John Visciotti v. Michael Martel

Filing

FILED OPINION (HARRY PREGERSON, A. WALLACE TASHIMA and MARSHA S. BERZON) AFFIRMED; Judge: MSB Authoring, Judge: MSB Concurring. FILED AND ENTERED JUDGMENT. [10161046]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN LOUIS VISCIOTTI,
Petitioner-Appellant,

No. 11-99008

v.

D.C. No.
2:97-cv-04591-R

MICHAEL MARTEL,
Respondent-Appellee.

OPINION

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted November 12, 2013
Pasadena, California
Filed October 17, 2016
Before: Harry Pregerson, A. Wallace Tashima,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon;
Concurrence by Judge Berzon

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VISCIOTTI V. MARTEL
SUMMARY*

Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of habeas
relief in a case in which California state prisoner John
Visciotti raised (1) a penalty-phase ineffective assistance
claim, focused on the allegation that key aggravating
evidence was introduced only as a result of counsel’s errors
during the penalty proceedings; (2) a new claim that the
cumulative effect of counsel’s ineffectiveness during both
the guilt and penalty phases of trial ultimately prejudiced the
penalty proceedings; and (3) a claim that the trial judge’s
closure of the death-qualification voir dire proceedings
violated Visciotti’s Sixth Amendment right to a public trial.
The panel held that, whether or not the ineffective
assistance of counsel claims have merit, they are foreclosed
by the Supreme Court’s prior decision in this case, Woodford
v. Visciotti, 537 U.S. 19 (2002) (per curiam).
Regarding the trial judge’s closure of death-qualification
voir dire, to which counsel did not object, the panel held that
de novo review continues to apply, post-AEDPA, to a
contention that ineffective assistance of trial counsel
constitutes cause to excuse a procedural default. The panel
concluded that counsel’s failure to object to the closure of
death-qualification voir dire did not constitute deficient
performance, and that Visciotti therefore cannot demonstrate
cause to excuse his default of the public trial right claim.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Concurring, Judge Berzon, joined by Judge Pregerson,
wrote separately to emphasize that this case illustrates that
Supreme Court summary reversals cannot, and do not, reflect
the same complete understanding of a case as decisions after
plenary review.

COUNSEL
Mark R. Drozdowski (argued), Deputy Federal Public
Defender; K. Elizabeth Dahlstrom, Research & Writing
Specialist; Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellant.
Meagan J. Beale (argued), Deputy Attorney General; Holly
Wilkens, Supervising Deputy Attorney General; Julie L.
Garland, Senior Assistant Attorney General; Kamala D.
Harris, Attorney General; Office of the Attorney General, San
Diego, California; for Respondent-Appellee.

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OPINION

BERZON, Circuit Judge:
In 1983, an Orange County jury convicted John Visciotti
of first-degree murder, attempted murder, and robbery. The
same jury then sentenced Visciotti to death.
On direct, automatic appeal, the California Supreme
Court affirmed the judgment in its entirety. People v.
Visciotti, 2 Cal. 4th 1 (1992) (“Visciotti I”). Visciotti filed a
state petition for writ of habeas corpus, alleging ineffective
assistance of his counsel (IAC) during the guilt and penalty
phases of his trial in violation of the Sixth Amendment. See
Strickland v. Washington, 466 U.S. 668 (1984). The
California Supreme Court assumed that counsel afforded
Visciotti “inadequate representation in some respects” during
the penalty phase, but determined that Visciotti was not
prejudiced and so denied his petition. In re Visciotti, 14 Cal.
4th 325, 330 (1996) (“Visciotti II”).
Visciotti next brought a federal habeas petition, alleging,
among many other claims, ineffective assistance of counsel
during the guilt and penalty phases of his trial. The district
court granted Visciotti’s habeas petition as to the penalty
phase and denied it as to his conviction. We affirmed. See
Visciotti v. Woodford, 288 F.3d 1097 (9th Cir. 2002)
(“Visciotti III”).
The United States Supreme Court
summarily reversed our decision, holding that we “exceed[ed]
the limits imposed on federal habeas review by” the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (codified
at 28 U.S.C. § 2254). Woodford v. Visciotti, 537 U.S. 19, 20
(2002) (per curiam) (“Visciotti IV”).

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Following remand and further proceedings, the district
court denied Visciotti’s remaining claims. Visciotti appeals
that denial. He asserts two species of claims. First, he
contends that his counsel’s ineffective assistance during the
guilt and penalty phases of trial requires habeas relief as to
his death sentence. Acknowledging that the Supreme Court
expressly denied relief on his ineffective assistance of
counsel claim, he argues that the Court did not decide the
particular claims he now appeals. Second, he claims that the
trial judge’s closure of the death qualification voir dire
proceedings violated his Sixth Amendment right to a public
trial.
I. BACKGROUND
Visciotti I extensively details the facts of this case. 2 Cal.
4th at 28–33. We thus recite only a brief summary of the
events here, as described by the Supreme Court in Visciotti
IV.
[Visciotti] and a co-worker, Brian Hefner,
devised a plan to rob two fellow employees,
Timothy Dykstra and Michael Wolbert, on
November 8, 1982, their payday. They
invited the pair to join them at a party. As the
four were driving to that supposed destination
in Wolbert’s car, [Visciotti] asked Wolbert to
stop in a remote area so that he could relieve
himself. When all four men had left the car,
[Visciotti] pulled a gun, demanded the
victims’ wallets (which turned out to be
almost empty), and got Wolbert to tell him
where in the car the cash was hidden. After
Hefner had retrieved the cash, [Visciotti]

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walked over to the seated Dykstra and killed
him with a shot in the chest from a distance of
three or four feet. [Visciotti] then raised the
gun in both hands and shot Wolbert three
times, in the torso and left shoulder, and
finally, from a distance of about two feet, in
the left eye. [Visciotti] and Hefner fled the
scene in Wolbert’s car. Wolbert miraculously
survived to testify against them.

Visciotti IV, 537 U.S. at 20.1
A. Trial
Visciotti’s parents retained Roger Agajanian for
representation in the pretrial proceedings, at the trial, and on
appeal. Agajanian was admitted to the bar in July 1973, had
never before the Visciotti case tried a capital case that went
to a jury, and had never conducted a penalty phase trial. See
Visciotti II, 14 Cal. 4th at 336.
At the outset of Visciotti’s 1983 trial, the court mentioned
that it would conduct “sequestered voir dire.” The court
explained to the pool of prospective jurors that, because the
state could seek the death penalty, “we must . . . inquire of
each prospective juror individually to determine in private
with just the court, the two attorneys, possibly the defendant
and the court personnel present, your attitudes and . . .
attempt to determine if there exists any prejudice or bias that

1

Hefner, Visciotti’s co-defendant, was tried separately, convicted of
the same offenses, and sentenced to life in prison without the possibility
of parole. 2 Cal. 4th at 20 n.2. The State did not seek Hefner’s execution.
Id.

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may affect your attitude toward the imposition of the capital
punishment.” On July 5, 6, 7, 11, 12, 13, and 14, the court
conducted the death qualification voir dire. The clerk’s
transcript for each day reveals that the examinations were
conducted “in chambers,” in the presence of only the court,
counsel, court reporters, and, some of the time, Visciotti.2
Agajanian never objected to this practice on the record. Nor
did the judge make findings on the record justifying the
private voir dire sessions.
The prosecution’s case was “based in major part on the
testimony of Michael Wolbert, and on [Visciotti’s]
confessions.” Visciotti I, 2 Cal. 4th at 28. Of particular
relevance to this appeal, the parties agreed at the start of trial
that the prosecution would not in its guilt phase case-in-chief
present evidence of Visciotti’s previous conviction for
assaulting William Scofield with a deadly weapon. Visciotti
had pleaded guilty to that offense in 1978 and served time in
state prison. The prosecution abided by this agreement.
Agajanian nevertheless had Visciotti testify about his
criminal history, including his 1978 conviction:
In his guilt phase testimony, [Visciotti]
claimed that the 1978 incident occurred when
two men who had a problem with his
roommate, Doug Favello, kicked in the door
of the apartment he shared with Favello, ran
in, and cut Favello’s throat. A third person

2

The clerk’s transcript indicates that Visciotti “personally and
through counsel waived his appearance for the remainder of the individual
voir dire conferences” on the afternoon of July 12. He was absent as well
for voir dire conducted in chambers on July 13 and 14.

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with a gun remained at the door. [Visciotti]
testified that he picked up the knife dropped
by the person who had stabbed Favello, ran
after the fleeing intruders, and stabbed the one
who had slashed Favello’s throat just as that
person (Scofield) was trying to enter his own
room. On cross examination [Visciotti]
conceded that he and several friends went to
Scofield’s room later that night, denied that
they had kicked in the door to that room or
that anyone had been in bed in the room, and
denied seeing, let alone stabbing, a woman
who had been in the room.

