Pouncy v. Palmer

Filing 377

ORDER Denying 342 Motion for Reconsideration. Signed by District Judge Matthew F. Leitman. (HMon)

Case 2:13-cv-14695-MFL-LJM ECF No. 377, PageID.13994 Filed 02/09/21 Page 1 of 20

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
OMAR RASHAD POUNCY,
Petitioner,

Case No. 13-cv-14695
Hon. Matthew F. Leitman

v.
MATT MACAULEY,1
Respondent.
__________________________________________________________________/
ORDER DENYING MOTION FOR RECONSIDERATION (ECF No. 342)
In this habeas action, Petitioner Omar Rashad Pouncy challenges his state
court convictions for armed robbery and carjacking on several grounds. (See
Petition, ECF No. 1.) In one of Pouncy’s habeas claims, he argues that the state trial
court violated his Sixth Amendment right to a public trial when it closed the
courtroom during voir dire. (See id., PageID.4; Pouncy Mem. of Law, ECF No. 9,
PageID.4904, 4992-4996.) The Court previously issued an Opinion and Order in
which it denied relief on that claim. (See Opinion and Order, ECF No. 58.) Pouncy

1

The proper respondent in a habeas action is the habeas petitioner’s custodian, which
in the case of an incarcerated habeas petitioner is the warden of the facility where he
is incarcerated. See Rule 2(a), 28 U.S.C. § 2254; Edwards v. Johns, 450 F.Supp.2d
755, 757 (E.D. Mich. 2006). Pouncy is presently incarcerated at the Bellamy Creek
Correctional Facility where Matt Macauley is Warden.
See
https://www.michigan.gov/corrections/0,4551,7-119-68854_1381_1388-5481-,00.html.
1

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now moves the Court to reconsider its denial of relief on his public trial claim. (See
Mot. for Reconsid., ECF No. 342.) For the reasons explained below, Pouncy’s
motion is DENIED.
I
A
On February 1, 2006, a state court jury convicted Pouncy of four counts of
carjacking, four counts of armed robbery, two counts of carrying a firearm during
the commission of a felony, and one count of being a felon in possession of a firearm.
He then appealed his convictions to the Michigan Court of Appeals. In that appeal,
he argued, among other things, that the state trial court violated his Sixth
Amendment right to a public trial by closing the courtroom during voir dire without
applying the pre-closure analysis required by Waller v. Georgia, 467 U.S. 39 (1984).
(Pouncy Supp. Br., ECF No. 8-44, PageID.3560-3562.) In Waller, the Supreme
Court held that where a criminal defendant objects to the closure of the courtroom,
the trial court must apply the following four-factor test before proceeding with the
closure: “[(1)] the party seeking to close a public 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.” Waller, 467 U.S. at 48. See also United States v. Simmons, 797

2

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F.3d 409, 413 (6th Cir. 2015) (identifying the four-factor “Waller test”). Pouncy
sought reversal of conviction the ground that the state trial court did not apply the
Waller test before closing the courtroom during voir dire. (Pouncy Supp. Br., ECF
No. 8-44, PageID.3560-3562.)
The Michigan Court of Appeals addressed Pouncy’s public trial claim on the
merits and denied relief. See People v. Pouncy, 2008 WL 9869818, at *27 (Mich.
Ct. App. Mar. 25, 2008). Pouncy thereafter sought leave to appeal in the Michigan
Supreme Court. That court declined to hear his appeal. See People v. Pouncy, 753
N.W.2d 188 (Mich. July 29, 2008) (Table).
Pouncy next filed a motion for relief from judgment in the state trial court.
(See Supp. to St. Ct. Mot. for Relief from J., ECF No. 8-26.) In that motion, he again
claimed that the trial court had violated his right to a public trial by closing the
courtroom during voir dire without applying the Waller test. (See id.) In support of
that claim, he cited to the decision of the United States Supreme Court in Presley v.
Georgia, 558 U.S. 209 (2010), which had been issued after the Michigan Court of
Appeals decided his direct appeal. (See id.) In Presley, the Supreme Court held that
a trial court violated the Sixth Amendment when it closed a courtroom during voir
dire over the defendant’s objection and without applying the Waller test. Presley,
558 U.S. at 214-15.

