Alebord v. Mitchell

Filing 34

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER DENYING 1 PETITION for Writ of Habeas Corpus pursuant to 28:2254. (DaSilva, Carolina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GLEN ALEBORD,
Petitioner,
v.
LISA MITCHELL,
Respondent.

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Civil Action No. 14-cv-10493-IT

MEMORANDUM & ORDER
July 11, 2017
TALWANI, D.J.
Petitioner Glen Alebord contends in his Petition for Relief from a Conviction or Sentence
by a Person in State Custody [#1] that his conviction and incarceration for second-degree murder
violate his rights under the Sixth Amendment to the United States Constitution because the
courtroom was closed to the public during jury empanelment for his trial.
The Sixth Amendment to the United States Constitution guarantees that, “[i]n all criminal
prosecutions, the accused shall enjoy the right to a . . . public trial.” U.S. Const. amend. VI.
“[T]he [public-trial] guarantee has always been recognized as a safeguard against any attempt to
employ our courts as instruments of persecution. The knowledge that every criminal trial is
subject to contemporaneous review in the forum of public opinion is an effective restraint on
possible abuse of judicial power.” In re Oliver, 333 U.S. 257, 270 (1948) (internal footnotes
omitted). The right is intended for the benefit of the defendant, so 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.” Waller v. Georgia, 467 U.S. 39, 46 (1984) (quoting Gannett Co. v. DePasquale, 443
U.S. 368, 380 (1979)).
Given the magnitude of the right at stake, “[t]he presumption of openness may be
overcome only by an overriding interest based on [specific, articulated] findings that closure is
essential to preserve higher values and is narrowly tailored to serve that interest.” Waller, 467
U.S. at 45 (quoting Press-Enter. Co. v. Superior Ct. of Cal., 464 U.S. 501, 510 (1984)). In
Waller, the United States Supreme Court set forth a four-pronged analysis that courts must
follow in determining whether the closure of a courtroom is necessary:
[1] the party seeking to close the hearing must advance an
overriding interest that is likely to be prejudiced, [2] the closure
must be no broader than necessary to protect that interest, [3] the
trial court must consider reasonable alternatives to closing the
proceeding, and [4] it must make findings adequate to support the
closure.
467 U.S. at 48. In the absence of this analysis, a complete closure of a courtroom constitutes
structural error, because the deprivation of the right to a public trial “affect[s] 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) (citing Waller, 467 U.S. at 49); see also Waller, 467 U.S.
at 49 n.9; cf. Wilder v. United States, 806 F.3d 653, 661 (1st Cir. 2015).
It was “well settled” under Waller and Press-Enterprise (which held that the First
Amendment right to open trials extends to jury selection, 464 U.S. at 505) that the Sixth
Amendment right to a public trial encompasses jury empanelment. Presley v. Georgia, 558 U.S.
209, 213 (2010) (per curiam).
Nevertheless, well after the Supreme Court issued its decisions in Waller and PressEnterprise in 1984, the prevailing practice in Brockton Superior Court and certain other
Massachusetts trial courts appears to have been to close the courtrooms during jury
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empanelment. In a series of recent cases before the Supreme Judicial Court (“SJC”), state
prisoners have challenged their convictions based on the complete closure of courtrooms during
empanelment. See, e.g., Commonwealth v. Weaver, 54 N.E.3d 495 (Mass. 2016), aff’d sub nom.
Weaver v. Massachusetts, No. 16-240, 2017 WL 2674153 (U.S. June 22, 2017); Commonwealth
v. LaChance, 17 N.E.3d 1101 (Mass. 2014); Commonwealth v. Alebord, 4 N.E.3d 248 (Mass.
2014); Commonwealth v. Morganti, 4 N.E.3d 241 (Mass. 2014); Commonwealth v. Lavoie, 981
N.E.2d 192 (Mass. 2013). In such cases, the closures were initiated by court security officers,
without the knowledge of the trial judge; accordingly, the requisite analysis set forth in Waller
was not performed. Having been denied post-conviction relief in the Massachusetts courts, many
of these prisoners have filed habeas petitions in the United States District Court for the District
of Massachusetts.
With this backdrop set, the court recites the facts underlying Petitioner’s claim. 1 On
December 29, 2000, a Plymouth County grand jury indicted Petitioner on one count of seconddegree murder in violation of Mass. Gen. Laws ch. 265, § 1. Not. Manual Filing Resp’t’s Suppl.
Ans. 84 [#16]. Trial commenced in the Brockton Superior Court with jury empanelment on
February 3, 2004. Alebord, 4 N.E.3d at 250-51. Without objection from trial counsel and in the
absence of an order by the trial judge, but consistent with the aforementioned “custom and
practice at the time in that court,” court officers closed the courtroom to the public for the
duration of the eighty- minute jury empanelment. Id. at 250, 253 nn.9&10. At Petitioner’s
request, the court conducted individual juror voir dire at sidebar. Id. at 252. On February 5, 2004,
the jury found Petitioner guilty. Id. at 250.

