PREGERSON, Circuit Judge:
Michel Withers ("Withers") appeals the district court's denial of his 28 U.S.C. § 2255 habeas motion.
In 1998, a federal jury found Withers guilty of possession of controlled substances with intent to distribute, money laundering, engaging in a continuing criminal enterprise, and conspiracy to possess controlled substances with the intent to distribute. The district court sentenced Withers to life imprisonment plus 360 months, but eventually reduced the sentence to 365 months concurrent with 360 months.
In 2001, Withers filed a 28 U.S.C. § 2241 petition for habeas relief. The district court denied that petition, and we denied Withers's request for a certificate of appealability.
In 2003, Withers filed a 28 U.S.C. § 2255 motion for habeas relief. Because Withers had previously filed a § 2241 habeas petition, the district court treated Withers's § 2255 motion as a second or successive motion filed without permission, and denied it. Withers appealed. On appeal, the government conceded that, under Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003),
On remand, however, the district court did not consider the merits of Withers's § 2255 motion, but instead erroneously reconsidered Withers's sentence. As a result, we again remanded for the district
On July 1, 2005, the district court filed a three-sentence order denying Withers's § 2255 motion:
On November 7, 2005, Withers filed a notice of appeal. The district court concluded that Withers failed to make a "substantial showing of the denial of a constitutional right," and, on that basis, declined to issue Withers a certificate of appealability. Undeterred, Withers continued to pursue his appeal and sought a certificate of appealability from this court.
On August 2, 2007, we granted a certificate of appealability on whether the district court erred by failing to discuss the merits of Withers's § 2255 motion or by failing to make findings of fact and conclusions of law. We also ordered a limited remand to the district court to determine whether Withers's notice of appeal was timely. We stayed consideration of the appeal until the district court's resolution of the timeliness issue.
On August 6, 2007, the district court decided that Withers's notice of appeal was untimely. Withers appealed that decision. This court consolidated that appeal with the earlier, previously stayed appeal on whether the district court erred by failing to discuss the merits of Withers's § 2255 habeas motion or by failing to make findings of fact and conclusions of law.
Accordingly, the issues that we must now decide are whether the district court erred in deciding that Withers's notice of appeal was untimely, and whether the district court erred by failing to discuss the merits of Withers's § 2255 habeas motion or by failing to make findings of fact and conclusions of law.
We review de novo the timeliness of a notice of appeal. Ford v. MCI Commc'ns Corp. Health & Welfare Plan, 399 F.3d 1076, 1079 (9th Cir.2005). We review a district court's denial of a motion to reopen the time for filing an appeal for abuse of discretion. In re Stein, 197 F.3d 421, 424 (9th Cir.1999).
We review de novo the district court's denial of a § 2255 motion. United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir.2003).
Under Federal Rule of Appellate Procedure 4(a)(1)(B), a notice of appeal is timely if it is filed within sixty days after the entry of the order or judgment that is the subject of the appeal. Withers filed his notice of appeal on November 7, 2005— more than sixty days after the July 1, 2005, district court order denying Withers's § 2255 motion. Federal Rule of Appellate Procedure 4(a)(6), however, allows an appellant to move to reopen the time to file an appeal if the appellant did not receive timely notice of the entry of the order or judgment from which he appeals.
Although Withers did not file a motion to reopen the time for filing an appeal, we conclude that the district court should have construed his pro se notice of appeal
Under Federal Rule of Appellate Procedure 4(a)(6), "[t]he district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered" if:
Rule 4(a)(6) gives a district court discretion in deciding whether to grant a motion to reopen. But that discretion is limited. See Arai v. Am. Bryce Ranches Inc., 316 F.3d 1066, 1070 (9th Cir.2003); Nunley v. City of Los Angeles, 52 F.3d 792, 798 (9th Cir.1995). Where a moving party makes an unchallenged assertion that he did not receive timely notice of judgment, and the other Rule 4(a)(6) conditions are not at issue, a district court errs in denying the motion to reopen based solely on the party's failure to learn independently of the entry of judgment. Nunley, 52 F.3d at 796, 798.
