NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 16 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RAFAEL ANGIANO, No. 08-56577
Petitioner, 2:06-cv-06518-DOC-PLA
v. MEMORANDUM *
A.K. SCRIBNER, Warden
Respondent.
On Petition for Review of an Order of the
Central District of California
David O. Carter, District Judge, Presiding
Submitted February 11, 2010**
Pasadena, California
Before: THOMAS and SILVERMAN, Circuit Judges, and BEISTLINE, *** Chief
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
Following a jury trial, Petitioner was found guilty of kidnaping and first
degree murder. During the course of the trial, Petitioner’s wife was excluded from
the courtroom. Petitioner was sentenced to life without the possibility of parole.
The conviction was affirmed in full by the California Court of Appeal. The
California Supreme Court denied review, as did the United States Supreme Court.
Petitioner filed a federal habeas petition complaining that he was denied his
Sixth Amendment right to a public trial because his wife was excluded from the
courtroom. The petition was dismissed, and this appeal follows. We have
jurisdiction pursuant to 28 U.S.C. § 1294(1) and 28 U.S.C. § 2253, and we affirm.
The Sixth Amendment guarantees a criminal defendant the right to a public
trial. However, the United States Supreme Court has recognized that the Sixth
Amendment guarantee of a public trial, which was created “for the benefit of the
defendant” in that public access could provides assurance of a fair trial, must bend
in certain cases to other rights or interests that are essential to the fair
administration of justice. Waller v. Georgia, 467 U.S. 39, 45-46 (1984). In
Waller, the United States Supreme Court established a four-part test to apply when
a proceeding is closed to the public, to determine whether a defendant’s right to a
public trial is violated.
2
This Court is limited by the AEDPA, which bars federal habeas corpus relief
on that claim unless the state-court adjudication was either (1) “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2) “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d); Price v. Vincent, 538 U.S. 638-39.
Under the AEDPA, "clearly established federal law" is the "governing legal
principle or principles set forth by the Supreme Court at the time the state court
renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
The Circuits are split as to the applicability of the four-part test in Waller to
“partial closures,” where only one person is excluded from a trial. On federal
habeas review, relief is not available based on conflicting interpretations of circuit
precedent. Williams v. Taylor, 529 U.S. 362, 381 (2000). Accordingly, we cannot
conclude that the state court’s exclusion of Petitioner’s wife was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” Presley v. Georgia, 558
U.S. ---, --- S.Ct. ----, 2010 WL 154813 (Jan. 19, 2010), does not impact our
analysis. Although there happened only to be one person observing voir dire, the
3
state court judge violated clearly established federal law because he did not engage
in the proper analysis before closing the courtroom to the public at large.
AFFIRMED.
4