United States v. Withers

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-56795
v.  D.C. Nos.
CV-03-06459-R
MICHEL WITHERS, CR-97-01085-R-1
Defendant-Appellant.


UNITED STATES OF AMERICA,  No. 08-55096
Plaintiff-Appellee, D.C. Nos.
v. CV-03-06459-R
MICHEL WITHERS,  CR-97-01085-R-1
Defendant-Appellant. ORDER AND
AMENDED
 OPINION

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding

Argued and Submitted
December 1, 2009—Pasadena, California

Filed August 19, 2010
Amended January 3, 2011

Before: Harry Pregerson, John T. Noonan and
Richard A. Paez, Circuit Judges.

Opinion by Judge Pregerson;
Dissent by Judge Noonan

1
 UNITED STATES v. WITHERS 5

COUNSEL

Jennifer Yihyun Chou, Assistant United States Attorney, Gen-
eral Crimes Section, Los Angeles, California, for the plain-
tiff-appellee.

Verna Jean Wefald, Pasadena California, for the defen-
dant-appellant.

ORDER

In response to a petition for panel rehearing from Plaintiff-
Appellee United States of America, the majority opinion filed
August 19, 2010, slip op. 12207, and appearing at 618 F.3d
1008 (9th Cir. 2010), is hereby amended as follows:

At slip op. at 12220, line 31, after the sentence “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,” add the following
sentence and citation: “Further, the district court did not give
notice of procedural default on its own initiative. See Boyd v.
Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998).”
6 UNITED STATES v. WITHERS
With this amendment, Judges Pregerson and Paez have
voted to deny the petition for panel rehearing. Judge Noonan
abstains from voting on the petition.

No further petitions for panel rehearing will be entertained.

OPINION

PREGERSON, Circuit Judge:

Michel Withers (“Withers”) appeals the district court’s
denial of his 28 U.S.C. § 2255 habeas motion.1 Withers also
appeals the district court’s decision that his notice of appeal
of the district court’s denial of his § 2255 motion was
untimely. We have jurisdiction under 28 U.S.C. §§ 1291 and
2255(d), and, for the reasons explained below, we REVERSE.

I.

In 1998, a federal jury found Withers guilty of possession
of controlled substances with intent to distribute, money laun-
dering, engaging in a continuing criminal enterprise, and con-
spiracy to possess controlled substances with the intent to
distribute. The district court sentenced Withers to life impris-
onment 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.
1
28 U.S.C. § 2255(a) allows federal prisoners to “move the court which
imposed the sentence to vacate, set aside or correct the sentence.” This is
generally referred to as a habeas motion or a § 2255 motion. See, e.g.,
United States v. Lopez, 577 F.3d 1053, 1056 (9th Cir. 2009). 28 U.S.C.
§ 2255 is distinct from 28 U.S.C. § 2241, under which a federal prisoner
may petition for habeas relief.
 UNITED STATES v. WITHERS 7
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 permis-
sion, and denied it. Withers appealed. On appeal, the govern-
ment conceded that, under Castro v. United States, 540 U.S.
375 (2003),2 the district court erred in treating Withers’s
§ 2255 habeas motion as a second or successive motion.
Accordingly, we remanded for the district court to consider
the merits of Withers’s § 2255 motion.

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 court to consider the merits of With-
ers’s § 2255 motion.

On July 1, 2005, the district court filed a three-sentence
order denying Withers’s § 2255 motion:

This matter was remanded by USCA 9th Circuit for
this court to consider the merits of appellant’s 2255
motion pursuant to the Supreme Court’s decision in
Castro v. United States.

This court has considered the merits of appellant’s
2255 motion pursuant to the Supreme Court’s deci-
sion in Castro v. United States.

The motion is denied.

On November 7, 2005, Withers filed a notice of appeal.
The district court concluded that Withers failed to make a
2
In Castro v. United States, the Supreme Court held that a district court
may not re-characterize a pro se litigant’s pleading as a § 2255 motion
without first warning the litigant that he may consequently be barred from
pursuing a later § 2255 motion. 540 U.S. at 383.
8 UNITED STATES v. WITHERS
“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 find-
ings 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 deci-
sion. This court consolidated that appeal with the earlier, pre-
viously 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 con-
clusions of law.

