 2254(d).” Visciotti IV,
Moreover, and critically, the Cusack-centered IAC issues were not presented to the United States Supreme Court at all, not for lack of diligence but because of the procedural posture in which the case was decided by the Court. Visciotti TV was issued summarily, on the basis of the petition for certiorari alone. There were no merits briefs, and there was no oral argument. The State’s petition for certiorari focused on the reasoning of our prior decision, without independently addressing the merits of any of Visciotti’s contentions not directly implicated by that decision. The petition asked the Court to clarify the meaning of § 2254(d)(1). Neither the petition nor Visciotti’s brief in opposition mentioned § 2254(d)(2) at all, and neither discussed the circumstances surrounding the admission of Cusack’s testimony or the
Nevertheless, Visciotti TV entirely precludes any review at this juncture of Vis-ciotti’s IAC claims. Williams v. Johnson,
Williams had previously concluded that the state court had not adjudicated petitioner’s claims on the merits. After conducting de novo review, this court granted habeas relief. Williams v. Cavazos,
The same is true here. As in Williams, the parties here “did not brief the merits of [Visciotti’s § 2254(d)(2) claim regarding ineffective assistance of counsel with respect to Cusack’s testimony] before the Court,” either by mentioning that section or by discussing the difficulties with the California Supreme Court’s assumption concerning the inevitable admission of Cu-sack’s testimony. Cf.
Following our second decision in Williams, the Supreme Court, without explanation, granted the petitioner’s new petition for certiorari, vacated our judgment, and “remanded for consideration of petitioner’s Sixth Amendment claim under the standard set forth in 28 U.S.C. § 2254(d).” — U.S. -,
“[W]e are an intermediate court within the federal system, and as such, we must take our cue from the Supreme Court.” United States v. Lindsey,
2. Claim 58 — cumulative error IAC claim
In addition to his penalty phase IAC claim, Visciotti raises a new IAC claim in this appeal, contending that the cumulative effect of Agajanian’s ineffective assistance during both the guilt and penalty phases of trial prejudiced him with respect to the ultimate penalty imposed by the jury. The California Supreme Court denied this claim on the merits, and, alternatively, on procedural grounds.
The procedural history of Visciotti’s cumulative error claim deserves further mention. When Visciotti first filed his federal habeas petition, he also filed both a notice of unexhausted claims and a motion to equitably toll the AEDPA statute of limitations. The district court denied the tolling motion. Visciotti then filed an exhaustion petition in the California Supreme Court in October 1998, about four months after filing the federal petition in district court. That petition included the cumulative error claim, as Claim 19. Visciotti’s filing of the additional petition appeared compelled at that time by Rose v. Lundy,
Visciotti then requested leave to amend his federal petition to include a cumulative error claim, now styled as Claim 58; the district court summarily denied leave. When the case was remanded to the district court following Visciotti IV, Visciotti renewed his motion for leave to amend his petition. The district court this time granted the motion and ordered an evidentiary hearing. After this Court issued a writ of mandamus, at the state’s request, vacating the order for an evidentiary hearing, the district court reconsidered its decision to allow amendment of Visciotti’s petition and, this time, struck the amended petition as an improperly filed second or successive petition. The district court thus never decided the cumulative error claim. After oral argument, we expanded the certificate of appealability to include Visciotti’s cumulative error claim.
We now turn to the substance of Visciot-ti’s cumulative error claim. The State does not dispute that Agajanian rendered deficient performance throughout the trial. Rather, it contends that, in Visciotti IV, the Supreme Court decided whether the cumulative effect of these errors prejudiced Visciotti at the penalty phase. We are constrained to agree. Even assuming that Visciotti could overcome the substan
As we have already explained, the Court’s conclusion in Visciotti TV — that “[hjabeas relief is ... not permissible under § 2254(d)” — precludes our review of Visciotti’s IAC cumulative error claim. Visciotti IV,
* * *
In conclusion, the Supreme Court’s previous adjudication precludes relief on Vis-ciotti’s present penalty phase and cumulative error IAC claims. We therefore do not reach the question whether the California Supreme Court’s analysis violated § 2254(d)(2), or whether there was cumulative prejudice at the penalty phase due to ineffective assistance of counsel at both the guilt and penalty phases of trial. Instead, as required by the Supreme Court’s ruling in Visciotti IV, we affirm the district court’s denial of Visciotti’s IAC claims.
