Owens v. United States

United States Court of Appeals
For the First Circuit

Nos. 05-1784, 05-1785

DWAYNE OWENS,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge] and
[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Lipez, and Howard,
Circuit Judges.

Peter B. Krupp, with whom Lurie & Krupp, LLP was on brief, for
appellant.
Theodore B. Heinrich, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

April 12, 2007
 TORRUELLA, Circuit Judge. It has long been true that

"[a] defendant is entitled to a fair trial but not a perfect one."

Lutwak v. United States, 344 U.S. 604, 619 (1953). The trial of

Dwayne Owens on a variety of racketeering, murder, assault, and

drug trafficking charges has tested that proposition. On balance,

we find that Owens' trial may have crossed the line from imperfect

to unfair.

I. Background

The Government's case against Owens is not particularly

relevant to the issues on appeal. To summarize briefly, the

Government presented evidence at Owens' trial that Owens played a

significant role in an enterprise that sold kilogram quantities of

cocaine in Massachusetts and Rhode Island. In order to protect his

enterprise, Owens at times resorted to violence. According to

testimony, he provided guns to other members of the enterprise who

used them to extract "refunds" from cocaine suppliers whose

shipments were deemed inadequate. Notably, witnesses also

testified that Owens killed Rodney Belle, whom he thought to have

double-crossed him during a drug deal.1

Owens was arrested on December 13, 1995, and an

indictment was returned against him on December 19, 1995. A

superseding indictment was returned on May 14, 1996, charging Owens

1
A more elaborate version of the facts can be found in the
opinion addressing Owens' direct appeal. United States v. Owens,
167 F.3d 739, 750-51 (1st Cir. 1999).

-2-
with the aforementioned crimes, and a host of others. A jury trial

for Owens began on February 10, 1997.

On the first day of jury selection, the court wanted to

select the jury from a venire of seventy-two potential jurors, but

the courtroom in which jury selection was to occur was quite small.

The following colloquy took place between the court and the U.S.

Marshal:

Court: We're going to get 72 jurors in here.
That will mean we'll have a number of jurors.
Now, let me ask the marshals. It looks like
we're going to need all the rows except for
this first row [where the defendants were
seated]. Is that going to be sufficient for
you?

Marshal: I think so, your Honor. I just spoke
to [the courtroom deputy] about it, and I was
going, I'll have the officers and myself and
the other fellows with me stand off to the
right, make sure all the jurors get seated and
have whatever spectators leave until there's a
sufficient amount of room.

Court: We'll need every seat with 72 people.
All right.

Neither party objected at this time. The marshals cleared the

courtroom and the potential jurors proceeded to enter. As jurors

were dismissed, they left. Despite the growing number of seats

vacated by dismissed jurors, according to affidavits submitted in

connection with this case, the marshals continued to bar Owens'

family from the courtroom for the remainder of jury selection,

which lasted an entire day. According to Owens and his trial

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attorneys, neither Owens nor counsel was aware that Owens' family

members were being barred from the courtroom.

One month into Owens' trial, the court held a swearing-in

ceremony for a new Assistant U.S. Attorney ("AUSA"), Robert

Peabody. Upon learning of the court's plan, defense counsel

objected. At sidebar, the judge vowed to "love all lawyers equally

. . . [and] love the bar generally." The judge added, "I really

don't think you are hurt by this." Defense counsel replied that

they were concerned about the impact on the jury of hearing the

oath administered. The court promised to issue curative

instructions, overruled the objection, and proceeded with the

swearing-in ceremony. The court then stated:

Now ladies and gentlemen, we have the happy
occasion of administering the oath of office
to a new Assistant United States Attorney.
Now, let's be very clear, I very much prefer
to do this in the middle of whatever trial we
have going on.
. . .
Now there is a concern here. The fact that I
do this, and I'm proud to admit Mr. Peabody to
the company of the Assistant United States
Attorneys, we're in no way preferring the
prosecutors. Ms. Conrad, for instance, is a
member of the Federal Public Defender's Office
and she likewise is sworn in as an advocate
for people who are accused of a crime, and I
would do the same for her. And it's
interesting to remark that many distinguished
defense counsel have appeared here to see Mr.
Peabody sworn in.

Because you see the lawyers, especially those
lawyers who are active in so-called criminal
cases, know one another and they have the
highest respect for each other. They're the

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 closest things that we have to barristers, the
English system, the people who actually go to
court every day. So while I am especially
proud, and I am, Mr. Peabody, to conduct this
ceremony, as is my practice, in the middle of
a serious trial, I caution the jury that if I
had a defender here, I would do exactly the
same thing and then caution you that I'm not
favoring defenders over someone who's being
sworn in as a prosecutor.

An AUSA then read Peabody's curriculum vitae, and moved

that he be sworn in. The court asked everybody present in the

courtroom to stand, and proceeded to administer the following oath

of office:

I, Robert Peabody, do solemnly swear that I
will support and defend the Constitution of
the United States, against all enemies,
foreign and domestic, that I will bear true
faith and allegiance to the same, that I take
this obligation freely, without any mental
reservation or purpose of evasion, and that I
will well and faithfully discharge the duties
of the office on which I am about to enter, so
help me God.

The courtroom burst into applause. According to the Government,

the court then stated that it was "an honor and privilege to

include [Peabody] among attorneys who share the right to practice

within this bar enclosure the vital role of teaching. It's imposed

both on those who have the burden of prosecuting and those who have

the significant responsibility of defending those in our society."

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After the swearing-in ceremony, one juror asked the court to

"explain the difference between the two types of lawyers."2

The trial continued until March 27, 1997. Owens never

testified in his own defense. According to Owens, this is because

his attorneys never informed him of his right to testify or

consulted him about whether he would like to do so. One of Owens'

trial attorneys submitted an affidavit in connection with this

case, in which he stated, "I do not remember ever discussing with

Dwayne Owens that he had a right to testify and whether he wished

to testify." Only once did the court reference a defendant's right

to testify, and even then, the reference was oblique: in its pre-

trial charge to the jury, the court stated that defendants did not

have to testify or call witnesses, but "of course, they can do

those things."

The jury returned a verdict finding Owens guilty on nine

charges and not guilty on six additional charges. The court

sentenced Owens to life terms on five of the charges, and to the

maximum statutory term on the remaining charges. We affirmed

Owens' conviction on appeal. Owens, 167 F.3d 739. Owens then

appealed his conviction to the Supreme Court, which denied

certiorari, 528 U.S. 894 (1999).

2
According to the Government, the juror clarified that he was
asking about the difference between state lawyers and federal
lawyers.

