The opinion of the court was delivered by: Edward J. Garcia, Judge United States District Court
Defendant, a prisoner proceeding pro se, has filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. After reviewing the record, the documents filed in connection with the motion and the applicable law, the court has determined the motion may be decided without an evidentiary hearing because the files and records of the case affirmatively show the factual and legal invalidity of defendant's arguments. Shah v. United States, 878 F.2d 1156, 1158-59 (9th Cir. 1989). For the reasons that follow, the motion is DENIED.
Defendant was convicted on July 10, 2007, following a jury trial for several arson and related counts. On November 2, 2007, he was sentenced to 180 months imprisonment and a three year term of supervised release. His sentence and conviction were affirmed on appeal. United States v. Dharni, 324 Fed. Appx. 554 (9th Cir. 2009).
Defendant raises two claims in his § 2255 motion: 1) violation of his Sixth Amendment right to a public trial; and 2) ineffective assistance of trial and appellate counsel.
1. Sixth Amendment Right to a Public Trial
Defendant alleges that his rights were violated when his family and all other spectators had to leave the courtroom during voir dire. Plaintiff argues that defendant procedurally defaulted this claim by not raising this issue on appeal and that the claim also fails on the merits. Rather than look to the procedural default issue and whether defendant has shown cause and prejudice the court will look to the merits of the claim.*fn1
In the instant case, jury selection occurred on July 2, 2007. Due to trial starting before and continuing beyond the July 4th holiday, the court convened a larger than usual panel of prospective jurors. The court stated:
As soon as the jury comes up, I'm going to ask all family members to go out in the hall. We need every seat in the audience section of the courtroom as we called in extra jurors because of the vacation problem. So that during jury selection, all of the family and friends of the defendant and any other spectators that are out there will wait out in the hall during jury selection until seats open up.
Reporters Transcript (RT) Vol. 1 at 18.
The court's comments did not draw an objection. The issues raised in defendant's motion have been the subject of recent Ninth Circuit and Supreme Court decisions. In 2010, the Supreme Court in Presley v. Georgia, U.S. , 130 S.Ct. 721 (2010), reversed a criminal judgment where the trial court excluded members of the public, including family of members of the defendant, during voir dire, based on space limitations and concern that jurors may accidentally hear prejudicial remarks. The Supreme Court held that "trial courts are required to consider alternatives to closure even when they are not offered by the parties" and "[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials." Presley, 130 S.Ct. at 724-25; United States v. Withers, --- F. 3d ---- , 2011 WL 6184 *5 (9th Cir. Jan. 3, 2011) (right to a public trial is violated when the court is totally closed to the public, for a non-trivial duration, without complying with the four requirements established in Waller v. Georgia, 467 U.S. 39 (1984)). Defendant cites Presley and argues that a structural error was committed that requires dismissal of the charges or retrial. For the reasons set forth below, defendant is mistaken.
Presley was decided in 2010, three years after the case at bar. Prior
to Presley, it was an open question if the Sixth Amendment right to a
public trial extended to jury selection and voir dire.*fn2
Presley, at 723-24. Since Presley, several district
courts have noted and held that "nowhere in Presley does the Supreme
Court announce that any part of it's holding should apply
retroactively on collateral review. Nor has it so held in any
subsequent opinion." Julian v. Commonwealth of Pennsylvania, 2010 WL
1854121 *4 (W.D. Pa. 2010); See also Bennefield v. Kirkpatrick,---
F.Supp.2d ----, 2010 WL 3860992 *10, Fn. 1 (W.D.N.Y. 2010); Chalk v.
Rhode Island, 2010 WL 597463 *5 Fn. 2 (D.R.I. 2010); Edelkind v.
United States, 2010 WL2944369 *8 (W.D. La. 2010).
Regardless that Presley was decided three years after the instant case and that the law was unsettled, the trial closure at issue here was a "trivial" closure that did not violate the Sixth Amendment. In United States v. Ivester, 316 F.3d 955 (9th Cir. 2003), the Ninth Circuit held that determining whether a closure was too trivial to violate the Sixth Amendment one must look to the values stated in Waller v. Georgia, 467 U.S. 39 (1984) and Peterson v. Williams, ...