Guillory v. Santoro

Filing 44

ORDER Denying Remaining Sixth Amendment Claim, Granting Certificate of Appealability, and Closing Case. Signed by Judge Cathy Ann Bencivengo on 12/1/2022.(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JEMERE GUILLORY,

Case No.: 17cv2084-CAB-BGS
Petitioner,

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v.

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KELLY SANTORO, Warden,

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ORDER DENYING REMAINING
SIXTH AMENDMENT CLAIM,
GRANTING CERTIFICATE OF
APPEALABILITY, AND CLOSING
CASE

Respondent.

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On October 5, 2017, Petitioner Jemere Guillory (“Petitioner”), a state prisoner

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proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254, [Doc. No. 1.] On February 25, 2019, this Court issued an

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order denying the petition, and judgment was entered accordingly. [Doc. Nos. 27, 28.]

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On July 1, 2022, the Ninth Circuit Court of Appeal issued a decision vacating this

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Court’s judgment and remanding for further proceedings. Guillory v. Allen, 38 F.4th 849

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(9th Cir. 2022). Specifically, the Ninth Circuit ruled that Petitioner’s Sixth Amendment

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right to a public trial claim that was presented on direct appeal is not procedurally

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defaulted, and remanded that claim only to this Court to consider whether the state

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appellate court’s rejection on direct appeal of the properly exhausted claim provides any

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basis for federal habeas relief under § 2254, as amended by the Antiterrorism and
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Effective Death Penalty Act. For the reasons set forth below, the Petitioner’s Sixth

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Amendment right to a public trial claim that was presented on direct appeal is DENIED.

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PROCEDURAL BACKGROUND

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In the original petition, Petitioner asserted the following claims: (1) his Sixth

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Amendment right to a public trial was violated when his family was allegedly excluded

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from the courtroom during voir dire; (2) his Fourth Amendment rights were violated

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when the police unlawfully searched his home and used the evidence during trial; and (3)

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there was insufficient evidence of a disfiguring injury to support his mayhem conviction.

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[Doc. No. 1.] On February 12, 2018, Respondent filed an answer to the petition and

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lodged the state court record. [Doc. Nos. 13, 14.] On March 22, 2018, Petitioner filed a

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traverse. [Doc. No. 17.] On December 5, 2018, Magistrate Judge Bernard G. Skomal

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issued a Report and Recommendation (“Report”), recommending that the Court deny the

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Petition. [Doc. No. 19.] Specifically, the Report recommended that the Sixth

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Amendment claim be denied on the basis that it was procedurally defaulted, and did not

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address the merits of the Sixth Amendment claim. [Doc. No. 19 at 13.] The Report

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recommended that the other two claims be denied on the merits. [Doc. No. 19 at 13-19.]

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On February 25, 2019, this court issued an order adopting the Report and denying the

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petition. [Doc. No. 27.] Judgment was entered accordingly. [Doc. No. 28.]

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On July 1, 2022, the Ninth Circuit Court of Appeal issued a decision vacating this

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Court’s judgment and remanding for further proceedings. Guillory, 38 F.4th at 849.

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Specifically, the Ninth Circuit ruled that Petitioner’s Sixth Amendment right to a public

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trial claim that was presented on direct appeal is not procedurally defaulted, and

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remanded that claim only to this Court to consider whether the state appellate court’s

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rejection on direct appeal of the properly exhausted claim provides any basis for federal

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habeas relief under § 2254, as amended by the Antiterrorism and Effective Death Penalty

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Act.1 On July 25, 2022, this Court issued a minute order spreading the mandate and

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allowing the parties to file supplemental briefing on the remaining Sixth Amendment

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claim. [Doc. No. 35.] On August 25, 2022, Respondent filed a supplemental brief.

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[Doc. No. 42.] On August 26, 2022, Petitioner filed a supplemental brief. [Doc. No. 43.]

