LOKEN, Circuit Judge.
A jury convicted Anthony Charboneau of sexual abuse of a minor, J.B., his ex-wife's cousin, and abusive sexual contact with a minor, D.C., his biological daughter, in Indian country in violation of 18 U.S.C. §§ 2243(a), 2244(a)(3), and 1153. Charboneau appealed, arguing Confrontation Clause error when a government witness described a forensic interview and medical report of D.C. We affirmed, finding no Confrontation Clause violation. United States v. Charboneau, 613 F.3d 860, 861-62 (8th Cir.2010). Charboneau then moved for post-conviction relief under 28 U.S.C. § 2255, arguing (1) the district court violated his Sixth Amendment right to a public trial by closing the courtroom to the public while D.C. testified, and (2) ineffective assistance of appellate counsel in failing to raise the public trial issue on direct appeal. The district court
The two-day trial turned on whether the jury believed testimony of J.B. and D.C. describing repeated sexual abuse by Charboneau while they lived at different times in his home. Prior to jury selection, counsel advised the court that the trial testimony would raise issues involving Charboneau's divorce, multiple custody disputes, and what defense counsel described as the "hidden agendas" of Robin Charboneau, Charboneau's ex-wife and D.C.'s mother, who had been treated for alcohol addiction and was making "a documentary film on rape and child abuse on the Indian reservations." In his opening statement, defense counsel described D.C. as a "diminutive child, rather bright, wants to live with her dad very badly and is caught in the middle of a terrible, terrible divorce and custody dispute."
D.C., who was thirteen years old at the time of trial, was the government's third trial witness. By then, the jury had learned from the first two witnesses, an FBI case agent and Robin, that D.C. first disclosed sex abuse by Charboneau to her mother. But the district court had sustained hearsay objections to what D.C. had told these witnesses, explaining to the jury, "we should hear it from the witness experiencing it." At a sidebar conference before D.C. took the stand, the government asked the court to close the courtroom to the public during her testimony:
The courtroom was closed to the public during D.C.'s testimony. It was open for all other parts of the trial, including the testimony of J.B., who was thirteen when the sexual abuse occurred and twenty years old at trial. A transcript of D.C.'s testimony (with her name redacted) is publicly available.
The Sixth Amendment guarantees criminal defendants "the right to a speedy and public trial...." U.S. CONST. amend. VI. While the right to a public trial is not absolute, the overriding "presumption of openness" may not be lightly overcome. Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). To justify closing a trial to the public, the party seeking closure 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 closure." Id. at 48, 104 S.Ct. 2210. Charboneau argues that the government's request and the district court's closure order violated each subpart of the inquiry required by Waller.
Charboneau did not raise these issues at trial. Indeed, trial counsel did not clearly object to closing the courtroom, probably because the § 3509(e) issue of psychological harm raised by the government's motion exactly fit the defense strategy of persuading the jury that D.C.'s mother had pressured D.C. to falsely accuse Charboneau of sex abuse in order to further Robin's "hidden agendas." More importantly for purposes of this appeal, Charboneau did not raise a public trial issue on direct appeal, meaning this § 2255 claim was procedurally defaulted. See Becht v. United States, 403 F.3d 541, 545 (8th Cir.2005), cert. denied, 546 U.S. 1177, 126 S.Ct. 1346, 164 L.Ed.2d 59 (2006). Because Charboneau asserts no claim of actual innocence, he must demonstrate cause and prejudice to excuse his procedural default. "Ineffective assistance of appellate counsel may constitute cause and prejudice to overcome a procedural default." Id. To establish ineffective assistance, Charboneau must show that appellate counsel's performance was constitutionally deficient and that he was prejudiced by that deficiency. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We review the ultimate issue of ineffective assistance de novo. Close v. United States, 679 F.3d 714, 716 (8th Cir.2012).
A. Deficient Performance. In reviewing this factor, we apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Our review is particularly deferential when reviewing a claim that appellate counsel failed to raise an additional issue on direct appeal. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal," Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Therefore, "absent contrary evidence, we assume that appellate counsel's failure to
In arguing the merits of the underlying public trial issue, Charboneau asserts that his claim is indistinguishable from the claim in United States v. Thunder, 438 F.3d 866 (8th Cir.2006), where we vacated a conviction on direct appeal because the district court had violated the defendant's right to a public trial by closing the courtroom during the testimony of children he allegedly abused. Although the relevant inquiry is not simply whether the two cases are indistinguishable, it is useful to compare the two trial records in evaluating whether the performance of Charboneau's appellate counsel was constitutionally deficient. We conclude there are two critical differences.
