Morales v. United States

04-0858-pr
Morales v. USA

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

_____________________

August Term, 2008

(Argued: August 5, 2009 Decided: March 11, 2011)

Docket No. 04-0858-pr

_____________________

RICHARD MORALES,

Petitioner-Appellant,

— V.—

UNITED STATES OF AMERICA

Respondent-Appellee.

_____________________

Before:

POOLER, HALL, and LIVINGSTON, Circuit Judges.

_____________________

Richard Morales appeals from a judgment of the United States District Court for the

District of Connecticut (Nevas, J.) denying his motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255. Morales v. United States, 294 F. Supp. 2d 174 (D. Conn.

1
2003). Because we conclude that both of his ineffective assistance of counsel claims are without

merit, the district court’s judgment is AFFIRMED.

AFFIRMED.

_____________________

BRIAN SHEPPARD, New Hyde Park, NY, for Petitioner-Appellant.

SANDRA S. GLOVER, Assistant United States Attorney, (William J.
Nardini, Assistant United States Attorney, of counsel), for Nora R.
Dannehy, Acting United States Attorney District of Connecticut, New
Haven, CT, for Respondent-Appellee.

_____________________

HALL, Circuit Judge:

Richard Morales appeals from the denial of his section 2255 motion1 by the United States

District Court for the District of Connecticut (Nevas, J.). Morales v. United States, 294 F. Supp.

2d 174 (D. Conn. 2003). Morales challenged his conviction on the grounds that, inter alia, he

did not receive effective assistance of counsel from his trial or appellate lawyers asserting that

they neither protected his Sixth Amendment right to a public trial nor challenged what Morales

contends was an improper sentence on his conspiracy conviction. Because, based on the record

1
Section 2255(a) provides that:

a prisoner in custody under sentence of a court established by an Act of Congress
claiming the right to be released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such a sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise subject to collateral attack,
may move the court which imposed the sentence to vacate, set aside or correct the
sentence.

28 U.S.C. § 2255(a).

2
before the district court, Morales failed to demonstrate plausibly that his counsel acted

unreasonably in connection with what he asserts was a brief closure of the courtroom, the district

court’s summary denial of this portion of his motion is AFFIRMED. As to the argument that

counsel’s assistance related to sentencing was ineffective, although the district court relied on an

exception to our holding in United States v. Orozco-Prada, 732 F.2d 1076 (2d Cir. 1984) that we

have yet to recognize, we AFFIRM the district court’s ruling because Morales cannot establish

prejudice stemming from his counsel’s failure to challenge that sentence on appeal.

BACKGROUND

On December 8, 1994, Morales was indicted along with 32 other individuals for a variety

of serious crimes related to their participation in the Latin Kings street gang. Morales, who was

alleged to have been the gang’s “Director of Security,” was charged with multiple RICO2 and

VICAR3 violations, as well as: (i) conspiracy to possess with intent to distribute marijuana,

heroin, cocaine, and cocaine base in violation of 21 U.S.C. § 846 (“Count 27”); and (ii)

possession with intent to distribute 50 or more grams of cocaine base in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(A).

In the runup to the trial, the district court decided to reserve the courtroom’s gallery for

the day of jury selection. The court explained to the myriad prosecutors and defense attorneys:

Because at this point I don’t know how many jurors we’ll have left in the pool,
I’m going to guess it’s going to be somewhere around 50 or so, give or take. All
of the rows in the spectator section of the courtroom are going to be used for the
jurors to be seated. I’m not going to permit any spectators to be seated among the
prospective jurors so that I want counsel to be on notice that on Friday there will

2
Racketeer Influenced and Corrupt Organizations Act. 18 U.S.C. §§ 1961-1968.
3
Violent Crimes in Aid of Racketeering Activity. 18 U.S.C. § 1959.

3
 be no room for any spectators. All of those seats are going to be taken by
prospective jurors. So everyone should be aware of that.

(App. for Appellant’s Br. 135.)

On Friday, June 30, 1995, after about a week of voir dire, the district court selected the

defendants’ jury. That morning, the judge first spoke to certain individual jurors about why they

believed they ought to be excused from jury duty, and then brought the jury pool, consisting of

48 persons, into the courtroom so that the prospective jurors could restate their names for the

attorneys. Once this was done, the judge sent them back to the jury assembly room and heard

peremptory challenges from the parties. Following a short recess, the court brought the

remaining prospective jurors back into the courtroom and drew the names of 16 persons to be

seated on the jury.