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STANDARD OF REVIEW

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A federal court may grant a habeas corpus petition with respect to any claim that

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was adjudicated on the merits in state court only if the state court's decision was (1)

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contrary to, or involved an unreasonable application of, clearly established federal law, as

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determined by the United States Supreme Court; or (2) based on an unreasonable

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determination of the facts in light of the evidence presented in the state court proceeding.

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28 U.S.C. § 2254(d).

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A state court ruling is contrary to clearly established federal law if the state court

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either arrives at a conclusion opposite to that reached by the Supreme Court on a question

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of law or decides a case differently than the Supreme Court “on a set of materially

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indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court

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decision is an unreasonable application of Supreme Court precedent “if the state court

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identifies the correct governing principle from [the Supreme Court's] decisions but

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unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. To be an

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unreasonable application of Supreme Court precedent, the state court's decision must be

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objectively unreasonable. Lockyear v. Andrade, 538 U.S. 63, 69 (2003). If the state

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court's decision is simply “incorrect or erroneous”, then federal courts should refrain

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from re-evaluating the state court's application of federal law. Cooks v. Newland, 395

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F.3d 1077, 1080 (9th Cir. 2005).

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In determining whether a state court decision was based on an unreasonable
determination of the facts in light of the evidence, a federal habeas court must presume

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The other two claims in the Petition were not at issue in the appeal [Guillory, 38 F.4th at 854, n. 3]
and, therefore, are no longer at issue in this Petition.
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that state court factual findings are correct. 28 U.S.C. § 2254(e)(1). A federal court may

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not overturn state court findings of fact “absent clear and convincing evidence” that they

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are “objectively unreasonable.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). When

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applying these standards, a federal habeas court reviews the “last reasoned decision by a

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state court.” Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

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DISCUSSION

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A. Sixth Amendment Claim.

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Petitioner claims that his Sixth Amendment right to a public trial was violated by

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the trial court’s exclusion of his family members from the voir dire portion of his trial.

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[Doc. No. 1 at 6, 14-18.] Respondent contends that the state appellate court reasonably

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rejected the claim as meritless, and Petitioner is unable to demonstrate the state court’s

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rejection as contrary to, or premised on an unreasonable application of, clearly

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established Supreme Court authority. [Doc. No. 13-1 at 11 – 17; Doc. No. 42.]

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Petitioner first raised this issue in his direct appeal, claiming that his family

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members were excluded from the courtroom during voir dire. [Lod. 3 at 19-29.] The

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state appellate court rejected this contention, finding that no evidence in the record

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supported it and, even if Petitioner’s family or friends had been momentarily excluded

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from the voir dire process for purposes of accommodating the prospective jurors during

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jury selection, that exclusion was “de minimis,” such that Petitioner’s right to a public

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trial was not violated. [Lod. 6 at 10-14.] Specifically, the state appellate court ruled as

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follows:

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A. Right to a Public Trial
1. Additional Background
Before a jury was empanelled in this case, the record shows the
following exchange took place between defense counsel and the court
concerning defendant's family members and their attendance in the
courtroom:
"[Defense counsel]: Your Honor, just so you know, too, your bailiff
has been so -- so kind to allow family members of my client to come in
previously. I'm going to hope that there will be no future issue at all.