Visciotti I, 2 Cal. 4th at 30 n.5.
On rebuttal, the prosecution called Robert D. McKay, a
Crime Scene Investigator for the Anaheim Police
Department, to contradict Visciotti’s testimony concerning
the 1978 incident. McKay had investigated the scene of the
1978 incident, including Scofield’s room. He testified with
respect to the door to the apartment that it “appeared it had
been forced open,” as the door molding and latching had been
partially destroyed and there was a hole in the adjoining wall
from “where the doorknob would have struck the wall.” He
authenticated several photographs he had taken of the crime
scene, including images of two knives, blood-stained
bedding, and the damaged door to the apartment.
That same night, at a hospital, McKay observed and
photographed two injured parties: Scofield and Kathy
Cusack. He authenticated at trial a photograph he had taken
of several of Cusack’s stab wounds while she lay half naked
on a table in the hospital emergency room. McKay testified

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that Cusack suffered from seven wounds, including “a deep
laceration to the lower right breast area, a deep long cut to the
inside of the right thigh, a cut to the right side, and four cuts
to the back of the right arm.” McKay later returned to the
police department, where he observed Favello. He testified
that Favello “did not have blood on his clothing or on his
body,” nor any evidence of an injury to his neck.
On July 29, 1983, the jury found Visciotti guilty of first
degree murder of Dykstra, attempted murder of Wolbert, and
robbery. Visciotti I, 2 Cal. 4th at 27–28. The jury “also
found that the murder was committed under the special
circumstance of murder in the commission of robbery, and
that [Visciotti] had personally used a firearm in the
commission of the offenses.” Id. at 28 (internal citation
omitted).
B. Penalty Phase
Visciotti’s penalty trial began several days later. As the
California Supreme Court recounted, “[t]he only evidence
presented by the [prosecution] in the initial phase of the
penalty trial was the testimony of William Scofield, the
victim of the June 15, 1978, assault with a deadly weapon
offense to which [Visciotti] had pleaded guilty and for which
he had served a prison term.” Visciotti I, 2 Cal. 4th at 33.
Scofield testified as follows: At the time of the incident,
he lived with Kathy Cusack in the same complex as Doug
Favello. The dispute between him and Favello had arisen out
of Favello’s “loss” of Cusack’s cat. At Cusack’s request,
Scofield spoke with Favello about the loss of the cat. Their
conversation degenerated into a fist fight. Later that evening,
Scofield went to Favello’s room armed with a knife and

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continued the argument. He did not strike Favello with the
knife he brandished.
The following night, “five or six guys kicked the door [to
Scofield’s room] down,” dragged him out of the room, and
assaulted him with some combination of baseball bats, sticks,
knives, and an ice pick. Scofield testified that Visciotti, part
of this group, stabbed him in his back. During the altercation,
Cusack remained in the room. When Scofield returned to the
room, he saw her “covered with blood.” Scofield’s back
required surgery.
The prosecution next called Cusack to testify. Agajanian
objected on the ground that Visciotti had pleaded guilty only
to stabbing Scofield and was not charged in the criminal
information with assaulting Cusack. The court initially
overruled the objection.
Just after Cusack was sworn in but before the prosecution
began to examine her, the court again called counsel to the
bench. The court asked the prosecutor whether the Notice of
Evidence of Aggravation informed Visciotti that the
prosecution would rely on Cusack’s testimony during the
penalty phase. The prosecutor replied that Cusack’s
testimony related to facts “that are an integral part of the
transaction concerning [Visciotti’s] prior felony conviction,”
which was included in the Notice.3 As the initial 1978
3

The Notice stated that “the prosecution intends to introduce, in
addition to the circumstances of the charged offenses and the
circumstances surrounding the alleged special circumstances the following
evidence in aggravation of the penalty and wherever else admissible: . . .
. Proof of Defendant’s prior conviction for violation of Penal Code Section
245(a), a felony, on or about August 11, 1978, in the Superior Court of the
State of California, in and for the County of Orange.”

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criminal complaint had expressly referred to an assault on
Cusack, the prosecutor argued, even “a preliminary,
absolutely minimal threshold type of investigation on the part
of the defense which I’m sure a competent attorney like Mr.
Agajanian . . . would do . . . would alert them to the fact there
was more than one victim alleged.”
The court noted that the Notice “refers strictly to a
conviction for which the defendant stands accused . . . that is,
the assault with a deadly weapon upon William Scofield. . . .
[It] talks about what appears to be a single violation . . . and
it talks about a conviction.” In the end, the court precluded
Cusack from testifying at all. The prosecution offered no
further evidence in its aggravation case-in-chief.
Agajanian’s “theory was to invoke jury sympathy for
[Visciotti’s] family.” In particular, Agajanian presented
evidence from various family members and friends that
Visciotti “had never been violent toward anyone in [his]
family,” and that “he was violent only when under the
influence of drugs.” Visciotti I, 2 Cal. 4th at 34.
Midway through Visciotti’s mitigation presentation, the
prosecution moved for permission to introduce Cusack as a
rebuttal witness at the close of Visciotti’s case. The court
granted the motion, holding “that the evidence introduced by
the defense is opinion evidence by every defense witness
offered [during the penalty phase] . . . that the defendant is in
fact a non-violent person. The people are entitled as a matter
of law to rebut that by competent evidence. Specific acts of
violence and rebuttal are relevant and are appropriate to rebut
an opinion that the defendant is in fact a non-violent person,
so the court shall allow the witness to testify as requested.”

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Agajanian, in turn, moved for a continuance “to find out
all of this information that this lady is apparently going to be
testifying to . . . .” After the court denied this motion,
Agajanian moved for production of “certain reports . . . to
help us prepare for this witness and determine the truthfulness
of the statements.” The court granted the second motion.
The California Supreme Court summarized Cusack’s
testimony as follows:
She first met [Visciotti] on June 12, 1978,
at a party in [Visciotti’s] apartment. She had
not seen him again until the early morning
hours of June 15 when he and several other
men broke into the apartment she shared with
Scofield. [Visciotti] had a knife. When the
other men, who were beating Scofield with
bats and sticks, dragged Scofield out of the
room, [Visciotti] remained in the room where
Cusack was standing on the bed. He stabbed
her through the right forearm, which she had
raised to protect herself, stabbed her farther
up that arm, and when she fell down onto the
bed, slashed her leg. He then stabbed her in
the ankle. When [Visciotti] attempted to stab
Cusack in the abdomen she told him she was
pregnant. He nonetheless tried again to stab
her in the abdomen, but she rolled over and he
stabbed her in the side. He then stabbed her
in the chest, slashed her shoulder, stabbed her
in the area of her breast. After stabbing
Cusack eight or more times, [Visciotti] began
to carve up the walls of the apartment, and to
cut up the posters and pictures. When Cusack

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hit him over the head with a stick, [Visciotti]
ran out of the apartment. She . . . had to be
hospitalized for treatment of her wounds.
Visciotti I, 2 Cal. 4th at 33–34 (footnote omitted). Cusack
added that she was four months pregnant at the time of the
attack. Id. at 33 n.7. Cusack was the last witness to testify in
the penalty phase of Visciotti’s trial.
During his closing argument, the prosecutor emphasized
Visciotti’s attack on Cusack as the primary example of
Visciotti’s history of violence. While the prosecutor noted
that Visciotti’s conviction for assaulting Scofield qualified as
an aggravating prior conviction, he emphasized Cusack’s
perspective on the incident.
For his part, Agajanian delivered a closing argument that
the California Supreme Court, on direct appeal, described as
“a rambling discourse, not tied to particular evidence.”
Visciotti I, 2 Cal. 4th at 82 n.45. Agajanian “did not argue
that any statutory mitigating factor was present.” Rather than
arguing against the aggravating factors or for any mitigating
factors, Agajanian’s “approach was to note the tragedy and
the impact of the murder victim’s death on other people, and
to ask the jury not to add to the tragedy or cause others to
suffer the same impact by condemning [Visciotti] to death.”
Id. at 66 n.35. And, as Justice Brown noted in her California
Supreme Court habeas dissent “Agajanian systematically
conceded nine of the eleven aggravating and mitigating
factors set forth in Penal Code section 190.3 . . . to the
prosecution.” Visciotti II, 14 Cal. 4th at 365 (Brown, J.,
dissenting). To the extent Agajanian asserted any theory, it
was to “ask[] the jury to spare [Visciotti’s] life because he

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was the only bad child of a loving family who would suffer
if petitioner were to be executed.” Id. at 331.
The jury began deliberating on the afternoon of August 3.
After nearly two days of deliberations, the jury condemned
Visciotti to death.
C. Direct Appeal and State Post-Conviction
Proceedings
Visciotti automatically appealed to the California
Supreme Court. Agajanian continued to represent him for
about seven years following his conviction. During that time,
Agajanian filed but a single, thirty-page brief on Visciotti’s
behalf. Also during that period, Agajanian was convicted in
an unrelated matter, in the District of Vermont, of two counts
of criminal contempt. His representation of Visciotti ended
in 1990, when the State Bar suspended his license to practice
law.4

4

Additional discipline followed. As the California Supreme Court
explained:
The bases for the disciplinary proceedings that followed
the proceeding related to the contempt conviction were
complaints that Agajanian had abandoned clients, failed
to respond to client communications, made false
representations and misrepresentations, lost files, and
failed to perform promised services. Evidence was
admitted at the evidentiary hearing that during the time
he represented [Visciotti], Agajanian did not respond to
client communications, failed to make court
appearances, did not visit clients in jail or show up in
court or other places as promised, and was distracted by