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 In 2001, Owens filed a petition for habeas corpus with

the district court, in which he claimed that he had ineffective

assistance of counsel at trial and on appeal, and that a number of

errors in the proceedings denied him a fair trial.3 The district

court denied Owens' petition for a writ of habeas corpus on all

grounds except one,4 which is not the subject of this appeal.5

3
Although the court found the petition to be untimely, it used
its "equitable discretion" to exclude from the limitations period
the time during which Owens' motion to appoint counsel to assist in
habeas relief was pending. Thus, the district court concluded that
Owens' petition was timely. Although we express no opinion as to
whether it was proper, neither party has raised this issue on
appeal, and we do not disturb this aspect of the district court's
decision.
4
The petition was referred to Judge Young, who presided over
Owens' trial. Judge Young rendered a decision on all of Owens'
claims except his claim regarding the swearing-in ceremony for the
AUSA. This claim was referred to Judge Gertner, who was uninvolved
in Owens' trial. Judge Gertner rendered a separate decision
denying Owens' claim regarding the swearing-in ceremony.
5
The district court granted habeas relief on Owens' ex post facto
claim. Owens had argued that he was sentenced to life imprisonment
for engaging in interstate travel in furtherance of racketeering,
18 U.S.C. § 1959(a)(2), whereas the maximum sentence at the time he
committed this crime was five years imprisonment. The district
court concluded that Owens' sentence on this count violated the ex
post facto clause of the Constitution, and reduced his sentence
accordingly. See United States v. Molina, 407 F.3d 511, 525 (1st
Cir. 2005) ("[B]efore any criminal liability can attach, a person
must be put on notice of both the criminal proscription and the
potential punishment therefor.").

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 II. Discussion

A. Standard of Review

Because Owens is in federal custody, his habeas corpus

petition is controlled by 28 U.S.C. § 2255. Section 2255 provides

that a prisoner may move to vacate his sentence

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 sentence,
or that the sentence was in excess of the
maximum authorized by law, or is otherwise
subject to collateral attack.

A significant bar on habeas corpus relief is imposed when a

prisoner did not raise claims at trial or on direct review. In

such cases, a court may hear those claims for the first time on

habeas corpus review only if the petitioner has "cause" for having

procedurally defaulted his claims, and if the petitioner suffered

"actual prejudice" from the errors of which he complains.6 United

States v. Frady, 456 U.S. 152, 168 (1982); Knight v. United States,

37 F.3d 769, 774 (1st Cir. 1994).

Once a prisoner requests relief under § 2255, a district

court must grant an evidentiary hearing on the prisoner's claims

unless "the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief." 28

U.S.C. § 2255. If a district court holds an evidentiary hearing on

6
In addition, a petitioner's procedural default may be excused by
a showing of actual innocence. Bousley v. United States, 523 U.S.
614, 622 (1998). Owens has not attempted to make such a showing.

-8-
the claim, we review its factual conclusions for clear error. Awon

v. United States, 308 F.3d 133, 140 (1st Cir. 2002). If a district

court dismisses a § 2255 claim without holding an evidentiary

hearing, we take as true the sworn allegations of fact set forth in

the petition "unless those allegations are merely conclusory,

contradicted by the record, or inherently incredible." Ellis v.

United States, 313 F.3d 636, 641 (1st Cir. 2002). Finally, we

review a district court's denial of a § 2255 petition de novo as to

legal conclusions. Awon, 308 F.3d at 140.

B. Ineffective Assistance of Counsel

Owens argues that the district court erred in dismissing

without an evidentiary hearing his claim that his attorneys'

failure to inform him of his right to testify at trial violated his

Sixth Amendment right to the effective assistance of counsel.

Owens stated in his affidavit that he was never told of his right

to testify; one of Owens' trial attorneys stated that he did not

recall telling Owens of his right to testify, and the other trial

attorney said nothing about the issue.

The district court found that an attorney's failure to

tell his client that he had a right to testify would constitute

deficient performance by counsel. The court further found that

such ineffective assistance would be presumptively prejudicial,

given that it affected a defendant's clear right to testify in his

defense. However, the district court declined to conduct an

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evidentiary hearing on Owens' allegations because it felt that

Owens did not "present[] a sufficient proffer to establish that he

was not advised of his right to testify." Owens v. United States,

236 F. Supp. 2d 122, 144 (D. Mass. 2002). Further, even taking

Owens' allegations as true, the district court concluded that Owens

was adequately informed at trial of his right to testify.

We review a district court's denial of an evidentiary

hearing for abuse of discretion. David v. United States, 134 F.3d

470, 477 (1st Cir. 1998). A district court may forego such a

hearing when "the movant's allegations, even if true, do not

entitle him to relief, or . . . [when] the movant's allegations

'need not be accepted as true because they state conclusions

instead of facts, contradict the record, or are inherently

incredible.'"7 Id. (quoting United States v. McGill, 11 F.3d 223,

225-26 (1st Cir. 1993)). In reviewing a district court's denial of

an evidentiary hearing, we take the petitioner's credible

allegations as true. Ellis, 313 F.3d at 641.

To prove ineffective assistance of counsel, a defendant

must show that "counsel's representation fell below an objective

standard of reasonableness," and that "the deficient performance

prejudiced his defense." Strickland v. Washington, 466 U.S. 668,

687-88 (1984). To prove deficient performance, a defendant must

7
A district court may also deny an evidentiary hearing when "the
motion is inadequate on its face." David, 134 F.3d at 477.
Neither party suggests that is the case here.

-10-
establish that counsel was not acting within the broad norms of

professional competence. Id. at 687-91. Furthermore, to prove

prejudice, a defendant must establish that but for counsel's

deficient performance, there is a reasonable probability that the

outcome would have been different. Id. at 694.

It is clear that a defendant has a "fundamental

constitutional" right to testify in his own defense, Rock v.

Arkansas, 483 U.S. 44, 51-53 (1987), and that the right must be

"unfettered," Harris v. New York, 401 U.S. 222, 230 (1971). The

right to testify may not be waived by counsel acting alone. See

United States v. Mullins, 315 F.3d 449, 454 (5th Cir. 2002) ("The

defendant's right to testify is secured by the Constitution and

only he can waive it."); Sexton v. French, 163 F.3d 874, 881 (4th

Cir. 1998) ("[E]very circuit that has addressed the issue has held

that the right to testify is personal and must be waived by the

defendant."); Lema v. United States, 987 F.2d 48, 52 (1st Cir.