B. Public Trial Right
The Sixth Amendment guarantees criminal defendants “the right to a speedy and public trial.” U.S. Const, amend VI. Vis-ciotti contends that the trial judge’s closure of the courtroom for six-and-a-half days during the death qualification portion of voir dire violated this Sixth Amendment right.
1. Legal Principles
The public trial right, the Supreme Court has repeatedly held, encompasses pre-trial proceedings, including voir dire.
Press-Enterprise,
Press-Enterprise was decided on First Amendment grounds, not Sixth Amendment grounds. See id. at 516,
More recently, Presley v. Georgia,
Denial of the public trial right is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante,
2. Procedural Default
The State contends that the California Supreme Court denied Visciotti’s public trial claim in part on procedural grounds — namely, on the ground that Aga-janian failed to object to the trial judge’s closure decision. Consequently, before turning to Visciotti’s public trial claim we address whether the claim was procedurally defaulted. If in fact the state “discuss[ed] the merits of the claim” but “separately relied on [a] procedural bar, the
In denying Visciotti’s public trial claim, Visciotti I stated that “[Visciotti] concedes that the issue was not raised in the trial court.”.
Visciotti acknowledges that Agajanian did not object to' the trial judge’s closure of death qualification voir dire. But, he contends, Agajanian’s ineffective assistance in failing to raise the objection constitutes cause for purposes of excusing the default.
Before proceeding to the Strickland analysis, we consider a preliminary question: should we “give AEDPA deference to the state court determination on an inef
We agree with our sister circuits that have reviewed IAC claims in the cause-and-prejudice context de novo, thereby applying a “differing standard for evaluating constitutional error as a substantive basis of relief and as a cause to avoid default of other claims.” Fischetti,
Accordingly, the question whether we can review the merits of Visciotti’s public trial right claim turns entirely on whether Visciotti has established that trial counsel was ineffective, under the Strickland standard, for not objecting to the trial judge’s closure of death qualification voir dire. To that question we now turn.
3. Deficient Performance
To prevail on a Strickland ineffective assistance of counsel claim, “the defendant must show that counsel’s performance was deficient.” Strickland,
Those decisions, however, do not foreclose the possibility that in specific instances, counsel’s choice not to object to closure of trial proceedings might be sound trial strategy. For example, the First Circuit has held in two cases decided after Owens that counsel may make a reasonable strategic choice not to oppose partial closure of voir dire, Wilder v. United States,
As the Supreme Court explained in Strickland, our “highly deferential” review of counsel’s performance “requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Three years earlier, in Hovey v. Superior Court,
As Visciotti points out, Hovey required only the insulation of prospective jurors from the death qualification questioning of their peers, emphasizing that the rule it prescribed would “not in any way affect the open nature of a trial.” Id. at 80-81,
We recognize the importance of a defendant’s interest in preserving his right to a public trial. “Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole.” Globe Newspaper Co. v. Superior Court,
In sum, we cannot conclude that counsel’s failure to object to the closure of the death qualification voir dire constituted deficient performance.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of habeas relief with respect to each of Visciotti’s claims.
AFFIRMED.
Notes
. Hefner, Visciotti’s co-defendant, was tried separately, convicted of the same offenses, and sentenced to life in prison without the possibility of parole.
. The clerk's transcript indicates that Visciotti "personally and through counsel waived his appearance for the remainder of the individual voir dire conferences” on the afternoon of July 12. He was absent as well for voir dire conducted in chambers on July 13 and 14.
. The Notice stated that "the prosecution intends to introduce, in addition to the circumstances of the charged offenses and the circumstances surrounding the alleged special circumstances the following evidence in aggravation of the penalty and wherever else admissible:.... Proof of Defendant’s prior conviction for violation of Penal Code Section 245(a), a felony, on or about August 11, 1978, in the Superior Court of the State of California, in and for the County of Orange.”