Here, Withers made an unchallenged assertion that he did not receive timely notice of judgment. Specifically, Withers claimed that he did not receive the district court's order denying his § 2255 habeas motion until November 4, 2005—three days before he filed his notice of appeal on November 7, 2005. Additionally, the other Rule 4(a)(6) conditions, (B) and (C), are not at issue. Condition (B) is not at issue because Withers filed his notice to reopen within fourteen days of receiving notice of the district court's order denying his § 2255 habeas motion. Condition (C) is not at issue because the government does not argue that it was prejudiced. Accordingly, the only question is whether the district court erred in declining to reopen the time to file an appeal even though Withers made an unchallenged assertion that he did not receive the notice of the entry of judgment until November 4, 2005. We conclude that the district court did so err.
By asserting that he did not receive the notice of the entry of judgment until November 4, 2005, Withers alleged, albeit inartfully, that he did not timely file his notice of appeal because of his late receipt of the notice of judgment. The district court did not acknowledge Withers's asserted late receipt of the notice of judgment,
Withers's notice of appeal should have been generously construed as both a notice of appeal and a motion to reopen the time for filing an appeal. Additionally, that motion to reopen should have been granted because Withers asserted that he did not receive a copy of the district court order denying his § 2255 motion until three days before he filed his notice of appeal—an assertion the Government does not contest. Accordingly, the district court erred when it found that Withers's notice of appeal was untimely.
Under 28 U.S.C. § 2255, a federal court may vacate, set aside, or correct a federal prisoner's sentence if the sentence was imposed in violation of the Constitution or laws of the United States. 28 U.S.C. § 2255(a); Davis v. United States, 417 U.S. 333, 344-45, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974).
When a district court reviews a § 2255 habeas motion, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255(b). In determining whether a hearing and findings of fact and conclusions of law are required, "[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted." United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984) (citing United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980)). Under this standard, a district court may summarily dismiss
Here, the district court summarily dismissed Withers's § 2255 motion, which included eighteen claims for relief. We conclude that sixteen of Withers's claims were sufficiently frivolous to warrant summary dismissal. Withers's remaining two claims, however, are supported by non-incredible and non-frivolous allegations which, if true, would warrant habeas relief. Those two claims are: (1) Withers's claim that the district court violated his Sixth Amendment right to a public trial by closing the courtroom to the public during voir dire; and (2) Withers's claim that his trial counsel was ineffective for failing to object to the closure of the courtroom. For the reasons set forth below, we conclude that the district court erred in summarily dismissing these two claims.
Withers claims that he is entitled to habeas relief because the district
"The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions...." Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (internal quotation marks and citations omitted). For that reason, before totally closing any part of a trial to the public,
Presley, 130 S.Ct. at 724 (quoting Waller, 467 U.S. at 48, 104 S.Ct. 2210); see also Press-Enterprise, 464 U.S. at 510, 104 S.Ct. 819.
A district court violates a defendant's right to a public trial when it totally closes the courtroom to the public, for a nontrivial duration, without first complying with the four requirements established by the Supreme Court's Press-Enterprise and Waller decisions. See Waller, 467 U.S. at 48, 104 S.Ct. 2210; United States v. Ivester, 316 F.3d 955, 959 (9th Cir.2003) (holding that trivial closures do not violate the Sixth Amendment); United States v. Sherlock, 962 F.2d 1349, 1357 (9th Cir.1992) (holding that partial closures are subject to less stringent requirements). Because such violations are structural errors, they warrant habeas relief without a showing of specific prejudice. See Waller, 467 U.S. at 49-50, 104 S.Ct. 2210.
Withers claims that the district court violated his right to a public trial by closing the courtroom just before voir dire began. The record plainly supports this claim. The transcript shows that the district court closed the courtroom by ordering the public out before conducting voir dire:
Nothing in the record indicates that this closure was for a trivial duration, or that the district court complied with the Press-Enterprise/Waller requirements. Therefore, Withers's claim that the district court violated his Sixth Amendment right to a public trial by closing the courtroom during voir dire is not palpably incredible or patently frivolous.
Withers's entitlement to relief on his public trial claim, however, will depend on whether the courtroom closure lasted for more than a trivial duration and whether the district court complied with the Press-Enterprise/Waller requirements. Although there is nothing in the record before us indicating that the closure lasted only a trivial duration, or that the district court complied with the Press-Enterprise/Waller requirements, neither is the record before us sufficient to conclude that the closure lasted longer than a trivial
The government argues that Withers procedurally defaulted his public trial claim by failing to raise it on direct review. Thus, he is not entitled to habeas relief on this claim unless he can overcome the procedural default by showing cause and prejudice. See, e.g., Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Withers, however, had no obligation to overcome procedural default in his motion. See Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir.2005) (explaining that "[p]rocedural default is an affirmative defense"). Because the district court did not order the government to respond to Withers's motion, the government never raised an affirmative procedural bar defense in the district court. Withers therefore had no opportunity in the district court to establish cause and prejudice excusing his default.