1993) (assuming, but not deciding the question); Vega-Encarnación

v. United States, 1993 U.S. App. LEXIS 10068 at *9 (1st Cir. 1993)

("[The] right [to testify] is personal and cannot be waived by

counsel."). Where counsel has failed to inform a defendant of his

right to testify, we do not believe that a waiver of that right may

be implied from defendant's silence at trial; "at trial, defendants

generally must speak only through counsel, and, absent something in

the record suggesting a knowing waiver, silence alone cannot

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support an inference of such a waiver." Chang v. United States,

250 F.3d 79, 84 (2d Cir. 2001); see also Mullins, 315 F.3d at 455

("Declining to place upon the defendant the responsibility to

address the court directly is consistent with the reality that

routine instructions to defendants regarding the protocols of the

court often include the admonition that they are to address the

court only when asked to do so.").

A lawyer plays the primary role in advising his client of

the right to testify; a trial judge is not required to apprise a

defendant of his right to testify or inquire whether he has waived

it. Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir. 1987). The

district court correctly noted that American Bar Association

Standard for Criminal Justice 4-5.2(a), Model Rule of Professional

Conduct 1.2(a), and Massachusetts Rule of Professional Conduct

1.2(a) all require counsel to consult with defendants regarding

their right to testify. See Rompilla v. Beard, 545 U.S. 374, 387

(2005) (noting the importance of ABA standards "as 'guides to

determining what is reasonable.'" (quoting Wiggins v. Smith, 539

U.S. 510, 524 (2003))). Given these obligations, it becomes

difficult to explain away counsels' failure to inform their client

of his right to testify as trial strategy. Cf. Tejeda v. Dubois,

142 F.3d 18, 25 (1st Cir. 1998) (noting that an attorney's

animosity towards the trial judge could not be explained as a

reasonable trial tactic). Furthermore, given the paramount

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importance of the right to testify and the small amount of time

that would be required to inform the defendant of that right, we do

not believe counsels' failure can be classified as an

inconsequential slip. See Prou v. United States, 199 F.3d 37, 48

(1st Cir. 1999) ("[C]ourts have not hesitated in finding

ineffective assistance of counsel based upon isolated -- but

important -- errors."). Thus, we agree with the district court

that failure to inform a defendant of his right to testify

constitutes performance outside of an objective standard of

reasonable competence, and that such performance is

constitutionally deficient. See United States v. Teague, 953 F.2d

1525, 1532 (11th Cir. 1992) (en banc); see also Chang, 250 F.3d at

83; United States v. Pennycooke, 65 F.3d 9, 13 (3d Cir. 1995)

("[W]e realize that a convicted defendant may assert a claim that

the trial attorney gave ineffective assistance . . . by failing to

advise the defendant of his or her right to testify.").

We also agree with the district court that an attorney's

failure to inform his client of his right to testify could be

prejudicial. A defendant's testimony could be crucial in any

trial, and it could be difficult for us to determine whether or not

a jury would have found his testimony credible. See Luce v. United

States, 469 U.S. 38, 42 (1984)("[An] appellate court could not

logically term 'harmless' an error that presumptively kept the

defendant from testifying."); Rock v. Arkansas, 483 U.S. 44, 52

-13-
(1987) ("There is no justification today for a rule that denies an

accused the opportunity to offer his own testimony."); Martínez v.

Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991) (deciding that where

counsel failed to inform defendant of his right to testify, "it is

only the most extraordinary of trials in which a denial of the

defendant's right to testify can be said to be harmless beyond a

reasonable doubt"). Although Owens makes no allegation that his

trial counsel directly barred him from testifying, the failure to

inform Owens of his right to testify would have effectively

prevented him from doing so. As we noted before, defendants speak

to the court through counsel. Chang, 250 F.3d at 84. If counsel

refuse or fail to request that the defendant be allowed to testify,

the defendant will not be able to speak in his defense. If counsel

decline to put their client on the stand without any consultation

regarding this decision, and the client is unaware that the right

to testify exists, the client will be barred from doing so and thus

will have effectively waived his right to testify. However, "there

can be no effective waiver of a fundamental constitutional right

unless there is an 'intentional relinquishment or abandonment of a

known right or privilege.'" Teague, 953 F.2d at 1533 (quoting

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Thus, if Owens was

unaware of his right to testify and his attorneys did not ask him

whether he wanted to testify, Owens was effectively barred from

testifying in his own defense.

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 The Second Circuit found that counsel's failure to inform

the defendant of his right to testify was not prejudicial in Brown

v. Artuz, 124 F.3d 73, 80 (2d Cir. 1997). We agree with the court

in Brown that where the defendant would have testified only "to

demonstrate that the prosecution failed to disprove his defense of

justification beyond a reasonable doubt," there is a weaker

argument that the defendant was prejudiced by not testifying. Id.

at 80-81. However, Owens claims that he would have offered

testimony exculpating him from at least some of the crimes for

which he was convicted.8 A defendant's testimony as to non-

involvement should not be disregarded lightly, especially given his

constitutional right to explain his version of the facts. See

Rock, 483 U.S. at 52 ("[T]he most important witness for the defense

in many criminal cases is the defendant himself."). As such, we

conclude that if Owens was not informed by counsel of his right to

testify in his own defense, was not otherwise informed of the right

by the court, and would have offered genuinely exculpatory

8
Specifically, in his petition for § 2255 relief, Owens states
that he "would have testified that he did not have any role in the
murders charged."

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testimony,9 the failure of counsel to inform Owens of his right to

testify would be prejudicial.10

The district court nevertheless denied Owens' request for

an evidentiary hearing on two grounds. First, it found that Owens'

allegations were "inherently incredible." Specifically, the court

noted that one of Owens' attorneys had been named one of the "100

finest lawyers in Boston," and that it found it "incredible" that

"two such able and experienced attorneys could fail to discuss such

an important matter with Owens." Owens, 236 F. Supp. 2d at 144

n.14. A district court may not deny a prisoner an evidentiary

hearing simply because the court believes that the prisoner's

allegations as stated in the habeas corpus petition are untrue.

Mack v. United States, 635 F.2d 20, 26 (1st Cir. 1980). Owens'

allegations were neither "so evanescent or bereft of detail that

9
We note that on habeas review, a court may assess the
credibility of the defendant's assertion that he would have
testified in light of the evidence presented at trial and the
evidence that could have been admitted if the defendant had
testified. See Mullins, 315 F.3d 449, 456 (5th Cir. 2002)
(suggesting that a defendant would not likely have testified
because his "extensive criminal record and drug use would have come
into evidence").
10
We note that we are not deciding that trial counsel must go
through any specific routine or formal waiver process. See Taylor
v. United States, 287 F.3d 658, 662 (7th Cir. 2002) ("Nothing in
the Constitution . . . justifies meddling with the attorney-client
relationship by requiring advice to be given in a specific form or
compelling the lawyer to obtain a formal waiver."). We decide only
that counsel must have some sort of conversation with his or her
client informing him or her of the right to testify so that the
client can make a knowing and informed decision regarding that
right.