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Replacement counsel filed a supplemental brief following
Agajanian’s suspension. That brief asserted that the closure
of penalty phase voir dire violated the Sixth Amendment right
to a public trial, citing Press-Enter. Co. v. Superior Court of
Cal., Riverside Cty., 464 U.S. 501 (1984), and Waller v.
Georgia, 467 U.S. 39 (1984).
The California Supreme Court affirmed the judgment on
direct appeal. See Visciotti I, 2 Cal. 4th 1. Justice Mosk
dissented, writing that he would have sua sponte decided that
Agajanian’s “pervasive and serious” deficiencies as trial
counsel “resulted in a breakdown of the adversarial process
at trial” to such an extent that Visciotti’s conviction should
not stand. Id. at 84 (Mosk, J., dissenting).
Visciotti next filed a habeas petition in the California
Supreme Court. That court appointed a referee to take
evidence and make factual findings on certain discrete
questions, most of which concerned Agajanian’s failure to
investigate, discover, and use mitigating evidence in
Visciotti’s penalty phase hearing.
At the hearing, Agajanian testified that he “did not
conduct formal interviews with any members of [Visciotti’s]
family in preparation for the penalty phase,” and that he “did
no investigation and did not have a social worker or
investigator do any investigation to seek potentially
mitigating evidence.” Visciotti II, 14 Cal. 4th at 337. He
further testified that, although he decided “to elicit sympathy

a civil suit against a nonlawyer who shared his office
and was accused of fraudulent sales of trust deeds.
Visciotti II, 14 Cal. 4th at 350 n.6.

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for [Visciotti’s] family as his penalty phase strategy,” id. at
336, “he had no information about [Visciotti’s] family when
he made his decision on penalty phase tactics,” id. at 337.
Visciotti also offered evidence that Agajanian failed to
provide mental health experts appointed by the trial court
with the necessary information to provide a competent and
informed evaluation. See id. at 337–40.
Particularly relevant here is Visciotti’s evidence that
“Agajanian did not review the prosecutor’s file.” Id. at 340.
As Visciotti II described,
[a]lthough it was the practice of the district
attorney at the time of the Visciotti trial to
make the case files of prosecutors available to
defense counsel, Agajanian was not aware
that during petitioner’s 1978 assault with a
deadly weapon on William Scofield,
petitioner had also repeatedly stabbed Kathy
Cusack who was pregnant. Agajanian did not
send for the police report or go through the
prosecutor’s file to read it in advance of trial
and thus was surprised and unprepared to face
that evidence.
Id. Finally, Visciotti presented at the habeas hearing
considerable evidence concerning facts relevant to mitigation
that Agajanian failed to discover and present during the
penalty phase proceedings. The California Supreme Court
summarized that evidence at length in its habeas decision.
See id. at 341–45.
After considering the referee’s report, a divided court
denied relief for want of prejudice. Assuming that

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Agajanian’s performance was constitutionally inadequate,
and “[n]otwithstanding Agajanian’s multiple failings,”5 the
majority reasoned, it was not reasonably probable that the
jury would have recommended a lesser sentence had Visciotti
received competent representation. Id. at 352–57. The
dissent concluded otherwise, maintaining that “Agajanian’s
abysmal across-the-board performance rendered the penalty
phase of the trial a complete and utter farce.” Id. at 366
(Brown, J., dissenting).
D. Federal Habeas Proceedings
In 1998, Visciotti filed the habeas petition at issue here.
The district court granted relief on the basis of Agajanian’s
ineffectiveness during the penalty phase of Visciotti’s trial
but expressly rejected most of Visciotti’s remaining
challenges to his conviction, including his guilt phase IAC
claim. Additionally, because of its ruling on the penalty
phase IAC claim, the court held moot several of Visciotti’s
remaining claims, including his objection to the closure of the
death qualification portion of voir dire. We affirmed the
5

The majority assumed Agajanian “failed to afford constitutionally
adequate representation because he allegedly: (1) failed to investigate and
discover mitigating evidence as a result of his ignorance of the types of
evidence a jury might consider mitigating; (2) failed to present readily
available evidence that would have revealed to the jury the extent to which
petitioner was subjected to psychological and physical abuse as a child,
the impact the dysfunctional and peripatetic family life had on petitioner’s
development, and the correlation between these events and petitioner's
resort to drugs; (3) failed to prepare, which left him unaware of the scope
of the aggravating evidence to be introduced; and (4) delivered an
[unfocused] closing argument, during which he undercut his client’s own
case by telling the jury that the evidence of petitioner's mental and
emotional problems was not mitigating, prejudiced petitioner at the
penalty phase of the trial.” Id. at 353.

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district court’s judgment in its entirety. See Visciotti III,
288 F.3d at 1101.
The U.S. Supreme Court summarily reversed in a per
curiam opinion, without merits briefing. The Court reasoned
that the California Supreme Court’s denial of Visciotti’s state
habeas petition for want of prejudice was neither contrary to,
nor an unreasonable application of, clearly established federal
law under 28 U.S.C. § 2254(d)(1). Visciotti IV, 537 U.S. at
22–27. As relevant here, Visciotti IV rejected our conclusion
that the California Supreme Court failed to take into account
available mitigating evidence, noting that “[a]ll of the
mitigating evidence” that we “referred to as having been left
out of account or consideration [was] in fact described” in
Visciotti II. Id. at 25. Furthermore, Visciotti IV held that the
California Supreme Court’s conclusion that the “aggravating
factors [were] so severe that . . . [Visciotti] suffered no
prejudice from trial counsel’s (assumed) inadequacy” was not
unreasonable. Id. at 26–27. “Habeas relief,” the Court
concluded, “is therefore not permissible under § 2254(d).”
Id. at 27.
On remand to this court, Visciotti asked us to consider
whether the California Supreme Court’s denial of his state
habeas petition rested on an unreasonable determination of
the facts under 28 U.S.C. § 2254(d)(2). We remanded to the
district court “to review and rule on the argument[] in the first
instance.” Visciotti v. Brown, 406 F.3d 1131, 1131 (9th Cir.
2005).
The district court denied Visciotti’s remaining claims for
relief. It issued a certificate of appealability on claim 1.C
(contesting trial counsel’s penalty phase effectiveness) and
claim 12 (contesting closure of the death qualification voir

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dire). This appeal followed. After oral argument, we granted
Visciotti’s request to expand the certificate of appealability to
cover claim 58 of his proposed second amended petition,
limited to the question whether “the cumulative effect of
constitutionally ineffective representation throughout the
criminal process, including both the guilt and penalty phases,
prejudice[d] Visciotti in the penalty phase of his trial?”
II. STANDARD OF REVIEW
We review a district court’s denial of a petition for writ of
habeas corpus de novo. Deck v. Jenkins, 768 F.3d 1015, 1021
(9th Cir. 2014). As Visciotti’s petition is governed by
AEDPA, Visciotti can prevail on a claim “that was
adjudicated on the merits in State court” only if he can show
that the adjudication:
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was 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). Under AEDPA, “[w]e review the last
reasoned state court opinion.” Musladin v. Lamarque,
555 F.3d 830, 834–35 (9th Cir. 2009) (citing Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991)). However, “when it
is clear that a state court has not reached the merits of a
properly raised issue, we must review it de novo.” Pirtle v.

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Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); see also Cone
v. Bell, 556 U.S. 449, 472 (2009).
III. DISCUSSION
A. Ineffectiveness of Counsel (IAC)
Ordinarily, “[a] convicted defendant’s claim that
counsel’s assistance was so defective as to require reversal of
a conviction or death sentence has two components.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). “First,
the defendant must show that counsel’s performance was
deficient.” Id. “Second, the defendant must show that the
deficient performance prejudiced the defense.” Id. To
establish Strickland prejudice, Visciotti must show that but
for Agajanian’s deficient performance, “there is a reasonable
probability that [the jury] would have returned with a
different sentence.” Wiggins v. Smith, 539 U.S. 510, 536
(2003). Further, “[t]o assess that probability, we consider
‘the totality of the available mitigation evidence — both that
adduced at trial, and the evidence adduced in the habeas
proceeding’ — and ‘reweig[h] it against the evidence in
aggravation.’” Porter v. McCollum, 558 U.S. 30, 41 (2009)
(quoting Williams v. Taylor, 529 U.S. 362, 397–98 (2000)).
Visciotti presents two IAC claims in this appeal. First, he
raises a penalty phase IAC claim, focused on the allegation
that key aggravating evidence, Cusack’s testimony, was
introduced only as a result of Agajanian’s errors during the
penalty proceedings. Second, as a new IAC claim, Visciotti
contends that the cumulative effect of Agajanian’s
ineffectiveness during both the guilt and penalty phases of
trial ultimately prejudiced the penalty proceedings. We
conclude that, whether or not these claims have merit, they