After a three-month trial, Morales was convicted on all counts and sentenced to multiple

life-terms in prison.4 One of the life sentences was imposed on Morales’s conviction on Count

27, the drug conspiracy count. Although the jury did not return a special verdict as to which

drugs Morales conspired to possess, the district court’s sentence was premised on a conspiracy to

possess cocaine and/or cocaine base, the maximum penalty for conspiring to possess marijuana

or heroin being less than life imprisonment.

4
The district court sentenced Morales to six life-terms, four ten-year terms, and two
three-year terms; all to be served concurrently.

4
 After this court affirmed his conviction on direct appeal,5 Morales filed a pro se motion

under 28 U.S.C. § 2255(a) to vacate his sentence. He claimed, inter alia, that his trial and

appellate counsel were ineffective for failing to argue that: (i) the trial court violated his right to

a public trial by closing the courtroom during the jury selection; and (ii) because the jury

returned a general verdict finding Morales guilty of Count 27, under United States v. Orozco-

Prada, 732 F.2d 1076 (2d Cir. 1984), and its progeny, Morales should have been sentenced

based on the drug carrying the lowest statutory penalty—marijuana. Morales later sought leave

to supplement his courtroom closure claim with two affidavits from his girlfriend and the mother

of his child, both of whom averred that they were denied entry to the courtroom on June 30,

1995 during jury selection. The court granted his motion for leave to supplement, which was

unopposed by the government.

The district court denied Morales’s section 2255 motion. Morales v. United States, 294

F. Supp. 2d 174, 184 (D. Conn. 2003). Without holding a hearing, Judge Neves—who also

presided over the voir dire and trial in question—found, first, that his own statements did not

amount to an order closing the courtroom, and, second, that there was “no evidence that any

member of the public, including Morales’s friends and family, or the press, was specifically

excluded from the proceedings.” Id. at 179 n.1. Concluding, therefore, that Morales could not

possibly have suffered an unconstitutional deprivation of his right to a public trial if the

courtroom was, in fact, open at all times—and accordingly that any challenge to such a

5
On direct appeal Morales challenged, inter alia, the admission of certain recorded
telephone calls into evidence and the sufficiency of the evidence against him on various charges
of conspiracy to commit murder and aiding and abetting murder. United States v. Diaz, 176 F.3d
52 (2d Cir. 1999).

5
purported closure “would have been frivolous”, id. at 179—it thus rejected Morales’s claim of

ineffective assistance of counsel insofar as it was predicated on counsel’s failure to challenge or

appeal the supposed courtroom closure. The court did not discuss the two affidavits supporting

Morales’s motion. Similarly, the district court concluded the claim underlying Morales’s

argument that his appellate counsel was ineffective for failing to appeal Morales’s sentence on

the conspiracy charge was without merit.6 Id. It found that Morales was properly sentenced

because his case fell within what it believed was an exception to Orozco-Prada—namely, that

because Morales was convicted of actually possessing cocaine base, it was reasonable to assume

that the jury had also found him guilty of a conspiracy related to that drug. Given what it found

to be the propriety of the sentence, the district court concluded that Morales’s appellate counsel

would have had no reason to appeal it. Id. at 181

On appeal, Morales challenges the district court’s rulings with respect to three of his

ineffective assistance of counsel claims: (1) that his appellate counsel was not ineffective for

failing to raise the courtroom closure issue on his direct appeal; (2) that his trial counsel was not

ineffective for failing to object to the district court’s reservation of the gallery; and (3) that his

appellate counsel was not ineffective for failing to appeal his life sentence on the conspiracy

count. With respect to his first two claims, Morales asserts that the district court should have, at

a minimum, held a hearing pursuant to 28 U.S.C. § 2255(b) to “clarify any ambiguities that may

exist in the record.” (Appellant’s Br. 47.)

6
Because the district court determined that Morales’s underlying claims were
baseless—i.e., that he was properly sentenced and that the courtroom was never closed—it did
not reach the issue whether Morales’s trial attorney was ineffective.

6
 DISCUSSION

Section 2255 allows a federal prisoner to attack collaterally his sentence on the grounds

that it was “imposed in violation of the Constitution.” 28 U.S.C. § 2255(a). Because the Sixth

Amendment provides criminal defendants with the right to effective assistance of counsel,

Strickland v. Washington, 466 U.S. 668, 686 (1984), inadequate representation is a basis for

relief under section 2255, see Wright, King & Klein, Federal Practice and Procedure: Criminal

3d § 594.1 n.14 (2004) (collecting cases).