II.

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).
 UNITED STATES v. WITHERS 9
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).

III.

A. Withers’s Notice of Appeal Was Timely

[1] 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.

[2] 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 as a motion
to reopen. For the reasons the Eleventh Circuit describes in
Sanders v. United States, we hold that we must construe a pro
se appellant’s notice of appeal as a motion to reopen the time
for filing an appeal when he alleges that he did not receive
timely notice of the entry of the order or judgment from
which he seeks to appeal. See Sanders v. United States, 113
F.3d 184, 187 (11th Cir. 1997). This is consistent with our
practice of liberally construing pro se litigants’ filings as the
appropriate motion or notice necessary for them to pursue
their legal claims on appeal. See Turner v. Calderon, 281 F.3d
851, 864 (9th Cir. 2002) (treating a pro se notice of appeal as
a request for a certificate of probable cause or appealability);
Brannan v. United States, 993 F.2d 709, 710 (9th Cir. 1993)
(construing a pro se letter as a notice of appeal). Construing
Withers’s notice of appeal as both a notice of appeal and a
10 UNITED STATES v. WITHERS
motion to reopen, the question becomes whether the district
court erred in denying the motion to reopen.

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:

(A) the court finds that the moving party did not
receive notice under Federal Rule of Civil Procedure
77(d) of the entry of the judgment or order sought to
be appealed within 21 days after entry;

(B) the motion is filed within 180 days after the
judgment or order is entered or within 14 days after
the moving party receives notice under Federal Rule
of Civil Procedure 77(d) of the entry, whichever is
earlier; and

(C) the court finds that no party would be prejudiced.

[3] 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 deny-
ing 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
 UNITED STATES v. WITHERS 11
(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. Accord-
ingly, 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 dis-
trict court did not acknowledge Withers’s asserted late receipt
of the notice of judgment, but rather ruled that his notice of
appeal was untimely because he was “given notice on July, 1,
2005,” but “did not file his notice of appeal until November
10, 2005.” Consequently, the district court erred by denying
the motion to reopen despite Withers’s unchallenged assertion
that his late filing was due to his late receipt of the notice of
judgment.

[4] Withers’s notice of appeal should have been gener-
ously 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 deny-
ing his § 2255 motion until three days before he filed his
notice of appeal—an assertion the Government does not con-
test. Accordingly, the district court erred when it found that
Withers’s notice of appeal was untimely.

B. The District Court Erred in Summarily Dismissing
Withers’s § 2255 Habeas Motion

Under 28 U.S.C. § 2255, a federal court may vacate, set
aside, or correct a federal prisoner’s sentence if the sentence
12 UNITED STATES v. WITHERS
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 (1974).

[5] When a district court reviews a § 2255 habeas motion,
“[u]nless the motion and the files and records of the case con-
clusively 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 stan-
dard, a district court may summarily dismiss3 a § 2255 motion
only if the allegations in the motion, when viewed against the
record, do not give rise to a claim for relief or are “palpably
incredible or patently frivolous.” Id.

[6] 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 dis-
trict 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
3
In the context of § 2255 habeas motions, “summarily dismissed”
means the district court dismissed the motion based on a facial review
without ordering responsive briefing and without conducting a hearing or
making “findings of fact and conclusions of law.” See, e.g., United States
v. Howard, 381 F.3d 873, 877 (9th Cir. 2004); Molina v. Rison, 886 F.2d
1124, 1127 n.4 (9th Cir. 1989).
 UNITED STATES v. WITHERS 13
failing to object to the closure of the courtroom. For the rea-
sons set forth below, we conclude that the district court erred
in summarily dismissing these two claims.

1. Sixth Amendment Right to a Public Trial Claim

a. The Merits of Withers’s Public Trial Claim

Withers claims that he is entitled to habeas relief because
the district court violated his Sixth Amendment right to a pub-
lic trial. The Sixth Amendment guarantees a defendant the
right to a public trial, which includes a right to have the public
present during voir dire. U.S. CONST. amend. VI; Presley v.
Georgia, 130 S. Ct. 721, 724 (2010); Press-Enterprise Co. v.
Superior Court of Cal., 464 U.S. 501, 511 (1984).