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they cannot reasonably be investigated," nor "threadbare

allusions." David, 134 F.3d at 478. Nor were Owens' allegations

unsubstantiated. See United States v. Butt, 731 F.2d 75, 80 n.5

(1st Cir. 1984) ("Evidentiary hearings have been granted to § 2255

appellants who have claimed that their plea was induced by attorney

misrepresentations only when the allegations were highly specific

and usually accompanied by some independent corroboration.").

Rather, Owens and one of Owens' trial attorneys provided detailed

affidavits indicating that Owens was never told of his right to

testify at trial. The second trial attorney's silence on this

issue is puzzling. Rather than guessing at this potential

inconsistency, it is better that it be resolved after an

evidentiary hearing at which all involved testify under oath and

subject to cross-examination. Thus, the nature of Owens'

allegations did not justify the district court's denial of an

evidentiary hearing.

Second, the district court also suggested that, even

taking Owens' allegations as true, Owens was not entitled to relief

because the trial court did, in fact, inform him of his right to

testify. The district court stated that it instructed the jury

that defendants did not have to testify or call witnesses, but "of

course, they can do those things." Because Owens was present in

the courtroom, the district court concluded that this statement

adequately informed him of his right to testify. We do not believe

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that an instruction to the jury regarding a defendant's right not

to testify is sufficient to apprise a defendant of his right to

testify such that he can make a knowing and intelligent waiver of

that right. Therefore, it was error for the district court to have

concluded that Owens' allegations, taken as true, did not entitle

him to relief.

Thus, because Owens' allegations are not implausible, and

because they could, if true, entitle him to relief, the district

court's decision to deny an evidentiary hearing was an abuse of

discretion. See 28 U.S.C. § 2255 (stating that a district court

must grant an evidentiary hearing "unless the motions and the files

and records of the case conclusively show that the prisoner is

entitled to no relief." (emphasis added)). A final determination

of the merits of Owens' claim would be best served by greater

development of the facts, many of which the Government disputes.

Accordingly, we remand this claim to the district court for an

evidentiary hearing to determine whether Owens' counsel did or did

not inform him of his right to testify, whether Owens would have

testified if so informed, and the nature of his testimony.

C. The Right to a Public Trial

Owens claims that the district court erred in not holding

an evidentiary hearing on his claim that barring his family from

the courtroom violated his Sixth Amendment right to a fair trial.

See Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501,

-18-
505 (1984) (finding a First Amendment right to public jury

selection); Waller v. Georgia, 467 U.S. 39, 46 (1984) ("[T]here can

be little doubt that the explicit Sixth Amendment right of the

accused is no less protective of a public trial than the implicit

First Amendment right of the press and public."). Two members of

Owens family submitted affidavits stating that uniformed officers

prevented them from entering the courtroom during the first day of

jury selection in Owens' trial.

The district court declined to conduct an evidentiary

hearing because it found that Owens' allegations were inherently

incredible. Further, the district court concluded that Owens was

not entitled to relief even taking his allegations as true.

Specifically, the district court concluded that the trial closure

was not sufficiently prejudicial to warrant relief. Further, the

district court noted that Owens had procedurally defaulted this

claim, and found that Owens could show neither "cause" nor

"prejudice" to excuse the default.

A defendant has a right to a trial that is open to

members of the public. Waller, 467 U.S. at 46. The guarantee of

a public trial is for the benefit of the defendant; a trial is far

more likely to be fair when the watchful eye of the public is

present. In re Oliver, 333 U.S. 257, 270 (1948) ("The knowledge

that every criminal trial is subject to contemporaneous review in

the forum of public opinion is an effective restraint on possible

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abuse of judicial power."); Gannett Co. v. DePasquale, 443 U.S.

368, 380 (1979) ("Our cases have uniformly recognized the

public-trial guarantee as one created for the benefit of the

defendant."). The public trial guarantee has been considered so

important that courts have reversed convictions or granted habeas

relief where the courtroom was closed for the announcement of the

verdict, United States v. Canady, 126 F.3d 352, 364 (2d Cir. 1997),

where a trial inadvertently ran so late one night that the public

was unable to attend, Walton v. Briley, 361 F.3d 431, 433 (7th Cir.

2004), and where the trial was closed for the testimony of just one

witness, United States v. Thunder, 438 F.3d 866, 868 (8th Cir.

2006).

As such, it is clear that trial closures are to be "rare

and only for cause shown that outweighs the value of openness."

Press Enterprise, 464 U.S. at 509; Waller, 467 U.S. at 47 ("[U]nder

the Sixth Amendment any closure of a suppression hearing over the

objections of the accused must meet the tests set out in

Press-Enterprise and its predecessors."). A closure may be

justified only by "an overriding interest based on findings that

closure is essential to preserve higher values and is narrowly

tailored to serve that interest." Press-Enterprise, 464 U.S. at

510; United States v. Antar, 38 F.3d 1348, 1361 (3d Cir. 1994). In

particular, a court must consider (and reject) alternatives to

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closure before barring public access. Press-Enterprise, 464 U.S.

at 511.

Given the absence of on-the-record findings, it is

difficult for us to discern whether it was necessary for the entire

courtroom to be cleared of spectators to permit the jury pool to

enter.11 Most justifications for trial closure have involved the

need to protect witnesses or maintain courtroom order. See, e.g.,

United States v. Sherlock, 962 F.2d 1349, 1356 (9th Cir. 1992)

(collecting cases). To our knowledge, a trial closure has not yet

been justified on the basis of convenience to the court. See

People v. Harris, 12 Cal. Rptr. 2d 758, 766 (Cal. App. 1992)

(deciding that "no cogent argument can be mounted" that expediting

jury selection is a higher value than the right to a public trial).

Given the strong interest courts have in providing public access to

trials, the district court could have considered whether a larger

courtroom was available for jury selection. If the closure alleged

by Owens did occur, the court was obligated to consider this

alternative. Press Enterprise, 464 U.S. at 511.

Even assuming that the courtroom needed to be initially

cleared of spectators, once prospective jurors began to leave the

courtroom, the court's interest in closing the courtroom

11
The court below stated that "no closure occurred in the instant
case," but seemed to indicate that some spectators were barred when
it noted that "it also implicitly intended for any spectators to
replace jurors in the gallery as the seats became available."

