United States District Court, D. Massachusetts
CHARLES P. DYER, Petitioner,
GARY RODEN, Respondent.
MEMORANDUM AND ORDER
Talwani United States District Judge
pending before this court is Petitioner Charles P. Dyer's
Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody
(“Petition”) [#1] alleging his state court
conviction violated his Constitutional rights in several
respects. The Magistrate Judge to whom the matter was
referred recommends that the petition be denied. Report and
Recommendation (“R&R”) [#66]. Petitioner has
timely filed objections. Objection to the Magistrate's
Report and Recommendation (“Obj. R&R”) [#72].
Having considered Petitioner's objections and reviewing
the objected-to portions of the Report &
Recommendation [#66] de novo, Fed.R.Civ.P. 72(b)(3), the
court ADOPTS the recommendation of the Magistrate Judge and
provides the following discussion as to the objections raised
Factual & Procedural Background
notes one factual statement based on testimony admitted for a
limited purpose that the Supreme Judicial Court
(“SJC”) nonetheless included in its decision, and
that in turn was quoted in the Report &
Recommendation [#66]. He does not otherwise object to
the facts or procedural history as recited by the Magistrate
Judge, and does not challenge the underlying factual basis
for his conviction. Obj. R&R 1-2 [#72].
addition to a general objection to the Magistrate Judge's
recommendation that the Petition be denied, Obj. R&R 2
[#72], Petitioner asserts specific objections relating to
claim 3 (Sixth Amendment Right to a Public Trial), and claim
5 (Sixth Amendment Right to an Impartial Jury).
Claim 3: Sixth Amendment Right to a Public Trial
Magistrate Judge found that claim 3, asserting
Petitioner's Sixth Amendment right to a public trial, was
procedurally defaulted because the SJC's underlying
decision rested on an adequate and independent state-law
ground that was both firmly established and regularly
followed. R&R 10 [#66]. Moreover, when considering
whether Petitioner had shown cause for the default and
prejudice resulting therefrom, the Magistrate Judge concluded
on the merits that Petitioner had shown neither, and
recommended dismissal of claim 3. Id. at 11-14.
Petitioner objects to this conclusion, arguing that the
Magistrate Judge erred in finding, “without reference
to any factors or circumstances” of the case, that
trial counsel's failure to object to the closed voir dire
was not objectively unreasonable and thus did not excuse
procedural default. Obj. R&R 2-4 [#72].
habeas petitioner may overcome procedural default by showing
cause for the default and prejudice resulting
therefrom. Coleman v. Thompson, 501 U.S.
722, 750 (1991). To establish cause, a petitioner must show
that “some objective factor external to the defense
impeded counsel's efforts to comply with the State's
procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986); Lee v. Corsini, 777 F.3d 46, 59
(1st Cir. 2015) (stating that ineffective assistance of
counsel may constitute cause for default). A petitioner must
also show “actual prejudice resulting from the errors
of which he complains.” United States v.
Frady, 456 U.S. 152, 168 (1982) (internal quotation
ineffective assistance of counsel, at trial or on direct
appeal, in failing to preserve a claim for review may
constitute cause for default.” Lee, 777 F.3d
at 59. However, to show cause for procedural default based on
ineffective assistance of counsel, Petitioner must first show
that his claims for ineffective assistance of counsel were
exhausted below, and that his counsel's performance rose
to the level of constitutional ineffectiveness.
Murray, 477 U.S. at 488-89; Yeboah-Sefah v.
Ficco, 556 F.3d 53, 76 (1st Cir. 2009). To show that
counsel's performance rose to the level of constitutional
ineffectiveness, Petitioner must demonstrate first that
appellate counsel's performance fell below an objective
standard of reasonableness. See id.; Smith v.
Dickhaut, 836 F.3d 97, 103 (1st Cir. 2016); see also
Padilla v. Kentucky, 559 U.S. 356, 371 (2010)
(“Surmounting Strickland's high bar is
never an easy task.”). To analyze whether counsel's
conduct was reasonable, courts apply a totality of
circumstances test with a “strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.” See Strickland
v. Washington, 466 U.S. 668, 689 (1984); United
States v. Valerio, 676 F.3d 237, 246 (1st Cir. 2012).
Second, Petitioner must demonstrate prejudice. To show
prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. “A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
asserts that trial counsel's statements that “it
did not occur to [him] that there was a valid Sixth Amendment
objection to the closed individual voir dire, ” Staiti
Aff. ¶ 4 [#60-1], and that “[h]ad [he] been aware
of the possibility of such an objection, [he] would have made
it, ” id., foreclose the conclusion that trial
counsel acted in an objectively reasonable manner, Obj.
R&R 8-9 [#72]. But even allowing for the affidavit of
Petitioner's trial counsel,  it does not follow that
trial counsel's performance was constitutionally
deficient. As the Magistrate Judge observed, where the
courtroom closure was only partial, the First Circuit has not
found trial counsel's failure to object objectively
unreasonable. For example, in Bucci v. United
States, where the courtroom closure was only partial,
the First Circuit reasoned that “competent defense
counsel . . . could have reasonably concluded that even a
successful Sixth Amendment challenge to the partial courtroom
closure would have done little to increase the defense's
chances of securing a not-guilty verdict.” 662 F.3d 18,
32 (1st Cir. 2011). And in Wilder v. United States,
the “first phase of jury selection took place in open
court, ” and only the “individual voir
dire” took place in the jury deliberation room. 806
F.3d 653, 657 (1st Cir. 2015). The First Circuit stated that
“conducting the individual voir dire in the jury
deliberation room was essentially ‘the functional
equivalent' of a sidebar conference, ” and was
therefore, “at most a partial closure” of the
courtroom. Id. (“The only difference between
[voir dire in the jury deliberation room] and a sidebar
conference was that members of the public could not observe
the individual questioning from their seats in the spectator
gallery and attempt to discern facial expressions or body
language, and the district court did not err in finding no
functional difference between the two.”). Under these
circumstances, even where “counsel's failure to
object [to courtroom closure for voir dire] was due to
ignorance of law[, ] . . . . [o]bjectively reasonable counsel
could have made a strategic choice not to object to the
selection procedure here . . . .” Id. at 660.
core, Petitioner's objection can fairly be read to take
issue with the underlying conclusion that the procedure
employed in his case was only a partial closure, and
therefore did not amount to a structural error. Inherent in
this objection is the same concern raised by Judge Torruella
in his concurring opinion in United States v.
Wilder-that conducting even a portion of voir dire
outside the public view, especially when that portion
(individual voir dire) is the “most critical
component of the jury selection process . . . undercut[s]
the Sixth Amendment guarantee to a public trial and chipped
away at the constitutional protections articulated in
Owens.” 806 F.3d 653, 661, 664 (1st Cir. 2015)
(Torruella, J., concurring). However, given that the voir
dire procedure in Petitioner's case was almost identical
to the procedure employed in Wilder, First Circuit
precedent binds this court.
Petitioner shown that his trial counsel's performance was
constitutionally deficient, he would still be required to
demonstrate prejudice, a showing he has failed to make here.
He has provided no explanation for how the individual voir
dire or his counsel's failure to object to that procedure
affected either the composition of the jury or the outcome of
his trial. For similar reasons, Petitioner also has not shown
prejudice resulting from the procedural default. Because
Petitioner cannot demonstrate cause or prejudice, he cannot
surmount the procedural default, and claim 3 is dismissed.
Claim 5: Sixth Amendment Right ...