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are foreclosed by the Supreme Court’s decision in Visciotti
IV, so we may not grant habeas relief.
1. Claim 1C — penalty phase IAC
The California Supreme Court denied Visciotti’s penalty
phase IAC claim, concluding that, assuming that Agajanian’s
performance was constitutionally deficient, “it is not probable
that the jury would have found” the mitigation evidence
Agajanian failed to present was “mitigating or sufficiently so
that the evidence would have affected the jury determination
that the aggravating factors outweighed the mitigating in this
case.” Visciotti II, 14 Cal. 4th at 356. The Supreme Court
held the California Supreme Court’s prejudice determination
reasonable under 28 U.S.C. § 2254(d)(1), as the decision was
not contrary to or an unreasonable application of clearly
established Supreme Court law. See Visciotti IV, 537 U.S. at
27.
Visciotti now argues that the California Supreme Court’s
decision deserves no deference for a different reason —
because it “was based on an unreasonable determination of
the facts.” 28 U.S.C. § 2254(d)(2). The thrust of Visciotti’s
refashioned penalty phase argument is as follows: The
California Supreme Court specifically assumed that
Agajanian performed deficiently by “fail[ing] to prepare,
which left him unaware of the scope of the aggravating
evidence to be introduced.” Visciotti II, 14 Cal. 4th at 353.
Indeed, the state high court found that, prior to the penalty
phase of trial, Agajanian “was not aware that during
[Visciotti’s] 1978 assault with a deadly weapon on William
Scofield, [he] had also repeatedly stabbed Kathy Cusack”;
“did not send for the police report or go through the
prosecutor’s file to read it in advance of trial”; and “did not

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know evidence of the Cusack stabbing was to be presented.”
Id. at 340, 346. The California Supreme Court’s ensuing
prejudice determination, Visciotti contends, relied on that
court’s preceding determination that Visciotti “has not shown
that Agajanian’s failure to prepare to meet or counter the
evidence about his assault on Kathy Cusack was prejudicial.
He does not suggest that this evidence could have been
rebutted.” Id. at 355.
Visciotti’s central § 2254(d)(2) contention is that in its
prejudice analysis, the California Supreme Court
unreasonably assumed that Cusack’s testimony was
admissible without regard to Agajanian’s IAC, yet the trial
court had initially excluded her testimony. Cusack’s
testimony was eventually admitted only as rebuttal to
Agajanian’s deficient mitigation presentation. The trial
court’s initial decision entirely to exclude Cusack’s testimony
from the penalty phase, Visciotti maintains, would have
remained in force had Agajanian not “opened the door” by
incompetently eliciting evidence as to Visciotti’s character
for nonviolence.
Visciotti called attention to these circumstances in his
state habeas petition, arguing that Agajanian performed
deficiently by choosing a mitigation case that opened the door
to Cusack’s previously precluded penalty phase testimony.6
6

That the California Supreme Court weighed the Cusack testimony
as part of its Strickland prejudice analysis without acknowledging that it
came into evidence only as a result of Agajanian’s deficient performance
(which the Court otherwise assumed) is the crux of Visciotti’s
§ 2254(d)(2) argument. That is, his challenge is not “based on the claim
that the finding is unsupported by sufficient evidence,” but that “the
process employed by the state court [was] defective.” Taylor v. Maddox,
366 F.3d 992, 999 (9th Cir. 2004). As in Taylor, Visciotti claims that the

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The assault on Cusack was one of the three components of
the State’s death-penalty argument at the penalty phase, along
with Visciotti’s prior conviction for assaulting Scofield and
the heinousness of the crimes for which Visciotti was being
tried. The prosecution dramatically emphasized the attack on
Cusack during its penalty phase case. Most notably, in
closing argument the prosecutor referred to Cusack as the
“prime example” of Visciotti’s history for violence, noting
that Scofield fell in a “different category.” The prosecutor
continued:
Going in and taking a woman alone in her
bedroom after you’ve kicked in the door in the
middle of the night for no apparent reason.
She couldn’t offer any motivation why he
would have done this and none was presented
to you. There is no reason. It’s a totally
senseless, vicious, brutal attack on this woman
who again is isolated by herself, totally
defenseless in her bedroom that night.
The statements about her saying I’m
pregnant, don’t stab me, don’t hurt the baby,
then [Visciotti] immediately thereafter
stabbing her right in the stomach. It’s almost
too cold and brutal to comment on. . . .

court “fail[ed] to consider and weigh relevant evidence that was properly
presented” to the state habeas court, id. at 1001 — here, that Cusack’s
testimony would not have been admitted absent Agajanian’s deficient
performance. See also id. at 1008 (“[F]ailure to take into account and
reconcile key parts of the record casts doubt on the process by which the
finding was reached, and hence on the correctness of the finding.”).

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[Visciotti] reenters the room where she’s
all by herself; she doesn’t know what’s going
on; she’s totally defenseless. And [Visciotti]
stabs her seven or eight times for no apparent
reason.
The only conversation is she tells him,
“My god. I’m pregnant. Don’t hurt the
baby.”
That’s what really happened. That’s the
basis for his prior felony conviction. That’s
why he went to state prison. Now, to possibly
think that’s not aggravating, it’s hard to
believe.

Moreover, the California Supreme Court in its prejudice
analysis lingered over the image of a “pregnant Kathy Cusack
as she lay in bed trying to protect her fetus.” Visciotti II,
14 Cal. 4th at 355.
Cusack’s testimony would not have been admitted had
Visciotti been properly represented, Visciotti argues. And, he
goes on, had Cusack’s testimony been precluded, that
omission would have significantly affected the California
Supreme Court’s determination on state habeas as to whether
Agajanian’s deficiencies prejudiced Visciotti. In reviewing
Agajanian’s asserted ineffectiveness, the California Supreme
Court recognized that the state courts were obliged, in
assessing the prejudice worked by Agajanian’s penalty phase
IAC, to consider the mitigating evidence which Agajanian
failed to present. Id. at 333–34. Consequently, in Visciotti’s
view, a proper reweighing of mitigating and aggravating
evidence, excluding Cusack’s testimony as the product of

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Agajanian’s incompetence and including the mitigating
evidence proffered on habeas for the same reason, would
have resulted in an entirely different prejudice determination,
one which could have entitled him to a different penalty
phase result.
Visciotti’s § 2254(d)(2) arguments are not without
substance. Were we writing on a blank slate, we would likely
find them meritorious. But we are not writing on a blank
slate.
“According to the law of the case doctrine, on remand a
lower court is bound to follow the appellate court’s decision
as to issues decided explicitly or by necessary implication.”
United States v. Garcia-Beltran, 443 F.3d 1126, 1129 (9th
Cir. 2006) (internal citation and quotation marks omitted).
“When a case has been once decided by [the Supreme Court]
on appeal, and remanded to the circuit court, whatever was
before [the Court], and disposed of by its decree, is
considered as finally settled. The circuit court is bound by the
decree as the law of the case, and must carry it into execution
according to the mandate.” In re Sanford Fork & Tool Co.,
160 U.S. 247, 255 (1895).
In deciding Visciotti’s prior appeal, the U.S. Supreme
Court broadly concluded that “[h]abeas relief is . . . not
permissible under § 2254(d).” Visciotti IV, 537 U.S. at 27.7
7

We note that the district court declined to address whether the U.S.
Supreme Court’s decision precluded review of Visciotti’s IAC claim.
Instead, it denied the claim on the merits. Explaining that, if the Cusack
evidence had been the primary basis for the jury’s sentencing decision, it
“might be persuaded that Agajanian’s decision to present a case in
mitigation was both wrong and prejudicial,” the district court found that
“there was much more to the jury’s penalty decision than the

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Yet the Court’s actual analysis was narrow; it focused
exclusively on the applicability of § 2254(d)(1), reversing our
prior conclusion that the California Supreme Court’s previous
adjudication of Visciotti’s claim was both contrary to, and an
unreasonable application of, clearly established federal law.
See 537 U.S. at 27.
Moreover, and critically, the Cusack-centered IAC issues
were not presented to the United States Supreme Court at all,
not for lack of diligence but because of the procedural posture
in which the case was decided by the Court. Visciotti IV was
issued summarily, on the basis of the petition for certiorari
alone. There were no merits briefs, and there was no oral
argument. The State’s petition for certiorari focused on the
reasoning of our prior decision, without independently
addressing the merits of any of Visciotti’s contentions not
directly implicated by that decision. The petition asked the
Court to clarify the meaning of § 2254(d)(1). Neither the
petition nor Visciotti’s brief in opposition mentioned
§ 2254(d)(2) at all, and neither discussed the circumstances
surrounding the admission of Cusack’s testimony or the
connection between those circumstances and the IAC
prejudice determination. See Petition for Writ of Certiorari,
Woodford v. Visciotti, 537 U.S. 19 (2002) (No. 02-137), 2002
WL 32134887; Brief in Opposition, id., 2002 U.S. S. Ct.
Briefs LEXIS 1091. The question whether the California
Supreme Court’s implicit assumptions as to the inevitable

unadjudicated Cusack stabbing.” The district court did rely on Visciotti
IV when it concluded that the presence of other aggravating factors was
not “such scant justification for the imposition of a death sentence as to
indicate either an unreasonable application of the law or an unreasonable
determination of the facts.”