. Additional discipline followed. As the California Supreme Court explained:
The bases for the disciplinary proceedings that followed the proceeding related to the contempt conviction were complaints that Agajanian had abandoned clients, failed to respond to client communications, made false representations and misrepresentations, lost files, and failed to perform promised services. Evidence was admitted at the evidentiary hearing that during the time he represented [Visciotti], Agajanian did not respond to client communications, failed to make court appearances, did not visit clients in jail or show up in court or other places as promised, and was distracted by a civil suit against a nonlawyer who shared his office and was accused of fraudulent sales of trust deeds.
Visciotti II,
. The majority assumed Agajanian "failed to afford constitutionally adequate representation because he allegedly: (1) failed to investigate and discover mitigating evidence as a result of his ignorance of the types of evidence a jury might consider mitigating; (2) failed to present readily available evidence that would have revealed to the jury the extent to which petitioner was subjected to psychological and physical abuse as a child, the impact the dysfunctional and peripatetic family life had on petitioner’s development, and the correlation between these events and petitioner’s resort to drugs; (3) failed to prepare, which left him unaware of the scope of the aggravating evidence to be introduced; and (4) delivered an [unfocused] closing argument, during which he undercut his client’s own case by telling the jury that the evidence of petitioner’s mental and emotional problems was not mitigating, prejudiced petitioner at the penalty phase of the trial.” Id. at 353,
. That the California Supreme Court weighed the Cusack testimony as part of its Strickland prejudice analysis without acknowledging that it came into evidence only as a result of Agajanian’s deficient performance (which the Court otherwise assumed) is the crux of Vis-ciotti’s § 2254(d)(2) argument. That is, his challenge is not "based on the claim that the finding is unsupported by sufficient evidence,” but that "the process employed by the state court [was] defective.” Taylor v. Maddox,
. We note that the district court declined to address whether the U.S. Supreme Court’s decision precluded review of Visciotti's IAC claim. Instead, it denied the claim on the merits. Explaining that, if the Cusack evidence had been the primary basis for the jury's sentencing decision, it “might be persuaded that Agajanian’s decision to present a case in mitigation was both wrong and prejudicial,” the district court found that "there was much more to the jury’s penalty decision than the unadjudicated Cusack stabbing.” The district court did rely on Visciotti IV when it concluded that the presence of other aggravating factors was not "such scant justification for the imposition of a death sentence as to indicate either an unreasonable application of the law or an unreasonable determination of the facts.”
. In light of this procedural history, the State argues that Claim 58 is not properly before us because (1) it was presented in a "second” or "successive” petition, 28 U.S.C. § 2244(b)(3)(A); and (2) the California Supreme Court denied the claim on the alternative basis that it was procedurally defaulted. As we conclude that the Supreme Court's ruling precludes our review of Visciotti’s claim in any case, we decline to address these procedural questions.
. Visciotti accurately argues that "a cumulative error claim is a separate, stand-alone claim ... [not] merely a method of conducting prejudice review for separately alleged claims,” and emphasizes that his cumulative error claim includes non-IAC errors such as "claims of prosecutorial misconduct and trial court error.” But, in granting Visciotti’s request for a certificate of appealability, we limited our review to a single sub-question: whether "the cumulative effect of constitutionally ineffective representation throughout the criminal process, including both the guilt and penalty phases, prejudiced] Visciotti in the penalty phase of his trial[.]” Thus, while claims of cumulative error may generally be distinct from the underlying errors on which they rely, the particular cumulative error on which we granted a certificate of appealability is not.
. The State argues in its brief that the California Supreme Court "has already found that Visciotti had no cause for his failure to object.” That cannot be so.
In the direct appeal opinion, the California Supreme Court stated that the possible benefits of sequestered voir dire to defendants, in combination with the active litigation at the time of Visciotti’s trial on the question of the right of the public to attend jury voir dire, made it "doubtful that any competent defense counsel would have objected to it.” Visciotti I,
. Visciotti alleged in his initial state habeas petition that trial counsel was ineffective for failing to object to closing the courtroom. The California Supreme Court rejected the claim without analysis. See Visciotti II,
. Jones expressly declined to answer this question, as it held the petitioner's IAC claim there failed whether it was reviewed de novo or applying AEDPA deference. See id.