The facts are “set forth . . . as recounted by the SJC, . . . supplemented by other consistent facts
in the record.” See Lee v. Corsini, 777 F.3d 46, 51 (1st Cir. 2015).
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On December 28, 2006, in a consolidated appeal, the Massachusetts Appeals Court
affirmed Petitioner’s conviction and the denial of his first motion for a new trial. Commonwealth
v. Alebord, 859 N.E.2d 440, 442 (Mass. App. Ct. 2006). Petitioner, who had not raised the issue
of courtroom closure in his first new-trial motion or in the consolidated appeal, addressed the
issue in 2008 in a second motion for a new trial. Alebord, 4 N.E.3d at 250.
At an evidentiary hearing in the Superior Court, Petitioner presented testimony that his
then-girlfriend and two family members were prevented from entering the courtroom as the
jurors entered for empanelment. Id. at 250-51. Trial counsel testified that he did not know at the
time that Petitioner’s family and then-girlfriend had been prohibited from entering the
courtroom. Id. at 251. He testified further, however, that he was aware that the public commonly
was excluded from Brockton Superior Court courtrooms during jury empanelment, that in his
more than three-and-a-half decades of experience trying cases in the Brockton Superior Court,
trial counsel never observed the courtroom open to the public during jury empanelment, and that
he had never objected to the public’s exclusion. Id. at 252. He further testified that, at the time of
trial, he had not been aware that the Sixth Amendment right to a public trial encompassed the
jury empanelment process. Id. Petitioner also presented testimony from the attorney in charge of
the Committee for Public Counsel Services in Plymouth County, who reported that, prior to
2007, court officers routinely barred the public from courtrooms in the Brockton Superior Court
so as to fit the entire venire in the small courtroom. Id. He testified that he did not object to this
practice because “[i]t seemed to work that way.” Id. at 252-53.
The Superior Court judge found against Petitioner because no closure had been ordered.
Commonwealth v. Alebord, No. 2000-00066, slip op. at 5 (Mass. Super. Aug. 20, 2008). On
appeal, the Massachusetts Appeals Court held that the courtroom had nonetheless been closed

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and remanded the case for further proceedings to determine whether Petitioner knowingly
waived his right to a public trial either on his own or through counsel. Commonwealth v.
Alebord, 953 N.E.2d 744, 750-51 (Mass. App. Ct. 2011).
On remand, the Superior Court judge again denied the new-trial motion. Commonwealth
v. Alebord, No. 2000-00066, slip op. at 11 (Mass. Super. Apr. 13, 2012). The Superior Court
judge found that, “at the time of trial, [trial counsel] was unaware that a defendant’s right to a
public trial extended to jury selection”; that “no one told him that any of [Petitioner’s] friends or
family had been barred from the courtroom”; and “that there was no evidence that either [trial
counsel] or [Petitioner] affirmatively assented to the court officers’ clearing of the courtroom in
advance of empanelment.” Id. at 6-7. The judge concluded that the Commonwealth had failed to
establish that Petitioner had knowingly and intelligently waived his Sixth Amendment right to a
public trial, but that Petitioner’s public-trial rights had not been violated because the eightyminute closure was de minimis. Id. at 6-11.
On February 12, 2014, on direct appellate review, the SJC affirmed the Superior Court
order denying Petitioner’s second motion for a new trial. Alebord, 4 N.E.3d at 256. The SJC
agreed with Petitioner that the exclusion of the public constituted a courtroom closure and that
the closure was not de minimis. Id. at 254 (citing Morganti, 4 N.E.3d at 246). The SJC
concluded, however, that Petitioner had waived his right to a public trial because his seasoned
trial counsel—who “recalled that the public had been excluded from the court[]room during jury
empanelment”—had failed to object to the courtroom’s closure. Id. at 251-52. The SJC went on
to review the “error in the post[-]conviction context of a challenge to trial counsel’s effectiveness
in failing to raise the objection,” id. at 255, and determined that Petitioner received objectively