“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 spec-
tators 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 (1984) (internal quotation
marks and citations omitted). For that reason, before totally
closing any part of a trial to the public,

[t]he party seeking to close the hearing 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 rea-
sonable alternatives to closing the proceeding, and it
must make findings adequate to support the closure.

Presley, 130 S. Ct. at 724 (quoting Waller, 467 U.S. at 48);
see also Press-Enterprise, 464 U.S. at 510.

A district court violates a defendant’s right to a public trial
when it totally closes the courtroom to the public, for a non-
trivial duration, without first complying with the four require-
14 UNITED STATES v. WITHERS
ments established by the Supreme Court’s Press-Enterprise
and Waller decisions. See Waller, 467 U.S. at 48; 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 strin-
gent requirements). Because such violations are structural
errors, they warrant habeas relief without a showing of spe-
cific prejudice. See Waller, 467 U.S. at 49-50.

[7] 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:

We’re going to take a recess to bring down the jury
panel. All you people out there are going to have to
be out of the courtroom. We have to bring in a very
big panel of prospective jurors and we need the
entire courtroom, so all of you out.

Nothing in the record indicates that this closure was for a triv-
ial 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.

[8] 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 dis-
trict court complied with the Press-Enterprise/Waller require-
ments, neither is the record before us sufficient to conclude
that the closure lasted longer than a trivial duration or that the
 UNITED STATES v. WITHERS 15
district court did not comply with the Press-Enterprise/Waller
requirements. We therefore must remand for the district court
to determine these facts, unless the district court’s summary
dismissal was warranted because Withers procedurally
defaulted this claim.

b. Potential Procedural Default of Withers’s Public
Trial Claim

[9] 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 (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. Further, the dis-
trict court did not give notice of procedural default on its own
initiative. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th
Cir. 1998). Withers therefore had no opportunity in the dis-
trict court to establish cause and prejudice excusing his
default.

[10] Moreover, even if Withers were obligated to negate
procedural default in his motion by alleging cause and preju-
dice, he has made credible non-frivolous claims that he can do
so.

i. Withers made a credible, non-frivolous claim that
he can show cause

Withers claimed that his appellate counsel was ineffective
—a claim that, if successful, would satisfy the cause require-
ment that is necessary to overcome procedural default. See
16 UNITED STATES v. WITHERS
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 objec-
tive standard of reasonableness,” and that there is a “reason-
able probability” that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687-88, 694
(1984); see also Turner, 281 F.3d at 872 (explaining that the
Strickland standard applies to ineffective assistance of appel-
late 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’ attor-
neys’ 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 fail-
ing 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; 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 rare constitutional errors that
requires automatic reversal because it amounts to a structural
defect).
 UNITED STATES v. WITHERS 17
Thus, Withers made a credible, non-frivolous claim that his
appellate counsel provided ineffective assistance of counsel.4
Withers therefore presented a credible, non-frivolous claim of
cause necessary to overcome any procedural default.

ii. Withers made a credible, non-frivolous claim that
he can show prejudice

Withers has also made a credible, non-frivolous claim of
prejudice—the second requirement for overcoming proce-
dural default. Withers can establish the prejudice necessary to
overcome procedural default if the error of which he com-
plains “infect[ed] his entire trial with error of constitutional
dimensions.” Murray v. Carrier, 477 U.S. 478, 494 (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 pro-
ceeds.” Arizona v. Fulminante, 499 U.S. 279, 310 (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.

iii. Withers made credible, non-frivolous claims that
he can overcome procedural default

[11] For the reasons stated above, Withers made a credible,
4
The Dissent argues that because Withers’s trial counsel did not con-
temporaneously object to the closure of the trial, it is not likely that his
public trial claim would have prevailed on appeal, and thus his appellate
counsel was not ineffective for failing to raise it. Dissent Op. at 25. This,
however, overstates the likely significance of trial counsel’s failure to
object. Even though the failure to object would have required the appeals
court to apply plain error review, it is reasonably likely that the appeals
court would have determined that relief was warranted even under plain
error review. See Puckett v. United States, 129 S. Ct. 1423, 1432 (2009)
(recognizing the possibility that structural errors may automatically satisfy
the plain-error requirement that the error affect substantial rights).
18 UNITED STATES v. WITHERS
non-frivolous claim of ineffective assistance of counsel,
which could establish the cause showing necessary to over-
come procedural default. Likewise, because Withers’s under-
lying 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 over-
come procedural default in his motion, he has met that bur-
den. 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 dis-
trict court erred in summarily dismissing this claim without
ordering the government to file a response and without issu-
ing findings of fact and conclusions of law.