. Compare Joseph v. Coyle,
. The parties dispute the extent to which closure of voir dire was the norm during this period. The State's counsel represented at oral argument that "in California from 1980 to 1990 it was the prevailing norm of defense counsel to seek closure of the voir dire as to the death penalty phase, the Hovey voir dire. That was the prevailing norm of counsel.” The panel then inquired whether the State’s reference to the prevailing norm meant that "the practice was just to exclude prospective jurors or to exclude everybody?” "Based on personal knowledge,” the State's counsel continued, "it was as a practice, it was always done in chambers.” Visciotti contested this representation, and submitted certified transcripts of several California capital trials conducted around the time of Visciotti’s trial to demonstrate that it was not "prevailing” practice to close the courtroom to the public and press. These transcripts reveal that, at least in these California capital cases, the trial courts implementing Hovey sequestered voir dire conducted such proceedings in open court, not in chambers. But, again, Thompson and Brooklier point in the opposite direction. From this mixed record we cannot conclude that counsel’s failure to object ran counter to “prevailing professional norms.” Strickland,
. The Supreme Court has recently held that a petitioner claiming that trial counsel was ineffective for failing to object to the closure of voir dire bears the burden of demonstrating prejudice. Weaver v. Massachusetts, No. 16-240, - U.S. -,
Concurrence Opinion
joined by PREGERSON, Circuit Judge, concurring:
Not surprisingly, I join the principal opinion in full. I write separately to emphasize one point: This case illustrates that Supreme Court summary reversals cannot, and do not, reflect the same complete understanding of a case as decisions after plenary review. Relying on broad language in such decisions, as we do in Section III.A, supra, is an obligation of intermediate .courts of appeals. But fulfilling that obligation does not require that we blinker reality by pretending that the summary reversal entailed full consideration of the issues covered by the language of the Supreme Court opinion issued.
At the certiorari stage, the parties’ submissions are — quite properly — not designed comprehensively to inform the Court about the merits of a case. The Supreme Court’s Rules explain that petitions for certiorari “will be granted only for compelling reasons,” including when (1) the decision below conflicts with the decisions of federal courts of appeals or state courts of last resort on an “important matter” or “an important federal question”; (2) the decision conflicts with Supreme Court decision on an “important question of federal law”; and (3) when the lower court “decide[s] an important question of federal law that has not been, but should be, settled by th[e] Court.” S. Ct. R. 10.
Both scholarly articles and Supreme Court practice guides suggest that petitioners will encounter greater success at the petition for certiorari stage when they emphasize “certworthy” aspects of the de-
Practice guides and other secondary sources recommend that petitioners specifically avoid describing the merits of a ease in too great detail, so as to dissuade the Court from perceiving the certiorari petition merely as a request for “error correction.” Quoting Justice Vinson, the authoritative guide to Supreme Court practice explains; “Lawyers might be. well-advised, in preparing [certiorari petitions] to spend a little less time discussing the merits of their cases and a little more time demonstrating why it is important that the Court should hear them.” Supreme Court Practice, ch. 6.31(a), at 479.
The most helpful and persuasive petitions for certiorari to this Court usually present only one or two issues, and spend a considerable amount of time explaining why those questions of law have sweeping importance and have divided or confused other courts. Given the page limitations that we impose, a litigant cannot write such a petition if he decides, or is required, to raise every claim that might possibly warrant reversal in his particular case.
O’Sullivan v. Boerckel,
It comes as no surprise, then, that parties do not — indeed, should not — fully develop their merits arguments in certiorari-stage briefing. See Supreme Court Practice, ch. 6.31(c), at 484 (“The attempt to show error below ... should not be a long, full-dress argument such as would be proper in the brief on the merits.”). Normally, of course, this omission raises no concerns; if the Court grants certiora-ri, the parties will be afforded substantial opportunity to explain their positions in their merits-stage briefing and at oral argument. But when the Court issues a summary reversal, without the benefit of merits-stage briefing or oral argument, it necessarily decides the case based on the limited presentation and arguments raised in the certiorari-stage briefing.