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reasonable representation, id. at 256. On June 16, 2014, the Supreme Court denied Petitioner’s
petition for a writ of certiorari. Alebord v. Massachusetts, 134 S.Ct. 2830 (2014).
Petitioner’s habeas petition pursuant to 28 U.S.C. § 2254(a) is now before this court. In
general, habeas review of a claim is precluded when a state court has decided that claim on the
basis of an adequate and independent state law ground that is firmly established and regularly
followed. Coleman v. Thompson, 501 U.S. 722, 729 (1991); Harris v. Reed, 489 U.S. 255, 262
(1989). One common example of an adequate and independent state law ground for a decision is
when “a state court decline[s] to address a prisoner’s federal claims because the prisoner had
failed to meet a state procedural requirement.” Coleman, 501 U.S. at 729-30. The First Circuit
“[has] held, with a regularity bordering on the monotonous, that the Massachusetts requirement
for contemporaneous objections is an independent and adequate state procedural ground, firmly
established in the state’s jurisprudence and regularly followed in its courts.” Janosky v. St.
Amand, 594 F.3d 39, 44 (1st Cir. 2010) (citations omitted).
Here, the SJC concluded that Petitioner procedurally waived his right to a public trial
because “defense counsel, who had practiced extensively in Brockton Superior Court, testified
that he was aware that the court[]room was closed to the public during empanelment to facilitate
jury empanelment, and that he did not object thereto.” Alebord, 4 N.E.3d at 255. Because the
SJC decided the claim on an independent and adequate state procedural ground, review by this
claim is barred unless Petitioner can establish cause for the default and prejudice as a result of
the alleged violation of law. 2 Coleman, 501 U.S. at 750. To establish cause, Petitioner must show

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Procedural default also may be excused upon a showing that “failure to consider the claim[]
will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Petitioner does
not make that showing here.
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“that some objective factor external to the defense impeded counsel’s efforts to comply with the
State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Petitioner also must show
“actual prejudice resulting from the errors of which he complains.” United States v. Frady, 456
U.S. 152, 168 (1982) (internal quotation marks omitted).
Ineffective assistance of counsel may provide cause to excuse a procedural default where
the representation fell below the standard established in Strickland v. Washington, 466 U.S. 668
(1984). Murray, 477 U.S. at 488. Under Strickland, a petitioner must demonstrate that “counsel’s
representation fell below an objective standard of reasonableness,” and that “the deficient
performance prejudiced his defense.” 446 U.S. at 687-88. “The prejudice prong here is the same
as the prejudice requirement of the cause and prejudice standard.” Bucci v. United States, 662
F.3d 18, 29 (1st Cir. 2011).
Petitioner does not argue that he has suffered actual prejudice. Instead, relying on Owens
v. United States, 483 F.3d 48 (1st Cir. 2007), he argues that prejudice must be presumed because
the violation of the right to a public trial creates structural error. However, while Petitioner’s
habeas petition was pending, the Supreme Court issued its decision in Weaver v. Massachusetts,
No. 16-240, 2017 WL 2674153 (U.S. June 22, 2017). There, the Court held:
[W]hen a defendant raises a public-trial violation via an
ineffective-assistance-of-counsel claim, Strickland prejudice is not
shown automatically. Instead, the burden is on the defendant to
show either a reasonable probability of a different outcome in his
or her case or . . . to show that the particular public-trial violation
was so serious as to render his or her trial fundamentally unfair.
Weaver, 2017 WL 2674153, at *11. The Court noted that, when the defendant does not
simultaneously object but instead raises the issue of courtroom closure on collateral review, “the
trial court is deprived of the chance to cure the violation either by opening the courtroom or by
explaining the reasons for the closure.” Id. at *12.
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The circumstances surrounding the courtroom closure in Weaver are similar to those
here. Weaver also was tried in Massachusetts state court. Id. at *4-5. As in this case, a court
officer excluded members of the public from the courtroom during jury voir dire; Weaver’s
mother and her minister were barred from the courtroom. Id. at *5. Trial counsel did not object
because he was unaware that the right to a public trial extended to voir dire. Id. Considering the
denial of Weaver’s motion for a new trial on writ of certiorari, the Supreme Court concluded that
Weaver had failed to suffer prejudice under Strickland. Id. at *13. The Court observed:
It is of course possible that potential jurors might have behaved
differently if [Weaver’s] family had been present. And it is true
that the presence of the public might have had some bearing on
juror reaction. But here [Weaver] offered no evidence or legal
argument establishing prejudice in the sense of a reasonable
probability of a different outcome but for counsel’s failure to
object . . .
There has been no showing . . . that the potential harms
flowing from a courtroom closure came to pass in this case. For
example, there is no suggestion that any juror lied during voir dire;
no suggestion of misbehavior by the prosecutor, judge, or any
other party; and no suggestion that any of the participants failed to
approach their duties with the neutrality and serious purpose that
our system demands.
Id. at *13 (internal citation omitted).
The Court’s reasoning in Weaver controls the outcome in this case. Petitioner is not
entitled to a presumption of prejudice, and he has not demonstrated that he suffered actual
prejudice as a result of the courtroom closure during voir dire. For this reason, he has not
established the prejudice necessary to excuse procedural default of his claim.

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Based on the foregoing, Alebord’s Petition for Relief from a Conviction or Sentence by a
Person in State Custody [#1] is DENIED.
IT IS SO ORDERED.
Date: July 11, 2017

/s/ Indira Talwani
United States District Judge

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