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"THE COURT: Well . . . first of all, during the jury selection, we're
just not going to have room for them because the court is going to be full of
prospective jurors. But once -- certainly once we get the jury selected, they'll
be free to be here. As long as -- I think the bailiff did have a little -- had to
talk a little bit with one of the family members the other day. But I think
hopefully that was effective and that won't be -- won't be a problem. [¶] But,
no, same rule. As long as they follow the rules and don't cause any problem,
they're welcome to be here. I say, not during the jury selection because we
just don't have room for them."
The record shows at 11:34 a.m., 60 potential jurors entered the
courtroom. After being admonished, the jurors were excused at 12:01 p.m.
At 1:34 p.m., the court reconvened, read the charging portion of the
information and pre-instructed the prospective jurors in the law applicable to
this case. Voir dire then began until 3:00 p.m., when the court was again in
recess. The court reconvened at 3:17 p.m. and voir dire continued until 4:08
p.m., when the prospective jurors were admonished and excused for the day.
The record shows the following day voir dire did not resume until
9:59 a.m. At 10:59 a.m., the prospective jurors were excused while the court
conducted individual voir dire of three prospective jurors. At 11:11 a.m.,
upon the court's inquiry, the bailiff informed the court and counsel of a
"disruption in the audience." The record does not explain the nature of the
disruption. However, when the court reconvened at 11:27 a.m., it
admonished the prospective jurors not to speak with anyone, stating as
follows:
"Continue to abide by the admonitions not to talk to anyone else under
any circumstances; allow anyone to talk to you about the case itself; not to
seek any information from any outside sources, electronic, social media,
written sources; talking to anybody, whatever those sources might be about
any matter related to the case; and, maintain your distance.
"There are some folks here who have an interest in the case. And they
have a right to be here in or about the courtroom. But I think you recognize
who they are. And don't have any contact with them. Don't let them have any
contact with you. I'm not suggesting they [don't] have a right to be here and
they haven't done anything improper. But just to maintain some distance
from them so you don't inadvertently overhear what they might be
discussing which may have something to do with the case or [defendant] but
won't be any part of the evidence upon which you have to base your finding.
"So think about serving as a juror. Think about what we're talking
about here. But keep those thoughts to yourselves."
The record shows that the prospective jurors were admonished and
excused at 11:45 a.m.; that the court ruled on two motions and went into
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recess at 12:04 p.m.; that the court reconvened at 1:38 p.m.; and that a jury
was selected by 3:04 p.m.
2. Governing Law and Analysis
A criminal defendant has a constitutional right to "a trial which is
open to the general public at all times." (People v. Woodward (1992) 4
Cal.4th 376, 382 (Woodward).) The public, too, has a right to an open trial.
(People v. Esquibel (2008) 166 Cal.App.4th 539, 552.) Openness "enhances
both the basic fairness of the criminal trial and the appearance of fairness so
essential to public confidence in the system." (Press–Enterprise Co. v.
Superior Court of Cal. (1984) 464 U.S. 501, 508.) A public trial helps keep
the court and the triers of fact " 'keenly alive to a sense of their responsibility
and to the importance of their functions' " and may also discourage
witnesses from committing perjury. (Woodward, at p. 385.) The public trial
right applies not only to the trial itself, but also to many other court
proceedings including, as relevant here, voir dire. (See Presley v. Georgia
(2010) 558 U.S. 209, 213.)
The record is silent regarding whether defendant's family members
were in fact excluded from the courtroom during any part of voir dire. The
record suggests that at least with respect to the second day of voir dire, there
were people with an "interest" in the case present in the courtroom.
However, it is not clear whether these "interest[ed]" people were defendant's
family members.
Moreover, the record also is silent regarding whether there was room
for any or all of defendant's family members when the 60 prospective jurors
initially entered the courtroom and voir dire first began, or the following day
as voir dire continued, when prospective jurors were excused throughout the
day and when a jury was seated at 3:04 p.m. We note that if defendant's
family members were excluded from the courtroom for a short period of
time in order to make room for prospective jurors but subsequently were
able to reenter—perhaps after a recess, then defendant's right to a public trial
under those circumstances may not have been violated. (See People v. Bui
(2010) 183 Cal.App.4th 675, 680 [holding the temporary exclusion of three
individuals for about 40 minutes, "during only a small part of the voir dire of
prospective jurors, and not during the evidentiary phase of the trial," was de
minimis and thus did not violate a defendant's public trial right]; see also
Owens v. United States, (1st Cir. 2007) 483 F.3d 48, 62, 66 [concluding the
court erred in not holding an evidentiary hearing on the defendant's claim he
was denied a right to a public trial when two of his family members
submitted affidavits stating they were prohibited from entering the
courtroom during voir dire, after the record showed the courtroom was
cleared of all spectators to accommodate 72 prospective jurors, and further
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concluding the absence of any findings made it impossible to discern
whether it was necessary for the courtroom to be cleared to permit the entire
jury pool to enter and/or whether members of the public, including the
defendant's family members, were allowed to reenter the courtroom as seats
opened up once potential jurors were excused].)
Given the lack of any evidence in the record to support defendant's
contention that his family members were actually excluded from the
courtroom during voir dire or that their exclusion was not de minimis, on
this record we reject defendant's contention he was deprived of the right to a
public trial by the alleged exclusion of his family members from the
courtroom.2
[Lod. 6 at 10-14.]