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admission of Cusack’s testimony was factually correct was
thus never litigated in the Supreme Court.
Nevertheless, Visciotti IV entirely precludes any review
at this juncture of Visciotti’s IAC claims. Williams v.
Johnson, 720 F.3d 1212 (9th Cir. 2013), judgment vacated,
134 S. Ct. 2659 (2014), requires this conclusion.
Williams had previously concluded that the state court had
not adjudicated petitioner’s claims on the merits. After
conducting de novo review, this court granted habeas relief.
Williams v. Cavazos, 646 F.3d 626, 653 (9th Cir. 2011),
rev’d sub nom. Johnson v. Williams, 133 S. Ct. 1088 (2013).
The Supreme Court granted certiorari. Before the Supreme
Court, the parties did not brief — and the Supreme Court did
not expressly analyze — the merits of the petitioner’s claim
under more restrictive standards of § 2254(d). Williams v.
Johnson, 720 F.3d at 1213 (Reinhardt, J., concurring).
Rather, the Supreme Court explained that we had erred in
determining that the state court had not adjudicated the case
on the merits, and therefore in holding that § 2254 did not
apply. See Johnson v. Williams, 133 S. Ct. at 1091–92. The
Supreme Court’s Williams opinion nonetheless stated,
broadly, “that under [§ 2254(d)] respondent is not entitled to
habeas relief.” Id. at 1092. That sentence, the Williams panel
concluded on remand, precluded further consideration by this
Court of the claim under § 2254(d), even though the Supreme
Court’s reasoning in its opinion did not support the breadth of
its conclusion. 720 F.3d at 1213–14 (Reinhardt, J.,
concurring). As Judge Kozinski put it, “[d]eference to the
judicial hierarchy leaves room for no other course of action
on our part.” 720 F.3d. at 1214 (Kozinski, J., concurring).

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The same is true here. As in Williams, the parties here
“did not brief the merits of [Visciotti’s § 2254(d)(2) claim
regarding ineffective assistance of counsel with respect to
Cusack’s testimony] before the Court,” either by mentioning
that section or by discussing the difficulties with the
California Supreme Court’s assumption concerning the
inevitable admission of Cusack’s testimony. Cf. 720 F.3d at
1213 (Reinhardt, J., concurring). Nonetheless, just as in
Williams, the Supreme Court concluded generically that
“[h]abeas relief is . . . not permissible under § 2254(d).”
Visciotti IV, 537 U.S. at 27. Accordingly, we could not grant
such relief under § 2254(d)(2), a subsection of § 2254(d). As
in Williams, “[w]e are . . . required to assume that the Court
meant what it said in . . . its opinion, in which it appears to
have . . . deliberately precluded us from considering the
merits of [Visciotti’s] habeas petition under AEDPA.”
720 F.3d at 1213–14 (Reinhardt, J., concurring).
Following our second decision in Williams, the Supreme
Court, without explanation, granted the petitioner’s new
petition for certiorari, vacated our judgment, and “remanded
for consideration of petitioner’s Sixth Amendment claim
under the standard set forth in 28 U.S.C. § 2254(d).” 134 S.
Ct. 2659 (2014). This development does not change the fact
that we are bound by the express language in Visciotti IV
barring relief on Visciotti’s penalty phase IAC claim. But, as
in Williams, we “take comfort in knowing that, if we are
wrong, we can be summarily reversed.” 720 F.3d at 1214
(Kozinski, J., concurring).
“[W]e are an intermediate court within the federal system,
and as such, we must take our cue from the Supreme Court.”
United States v. Lindsey, 634 F.3d 541, 550 (9th Cir. 2011).
As the express language of Visciotti IV bars any

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reconsideration of Visciotti’s penalty phase IAC claims, even
one not presented to the Supreme Court in the submissions
before it at the time it ruled, we deny his claim for habeas
relief.
2. Claim 58 — cumulative error IAC claim
In addition to his penalty phase IAC claim, Visciotti
raises a new IAC claim in this appeal, contending that the
cumulative effect of Agajanian’s ineffective assistance during
both the guilt and penalty phases of trial prejudiced him with
respect to the ultimate penalty imposed by the jury. The
California Supreme Court denied this claim on the merits,
and, alternatively, on procedural grounds.
The procedural history of Visciotti’s cumulative error
claim deserves further mention. When Visciotti first filed his
federal habeas petition, he also filed both a notice of
unexhausted claims and a motion to equitably toll the
AEDPA statute of limitations. The district court denied the
tolling motion. Visciotti then filed an exhaustion petition in
the California Supreme Court in October 1998, about four
months after filing the federal petition in district court. That
petition included the cumulative error claim, as Claim 19.
Visciotti’s filing of the additional petition appeared
compelled at that time by Rose v. Lundy, 455 U.S. 509, 522
(1982), which was generally understood to require dismissal
of petitions containing unexhausted claims. The California
Supreme Court denied the claim on both the merits and
procedural grounds.
Visciotti then requested leave to amend his federal
petition to include a cumulative error claim, now styled as
Claim 58; the district court summarily denied leave. When

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the case was remanded to the district court following Visciotti
IV, Visciotti renewed his motion for leave to amend his
petition. The district court this time granted the motion and
ordered an evidentiary hearing. After this Court issued a writ
of mandamus, at the state’s request, vacating the order for an
evidentiary hearing, the district court reconsidered its
decision to allow amendment of Visciotti’s petition and, this
time, struck the amended petition as an improperly filed
second or successive petition. The district court thus never
decided the cumulative error claim. After oral argument, we
expanded the certificate of appealability to include Visciotti’s
cumulative error claim.8
We now turn to the substance of Visciotti’s cumulative
error claim. The State does not dispute that Agajanian
rendered deficient performance throughout the trial. Rather,
it contends that, in Visciotti IV, the Supreme Court decided
whether the cumulative effect of these errors prejudiced
Visciotti at the penalty phase. We are constrained to agree.
Even assuming that Visciotti could overcome the substantial
procedural obstacles he faces, Visciotti IV squarely forecloses
Visciotti’s cumulative error claim as well.
As we have already explained, the Court’s conclusion in
Visciotti IV — that “[h]abeas relief is . . . not permissible
under § 2254(d)” — precludes our review of Visciotti’s IAC
cumulative error claim. Visciotti IV, 537 U.S. at 27. Visciotti
8

In light of this procedural history, the State argues that Claim 58 is
not properly before us because (1) it was presented in a “second” or
“successive” petition, 28 U.S.C. § 2244(b)(3)(A); and (2) the California
Supreme Court denied the claim on the alternative basis that it was
procedurally defaulted. As we conclude that the Supreme Court’s ruling
precludes our review of Visciotti’s claim in any case, we decline to
address these procedural questions.

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presents that issue as one specifically raised before, and
decided by, the state courts, and therefore as one covered by
§ 2254(d). That Visciotti did not present this particular,
cumulative error, IAC claim to the United States Supreme
Court in 2002 does not, for the reasons discussed above,
allow us to overlook Visciotti IV’s clear, mandatory language.
The Court’s broad language in Visciotti IV therefore covers
the issue, and we may not reach it.9
***
In conclusion, the Supreme Court’s previous adjudication
precludes relief on Visciotti’s present penalty phase and
cumulative error IAC claims. We therefore do not reach the
question whether the California Supreme Court’s analysis
violated § 2254(d)(2), or whether there was cumulative
prejudice at the penalty phase due to ineffective assistance of
counsel at both the guilt and penalty phases of trial. Instead,
as required by the Supreme Court’s ruling in Visciotti IV, we
affirm the district court’s denial of Visciotti’s IAC claims.

9

Visciotti accurately argues that “a cumulative error claim is a
separate, stand-alone claim . . . [not] merely a method of conducting
prejudice review for separately alleged claims,” and emphasizes that his
cumulative error claim includes non-IAC errors such as “claims of
prosecutorial misconduct and trial court error.” But, in granting
Visciotti’s request for a certificate of appealability, we limited our review
to a single sub-question: whether “the cumulative effect of constitutionally
ineffective representation throughout the criminal process, including both
the guilt and penalty phases, prejudice[d] Visciotti in the penalty phase of
his trial[.]” Thus, while claims of cumulative error may generally be
distinct from the underlying errors on which they rely, the particular
cumulative error on which we granted a certificate of appealability is not.

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B. Public Trial Right

The Sixth Amendment guarantees criminal defendants
“the right to a speedy and public trial.” U.S. Const. amend
VI. Visciotti contends that the trial judge’s closure of the
courtroom for six-and-a-half days during the death
qualification portion of voir dire violated this Sixth
Amendment right.
1. Legal Principles
The public trial right, the Supreme Court has repeatedly
held, encompasses pre-trial proceedings, including voir dire.
Press-Enterprise, 464 U.S. at 511–13, held a trial judge’s
closure of almost six weeks of death qualification voir dire
unconstitutional. “[S]ince the development of trial by jury,”
the Court explained, “the process of selection of jurors has
presumptively been a public process with exceptions only for
good cause shown.” Id. at 505. “The value of openness lies
in the fact that people not actually attending trials can have
confidence that standards of fairness are being observed . . .
Openness thus enhances both the basic fairness of the
criminal trial and the appearance of fairness so essential to
the public confidence in the system.”
Id. at 508.
Consequently, Press-Enterprise cautioned, “[c]losed
proceedings, although not absolutely precluded, must be rare
and only for cause shown that outweighs the value of
openness.” Id. at 509. That is, “[t]he presumption of
openness may be overcome only by an overriding interest
based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.” Id. at
510.