iv. Remand of these issues is appropriate

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 pub-
lic trial claim was viable. Because we cannot assess the via-
bility of that claim without knowing for how long the trial
judge closed the courtroom, or whether he complied with the
Press-Enterprise/Waller requirements, we likewise cannot
determine whether appellate counsel was ineffective. Remand
for the district court to develop the underlying facts is there-
fore appropriate. See Massaro v. United States, 538 U.S. 500,
505 (2003) (“[T]he district court [is] the forum best suited to
developing the facts necessary to determining the adequacy of
representation.”).

2. Ineffective Assistance of Trial Counsel Claim

As an independent ground for habeas relief, Withers claims
that his trial counsel was ineffective for failing to object to the
 UNITED STATES v. WITHERS 19
closure of the courtroom during voir dire. Ineffective assis-
tance 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. 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 objec-
tive standard of reasonableness,” and that there is a “reason-
able probability” that the deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687-88, 694.

a. Withers made a credible, non-frivolous claim that his
trial counsel’s performance fell below an objective
standard of reasonableness

[12] 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 (explaining that the right to a public
trial helps ensure a fair trial); Herring v. New York, 422 U.S.
853, 856-57 (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.’ ”).
20 UNITED STATES v. WITHERS
b. Withers made a credible, non-frivolous claim that he
was prejudiced by his trial counsel’s deficient
performance

[13] 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 presump-
tion 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 is frivolous.5 It plainly
is not. At least three circuits have concluded that prejudice
can be presumed where counsel’s deficient performance
results in a structural error. See Johnson, 586 F.3d at 447
(“Because the right to a public trial is a structural guarantee,
if the closure were unjustified or broader than necessary, prej-
5
The Dissent objects to our decision not to resolve conclusively the
question of whether a petitioner can establish prejudice for ineffective
assistance of counsel purposes by showing that his trial counsel’s deficient
performance caused structural error. Dissent Op. at 27. Contrary to the
Dissent’s suggestion, we do not believe our restraint wastes judicial
resources in the circumstances here. In light of our disposition of With-
ers’s public trial claim, we must remand this case to the district court in
any event. On remand, the district court might determine that Withers suf-
fered no violation of his public trial right because the trial judge closed the
courtroom for only a trivial duration, or because he complied with the
Press-Enterprise/Waller requirements. Because the failure to object to a
legitimate courtroom closure would not amount to ineffective assistance
of counsel, fact-finding relevant to the public trial claim could affect
whether Withers has a viable ineffective assistance of trial counsel claim.
Remand is thus expedient. Moreover, this approach is consistent with the
“established part of our constitutional jurisprudence that we do not ordi-
narily reach out to make novel or unnecessarily broad pronouncements on
constitutional issues when a case can be fully resolved on a narrower
ground.” Greater New Orleans Broad. Ass’n, Inc. v. United States, 527
U.S. 173, 184 (1999).
 UNITED STATES v. WITHERS 21
udice would be presumed.”); Owens, 483 F.3d at 64-65 (hold-
ing that, because it “is impossible to determine whether a
structural error is prejudicial,” prejudice can be presumed for
purposes of the Strickland analysis where counsel failed to
object to a structural error”); McGurk v. Stenberg, 163 F.3d
470, 475 (8th Cir. 1998) (holding that “when counsel’s defi-
cient performance causes a structural error, we will presume
prejudice under Strickland“); but see Purvis v. Crosby, 451
F.3d 734, 742 (11th Cir. 2006) (requiring a showing of actual
prejudice where counsel failed to object to a courtroom clo-
sure); Virgil v. Dretke, 446 F.3d 598, 607 (5th Cir. 2006)
(declining to hold that “a structural error alone is sufficient to
warrant a presumption of prejudice in the ineffective assis-
tance of counsel context”). Indeed, we have strongly sug-
gested the same. See Styers v. Schriro, 547 F.3d 1026, 1030
n.5 (9th Cir. 2008) (noting that “no . . . additional or separate
showing of prejudice would appear necessary” where coun-
sel’s deficiency resulted in a structural error).