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Petitioner also raised his right to public trial claim a second time in a state habeas

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petition. [Lod. 11 at 3.] However, this claim is procedurally barred. Guillory, 38 F.4 at
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B. Triviality.

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A criminal defendant has the right to a public trial under the Sixth Amendment.

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“The requirement of a public trial is for the benefit of the accused; that the public may
see he is fairly dealt with and not unjustly condemned, and that the presence of interested
spectators may keep his triers keenly alive to a sense of their responsibility and to the
importance of their functions.” In re Oliver, 333 U.S. 257, 270 n. 25 (1948). “In addition
to ensuring that judge and prosecutor carry out their duties responsibly, a public trial
encourages witnesses to come forward and discourages perjury.” Waller v. Georgia, 467
U.S. 39, 46 (1984). “Openness thus enhances both the basic fairness of the criminal trial
and the appearance of fairness so essential to public confidence in the system.” PressEnterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501, 508
(1984).

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[Footnote in original] “Given our decision, we deem it unnecessary to resolve the People's alternate
contention that defendant forfeited his right to challenge this issue because he acquiesced in the court's
suggestion that his family members allegedly be excluded from the courtroom to make room for the 60
prospective jurors.”
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A trial court may “totally close[ ] the courtroom to the public, for a non-trivial

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duration,” when four requirements are met:

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“The party seeking to close the hearing must advance an overriding interest
that is likely to be prejudiced, the closure must be no broader than necessary
to protect that interest, the trial court must consider reasonable alternatives
to closing the proceeding, and it must make findings adequate to support the
closure.”
United States v. Withers, 638 F.3d 1055, 1063 (9th Cir. 2011) (quoting Presley v.

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Georgia, 558, U.S. 209, 213-15 (2010) ). “[T]he public-trial right extends to jury

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selection as well as to other portions of the trial.” Weaver v. Massachusetts, 137 S. Ct.

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1899, 1906, 198 L.Ed. 2d 420 (2017) (citing Presley, 558, U.S. at 213-15).

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Under some circumstances, however, a closure of the court may be deemed
“trivial” and therefore not a violation of the defendant's right to public trial. See United
States v. Rivera, 682 F.3d 1223, 1229 (9th Cir. 2012). In assessing triviality, the Court

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“must determine whether the closure involved the values that the right to a public trial

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serves.” United States v. Ivester, 316 F.3d 955, 960 (9th Cir. 2003). These values include:

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ensuring fair proceedings; reminding the prosecutor and judge of their grave
responsibilities; discouraging perjury; and encouraging witnesses to come forward. See
id.
Here, there is no indication the trial court complied with the Press-Enterprise and
Waller requirements for a non-trivial closure. Therefore, the question is whether the
closure was trivial such that it was not a violation of Petitioner’s right to public trial.
Rivera, 682 F.3d at 1229.
First, while Petitioner claims that his family members were excluded from the
entire voir dire process, the record is not clear this is what occurred. While there was
some discussion initially about excluding family members to make room for the jury

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panel, Petitioner’s attorney did not object and there is no record such exclusion occurred.

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Moreover, the record reflects that on the second day of voir dire, there was a “disruption”

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that may have involved family members, thus indicating they were not excluded at that

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point. Nevertheless, even if family members were excluded from the entire voir dire

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process, they were not excluded from the beginning of the trial, nor from the evidentiary

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phase of the proceedings. In addition, Petitioner’s trial counsel did not object to the

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exclusion, and there is no indication in the record of any other concerns. Therefore, the

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closure was trivial. Weaver v. Massachusetts, __ U.S. ___, 137 S. Ct. 1899 (2017).