To succeed on his ineffective assistance of counsel claims, Morales must show: (1) that

his trial and appellate lawyers’ performance was deficient, and (2) that he was actually

prejudiced as a result. Strickland, 466 U.S. at 688, 692-93. An attorney’s representation is

deficient when it falls “below an objective standard of reasonableness,” as determined by

reference to “prevailing professional norms.” Id. at 688. Such performance is prejudicial when

it is so poor as to “undermine confidence in the outcome” of the proceedings—that is, it gives

rise to “a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694 (internal quotation marks omitted).

Whether the effectiveness of a defendant’s legal representation falls short of the

minimum required by the Sixth Amendment is a mixed question of law and fact, which we

review de novo. Chang v. United States, 250 F.3d 79, 82 (2d Cir. 2001).

7
 A. Ineffective Assistance of Trial and Appellate Counsel: Right to Public Trial

Morales’s first two ineffective assistance claims are premised on what he asserts was his

lawyers’ failure to protect his Sixth Amendment right to a public trial.7 Specifically, in reliance

on two bare-bones affidavits submitted by his girlfriend and the mother of his child nearly five

years after the purported closure, Morales contends that at least those two women were denied

access to the courtroom by courthouse security for the final day of voir dire. Without expressly

considering those affidavits, the district court determined that Morales’s right to a public trial

was not violated because the courtroom remained open at all times, Morales, 294 F. Supp. 2d at

178-79. We find it unnecessary to dwell on the factual issue, however, because we are

convinced that, even if Morales’s affidavits are credited in full, counsel’s failure to challenge the

closure they allege was not unreasonable.8 See, e.g., Parisi v. Untied States, 529 F.3d 134, 140-

41 (2d Cir. 2008).

7
The Sixth Amendment guarantees defendants a public trial. U.S. Const. amend. VI; see
also Presley v. Georgia, 130 S. Ct. 721, 724 (2010) (per curiam) (“The Sixth Amendment right
to a public trial extends to the voir dire of prospective jurors.”). But this right is not absolute.
Proceedings may be closed where: (1) a party seeking closure has an overriding interest that is
likely to be prejudiced if the court room remains open, (2) the closure is not broader than
necessary to protect that overriding interest, (3) the trial court has considered reasonable
alternatives to closing the proceedings, and (4) the trial court has made adequate findings to
support closure. Waller v. Georgia, 467 U.S. 39, 48 (1984). Moreover, even where these
elements are not met, a closure may be “too trivial” to constitute a Sixth Amendment violation.
Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. 1996); see also Gibbons v. Savage, 555 F.3d 112,
121 (2d. Cir. 2009). Triviality is not determined by any one factor, such as the duration of the
closure or its effect on the outcome of the proceeding. Peterson, 85 F.3d. at 42-43. Rather, it is
gauged by the degree to which a particular closure undermines the values the Sixth Amendment
was designed to protect. Gibbons, 555 F.3d at 120-21.
8
Because we conclude that the representation provided by Morales’s lawyers was not
objectively unreasonable, we do not address whether Morales suffered prejudice as a result of his
counsel’s conduct.

8
 Strickland requires that “scrutiny of counsel’s performance be highly deferential,” and

that “every effort be made to eliminate the distorting effects of hindsight.” Strickland, 466 U.S.

at 689. This compels us “to reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time.” Id. As a preliminary matter,

thus, we note that there is no evidence in the record that defense counsel—or anyone in the

courtroom—knew of the alleged closure at the time, or at any time before Morales’s two affiants

came forward years after the fact. Indeed, none of the lawyers representing Morales’s ten co-

defendants lodged an objection or raised a point of appeal regarding the alleged closure. As

such, there is strong reason to believe defense counsel was not aware of any closure and thus

cannot be faulted for failing to raise an issue about which he had neither knowledge nor reason

to know. United States v. Cronic, 466 U.S. 648, 656 n.19 (1984).

Moreover, even assuming counsel was aware of the supposed closure, we cannot deem

his failure to object to the closure unreasonable. Crediting Morales’s affidavits to the fullest

extent possible, the closure lasted not much longer than one morning out of a multi-month trial.