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dissipated. For example, in State v. Ortiz, the Hawaii Supreme

Court found that while an order excluding the defendant's family

from voir dire was initially justified by a compelling state

interest,

the circuit court's exclusion order remained
in place even after the court had conducted a
voir dire of all of the jurors and had
satisfied itself that no jury tampering had
taken place. Ortiz's family was prevented
from entering the courtroom, not merely during
the testimony of one or two witnesses, but
over the course of at least five days of
trial. It is therefore obvious that the
circuit court's exclusion order was not
"narrowly tailored" to meet the state's
purported interest.

981 P.2d 1127, 1138 (Haw. 1999); see also People v. Baldwin, 142

Cal. App. 4th 1416, 1424 (Cal. Ct. App. 2006) (reversing for a

public trial violation where the court failed to "fashion a narrow

exclusion order to infringe on the competing interests as little as

possible"). Once there was sufficient space in the courtroom, we

see no state interest –- compelling or otherwise -- in not

permitting Owens' family, friends,12 or other members of the public

to observe the proceedings.

12
Owens argues that the absence of his family and friends at trial
raises special concerns. See In re Oliver, 333 U.S. at 272.
However, we have decided that the same standard applies to family
members as to the general public: "Nothing . . . suggests that a
trial court need go beyond the already stringent requirements of
Waller before removing a defendant's family members from the
courtroom." Martin v. Bissonette, 118 F.3d 871, 876 (1st Cir.
1997).

-22-
 The Government protests that this was a "trivial,

inadvertent courtroom closure." Bowden v. Keane, 237 F.3d 125, 129

(2d Cir. 2001); see also Peterson v. Williams, 85 F.3d 39, 44 (2d

Cir. 1996) ("[I]n the context of this case, where the closure was

1) extremely short, 2) followed by a helpful summation, and 3)

entirely inadvertent, the defendant's Sixth Amendment rights were

not breached."). However, this was not a mere fifteen or twenty-

minute closure; rather, Owens' trial was allegedly closed to the

public for an entire day while jury selection proceeded. Jury

selection is, of course, a crucial part of any criminal case. See

Gómez v. United States, 490 U.S. 858, 873 (1989) ("Jury selection

is the primary means by which a court may enforce a defendant's

right to be tried by a jury free from ethnic, racial, or political

prejudice . . . or predisposition about the defendant's culpability

. . . ."). Furthermore, even if the courtroom was closed because

of inattention by the judge, courts have expressed concern in the

past where a court officer's unauthorized closure of a courtroom

impeded public access. See, e.g., Walton v. Briley, 361 F.3d 431,

433 (7th Cir. 2004) ("Whether the closure was intentional or

inadvertent is constitutionally irrelevant."); Martineau v. Perrin,

601 F.2d 1196, 1200 (1st Cir. 1979) (noting Sixth Amendment concern

where marshals locked courtroom doors without authorization); see

also United States v. Keaveny, 1999 U.S. App. LEXIS 3630 at *4 (1st

-23-
Cir. 1999) ("[C]onstitutional concerns may be raised even by a

court officer's unauthorized partial exclusion of the public.").

Finally, to the extent that the Government suggests we

determine whether the trial closure was prejudicial, the cases on

this issue are clear: "once a petitioner demonstrates a violation

of his Sixth Amendment right to a public trial, he need not show

that the violation prejudiced him in any way. The mere

demonstration that his right to a public trial was violated

entitles a petitioner to relief." Judd v. Haley, 250 F.3d 1308,

1315 (11th Cir. 2001). Thus, we conclude that if the trial court

barred spectators from the courtroom as Owens alleges, he was

denied his Sixth Amendment right to have a public trial.

However, our inquiry does not end here. Owens

procedurally defaulted his public trial claim by failing to object

to the courtroom closure at trial and failing to preserve the

objection on appeal. Thus, Owens must demonstrate cause for the

procedural default and that the public trial error caused him

"actual prejudice." Knight, 37 F.3d at 774.

Owens claims that his trial and appellate counsel were

ineffective in failing to raise this issue, and that this

ineffective assistance is cause for the procedural default. See

Coleman v. Thompson, 501 U.S. 722, 753-54 (1991). In order to

establish ineffective assistance of counsel to excuse a procedural

default, Owens must show that "counsel's representation fell below

-24-
an objective standard of reasonableness," and that "the deficient

performance prejudiced his defense." Strickland, 466 U.S. at

687-88.

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." The courts have been clear

on the importance of a public trial to a defendant. See Brecht,

507 U.S. at 630; In re Oliver, 333 U.S. at 270 ("The knowledge that

every criminal trial is subject to contemporaneous review in the

forum of public opinion is an effective restraint on possible abuse

of judicial power."); see also Canady, 126 F.3d at 364 ("[I]f we

were to hold that the [public trial] error was not structural and

thus subject to harmless error analysis, it would almost always be

held to be harmless. In this way, the [public trial] right would

become a right in name only, since its denial would be without

consequence."). Counsel's failure to object to closing the trial

for an entire day of jury selection, one of the most important

phases of a criminal trial, deprived Owens of a substantial fair

trial right. On the record before us and without the benefit of an

evidentiary hearing, we do not see how the failure to object to the

closure could have been sound trial strategy. Furthermore, given

that the courtroom was closed to the public for an entire day, and

that those excluded include Owens' mother and uncle, we do not

believe that the failure to object could have been "mere

-25-
inadvertence." Thus, we conclude that Owens' counsel may have been

ineffective in failing to object to the closure of jury selection

to the public.

Prejudice presents a thornier issue.13 The Government

urges us to find that closure of Owens' trial for an entire day of

jury selection was not prejudicial. The flaw in this argument is

that structural errors, such as a failure to hold a public trial,

"defy harmless-error review" and "infect the entire trial process."

Neder v. United States, 527 U.S. 1, 8 (1999) (internal citations

and quotations omitted). In discussing the difference between

structural error and trial error, the Supreme Court has noted that

trial errors that are commonly prejudicial, such as the admission

of involuntary confessions, are different than structural errors,

for which courts must "eschew[] the harmless-error test entirely."