Moreover, even if Withers were obligated to negate procedural default in his motion by alleging cause and prejudice, he has made credible non-frivolous claims that he can do so.
Withers claimed that his appellate counsel was ineffective—a claim that, if successful, would satisfy the cause requirement that is necessary to overcome procedural default. See Moormann v. Schriro, 426 F.3d 1044, 1059 (9th Cir. 2005). To establish ineffective assistance of counsel, Withers must show that his "counsel's representation fell below an objective standard of reasonableness," and that there is a "reasonable probability" that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Turner, 281 F.3d at 872 (explaining that the Strickland standard applies to ineffective assistance of appellate counsel).
Assuming that Withers's public trial claim was viable—as we must because the record contains no indication that the closure of the courtroom satisfied constitutional requirements—appellate counsel's failure to raise it likely fell below an objective standard of reasonableness. This conclusion accords with the First Circuit's analysis of this issue. See Owens v. United States, 483 F.3d 48, 63 (1st Cir.2007) ("Owens' attorneys' failure to notice or object to the closure of his trial may show that their performance fell below `an objective standard of reasonableness.'"). Because Withers's public trial claim is not palpably incredible or patently frivolous, neither is his claim that his appellate counsel performed deficiently by failing to raise it on direct review.
Withers's claim that there is a "reasonable probability" that his appellate counsel's failure to raise this claim prejudiced him is similarly not palpably incredible or patently frivolous. Again assuming that his public trial claim was viable, his counsel's failure to raise it almost certainly prejudiced him: Because violation of the public trial right is a structural error, Withers would have been entitled to automatic reversal of his conviction and a new trial had he established a violation. See Waller, 467 U.S. at 49-50, 104 S.Ct. 2210; Campbell v. Rice, 408 F.3d 1166, 1171-1172 (9th Cir.2005) (noting that violation of the right to a public trial is one of those
Thus, Withers made a credible, non-frivolous claim that his appellate counsel provided ineffective assistance of counsel.
Withers has also made a credible, non-frivolous claim of prejudice—the second requirement for overcoming procedural default. Withers can establish the prejudice necessary to overcome procedural default if the error of which he complains "infect[ed] his entire trial with error of constitutional dimensions." Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The alleged closing of Withers's trial would have infected his entire trial with such error. Indeed, implicit in the recognition that trial closures are structural errors is the recognition that such errors "affect the framework in which the trial proceeds." Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); see also Campbell, 408 F.3d at 1171-1172. If Withers establishes a violation of his right to a public trial, that structural error would likely satisfy the prejudice showing.
For the reasons stated above, Withers made a credible, non-frivolous claim of ineffective assistance of counsel, which could establish the cause showing necessary to overcome procedural default. Likewise, because Withers's underlying non-frivolous public trial claim alleges structural error, he can also likely establish prejudice sufficient to overcome procedural default. Therefore, even if Withers bore the burden of making a credible, non-frivolous claim that he could overcome procedural default in his motion, he has met that burden. Accordingly, the district court could not have properly based its summary dismissal on procedural default.
Because his public trial claim was not palpably incredible or patently frivolous, and because it was not clear on the face of his motion that a procedural default barred relief, the district court erred in summarily dismissing this claim without ordering the government to file a response and without issuing findings of fact and conclusions of law.
We cannot resolve this issue without further evidentiary development, however. Resolution of this procedural default issue depends on whether Withers's appellate counsel was ineffective, which in turn depends on whether Withers's public trial
As an independent ground for habeas relief, Withers claims that his trial counsel was ineffective for failing to object to the closure of the courtroom during voir dire. Ineffective assistance of trial counsel is grounds for habeas relief, and such a claim need not be raised on direct appeal to preserve it for collateral attack. Massaro, 538 U.S. at 504, 123 S.Ct. 1690. Thus, it is of no import that Withers's appellate counsel did not raise this issue on direct appeal.