During that period of time the general public was denied access to witnessing the prospective

jurors: state their names; give excuses individually as to why they could not serve on the jury;

have their names drawn for the jury, and be dismissed. Importantly, the record indicates that

voir dire occurred in the days proceeding the day the closure occurred, so that any questioning of

potential jurors as to their fitness or bias was open to the public.9 It is true that the court took

preemptory challenges on the day of the closure, but these challenges are seldom, if ever,

9
In the context of making excuses on the day of the closure, several members of the jury
pool did mention potential personal biases. The vast majority of those questioned, however,
were only concerned about the inconvenience jury service might cause.

9
registered within earshot of spectators, so the public was not precluded from witnessing anything

to which it otherwise would have been privy. In short, the ultimate effect of the day’s closed

proceedings was the random selection of a jury out of the wheel, and the non-public exercise of

peremptory challenges.10 Given what are generally understood to be the values protected by the

Sixth Amendment right to a public trial,11 it is difficult to see how Morales’s lawyers at the time

of the courtroom closure and after the trial would perceive Morales’s right to a public trial to

have been violated. It would not be unreasonable for a defense attorney—if she were aware of

any closure at all—to believe that Morales’s trial had been unaffected notwithstanding the

public’s absence. In this regard, we reiterate that none of the lawyers for Morales’s ten co-

defendants objected to the alleged closure or raised the issue on appeal, is itself evidence that

Morales’s counsel’s conduct here was not objectively unreasonable for Strickland purposes. See

Strickland, 466 U.S. at 688 (noting that counsel’s performance is to be evaluated in light of

“prevailing professional norms”). For the same reasons it was not unreasonable for Morales’s

trial attorney to fail to object to whatever closure may have occurred, the performance of his

appellate attorney was also not deficient.

10
The jury pool was excused during preemptories, which were exercised “right here in
open court.” This occurred, however, because of the sheer number of co-defendants involved in
the trial would have made a traditional side bar impossible. Given these rather unique logistical
circumstances, it is fair to consider the preemptory process in this case as essentially one large
side bar and nothing which the public would have witnessed aurally.
11
The Supreme Court has listed the purpose behind the Sixth Amendment’s public trial
guarantee is to: (1) ensure a fair trial, (2) remind the prosecutor and judge of their responsibility
to the accused and the importance of their functions, (3) encourage witnesses to come forward,
and (4) discourage perjury. See Waller, 467 U.S. at 46-47.

10
 Alternatively, Morales contends the district court erred in failing to hold a factual hearing

with regard to his claims. Section 2255(b) provides that “[u]nless the motion and files and

records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . .

grant a prompt hearing.” 28 U.S.C. § 2255(b). We have interpreted this provision as requiring a

hearing in cases where the petitioner has made a “plausible claim” of ineffective assistance of

counsel. Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (quotation marks omitted).

A district court’s determination that it can resolve a section 2255 motion without resort to an

evidentiary hearing is reviewed for abuse of discretion. Chang v. United States, 250 F.3d 79, 82

(2d Cir. 2004).

We find no abuse of discretion on these facts. For the reasons set forth above, the record

before the district court did not and could not demonstrate a plausible claim. Even crediting

Morales’s affidavits in full, they are insufficient to establish a claim for ineffective assistance of

counsel. Accordingly, while the district court overreached in stating that “there is no evidence

that any member of the public . . . was specifically excluded from the proceedings,” Morales,

284 F. Supp. 2d at 179 n.1 (emphasis added), it did not err in failing to hold a hearing to explore

that evidence further.

B. Ineffective Assistance of Appellate Counsel: Count 27 Sentence

Morales also argues that his appellate counsel unreasonably failed to challenge the life

sentence imposed on Count 27, the conspiracy count. We hold that in light of Morales’s five

other life-sentences, he was not prejudiced by any sentencing error with respect to this count

and, therefore, he could not have been prejudiced by his attorney’s failure to raise the issue on

appeal. As a result, Morales is not eligible for any relief on this claim, and it is unnecessary to

11
determine whether his appellate attorney’s performance was deficient. Strickland, 466 U.S. at

697.

That said, we take this opportunity to point out that it remains an open question in this

Circuit whether convictions for substantive drug offenses may be used to clarify an ambiguous

jury verdict convicting a defendant of conspiracy to distribute multiple types of drugs. Morales

was charged and convicted on Count 27 with conspiracy to possess with intent to distribute four

different controlled substances: marijuana, heroin, cocaine, and cocaine base. The jury did not

return a special verdict identifying which one—or which combination—of the four drugs he

conspired to possess. The maximum sentence for conspiracy to possess with intent to distribute

significant quantities of these controlled substances differs depending on the drug: for marijuana,

it is 10 years; for cocaine base, it is life in prison.12 As noted, the court imposed a life sentence.