Arizona v. Fulminante, 499 U.S. 279, 312 (1991). Unlike trial

rights, structural rights are "'basic protection[s]' whose precise

effects are unmeasurable, but without which a criminal trial cannot

reliably serve its function." Sullivan v. Louisiana, 508 U.S. 275,

13
Owens must make two showings of prejudice. First, Owens must
show that counsel's failure to object to the trial closure
prejudiced him for the purposes of determining whether there was
ineffective assistance of counsel. Strickland, 466 U.S. at 688.
Second, Owens must also show prejudice to excuse his procedural
default on the public trial claim. Knight, 37 F.3d at 774. We
believe that these showings of prejudice overlap, and we resolve
them simultaneously. Cf. Strickler v. Greene, 527 U.S. 263, 282
(1999) ("In this case, cause and prejudice [for procedural default]
parallel two of the three components of the alleged [trial error]
itself.").

-26-
281 (1993). Structural error thus has "consequences that are

necessarily unquantifiable and indeterminate." Id.; United States

v. González-Huerta, 403 F.3d 727, 734 (10th Cir. 2005) ("[I]f, as

a categorical matter, a court is capable of finding that the error

caused prejudice upon reviewing the record, then that class of

errors is not structural."). The Supreme Court recently said that

this is particularly true in the public trial right context. See

United States v. González-López, 126 S. Ct. 2557, 2564 n.4 (2006)

(citing Waller, 467 U.S. at 49 n.9, for the proposition that

"violation of the public-trial guarantee is not subject to

harmlessness review because 'the benefits of a public trial are

frequently intangible, difficult to prove, or a matter of

chance'").

If the failure to hold a public trial is structural

error, Neder, 527 U.S. at 8, and it is impossible to determine

whether a structural error is prejudicial, Sullivan, 508 U.S. at

281, we must then conclude that a defendant who is seeking to

excuse a procedurally defaulted claim of structural error need not

establish actual prejudice.14 See Sustache-Rivera v. United States,

14
We acknowledge that in Purvis v. Crosby, the Eleventh Circuit
found that counsel's failure to object to a partial trial closure
was not prejudicial. 451 F.3d at 738. The Eleventh Circuit held
that it could not "dispense with the prejudice requirement for
attorney error of this type without defying the Supreme Court's
clear holding that except in three limited circumstances, which are
not present here, a defendant must show that any error his counsel
committed 'actually had an adverse effect on the defense.'" Id. at
741. As we have explained, this holding is in tension with the

-27-
221 F.3d 8, 17 (1st Cir. 2000) ("If [an error] did constitute

structural error, there would be per se prejudice, and harmless

error analysis, in whatever form, would not apply."); see also

Becht v. United States, 403 F.3d 541, 549 (8th Cir. 2005)

(suggesting, but not deciding, that counsel's failure to raise a

structural error on appeal would constitute per se prejudice);

McGurk v. Stenberg, 163 F.3d 470, 475 (8th Cir. 1998) (holding that

where counsel's deficient performance resulted in structural error,

Supreme Court's pronouncement that prejudice is presumed in cases
of structural error not because the risk of prejudice is high, but
because it is impossible to determine the extent of the prejudice.
In addition, the Eleventh Circuit relied upon Francis v. Henderson,
in which the Supreme Court held that where a habeas petitioner who
had defaulted on a claim of racial bias in jury selection, normally
a structural error, still needed to establish actual prejudice to
excuse the procedural default. 425 U.S. 536, 542 (1976). We
believe that the holding of Francis has been substantially weakened
by the Supreme Court's subsequent pronouncement in Fulminante,
Sullivan, and Neder that prejudice is impossible to quantify in
cases of structural error.

In addition, in Ward v. Hinsley, the Seventh Circuit found
that a claim of structural error did not excuse a habeas petition
from demonstrating "prejudice" from the error to excuse procedural
default. 377 F.3d 719, 726 (7th Cir. 2004); see also Hatcher v.
Hopkins, 256 F.3d 761, 764 (8th Cir. 2001). However, the Seventh
and Eighth Circuits stated that their concern arose because "[t]he
procedural default doctrine is 'grounded in concerns of comity and
federalism,'" and bypassing the prejudice analysis in claims of
structural error would deny state courts their role in enforcing
federal rights. Ward, 377 F.3d at 726 (quoting Coleman, 501 U.S.
at 730); Hopkins, 256 F.3d at 764 (emphasizing that structural
error does not bypass "a state-law procedural default in a § 2254
petition" (emphasis added)). To the extent that comity and
federalism concerns might justify the requirement that a petitioner
show prejudice arising out of a structural error, they do not exist
here, where Owens is petitioning from a conviction in federal
court.

-28-
prejudice will be presumed); Canady, 126 F.3d at 364 (even though

habeas petitioner had not raised public trial claim on direct

appeal, deciding that he was entitled to relief because public

trial claim is structural error). We will not ask defendants to do

what the Supreme Court has said is impossible.

A brief analysis of Owens' public trial claim shows the

logic of this conclusion. A defendant's right to a public trial

"keep[s] his triers keenly alive to a sense of their

responsibility" and "encourages witnesses to come forward and

discourages perjury." Waller, 467 U.S. at 46. "[J]udges, lawyers,

witnesses, and jurors will perform their respective functions more

responsibly in an open court than in secret proceedings." Estes v.

Texas, 381 U.S. 532, 588 (1965) (Harlan, J., concurring). Owens'

trial was allegedly closed to the public during jury selection. It

is possible that jurors might have been more forthcoming about

biases and past experiences if they had faced the public. It is

also possible that Owens and the Government might have picked a

more impartial jury or asked different questions with local

citizenry watching. All of these possibilities call into question

the fundamental fairness of Owens' trial. Requiring that Owens

prove any of them by a preponderance of the evidence would be a

burden impossible to meet. See González-López, 126 S. Ct. at 2565

(refusing to apply harmlessness review to violation of right to

counsel because "[w]e would have to speculate upon what matters the

-29-
rejected counsel would have handled differently--or indeed, would

have handled the same but with the benefit of a more jury-pleasing

courtroom style or a longstanding relationship of trust with the

prosecutors. And then we would have to speculate upon what effect

those different choices or different intangibles might have had.").

As such, on remand, the court need not require Owens to prove that

his counsel's failure to object to the trial closure was actually

prejudicial.

Thus, to summarize, closure of jury selection to the

public for an entire day without meeting the strict requirements of

Waller would violate a defendant's right to a public trial.

Counsel's failure to object to such a closure may constitute

ineffective assistance of counsel. Finally, because denial of a

public trial is structural error, it would be impossible for Owens

to establish actual prejudice, and as such, it must be presumed.