To establish ineffective assistance of counsel, Withers must show that his "counsel's representation fell below an objective standard of reasonableness," and that there is a "reasonable probability" that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. 2052.
Withers claims that his trial counsel's failure to object to the closure of his trial fell below an objective standard of reasonableness. On the record before us, we conclude that this claim is not frivolous or incredible, particularly because the right to a public trial is critical to ensuring a fair trial. See Waller, 467 U.S. at 46, 104 S.Ct. 2210 (explaining that the right to a public trial helps ensure a fair trial); Herring v. New York, 422 U.S. 853, 856-57, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (explaining that the Sixth Amendment's guarantee of the right to a public trial is a fundamental right). This conclusion is in accord with decisions of the First and Sixth Circuits. See Johnson v. Sherry, 586 F.3d 439, 446 (6th Cir.2009) (holding that "an evidentiary hearing is warranted to determine if trial counsel's failure to object to the closure constitutes deficient performance"); Owens, 483 F.3d at 63 ("Owens' attorneys' failure to notice or object to the closure of his trial may show that their performance fell below `an objective standard of reasonableness.'").
Withers claims that he can establish that his trial counsel's deficient performance caused him prejudice because it resulted in a structural error, which gives rise to a presumption of prejudice. The Ninth Circuit has not yet decided whether a trial counsel's failure to object to a structural error is presumptively prejudicial for purposes of the Strickland ineffective assistance of counsel inquiry.
We do not decide that question here, however, because the procedural posture of this case limits our inquiry to whether such a claim of presumptive prejudice
In sum, Withers made a credible, non-frivolous claim that his trial counsel's performance fell below objective standards of reasonableness and caused a structural error that gave rise to a presumption of prejudice. Because Withers made a credible, non-frivolous claim for habeas relief based on ineffective assistance of trial counsel, the district court erred in summarily dismissing this claim without ordering the government to file a response and without issuing findings of fact and conclusions of law.
Withers made credible, non-frivolous public trial and ineffective assistance of trial counsel claims. Accordingly, the district court erred in failing to order the government to file an answer to Withers's habeas motion. See Rule 4(b), Rules Governing § 2255 Proceedings for the United Stated District Courts. For that same
We direct the Clerk of the United States District Court for the Central District of California to reassign this case to a different judge. Reassignment is appropriate in unusual circumstances. See, e.g., D'Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1040-41 (9th Cir.2008). In determining whether there are unusual circumstances, this court considers:
Id. at 1041 (internal citation omitted).
This is the fourth remand in this case. On each of the previous three remands, the district judge erroneously dismissed Withers's § 2255 motion or notice of appeal without discussion. The issues in Withers's motion that may state a claim for relief turn on the manner in which the district judge conducted voir dire. The government does not oppose reassignment. Given the aggregate weight of these circumstances, we conclude that unusual circumstances make reassignment of this case appropriate.
Withers's notice of appeal was timely. The allegations in Withers's § 2255 motion state credible, non-frivolous public trial and ineffective assistance of counsel claims upon which relief could be granted. For these reasons, we remand this case for appropriate fact finding, responsive briefing, and, if warranted, an evidentiary hearing. Because of the unusual circumstances in this case, we direct the Clerk of the United States District Court for the Central District of California to reassign this case to a different judge.
NOONAN, Circuit Judge, dissenting:
The Supreme Court has long sought to ensure that the criminal trial remains "the main event," not a "tryout on the road" for a later habeas proceeding. Coleman v. Thompson, 501 U.S. 722, 747, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). The "main event" in Withers' case took place well over a dozen years ago. In the interests of finality and judicial economy, we can and should decide the remaining claims that the majority leaves for another day. Assuming Withers' appeal to be timely, I would conclude that his public-trial and ineffective-assistance claims fail as a matter of law.
The majority avoids resolving Withers' claims through a mischievous misreading of our precedents interpreting Rule 4 of the Rules Governing § 2255 Cases. Relying
While we accept Withers' factual allegations unless they are "palpably incredible or patently frivolous," we must still decide whether these facts—together with the record of prior proceedings—entitle him to relief as a matter of law. This analysis is essentially identical to that conducted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Schaflander, 743 F.2d at 717 ("The standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted."). Under that familiar standard, dismissal is not "confine[d] ... to claims of law which are obviously insupportable." Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). "On the contrary, ... a claim must be dismissed[ ] without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id.