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Press-Enterprise was decided on First Amendment
grounds, not Sixth Amendment grounds. See id. at 516
(Stevens, J., concurring). Soon thereafter, however, Waller
v. Georgia, 467 U.S. 39, 47–48 (1984), concluded that a trial
judge’s closure of a pre-trial suppression hearing violated the
defendant’s Sixth Amendment public trial right. In so
concluding, it relied on Press-Enterprise and prior First
Amendment precedent, noting that “there 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.” Id. at 46. Waller
went on to hold that “under 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” — that is, “the trial court must consider
reasonable alternatives to closing the proceeding, and it must
make findings adequate to support the closure.” Id. at 47–48.
“The requirement of a public trial,” Waller further explained,
“is for the benefit of the accused; that the public may see he
is fairly dealt with and not unjustly condemned, and that the
presence of interested spectators may keep his triers keenly
alive to a sense of their responsibility and to the importance
of their functions . . . .” Id. at 46 (internal citations and
quotation marks omitted).
More recently, Presley v. Georgia, 558 U.S. 209,
212–213 (2010), emphasized that the Sixth Amendment
“right to a public trial in criminal cases extends to . . . the voir
dire of prospective jurors . . . is well settled under PressEnterprise [] and Waller.” In a per curiam disposition, the
Court concluded that “there is no legitimate reason, at least in
the context of juror selection proceedings, to give one who
asserts a First Amendment privilege greater rights to insist on
public proceedings than the accused has.” Id. at 213.

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Denial of the public trial right is a “defect affecting the
framework within which the trial proceeds, rather than simply
an error in the trial process itself.” Arizona v. Fulminante,
499 U.S. 279, 310 (1991). Violation of the public trial right
is therefore structural error. See Waller, 467 U.S. at 49–50;
see also Johnson v. United States, 520 U.S. 461, 468–69
(1997) (listing the right to a public trial as one of the “very
limited class of cases” in which the Court has found structural
error). As in other classes of structural error, “a requirement
that prejudice be shown would in most cases deprive [the
defendant] of the [public-trial] guarantee, for it would be
difficult to envisage a case in which he would have evidence
available of specific injury.” Waller, 467 U.S. at 49 n.9
(alterations in original) (internal quotations omitted).
2. Procedural Default
The State contends that the California Supreme Court
denied Visciotti’s public trial claim in part on procedural
grounds — namely, on the ground that Agajanian failed to
object to the trial judge’s closure decision. Consequently,
before turning to Visciotti’s public trial claim we address
whether the claim was procedurally defaulted. If in fact the
state “discuss[ed] the merits of the claim” but “separately
relied on [a] procedural bar, the claim is defaulted.” Zapata
v. Vasquez, 788 F.3d 1106, 1112 (9th Cir. 2015). If the claim
is defaulted, we are barred from reviewing the merits of the
public trial right claim unless Visciotti can sufficiently
establish “cause” and “prejudice” to excuse the default.
Wainwright v. Sykes, 433 U.S. 72, 84–85 (1977).
In denying Visciotti’s public trial claim, Visciotti I stated
that “[Visciotti] concedes that the issue was not raised in the
trial court.” 2 Cal. 4th at 50. It is evident that the California

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Supreme Court determined that, as Agajanian did not object
to the trial judge’s closure of voir dire, Visciotti defaulted his
public trial right claim by failing to comply with California
contemporaneous-objection rule. That the Court’s denial was
premised on a procedural ground is all the more clear from its
repeated citations to People v. Thompson, which held that a
defendant’s public trial right “may be waived by the failure
to assert it in timely fashion.” 50 Cal. 3d 134, 157 (1990).
Visciotti acknowledges that Agajanian did not object to
the trial judge’s closure of death qualification voir dire. But,
he contends, Agajanian’s ineffective assistance in failing to
raise the objection constitutes cause for purposes of excusing
the default.10 See Coleman v. Thompson, 501 U.S. 722,

10

The State argues in its brief that the California Supreme Court “has
already found that Visciotti had no cause for his failure to object.” That
cannot be so.
In the direct appeal opinion, the California Supreme Court stated that
the possible benefits of sequestered voir dire to defendants, in combination
with the active litigation at the time of Visciotti’s trial on the question of
the right of the public to attend jury voir dire, made it “doubtful that any
competent defense counsel would have objected to it.” Visciotti I, 2 Cal.
4th at 51. But, on direct review, Visciotti did not seek to excuse his
default by claiming Agajanian’s ineffectiveness as cause. Nor did the
California Supreme Court perform a Strickland analysis — properly so,
as in California, IAC claims, “except in . . . rare instances,” are to be
“raised on habeas corpus, not on direct appeal.” People v. Lopez, 42 Cal.
4th 960, 972 (2008). In any event, the question whether a petitioner’s
procedural default is excused by cause and prejudice for purposes of
federal habeas review is a federal, not state, question. Johnson v.
Mississippi, 486 U.S. 578, 587 (1988); see also Martinez v. Ryan, 132 S.
Ct. 1309, 1318 (2012) (“The rules for when a prisoner may establish cause
to excuse a procedural default are elaborated in the exercise of the [U.S.
Supreme] Court’s discretion.”); Murray v. Carrier, 477 U.S. 478, 517
(1986) (Brennan, J., dissenting) (noting that the cause-and-prejudice rule

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753–54 (1991); Murray v. Carrier, 477 U.S. 478, 488
(1986).11 To demonstrate such ineffectiveness, Visciotti must
satisfy Strickland’s familiar standard: he must establish that
Agajanian’s performance was deficient and that he was
prejudiced by the deficient performance. 466 U.S. at 687–88.
Before proceeding to the Strickland analysis, we consider
a preliminary question: should we “give AEDPA deference
to the state court determination on an ineffective assistance of
counsel claim when deciding whether that claim constitutes
cause for procedural default[?]” Jones v. Ryan, 691 F.3d
1093, 1101 n.2 (9th Cir. 2012).12 There is disagreement
among federal courts of appeal on this question. See Janosky
v. St. Amand, 594 F.3d 39, 44–45 (1st Cir. 2010).13

constitutes an exercise of “federal power to entertain a habeas petition in
the face of a procedural default” (emphasis added)).
11

Visciotti alleged in his initial state habeas petition that trial counsel
was ineffective for failing to object to closing the courtroom. The
California Supreme Court rejected the claim without analysis. See
Visciotti II, 14 Cal. 4th at 329, 333. The IAC claim was therefore properly
“presented” to the state courts for exhaustion purposes. Edwards v.
Carpenter, 529 U.S. 446, 452 (2000).
12

Jones expressly declined to answer this question, as it held the
petitioner’s IAC claim there failed whether it was reviewed de novo or
applying AEDPA deference. See id.
13

Compare Joseph v. Coyle, 469 F.3d 441, 459 (6th Cir. 2006)
(“Although [petitioner] must satisfy the AEDPA standard with respect to
his independent IAC claim, he need not do so to claim ineffective
assistance for the purpose of establishing cause”), and Fischetti v.
Johnson, 384 F.3d 140, 154–55 (3d Cir. 2004) (same), with Richardson
v. Lemke, 745 F.3d 258, 273 (7th Cir. 2014) (when reviewing a state
court’s resolution of an ineffective assistance claim in the cause-andprejudice context, it applies the “same deferential standard as [it] would

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We agree with our sister circuits that have reviewed IAC
claims in the cause-and-prejudice context de novo, thereby
applying a “differing standard for evaluating constitutional
error as a substantive basis of relief and as a cause to avoid
default of other claims.” Fischetti, 384 F.3d at 154. As the
cases so proceeding have recognized, the Coleman cause and
prejudice standard was in no way affected by AEDPA.
“AEDPA does not establish a statutory high hurdle for the
issue of cause,” and Coleman “made its determination of
cause, or lack of cause, based on a straightforward analysis
whether the denial of counsel was ‘an independent
constitutional violation.’” Id. at 154–55 (quoting Coleman,
501 U.S. at 755). Absent any indication to the contrary in
AEDPA, the Coleman independent constitutional analysis
continues to apply, post-AEDPA, to a contention that trial
counsel IAC constitutes cause to excuse a procedural default.
Accordingly, the question whether we can review the
merits of Visciotti’s public trial right claim turns entirely on
whether Visciotti has established that trial counsel was
ineffective, under the Strickland standard, for not objecting to
the trial judge’s closure of death qualification voir dire. To
that question we now turn.
3. Deficient Performance
To prevail on a Strickland ineffective assistance of
counsel claim, “the defendant must show that counsel’s
performance was deficient.” Strickland, 466 U.S. at 687.
Counsel is deficient when he or she “made errors so serious

when reviewing the claim on its own merits,” declining to follow the
approach taken by other courts that review so-called “nested ineffective
assistance issues” de novo).