c. Withers made a credible, non-frivolous ineffective
assistance of trial counsel claim

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 credi-
ble, non-frivolous claim for habeas relief based on ineffective
assistance of trial counsel, the district court erred in summa-
rily dismissing this claim without ordering the government to
file a response and without issuing findings of fact and con-
clusions of law.

3. The district court must consider Withers’s non-
frivolous claims for habeas relief

[14] 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
22 UNITED STATES v. WITHERS
an answer to Withers’s habeas motion. See Rule 4(b), Rules
Governing § 2255 Proceedings for the United Stated District
Courts. For that same reason, the district court erred by sum-
marily dismissing Withers’s § 2255 motion without making
findings of fact and conclusions of law. See 28 U.S.C.
§ 2255(b). Therefore, we remand and direct the district court
to: (1) order the government to file an answer to Withers’s
habeas motion, (2) conduct an evidentiary hearing if war-
ranted, and (3) issue findings of fact and conclusions of law
on the non-frivolous claims addressed in this opinion.

C. Reassignment

We direct the Clerk of the United States District Court for
the Central District of California to reassign this case to a dif-
ferent judge. Reassignment is appropriate in unusual circum-
stances. See, e.g., D’Lil v. Best Western Encina Lodge &
Suites, 538 F.3d 1031, 1040-41 (9th Cir. 2008). In determin-
ing whether there are unusual circumstances, this court con-
siders:

(1) whether the original judge would reasonably be
expected upon remand to have substantial difficulty
in putting out of his or her mind previously
expressed views or findings determined to be errone-
ous or based on evidence that must be rejected, (2)
whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment
would entail waste and duplication out of proportion
to any gain in preserving the appearance of fairness.

Id. at 1041 (internal citation omitted).

[15] This is the fourth remand in this case. On each of the
previous three remands, the district judge erroneously dis-
missed 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
 UNITED STATES v. WITHERS 23
conducted voir dire. The government does not oppose reas-
signment. Given the aggregate weight of these circumstances,
we conclude that unusual circumstances make reassignment
of this case appropriate.

IV.

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 cir-
cumstances 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.

REVERSED, REMANDED, AND REASSIGNED.

NOONAN, Circuit Judge, dissenting:

The Supreme Court has long sought to ensure that the crim-
inal trial remains “the main event,” not a “tryout on the road”
for a later habeas proceeding. Coleman v. Thompson, 501
U.S. 722, 747 (1991) (quoting Wainwright v. Sykes, 433 U.S.
72, 90 (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.

I.

The majority avoids resolving Withers’ claims through a
mischievous misreading of our precedents interpreting Rule 4
24 UNITED STATES v. WITHERS
of the Rules Governing § 2255 Cases. Relying on United
States v. Schaflander, the majority holds that the dismissal of
Withers’ petition was error because his legal arguments were
not “palpably incredible or patently frivolous.” 743 F.2d 714,
717 (9th Cir. 1984) (per curiam). But this language from
Schaflander referred to the factual allegations contained in a
habeas petition, not the legal claims asserted in reliance on
those facts. See id.; see also, e.g., United States v. Hearst, 638
F.2d 1190, 1194 (9th Cir. 1980) (“[I]n certain cases the fac-
tual allegations are so palpably incredible, so patently frivo-
lous or false, that it is clear the movant is not entitled to relief
or even to a hearing.” (emphasis added) (citations and internal
quotation marks omitted)).

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 Schaf-
lander, 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. Wil-
liams, 490 U.S. 319, 326 (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.

II.