Given these conclusions, it was error for the district court to

conclude that, assuming the truth of his allegations, Owens was not

entitled to relief. Accordingly, the district court abused its

discretion in declining to hold an evidentiary hearing. Without

the benefit of an evidentiary hearing to determine the nature and

extent of the trial closure, we think it improvident to determine

whether the trial was actually closed, and whether counsel's

failure to object to the closure in this case would constitute

ineffective assistance of counsel. Accordingly, we remand to the

-30-
district court for full consideration (including an evidentiary

hearing) of Owens' claim regarding the closure of his trial during

jury selection.

D. Swearing-in of the AUSA

Owens argues that the swearing-in of the AUSA in the

middle of the trial, combined with laudatory comments made by the

judge during the swearing-in ceremony, presented the prosecution in

a positive light for a reason totally unrelated to the case.15

Accordingly, Owens argues, the jury was no longer impartial and may

have favored the prosecution based on evidence unrelated to the

trial.

The district court denied this habeas claim in a separate

order by Judge Gertner, finding that "viewing the ceremony as a

whole, there is virtually no possibility that jurors would believe

the Court favored one side over the other."16

As an initial matter, we note that a "judge's

participation [in a trial] must be balanced; he cannot become an

advocate or otherwise use his judicial powers to advantage or

disadvantage a party unfairly." Logue v. Dore, 103 F.3d 1040, 1045

15
It is unclear whether the district court held an evidentiary
hearing on this claim. Thus, we take the petitioner's credible
allegations as true. Ellis, 313 F.3d at 641.
16
The district court also determined that because the swearing-in
ceremony did not constitute reversible error, Owens' appellate
counsel's failure to raise this claim did not constitute
ineffective assistance of counsel.

-31-
(1st Cir. 1997). This is true even where a judge's innocently

intended statements have "impermissibly exceeded the limitations on

his power to comment." United States v. Paiva, 892 F.2d 148, 159

(1st Cir. 1989). We examine allegations of judicial bias to see if

comments are improper, and "whether the complaining party can show

serious prejudice." United States v. Cunan, 152 F.3d 29, 37 (1st

Cir. 1998) (quoting Logue, 103 F.3d at 1045).

There is little question that the decision to hold a

swearing-in ceremony for an AUSA in the middle of a lengthy and

high-profile criminal trial was inappropriate. Cf. United States

v. Michienzi, 630 F.2d 455, 456-57 (6th Cir. 1980) ("While we

recognize that the District Judge's greeting to his old friend [a

witness in the trial] was plainly not intended to sway the jury,

the episode may have lent undue weight to the testimony given by

the witness involved."); United States v. Cisneros, 491 F.2d 1068,

1074 (5th Cir. 1974) ("A trial judge must not appear to be a

partisan for the prosecution."). At oral argument, even the

Government conceded that such a decision may have been unwise. We

feel it necessary to reiterate that the purpose of a criminal trial

is to provide a neutral forum in which the guilt or innocence of a

defendant is determined based on evidence that is free of improper

influence. Anything that might detract from this purpose –- such

as holding an elaborate ceremony for the prosecution in front of

-32-
the jury in the midst of a trial –- should not be considered

lightly.

In many ways, the issue at Owens' trial raises concerns

similar to those in cases in which the Government has vouched for

its own credibility. See, e.g., United States v. Smith, 962 F.2d

923, 933-34 (9th Cir. 1992) (reversing for plain error where the

prosecutor made "repeated comments aimed at establishing his own

veracity and credibility as a representative of the government");

see also United States v. González Vargas, 558 F.2d 631, 633 (1st

Cir. 1977) ("[T]he representative of the government approaches the

jury with the inevitable asset of tremendous credibility -- but

that personal credibility is one weapon he must not use.").

Likewise, the jury in Owens' case was told of the background and

professional experience of the prosecutor being sworn in, that a

prosecutor was sworn to "support and defend the Constitution of the

United States," and that many defense attorneys had come to watch

the AUSA be sworn in. That the judge participated in bolstering

the prosecution's credibility only increases the possibility of

prejudice, given the influence a judge has over the jury. See

Quercia v. United States, 289 U.S. 466, 470 (1933) ("The influence

of the trial judge on the jury is necessarily and properly of great

weight and his lightest word or intimation is received with

deference, and may prove controlling." (internal quotation marks

omitted)).

-33-
 Whether Owens was prejudiced by the swearing-in ceremony

presents a closer question. It is unfortunate that the trial

judge's ill-advised actions have placed before us this difficult

question. Prejudice is always a risk when a judge comments during

a trial. United States v. Hickman, 592 F.2d 931, 933 (6th Cir.

1979) ("[P]otential prejudice lurks behind every intrusion into a

trial made by a presiding judge."). The Government notes that the

court issued some curative instructions. See, e.g., United States

v. Quesada-Bonilla, 952 F.2d 597, 601 (1st Cir. 1991) (finding no

prejudice where the judge issued curative instructions). On the

other hand, curative instructions, though important, are of limited

power. Crowe v. Di Manno, 225 F.2d 652, 655 (1st Cir. 1955) ("At

the most [curative instructions] can offset only brief and minor

departures from strict judicial impartiality."); see also United

States v. Filani, 74 F.3d 378, 386 (2d Cir. 1996) ("[T]he presiding

judge cannot . . . foster the notion that the judge believes one

version of an event and not another. Curative instructions to the

jury . . . do not remove such an impression once it is created.").

The Government also points out that Owens was acquitted on a number

of charges. See, e.g., United States v. Dworken, 855 F.2d 12, 29

(1st Cir. 1988) ("[T]he jury's discerning verdict [acquitting the

defendant on one count] 'reflects a careful dissection of the

evidence as it applied to each defendant.'").

-34-
 On balance, we do not think that Owens has shown that he

was prejudiced by the swearing-in ceremony. While we continue to

think the ceremony and the judge's comments were ill-advised, the

quantity of the evidence against Owens, the jury's discerning

verdict, the curative instructions, the fact that the prosecutor

who was sworn in was not working on Owens' trial, and the length of

the trial all militate against a finding of prejudice. While we

sympathize with Owens' claim, absent a showing of actual prejudice,

mere bad judgment on the part of the trial court is insufficient to

merit a new trial.17

E. Other Claims

Owens also raised a number of other claims in his habeas

petition, none of which merit more than a brief mention. Owens

argues that the Government did not meet its obligations under Brady

v. Maryland, 373 U.S. 83, 87 (1963), when it failed to disclose the

existence and substance of meetings that a state police officer had

with a principal witness in the Government case, Anthony Lewis.

Owens has repeatedly asked for this information and the Government

has repeatedly responded, under penalty of perjury, that it has

disclosed all of the information regarding Lewis that it possesses.