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that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment”; that is, when
“counsel’s representation fell below an objective standard of
reasonableness.” Id. at 687–88. Our review of counsel’s
performance is deferential, for “the defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Carrera v.
Ayers, 670 F.3d 938, 943 (9th Cir. 2011) (quoting Strickland,
466 U.S. at 689) (internal quotation marks omitted).
Recognizing that the Sixth Amendment’s guarantees “do[]
not insure that defense counsel will recognize and raise every
conceivable constitutional claim,” Engle v. Isaac, 456 U.S.
107, 134 (1982), we cannot conclude that Agajanian’s failure
to object to the closure of death qualification voir dire
constituted deficient performance under Strickland.
We reiterate that, since Visciotti’s 1983 trial, the Supreme
Court has unequivocally established that the Sixth
Amendment guarantees a defendant’s right to public voir
dire. Presley, 558 U.S. at 212–13; see also United States v.
Cazares, 788 F.3d 956, 970 (9th Cir. 2015), cert. denied,
136 S. Ct. 2484 (2016). We have also suggested previously
that counsel’s failure to object to the closure of voir dire may,
at least in some circumstances, “[fall] below an objective
standard of reasonableness . . . particularly because the right
to a public trial is critical to ensuring a fair trial,” United
States v. Withers, 638 F.3d 1055, 1066 (9th Cir. 2010). At
least two of our sister circuits have found that a failure to
object to partial closure of trial proceedings, including voir
dire, can constitute ineffective assistance of counsel. See
Johnson v. Sherry, 586 F.3d 439, 446 (6th Cir. 2009); Owens
v. United States, 483 F.3d 48, 64 (1st Cir. 2007).

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Those decisions, however, do not foreclose the possibility
that in specific instances, counsel’s choice not to object to
closure of trial proceedings might be sound trial strategy. For
example, the First Circuit has held in two cases decided after
Owens that counsel may make a reasonable strategic choice
not to oppose partial closure of voir dire, Wilder v. United
States, 806 F.3d 653, 660 (1st Cir. 2015), cert. denied, 136 S.
Ct. 2031 (2016), or to forgo an objection to devote limited
resources to more important trial issues, Bucci v. United
States, 662 F.3d 18, 32 (1st Cir. 2011). The Supreme Court
has long held that a defendant may waive his right to a public
trial. Levine v. United States, 362 U.S. 610, 619–20 (1960).
As Justice Brennan observed in Levine, the power to waive
the right “must be . . . based on a defendant’s conclusion that
‘in his particular situation his interests will be better served
by foregoing the privilege than by exercising it.’” Id. at 626
(Brennan, J., dissenting) (quoting United States v. Sorrentino,
175 F.2d 721, 723 (3d Cir. 1949)).
As the Supreme Court explained in Strickland, our
“highly deferential” review of counsel’s performance
“requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time.” 466 U.S. at 689. At
the time of Visciotti’s trial in 1983, neither Press-Enterprise
nor Waller had yet been decided; in fact, “the question of
press access to voir dire was a matter of active litigation.”
Thompson, 50 Cal. 3d at 157; see also United States v.
Brooklier, 685 F.2d 1162, 1167 (9th Cir. 1982) (“The
standard for determining whether a criminal proceeding may
be closed to the public and the proper allocation of the burden
of making the required showing are not yet clearly settled.”).
While a prudent attorney in Agajanian’s position may have

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objected to closure to preserve the issue while it was being
resolved in the appellate courts, we cannot say that any
competent attorney would have done so, given that some
measure of sequestration of jurors during voir dire was at the
time required by California law in capital cases.
Three years earlier, in Hovey v. Superior Court, 28 Cal.
3d 1, 80 (1980), superseded by statute, 1990 Cal. Legis. Serv.
Prop. 115 (West) (1990) (codified at Cal. Civ. Proc. Code
§ 223), the California Supreme Court had required California
state courts to conduct “individualized sequestered voir dire”
when evaluating potential jurors’ qualifications to hear a
capital case. As the State explains, the Hovey requirement
was based on evidence that showed that sequestration of the
jury panel during voir dire about penalty “minimize[d] the
tendency of a death-qualified jury to presume guilt and expect
conviction,” id., and therefore resulted in more favorable
juries for capital defendants.
As Visciotti points out, Hovey required only the
insulation of prospective jurors from the death qualification
questioning of their peers, emphasizing that the rule it
prescribed would “not in any way affect the open nature of a
trial.” Id. at 80–81. Hovey thus did not in express terms
require closure of voir dire proceedings to the public. But
California courts appear often to have understood Hovey to
support the principle that a general closure of voir dire
proceedings would be similarly beneficial to the defendant.
For example, in Thompson, “[t]o comply with Hovey’s
mandate,” the trial court “conducted the death-qualification
voir dire in chambers” where “[n]either the public nor the
press was present.” 50 Cal. 3d at 156. The California
Supreme Court held that there was no violation of the public
trial right in part because “the sequestered voir dire was

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ordered by the judge primarily for the benefit of the
defendant.” Id. at 157. In Visciotti I, the California Supreme
Court similarly cited Hovey in the course of explaining that
“because the sequestered voir dire is for the benefit of the
defendant ‘it is doubtful that any competent defense counsel
would have objected to it.’” 2 Cal. 4th at 51 (quoting
Thompson, 50 Cal. 3d at 156–57). Against this background,
competent counsel in 1983 may similarly have reasonably
believed that closure of voir dire was in the best interests of
his client.
We recognize the importance of a defendant’s interest in
preserving his right to a public trial. “Public scrutiny of a
criminal trial enhances the quality and safeguards the
integrity of the factfinding process, with benefits to both the
defendant and to society as a whole.” Globe Newspaper Co.
v. Superior Court, 457 U.S. 596, 606 (1982). And we
recognize that the cases since Visciotti’s trial suggest that
counsel’s failure to safeguard this right during voir dire may
in some contexts fall below objective standards of reasonable
representation. Nevertheless, in “tak[ing] account of the
variety of circumstances faced by defense counsel,” we must
not “restrict the wide latitude counsel must have in making
tactical decisions,” and must accord considerable deference
to trial counsel’s representation decisions when reviewing
counsel’s performance on a cold record. Strickland, 466 U.S.
at 688–89. “When counsel focuses on some issues to the
exclusion of others, there is a strong presumption that he did
so for tactical reasons rather than through sheer neglect. . . .
That presumption has particular force where a petitioner
bases his ineffective-assistance claim solely on the trial
record, creating a situation in which a court ‘may have no
way of knowing whether a seemingly unusual or misguided
action by counsel had a sound strategic motive.’”

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Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (quoting Massaro
v. United States, 538 U.S. 500, 505 (2003)). Failing to object
to the closure of voir dire in Visciotti’s trial cannot overcome
our “presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’”
Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955)).14
In sum, we cannot conclude that counsel’s failure to
object to the closure of the death qualification voir dire
constituted deficient performance.15 Visciotti therefore
cannot demonstrate cause to excuse his default of the public
trial right claim.

14

The parties dispute the extent to which closure of voir dire was the
norm during this period. The State’s counsel represented at oral argument
that “in California from 1980 to 1990 it was the prevailing norm of
defense counsel to seek closure of the voir dire as to the death penalty
phase, the Hovey voir dire. That was the prevailing norm of counsel.”
The panel then inquired whether the State’s reference to the prevailing
norm meant that “the practice was just to exclude prospective jurors or to
exclude everybody?” “Based on personal knowledge,” the State’s counsel
continued, “it was as a practice, it was always done in chambers.”
Visciotti contested this representation, and submitted certified transcripts
of several California capital trials conducted around the time of Visciotti’s
trial to demonstrate that it was not “prevailing” practice to close the
courtroom to the public and press. These transcripts reveal that, at least
in these California capital cases, the trial courts implementing Hovey
sequestered voir dire conducted such proceedings in open court, not in
chambers. But, again, Thompson and Brooklier point in the opposite
direction. From this mixed record we cannot conclude that counsel’s
failure to object ran counter to “prevailing professional norms.”
Strickland, 466 U.S. at 688.
15

Because we conclude that counsel’s performance was not deficient,
we do not consider the prejudice prong of the Strickland analysis.

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IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district
court’s denial of habeas relief with respect to each of
Visciotti’s claims.
AFFIRMED.