In his section 2255 motion, Morales argued that his appellate counsel should have

contested his Count 27 sentence because it was clearly improper under the law of this Circuit.

Specifically, Morales contended that under United States v. Orozco-Prada, 732 F.2d 1076 (2d

Cir. 1984), and its progeny, he should have been sentenced for a conspiracy to possess with

intent to distribute only the drug for which the most lenient statutory sentencing range would be

imposed—in this case, marijuana. In Orozco-Prada, the defendant was convicted on a count of

12
A person convicted of conspiracy to commit a drug offense is subject to the same
penalties as those who have actually committed the substantive drug offenses that are the object
of the conpiracy. 21 U.S.C. § 846. Thus, because the maximum sentence for possessing with
intent to distribute marijuana is 10 years, 21 U.S.C. § 841(b)(1)(D), the longest a defendant may
be imprisoned for conspiracy to possess with intent to distribute marijuana is also 10 years. The
same analysis applies for crack cocaine, which at the time Morales was sentenced carried a
maximum penalty of life in prison for possession with intent to distribute. 21 U.S.C. §
841(b)(1)(A)(iii), amended by Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372
(2010).

12
conspiracy to possess and distribute marijuana and cocaine. See id. at 732 F.2d at 1083.

Although the jury’s general verdict did not specify which drugs the defendant conspired to

possess and distribute, the trial court sentenced him to a prison term in excess of the maximum

allowed for a marijuana conspiracy. Id. On appeal, we held that because, “in the absence of a

special verdict, there was no way for [the trial judge] to know whether the jury intended to

convict Eduardo Orozco for a cocaine-related conspiracy, for a marijuana-related conspiracy, or

for a conspiracy involving both drugs,” the judge should have inferred that the conviction was

for the drug conspiracy with the lowest statutory maximum, and sentenced accordingly. Id. at

1083-84.

Subsequent cases have affirmed this rule. In United States v. Barnes, 158 F.3d 662 (2d

Cir. 1998), we considered the case of one of Morales’s co-defendants, Christopher Barnes, who

was also convicted and sentenced on the same conspiracy count—Count 27. Barnes claimed that

it was improper for the judge to base the mandatory minimum sentence for that count on a

conspiracy related to cocaine base when, like Morales, he was charged with conspiring to

possess multiple types of drugs, including those with lesser sentencing ranges. Id. at 667. We

agreed, and held that because a general verdict of guilty does not indicate whether the jury

convicted the defendant of conspiracy to possess each controlled substance charged in Count 27,

the district court should have assumed that the jury convicted the defendant of conspiring to

possess the controlled substance “that carries the most lenient statutorily prescribed sentence.”

Id. at 668. We applied this rule again in United States v. Zillgitt, 286 F.3d 128 (2d Cir. 2002), on

essentially the same facts as in Orozco-Prada. Thus, by the time Morales made his section 2255

motion, it was clear that “where a jury returns a guilty verdict on a single count of conspiracy

13
involving multiple controlled substances, the district court must sentence the defendant as if

convicted of a conspiracy involving only the substance that carries the lowest statutory

sentencing range.” Id. at 131.

Here, the district court was aware of the rule in Orozco-Prada, but nevertheless found it

inapplicable to Morales. Morales, 294 F. Supp. 2d at 180-81. Instead, it determined that the

appropriate case to follow was United States v. Peters, 617 F.2d 503 (7th Cir. 1980), which

articulated a rule that the district court believed this Circuit had adopted as an exception to

Orozco-Prada. Morales, 294 F. Supp. 2d at 181. Peters allows a judge at sentencing to assume

that the jury found the defendant guilty of conspiracy to commit any crime for which he was also

substantively convicted. 617 F.2d at 506. Applying Peters to Morales’s case, the district court

concluded that “since Morales was also convicted for possessing cocaine base, the court

reasonably inferred that the jury convicted Morales for conspiracy to possess cocaine base

despite the absence of a special verdict on that count.” Morales, 294 F. Supp. 2d at 181 (citation

omitted).

We write to clarify that we have not yet expressly adopted any exception to the rule

concerning general verdicts on multiple-drug conspiracy counts set forth in Orozco-Prada. In

Orozco-Prada, we addressed Peters to distinguish it, but we did not adopt its holding. Our

treatment of Peters was limited to stating that the case at hand was “unlike United States v.