In Presley v. Georgia, the Supreme Court recently con-
firmed what many courts had presumed—the Sixth Amend-
ment’s guarantee of a public trial extends to the voir dire of
prospective jurors. 130 S. Ct. 721, 723-24 (2010) (per
curiam). This right, however, is not self-executing: “the Sixth
Amendment right to a trial that is public[ ] provide[s] benefits
 UNITED STATES v. WITHERS 25
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 (1991) (Scalia, J., concurring) (internal quotation marks
omitted); see Peretz v. United States, 501 U.S. 923, 936
(1991); see also Waller v. Georgia, 467 U.S. 39, 42 n.2
(1984). As the Supreme Court explained in Levine v. United
States:

Due regard generally for the public nature of the
judicial process does not require disregard of the
solid demands of the fair administration of justice in
favor of a party who, at the appropriate time and act-
ing under advice of counsel, saw no disregard of a
right, but raises an abstract claim only as an after-
thought on appeal.

362 U.S. 610, 619-20 (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 fail-
ure to raise this claim on direct appeal by attributing the
default to the deficient performance of appellate counsel.1 But
1
As a threshold matter, the majority submits that Withers’ default must
first be asserted in the district court, but this suggestion is belied by the
well-established rule that we may raise procedural bars sua sponte in a
habeas case. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998);
see also Webster v. Woodford, 369 F.3d 1062, 1067 (9th Cir. 2004) (find-
ing that “judicial economy is served by addressing the Teague argument
[on] appeal,” even though it had not been raised in the district court). Of
course, we need not raise Withers’ procedural default sua sponte; the gov-
ernment asserted the defense when it first had the opportunity to do so in
its answering brief, and Withers addressed the argument in his reply brief.
26 UNITED STATES v. WITHERS
constitutionally effective appellate counsel “need not (and
should not) raise every nonfrivolous claim”; “only when
ignored issues are clearly stronger than those presented, will
the presumption of effective assistance of counsel be over-
come.” Smith v. Robbins, 528 U.S. 259, 288 (2000). Withers’
appellate counsel cannot be deemed ineffective for failing to
raise a claim that—if not altogether forfeited under longstand-
ing Supreme Court precedent—would also fail to satisfy the
prerequisites of plain-error review. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009); Johnson v. United
States, 520 U.S. 461, 468-70 (1997). “No procedural principle
is more familiar . . . than that a constitutional right may be
forfeited in criminal as well as civil cases by the failure to
make timely assertion of the right before a tribunal having
jurisdiction to determine it.” Yakus v. United States, 321 U.S.
414, 444 (1944). Withers’ appellate counsel was not ineffec-
tive for prosecuting his appeal in a manner consistent with
this familiar principle.2
2
The majority appears to rely on Waller and Campbell v. Rice, 408 F.3d
1166 (9th Cir. 2005), to suggest that an unpreserved structural error would
garner “automatic reversal” on direct appeal. In Waller, however, the
Supreme Court only addressed a preserved public-trial claim and
expressly indicated that defendants who fail to object may automatically
forfeit their right to a public trial. See 467 U.S. at 42 n.2. In turn, the dic-
tum referenced in Campbell did not distinguish between preserved and
unpreserved errors. See 408 F.3d at 1171-72.
Refusing to find Withers’ claim forfeited, the majority belatedly con-
cedes 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. 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)).
 UNITED STATES v. WITHERS 27
III.

Withers’ remaining claim asserts that his trial counsel was
constitutionally ineffective for failing to object to the court-
room 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 (1984). There must be a reasonable probability that,
“but for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different.” Id. at 694 (emphasis
added). Withers does not attempt to suggest that the absence
of spectators during his jury voir dire undermined the factual
determination of his guilt. Instead, he claims that Strickland
prejudice must be presumed whenever counsel fails to object
to a “structural” error.

The Supreme Court has carefully identified three situations
in which Strickland prejudice can be presumed. Bell v. Cone,
535 U.S. 685, 695 (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 compe-
tent 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 (emphasis
added). Noticeably absent from these enumerated circum-
stances 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.
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
28 UNITED STATES v. WITHERS
is unprofessional in one case may be sound or even brilliant
in another,” 466 U.S. at 693, 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 Newspa-
pers, Inc. v. Virginia, 448 U.S. 555, 559-60 (1980); Gannett
Co., Inc. v. DePasquale, 443 U.S. 368, 375 (1979); see also
Freytag, 501 U.S. at 896 (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. 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. Withers’ ineffective-
assistance claim fails as a matter of law.

IV.

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.