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In Weaver, in the context of an ineffective assistance of counsel claim, the

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Supreme Court ruled that the trial court’s short closure of the defendant’s trial to the

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public, during voir dire process, did not create reversible error because “[t]he closure was

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limited to the jury voir dire; the courtroom remained open during the evidentiary phase of

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the trial; the closure decision apparently was made by court officers rather than the judge;

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there were many members of the venire who did not become jurors but who did observe

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the proceedings; and there was a record made of the proceedings that does not indicate

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any basis for concern, other than the closure itself.” Id. at 1913. Similarly here,

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Petitioner’s right to public trial was not violated because the closure was limited

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(according to Petitioner) only to voir dire, the courtroom remained open during the

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evidentiary phase, presumably many members of the venire who did not become jurors

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did observe the proceedings, Petitioner’s trial counsel did not object, and the record does

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not indicate any basis for concern other than the closure. See also United States v.

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Dharni, 738 F.3d 1186, reh’g granted and opinion vacated, 757 F.3d 1002 (9th Cir.

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2014)(district court’s request that family members and other spectators go out to the hall

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during voir dire until seats became available was at most a trivial closure that does not

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implicate the Sixth Amendment). Accordingly, the state court’s rejection of Petitioner’s

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claim was not contrary to or based on an unreasonable application of clearly established

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United States Supreme Court authority as required under 28 U.S.C. §2254(d).

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C. Waiver.

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Even if a court fails to comply with the Press–Enterprise and Waller requirements

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for a non-trivial closure and the closure is not trivial, “[t]he right to a public trial can also

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be waived.” United States v. Cazares, 788 F.3d 956, 971 (9th Cir. 2015), cert. denied,
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136 S. Ct. 2484 (2016) (citing Levine v. United States, 362 U.S. 610, 619 (1960)). A

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defendant who fails to object to a courtroom closure waives the right to a public trial and

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can only raise his claim via an ineffective assistance argument. Weaver, 137 S. Ct. at

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1912. Here, Petitioner’s trial counsel never objected in the trial court to the closure of the

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courtroom. As a result, the record failed to illuminate whether and to what extent the

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courtroom may have been closed to family and friends during voir dire. Given the lack

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of objection at the trial court, Petitioner has waived his right to a public trial. See

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Cazares, 788 F.3d at 971; Levine, 362 U.S. at 619 (holding defendant waived public-trial

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right by failing to object to closing of courtroom). Accordingly, the state court’s

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rejection of Petitioner’s claim was not contrary to or based on an unreasonable

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application of clearly established United States Supreme Court authority as required

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under 28 U.S.C. §2254(d).

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D. Certificate of Appealability.

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A petitioner complaining of detention arising from state court proceedings must

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obtain a certificate of appealability to file an appeal of the final order in a federal habeas

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proceeding. 28 U.S.C. § 2253(c)(1)(A) (2007). The district court may issue a certificate

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of appealability if the petitioner “has made a substantial showing of the denial of a

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constitutional right.” Id. § 2253(c)(2). To make a “substantial showing,” the petitioner

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must “demonstrat[e] that ‘reasonable jurists would find the district court's assessment of

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the constitutional claims debatable[.]’ ” Beaty v. Stewart, 303 F.3d 975, 984 (9th

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Cir.2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

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Here, while this Court finds there was no constitutional violation and, even if there

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was, it was waived, the Court recognizes that reasonable jurists may disagree on whether

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the alleged violation was trivial and/or waived. Accordingly, the Court GRANTS a

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certificate of appealability.

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CONCLUSION

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For the reasons set forth above, the remaining Sixth Amendment right to public

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trial claim is DENIED, and a certificate of appealability is GRANTED. The Clerk of

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Court shall CLOSE the case.

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IT IS SO ORDERED.

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Dated: December 1, 2022

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