Owens offers no suggestion as to what this purported evidence might

17
Because Owens has failed to show actual prejudice resulting from
the swearing-in ceremony, we need not reach the question of whether
his trial counsel's failure to raise the issue on appeal would
constitute ineffective assistance of counsel to excuse the
procedural default.

-35-
be, or where it might be found, and as such, we find that he cannot

show that "[t]he evidence at issue [is] favorable to the accused,

either because it is exculpatory, or because it is impeaching" or

that "the evidence [has] been suppressed by the State." Strickler

v. Greene, 527 U.S. 263, 281-82 (1999).

Owens also argues that the trial court effectively

amended the indictment in its instructions to the jury. The

indictment against Owens alleged that he had "willfully and

knowingly, and with deliberately premeditated malice aforethought

and extreme atrocity and cruelty, murdered Rodney Belle." The jury

charge was substantially abbreviated, telling the jury that they

needed to find that Owens "willfully and knowingly" murdered Rodney

Belle in order to find him guilty of violating 18 U.S.C. § 1959

(a)(1). Owens did not object to the jury instructions and did not

raise the claim on direct appeal, so it has been procedurally

defaulted. Owens' attempt to show cause for the procedural default

is nearly devoid of argument; he states simply, and without further

explanation, that the claim was defaulted because he received

ineffective assistance of counsel. It is a long-standing rule in

this circuit that "issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed

waived." United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

Even assuming that Owens has not waived this claim, he cannot

prevail. Section 1959(a)(1) requires only that the defendant

-36-
committed murder "as consideration for the receipt of, or as

consideration for a promise or agreement to pay, anything of

pecuniary value from an enterprise engaged in racketeering

activity, or for the purpose of gaining entrance to or maintaining

or increasing position in an enterprise engaged in racketeering

activity." 18 U.S.C. § 1959(a)(1). There is no requirement

anywhere in the statute that the murder be premeditated or

atrocious. It is clear that "[a]s long as the crime and the

elements of the offense that sustain the conviction are fully and

clearly set out in the indictment, the right to a grand jury is not

normally violated by the fact that the indictment alleges more

crimes or other means of committing the same crime." United States

v. Miller, 471 U.S. 130, 136 (1985). Here, the indictment charged

that Owens committed murder in furtherance of racketeering

activity. The fact that the indictment also charged that Owens had

committed a "premeditated and atrocious" murder is simply an

allegation of "other means" of committing murder.

Owens claims that his trial counsel were ineffective

because they failed to investigate an alibi proffered by his uncle,

former Massachusetts State Senator William Owens. It was not until

more than a year after Owens was arrested and after the trial had

started that Senator Owens approached trial counsel regarding the

alibi. In the midst of a harried trial, trial counsel did not

immediately investigate the alibi. Once they investigated the

-37-
alibi, Owens' trial counsel proposed to sandbag the prosecution

with a new theory of the case in the middle of trial. The

prosecution generously agreed to allow Owens to present the alibi

defense so long as the prosecution was given an extra week to

investigate and prepare a rebuttal case. Trial counsel declined

the offer and never presented the alibi. It is clear that "counsel

need not interview every possible witness to have performed

proficiently." Riley v. Payne, 352 F.3d 1313, 1318 (9th Cir.

2003); Lema, 987 F.2d at 55 ("The decision to interview potential

witnesses, like the decision to present their testimony, must be

evaluated in light of whatever trial strategy reasonably competent

counsel devised in the context of the particular case."). Even

given trial counsels' admitted shortcomings, we do not find that

they acted outside of the "wide range of reasonable professional

assistance" in declining to interview a witness who, having been

aware of the charges pending against Owens for over a year,

suddenly remembered an alibi after the trial had begun.

Strickland, 466 U.S. at 689.

Owens argues that his appellate counsel was ineffective

for not more vigorously arguing on appeal that the trial court

should have instructed the jury (as it announced it would) that in

order to be convicted of a violation of 18 U.S.C. § 1962(c),18 the

18
18 U.S.C. § 1962(c) provides:

It shall be unlawful for any person employed by or

-38-
jury had to find that Owens participated in directing the affairs

of the alleged criminal enterprise. Although appellate counsel

pressed the argument, we rejected it, finding that "Owens has

neither specified a defense theory the court's promise led him to

forego, nor explained how his closing arguments would have differed

had the court instructed in precise accordance with his request."

Owens, 167 F.3d at 753. We nonetheless noted that it was a "close

question." Id. Many counsel fail to persuade us on close

questions and we do not find that Owens' appellate counsel were

constitutionally defective for having joined their ranks.

Finally, Owens argues that the trial court erred in

sentencing him beyond the statutory maximum on three counts based

on judicial factfinding, and that this violates the Supreme Court's

decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Owens

concedes that Apprendi was decided after his conviction became

final, and that we are barred from granting a habeas petition based

on the retroactive application of law. See Teague v. Lane, 489

U.S. 288, 310 (1989) ("[N]ew constitutional rules of criminal

procedure will not be applicable to those cases which have become

final before the new rules are announced."). Owens suggests that

associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise's affairs
through a pattern of racketeering activity or collection
of unlawful debt.

-39-
Jones v. United States, decided six months before his conviction

became final, supports his argument that his sentence was wrongly

imposed based on existing precedent. 526 U.S. 227 (1999). In

Jones, the Supreme Court found that a federal carjacking statute

was composed of "three separate offenses by the specification of

distinct elements, each of which must be charged by indictment,

proven beyond a reasonable doubt, and submitted to a jury for its

verdict." 526 U.S. at 251. Owens suggests that this conclusion

stated the rule of law explained in Apprendi: "Other than the fact

of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt." 530 U.S. at 490.

However, Jones stated that the law on that subject was unclear.

526 U.S. at 251 ("[T]he Government's view would raise serious

constitutional questions on which precedent is not dispositive.").

Furthermore, two years later, in Ring v. Arizona, the Supreme Court

reiterated that Jones resolved a statutory question, and not the

constitutional question resolved in Apprendi and pressed here. 536

U.S. 584, 600 (2002). Accordingly, we find that Owens' Apprendi

claim is barred by Teague.

III. Conclusion

We recognize that Owens' high-profile trial would have

proved challenging for any court. However, this trial was

unnecessarily complicated by decisions of both the court and

-40-
counsel. For the reasons stated herein, we reverse in part the

decision of the district court denying Owens' petition for a writ

of habeas corpus, and affirm it in part. We remand this case to

the district court for further consideration as explained herein.

Reversed in part; Affirmed in part; and Remanded.

-41-