Peters,” and we provided a short description of Peters’ holding to show how the case was

different. Orozco-Prada, 732 F.2d at 1084. The fact that we did not adopt Peters is made clear

by our decision in Zillgitt where we stated, “[w]e need not decide here whether convictions on

substantive charges could serve to clarify an ambiguous verdict . . ..” 286 F.3d at 136 n.6. If

14
indeed we had adopted Peters or a similar exception to Orozco-Prada, this would not have

remained an open question.

Based on our disposition of Morales’s ineffective assistance Count 27 sentencing claims,

we see no reason to resolve the question now. Unlike the case of Morales’s co-defendant

Barnes, the propriety of Morales’s sentence on Count 27 is not directly before us. Moreover,

while the parties partially briefed the question of whether this Circuit had adopted Peters in the

past, neither side engaged in any substantive discussion about whether—in the event that we had

not—we should adopt Peters going forward. Given these considerations, we will wait until the

issue is squarely before us before deciding it.

CONCLUSION

For the foregoing reasons, the district court’s judgment is AFFIRMED.

15
POOLER, Circuit Judge, concurring dubitante:

I agree that the district court erred by finding, despite affidavits submitted by two of

Morales’s family members, that “there is no evidence that any member of the public . . . was

specifically excluded from the proceedings.” Op. at 11. In addition, I agree, although with

reservation, that in this case, where neither Morales’s attorney nor any of the ten attorneys

representing the other ten defendants objected or appealed the closure and where there is no

evidence that any of the ten attorneys knew of the alleged closure in time to object or directly

appeal, Morales has not stated a “plausible” claim of ineffective assistance of counsel. The ten

other attorneys’ failure to object or, after due consideration, to appeal the alleged courtroom

closure is a strong reason to believe that no defense attorney was aware or had reason to be

aware of any closure. On these unique facts, it is not plausible that Morales’s attorney acted

below an objective standard of reasonableness in failing to object to or appeal the alleged

courtroom closure.

Lastly, I emphasize that we do not hold that an ineffective assistance of counsel claim is

not “plausible” when the courtroom is closed during the parties’ exercise of peremptory

challenges. Cf. Gibbons v. Savage, 555 F.3d 112, 114, 121 (2d Cir. 2009) (finding that

courtroom closure for “the afternoon of the first day” of a “several day[]” jury selection was a

trivial closure, given that the public “would not have been able to watch a significant portion of

what occurred during that afternoon session” and “nothing of significance happened during the

part of the session [that was closed],” in part because “[n]o peremptory challenges were made”).

The denial of a public trial is part of “a limited class of fundamental constitutional errors that

defy analysis by harmless error standards.” Neder v. United States, 527 U.S. 1, 7 (1999); Waller

1
v. Georgia, 467 U.S. 39, 49 (1984). Because “the benefits of a public trial are frequently

intangible, difficult to prove, or a matter of chance,” violation of the public-trial guarantee “is

not subject to harmlessness review” on direct appeal. United States v. Gonzalez-Lopez, 548 U.S.

140, 149 n.4 (2006) (internal quotation marks omitted). As our sister circuits have held, for post-

conviction relief under Section 2255, the plausibility of a petitioner’s ineffective assistance of

counsel claim does not depend on whether the petitioner can prove he was denied one of the

“frequently intangible” and “difficult to prove” benefits of a public trial. See, e.g., United States

v. Withers, -- F.3d --, 2011 WL 6184, at *5, *8 (9th Cir. Jan. 3, 2011) (holding, where “[n]othing

in the record indicate[d] that this closure was for a trivial duration, or that the district court

complied with the Press-Enterprise/Waller requirements [for closure],” that petitioner “made a

credible, non-frivolous claim that his trial counsel’s performance fell below an objective

standard of reasonableness,” “particularly because the right to a public trial is critical to ensuring

a fair trial.”); Johnson v. Sherry, 586 F.3d 439, 446 (6th Cir. 2009) (holding, in “the absence of

on-the-record findings by the trial court,” that an evidentiary hearing is warranted “to determine

if trial counsel’s failure to object to the closure constitutes deficient performance”); Owens v.

United States, 483 F.3d 48, 63, 66 (1st Cir. 2007) (holding that “the district court abused its

discretion in declining to hold an evidentiary hearing” because “[Defendant’s] attorneys’ failure

to notice or object to the closure of his trial may show that their performance fell below an

objective standard of reasonableness.” (internal quotation marks omitted)).

2