First, the district court in Thunder closed the courtroom "without making any findings to support the closure." 438 F.3d at 867. "The district judge simply stated that he `certainly had no problem with closing the courtroom.'" Id. at 868. Here, counsel alerted the court to possible issues of psychological harm prior to jury selection and during opening statements. When the government made its § 3509(e) request prior to calling D.C. as a witness, the court immediately noted the need "for a threshold showing of difficulty" — the initial Waller requirement — and asked for defense counsel's response, which was to doubt "there's an extraordinary need." The prosecutor then described the basis for his contention that D.C. testifying "with all these other ... relatives in the back of the courtroom looking at her [would] cause some psychological harm to this child." The district court, drawing on its extensive experience with child victims testifying in prior cases, then granted the government's § 3509(e) motion. That the court did not articulate more explicit findings regarding D.C.'s psychological well-being, or explicitly consider other alternatives, is understandable given the lack of a defense objection to its ruling. And under our deferential standard of review, we must assume appellate counsel was aware that, even if a clear objection had been made, "specific findings by the district court are not necessary if we can glean sufficient support for a partial temporary closure from the record." United States v. Farmer, 32 F.3d 369, 371 (8th Cir.1994).
Second, perhaps more significant, in Thunder defense counsel "objected and renewed the objection each time that the courtroom was cleared for a child's testimony." 438 F.3d at 867. Here, while Charboneau's trial counsel questioned the government's initial showing of need, counsel did not object when the court temporarily
We also assume that, in weighing whether to add a public trial issue to the serious Confrontation Clause issues raised on direct appeal, Charboneau's appellate counsel knew that the government's interest in "safeguarding the physical and psychological well-being of a minor [is] a compelling one" that warrants the temporary closing of a public trial upon a properly particularized showing of need. Globe Newspaper, 457 U.S. at 607, 102 S.Ct. 2613. Likewise, for Strickland purposes, we assume that counsel knew from comparing our decisions in Farmer and in Thunder that applying the Waller requirements to testimony by the child victim in a particular case is not easy, and that the district court had made at least an abbreviated attempt to do so in this case. In these circumstances, we conclude it was not unreasonable for Charboneau's appellate counsel to conclude that the district court's findings, though not extensive, were sufficient to withstand a plain error challenge under Waller on direct appeal.
B. Prejudice. Relying on McGurk v. Stenberg, 163 F.3d 470, 475 (8th Cir.1998), Charboneau argues that he need not show Strickland prejudice because prejudice is presumed when counsel's deficient performance results in "structural error," here, the lack of a public trial. But the issue is alleged ineffective assistance of appellate counsel. His performance did not result in structural trial error, he simply failed to assert a public trial claim on appeal. Thus, the normal Strickland prejudice rule applies: Charboneau "must demonstrate a reasonable probability that the result of the proceedings" — that is, the direct appeal — "would have been different absent counsel's error." Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir.), cert. denied, 540 U.S. 1094, 124 S.Ct. 970, 157 L.Ed.2d 803 (2003).
We have previously explained why there is no reasonable probability that the district court's order temporarily closing
In Presley, despite defense objection, the courtroom was closed during juror voir dire to the one member of the public who was present in order to better accommodate the large number of prospective jurors. Noting that "[n]othing in the record shows that the trial court could not have accommodated the public," the Supreme Court pointed out obvious alternatives that were available and should have been considered. Id. at 725. How Presley applies when a child is about to testify at a criminal trial is far from clear. Prior circuit court decisions — available to Charboneau's appellate counsel when deciding whether to raise the issue — concluded that a trial judge is not required to consider sua sponte alternatives to temporary closure for the testimony of one witness, giving reasons that seem eminently sound and were not implicated by the jury voir dire in Presley. See Bowden v. Keane, 237 F.3d 125, 131 & n. 3 (2d Cir.2001); Bell v. Jarvis, 236 F.3d 149, 170 (4th Cir.2000) (en banc) ("the trial judge is not in a superior position to suggest alternatives which may be more acceptable to the defendant and his counsel"), cert. denied, 534 U.S. 830, 122 S.Ct. 74, 151 L.Ed.2d 39 (2001); Ayala v. Speckard, 131 F.3d 62, 72 (2d Cir.1997) (en banc) ("we do not believe that the Supreme Court [in Waller] wanted trial judges selecting the alternative of limited closure to consider further alternatives that themselves pose substantial risks to a fair trial for the defendant"), cert. denied, 524 U.S. 958, 118 S.Ct. 2380, 141 L.Ed.2d 747 (1998). To take obvious examples of the risks at issue, the defense may decide that temporary closure will afford more effective cross examination of a child witness than if the child testifies by closed circuit television, or that screening the witness from members of the audience who are visibly supportive of the defendant will send a negative message to the jury. We need not decide this issue because, whatever impact Presley may have on closure issues when a child victim testifies at trial, it has no impact on whether the closure was plain error in this case because Presley was not decided until after the district court ruled.
For these reasons, we conclude that Charboneau failed to show constitutionally ineffective assistance of counsel on direct appeal. Accordingly, his public trial claim is procedurally barred, and his motion for § 2255 relief was properly denied.
The Order of the district court denying Charboneau's motion for relief under 28 U.S.C. § 2255 is affirmed.