In Presley v. Georgia, the Supreme Court recently confirmed what many courts had presumed—the Sixth Amendment's guarantee of a public trial extends to the voir dire of prospective jurors. ___ U.S. ___, 130 S.Ct. 721, 723-24, ___ L.Ed.2d ___ (2010) (per curiam). This right, however, is not self-executing: "the Sixth Amendment right to a trial that is public[ ] provide[s] benefits to the entire society more important than many structural guarantees; but if the litigant does not assert[it] in a timely fashion, he is foreclosed." Freytag v. Comm'r, 501 U.S. 868, 896, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring) (internal quotation marks omitted); see Peretz v. United States, 501 U.S. 923, 936, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991); see also Waller v. Georgia, 467 U.S. 39, 42 n. 2, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). As the Supreme Court explained in Levine v. United States:
362 U.S. 610, 619-20, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960).
In the case before us, no objection was raised to the district judge's order that spectators vacate the courtroom during the voir dire of prospective jurors. Cf. Presley, 130 S.Ct. at 722. Nor did Withers, assisted by new counsel, attempt to raise the issue on direct appeal. Cf. id. at 722-23. Withers' public-trial claim was doubly defaulted. It fails as a matter of law.
The majority suggests that Withers may overcome the failure to raise this claim on direct appeal by attributing the default to the deficient performance of appellate
Withers' remaining claim asserts that his trial counsel was constitutionally ineffective for failing to object to the courtroom closure during the voir dire of prospective jurors. "An error by counsel," however, "does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There must be a reasonable probability that, "but for counsel's unprofessional errors,
The Supreme Court has carefully identified three situations in which Strickland prejudice can be presumed. Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). The first is the "complete denial of counsel." Id. The second occurs where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." Id. And the third is found where "counsel is called upon to render assistance under circumstances where competent counsel very likely could not." Id. In these situations, "prejudice is so likely that case-by-case inquiry into prejudice is not worth the cost." Strickland, 466 U.S. at 692, 104 S.Ct. 2052 (emphasis added). Noticeably absent from these enumerated circumstances is counsel's failure to object to a "structural" error.
The reason for this absence is clear: "Per se rules should not be applied ... in situations where the generalization is incorrect as an empirical matter." Coleman, 501 U.S. at 737, 111 S.Ct. 2546. There is no reason to believe that every failure to object to a "structural" error—such as a courtroom closure during the voir dire of prospective jurors—is an instance of ineffective assistance of counsel that requires setting aside the judgment. The Strickland Court recognized that "an act or omission that is unprofessional in one case may be sound or even brilliant in another," 466 U.S. at 693, 104 S.Ct. 2052, and as numerous authorities attest, the closure of a courtroom in many instances may be in a defendant's best interests. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 559-60, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 375, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); see also Freytag, 501 U.S. at 896, 111 S.Ct. 2631 (Scalia, J., concurring).
No presumption of Strickland prejudice is warranted here. The failure to object to a courtroom closure during the voir dire of prospective jurors is not remotely akin to the "actual or constructive denial of the assistance of counsel altogether." Strickland, 466 U.S. at 683, 104 S.Ct. 2052. Nor is there any suggestion that the alleged error "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. 2052. Withers' ineffective-assistance claim fails as a matter of law.
The interests of finality and judicial economy call for resolving Withers' remaining claims on the merits. I would answer this call and affirm the denial of his habeas petition.
Refusing to find Withers' claim forfeited, the majority belatedly concedes that Withers' unpreserved claim would at least be subject to plain-error review. The majority clings to the "possibility" that "structural errors may automatically satisfy the [third] plain-error requirement that the error affect substantial rights." Even accepting this "possibility," Withers could not demonstrate—as he must under plain-error review—that the claimed error "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Johnson, 520 U.S. at 470, 117 S.Ct. 1544. Rather, "it would be the reversal of a conviction such as this which would have that effect." Id. Withers was convicted of 11 counts of narcotics trafficking and money laundering after an 18-day jury trial, ultimately receiving a sentence of 30 years in federal prison. Reversing Withers' conviction due to an error that had no effect whatsoever on the factual determination of his guilt would "encourage[ ] litigants to abuse the judicial process and bestir[ ] the public to ridicule it." Id. (quoting Chief Justice Roger J. Traynor, The Riddle of Harmless Error 50 (1970)).