BERZON, Circuit Judge, joined by PREGERSON, Circuit
Judge, concurring:
Not surprisingly, I join the principal opinion in full. I
write separately to emphasize one point: This case illustrates
that Supreme Court summary reversals cannot, and do not,
reflect the same complete understanding of a case as
decisions after plenary review. Relying on broad language in
such decisions, as we do in Section III.A, supra, is an
obligation of intermediate courts of appeals. But fulfilling
that obligation does not require that we blinker reality by
pretending that the summary reversal entailed full
consideration of the issues covered by the language of the
Supreme Court opinion issued.
At the certiorari stage, the parties’ submissions are —
quite properly — not designed comprehensively to inform the
Court about the merits of a case. The Supreme Court’s Rules
explain that petitions for certiorari “will be granted only for
compelling reasons,” including when (1) the decision below
conflicts with the decisions of federal courts of appeals or
state courts of last resort on an “important matter” or “an
important federal question”; (2) the decision conflicts with a
Supreme Court decision on an “important question of federal

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law”; and (3) when the lower court “decide[s] an important
question of federal law that has not been, but should be,
settled by th[e] Court.” S. Ct. R. 10.
Both scholarly articles and Supreme Court practice guides
suggest that petitioners will encounter greater success at the
petition for certiorari stage when they emphasize
“certworthy” aspects of the decision below, such as the
presence of a circuit conflict or the national importance of an
issue, rather than their legal and factual arguments on the
merits. See Stephen M. Shapiro et al., Supreme Court
Practice, ch. 4.17, at 278 (10th ed. 2013). Whether the
decision below conflicts with decisions of other courts
appears to be the paramount factor at the certiorari stage.
Scholars have estimated that “seventy percent of Court’s
plenary docket is devoted to addressing legal issues on which
lower courts have differed, and law clerks and Justices alike
have acknowledged that ensuring uniformity is a driving
force in case selection.” Amanda Frost, Overvaluing
Uniformity, 94 Va. L. Rev. 1567, 1569 (2008); David R.
Stras, The Supreme Court’s Gatekeepers: The Role of Law
Clerks in the Certiorari Process, 85 Tex. L. Rev. 947, 982
(2007) (collecting data from 2003 to 2005 terms).1 “Most of

1

See also Supreme Court Practice, ch. 4.3, at 241 (providing data
about the 1993 term); Kevin H. Smith, Certiorari and the Supreme Court
Agenda: An Empirical Analysis, 54 Okla. L. Rev. 727, 747 (2001)
(“[S]tatistical analysis suggests that the Supreme Court is more likely to
grant certiorari if the petition for a writ of certiorari contains an allegation
of a conflict with Supreme Court precedent or contains an allegation of a
conflict between two or more federal circuit courts of appeals than if such
a claim of conflict is absent.”) (footnotes omitted); Robert M. Lawless &
Dylan Lager Murray, An Empirical Analysis of Bankruptcy Certiorari,
62 Mo. L. Rev. 101, 133 (1997) (concluding that “the existence and depth
of a circuit conflict is important when the Court decides whether to grant

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the rest are cases that involve no conflict among lower courts
but present contentious legal issues of great national
significance.” Robert M. Yablon, Justice Sotomayor and the
Supreme Court’s Certiorari Process, 123 Yale L.J. Forum
551, 561 (2014).
Practice guides and other secondary sources recommend
that petitioners specifically avoid describing the merits of a
case in too great detail, so as not to dissuade the Court from
perceiving the certiorari petition merely as a request for
“error correction.” Quoting Justice Vinson, the authoritative
guide to Supreme Court practice explains: “Lawyers might be
well-advised, in preparing [certiorari petitions] to spend a
little less time discussing the merits of their cases and a little
more time demonstrating why it is important that the Court
should hear them.” Supreme Court Practice, ch. 6.31(a), at
479.2 Similarly, as successful briefs in opposition to
certiorari are in many respects “the mirror image of an
effective [certiorari] petition,” demonstrating that “the

[certiorari] in a bankruptcy case”); Kevin Russell, Commentary: Writing
a Convincing Cert. Petition When There is No Direct Circuit Split,
SCOTUSblog (May 17, 2007), available at http://www.scotusblog.com/
2007/05/commentary-writing-a-convincing-cert-petition-when-there-is-nodirect-circuit-split/.
2

Accord Timothy S. Bishop, Jeffrey W. Sarles & Stephen J. Kane,
Tips on Petitioning for and Opposing Certiorari in the U.S. Supreme
Court, Litigation, Winter 2008 (“It is crucial to temper the natural instinct
to focus on defending or attacking the lower court’s decision on the
merits.”); Scott L. Nelson, Getting Your Foot in the Door: The Petition for
Certiorari, Public Citizen Litigation Group, available at
https://www.citizen.org/documents/GettingYourFootintheDoor.pdf
(“[Y]ou don’t want your merits argument to suggest that your principal
goal is error correction as opposed to the presentation of an important
issue requiring the Court’s review.”).

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decision below was right . . . is definitely a secondary
argument” at best. Stewart A. Baker, A Practical Guide to
Certiorari, 33 Cath. U. L. Rev. 611, 627, 629 (1984); see also
Supreme Court Practice, ch. 512(c), at 355 (“The merits of
the decision below are not among the ceritorari considerations
of Rule 10 . . . [n]either the petition nor the brief in opposition
is designed to be a brief on the merits.”). As Justice Stevens
explained:
The most helpful and persuasive petitions for
certiorari to this Court usually present only
one or two issues, and spend a considerable
amount of time explaining why those
questions of law have sweeping importance
and have divided or confused other courts.
Given the page limitations that we impose, a
litigant cannot write such a petition if he
decides, or is required, to raise every claim
that might possibly warrant reversal in his
particular case.
O’Sullivan v. Boerckel, 526 U.S. 838, 858 (1999) (Stevens, J.,
dissenting).
It comes as no surprise, then, that parties do not —
indeed, should not — fully develop their merits arguments in
certiorari-stage briefing. See Supreme Court Practice, ch.
6.31(c), at 484 (“The attempt to show error below . . . should
not be a long, full-dress argument such as would be proper in
the brief on the merits.”). Normally, of course, this omission
raises no concerns; if the Court grants certiorari, the parties
will be afforded substantial opportunity to explain their
positions in their merits-stage briefing and at oral argument.
But when the Court issues a summary reversal, without the

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benefit of merits-stage briefing or oral argument, it
necessarily decides the case based on the limited presentation
and arguments raised in the certiorari-stage briefing.
Such was the case here. As the principal opinion
explains, in their certiorari-stage briefing in Visciotti IV,
neither the State nor Visciotti raised the particular IAC claims
now at issue in this appeal, nor did either explain that further
issues could be litigated on remand. Instead, the State’s
petition for certiorari contested, and Visciotti’s brief in
opposition defended, our previous conclusion that the
California Supreme Court’s Strickland prejudice
determination was contrary to or an unreasonable application
of established federal law for particular reasons, in violation
of 28 U.S.C. § 2254(d)(1). Thus, the Supreme Court never
had before it the questions whether (1) the California
Supreme Court’s assumption that Cusack’s testimony would
have been before the jury regardless of any ineffective
assistance of counsel constitutes an “unreasonable
determination of the facts” under 28 U.S.C. § 2254(d)(2); and
(2) the cumulative effect of Agajanian’s IAC during both the
guilt and penalty phases of trial prejudiced Visciotti at the
penalty phase.
That Visciotti did not raise these claims was not an
oversight or poor lawyering. His “opposition to the [State’s]
petition for certiorari understandably focuse[d] on arguments
for denying certiorari.” United States v. Hollywood Motor
Car Co., 458 U.S. 263, 271 (1982) (Blackmun, J., dissenting).
Nevertheless, at the end of its summary reversal, the
Court held broadly that “[h]abeas relief is . . . not permissible
under § 2254(d).” Visciotti IV, 537 U.S. at 27. Today, we
conclude that this language precludes our review of

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Visciotti’s present IAC claims. In so concluding, our opinion
simply reflects, as in Williams v. Johnson, 720 F.3d 1212 (9th
Cir. 2013), judgment vacated, 134 S. Ct. 2659 (2014), what
the Court actually encompassed in its broad language. And,
as appears to have been the case in Williams, that breadth
may have been inadvertent.
My concern is that “[t]he Court’s decisionmaking process
at the certiorari stage is fundamentally different from
traditional judicial decisionmaking.” Margaret Meriwether
Cordray & Richard Cordray, Strategy in Supreme Court Case
Selection: The Relationship Between Certiorari and the
Merits, 69 Ohio St. L.J. 1, 3 (2008). Summary reversals,
which are the product of such a decisionmaking process, are
also fundamentally different from traditional judicial
opinions, as they issue without the benefit of fully developed,
adversarial legal argument. As a result, what these decisions
say about the broader merits of a case may not reflect the
interwoven legal issues and arguments omitted from the
parties’ certiorari-stage briefing. And so, Justice Blackmun
observed, by deciding unraised claims and questions “without
briefing or argument, . . . the Court’s summary disposition
[can] deprive[] respondents of their ‘day in court.’”
Hollywood Motor, 458 U.S. at 271–72 (Blackmun, J.,
dissenting).
As the principal opinion recognizes, the Court’s summary
per curiam reversals are no less binding upon us than the
authored opinions issued after full briefing and argument.
Visciotti IV therefore requires that we deny habeas relief on
Visciotti’s present IAC claims, even though the substance of
such claims were never presented to the Court and were
almost surely not actually considered.

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In Williams, the Supreme Court corrected the apparently
inadvertent overreach of its original opinion by reversing our
second opinion without comment. Williams v. Johnson,
134 S. Ct. 2659 (2014). Notably, Williams was neither a
capital case nor one in which the Supreme Court’s first
decision was a summary reversal. Here, a person’s life is at
stake, and the Court proceeded without following its plenary
processes. If a second certiorari petition is filed, as I expect
it will be, I fully anticipate that, as in Williams, the Court will
look closely at whether it meant to reject the quite colorable
issues raised before us on remand, never alluded to in our
prior opinion or in the papers filed in the Supreme Court, with
regard to whether certiorari should be granted.