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Dyer v. Roden

United States District Court, D. Massachusetts

July 12, 2017

CHARLES P. DYER, Petitioner,
v.
GARY RODEN, Respondent.

          MEMORANDUM AND ORDER

          Indira Talwani United States District Judge

         Currently 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 by Petitioner.

         I. Factual & Procedural Background

         Petitioner 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].

         II. Discussion

         In 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).

         A. Claim 3: Sixth Amendment Right to a Public Trial

         The 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].

         A habeas petitioner may overcome procedural default by showing cause for the default and prejudice resulting therefrom.[1] 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 marks omitted).

         “[C]onstitutionally 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.

         Petitioner 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, [2] 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.

         At its 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.[3]

         Had 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.

         B. Claim 5: Sixth Amendment Right ...


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