Such was the case here. As the principal opinion explains, in their certiorari-stage briefing in Visciotti IV, neither the State nor Visciotti raised the particular IAC claims now at issue in this appeal, nor did either explain that further issues could be litigated on remand. Instead, the State’s petition for certiorari contested, and Vis-ciotti’s brief in opposition defended, our previous conclusion that the California Supreme Court’s Strickland prejudice determination was contrary to or an unreasonable application of established federal law for particular reasons, in violation of 28 U.S.C. § 2254(d)(1). Thus, the Supreme Court never had before it the questions whether (1) the California Supreme Court’s assumption that Cusack’s testimony would have been before the jury regardless of any ineffective assistance of counsel constitutes an “unreasonable determination of the facts” under 28 U.S.C. § 2254(d)(2); and (2) the cumulative effect of Agajanian’s IAC during both the guilt and penalty phases of trial prejudiced Vis-ciotti at the penalty phase.
That Visciotti did not raise these claims was not an oversight or poor lawyering. His “opposition to the [State’s] petition for certiorari understandably focuse[d] on arguments for denying certiorari.” United States v. Hollywood Motor Car Co.,
Nevertheless, at the end of its summary reversal, the Court held broadly that “[h]a-beas relief is ... not permissible under § 2254(d).” Visciotti IV,
My concern is that “[t]he Court’s deci-sionmaking process at the certiorari stage is fundamentally different from traditional judicial decisionmaking.” Margaret Meri-wether Cordray & Richard Cordray, Strategy in Supreme Court Case Selection: The Relationship Between Certiorari and the Merits, 69 Ohio St. L.J. 1, 3 (2008). Summary reversals, which are the product of
As the principal opinion recognizes, the Court’s summary per curiam reversals are no less binding upon us than the authored opinions issued after full briefing and argument. Visciotti IV therefore requires that we deny habeas relief on Visciotti’s present IAC claims, even though the substance of such claims were never presented to the Court and were almost surely not actually considered.
In Williams, the Supreme Court corrected the apparently inadvertent overreach of its original opinion by reversing our second opinion without comment. Williams v. Johnson, — U.S. -,
. See also Supreme Court Practice, ch. 4.3, at 241 (providing data about the 1993 term); Kevin H. Smith, Certiorari and the Supreme Court Agenda: An Empirical Analysis, 54 Okla. L. Rev. 727, 747 (2001) (‘‘[S]tatistical analysis suggests that the Supreme Court is more likely to grant certiorari if the petition for a writ of certiorari contains an allegation of a conflict with Supreme Court precedent or contains an allegation of a conflict between two or more federal circuit courts of appeals than if such a claim of conflict is absent.”) (footnotes omitted); Robert M. Lawless & Dylan Lager Murray, An Empirical Analysis of Bankruptcy Certiorari, 62 Mo. L. Rev. 101, 133 (1997) (concluding that "the existence and depth of a circuit conflict is important when the Court decides whether to grant [cer-tiorari] in a bankruptcy case”); Kevin Russell, Commentary: Writing a Convincing Cert. Petition When There is No Direct Circuit Split, SCOTUSblog (May 17, 2007), available at http://www.scotusblog.com/2007/05/ commentary-writing-a-convincing-cert-petition-when-there-is-no-direct-circuit-split/.
. Accord Timothy S. Bishop, Jeffrey W. Sarles & Stephen J. Kane, Tips on Petitioning for and Opposing Certiorari in the U.S. Supreme Court, Litigation, Winter 2008 ("It is crucial to temper the natural instinct to focus on defending or attacking the lower court's decision on the merits.”); Scott L. Nelson, Getting Your Foot in the Door: The Petition for Certiorari, Public Citizen Litigation Group, available at https:// www.citizen.org/documents/GettingYour FootintheDoor.pdf ("[Y]ou don’t want your merits argument to suggest that your principal goal is error correction as opposed to the presentation of an important issue requiring the Court’s review.”).