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The state trial court held that “pursuant to [Michigan Court Rule]
6.508(D)(2),” it was “unable to provide relief to Pouncy” on his renewed public trial
claim. (St. Ct. Op. and Order, ECF No. 8-37, PageID.3164.) The Michigan Court
Rule cited by the trial court provides in relevant part that a “court may not grant
relief to the defendant if the motion [for relief from judgment] alleges grounds for
relief which were decided against the defendant in a prior appeal … unless the
defendant establishes that a retroactive change in the law has undermined the prior
decision.” Mich. Ct. Rule 6.508(D)(2). The court explained that the rule precluded
it from granting relief on the renewed public trial claim because (1) it was the “same”
claim that the Michigan Court of Appeals had rejected on direct appeal and (2) the
Presley decision was not a “change in the law.” (Id.)
B
Pouncy filed his habeas petition in this Court in 2013. (See Pet., ECF No. 1.)
He included his public trial claim in his petition. (See id., PageID.4.) In that claim,
he again argued that the state trial court erred when it closed the courtroom during
voir dire and other pretrial proceedings without applying the Waller test. (See
Pouncy Mem. of Law, ECF No. 9-1, PageID.4904, 4992-4996.) He also cited the
Presley decision in support of his claim. (See id.) 

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On March 6, 2015, Pouncy filed a motion for summary judgment on his public
trial claim. (See Mot. for Summ. J., ECF No. 33.) The Court held a hearing on the
motion on June 17, 2015.
During the hearing, the Court asked Pouncy’s attorney whether the Court was
required to review the public trial claim under the deferential standard set forth in
the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”).

Under that

standard, a federal court may grant habeas relief on a claim that a state court decided
on the merits only where the state court’s decision was “contrary to” and/or involved
an “unreasonable application” of “clearly established federal law.” 28 U.S.C. §
2254(d)(1).
In response to the Court’s questions, Pouncy’s attorney confirmed that the
Michigan Court of Appeals had decided the public trial claim on the merits and that
the claim therefore was subject to AEDPA deference. (See 6/17/2015 Hr’g Tr., ECF
No. 57, PageID.6307.2) Moreover, in Pouncy’s briefing on the public trial claim, he

2

The Court had the following exchange with counsel:
THE COURT: What the Michigan Court of Appeals said on this
issue is Pouncy raised in his supplemental or pro se brief, they reviewed
it. It lacks merit. So the first thing is, you would agree with me that the
Michigan Court of Appeals addressed the merits of Mr. Pouncy’s
public trial claim?
MR. MOFFITT: Absolutely, Your Honor.

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indicated that the claim was subject to review under AEDPA. (See, e.g., Mot. for
Summ. J., ECF No. 33, PageID.5947-5948, in which Pouncy applied AEDPA’s
standards to his public trial claim.)
On July 20, 2015, the Court issued an Opinion and Order denying Pouncy’s
motion for summary judgment and denying relief on his public trial claim. (See Op.
and Order, ECF No. 58.) In that ruling, the Court reviewed the public trial claim
under AEDPA’s deferential standard, as Pouncy confirmed it should do. (See id.,
PageID.6397-6414.)
Applying AEDPA, the Court held that Pouncy was not entitled to relief on his
claim that the trial court erred when it closed the courtroom without applying the
Waller test. The Court explained that Pouncy had failed to demonstrate that the
Michigan Court of Appeals’ decision rejecting his public trial claim was contrary to,
or an unreasonable application of, clearly established federal law. (See id. at
PageID.6403-6414.)

More specifically, the Court noted that Pouncy had not

objected to the closure of the courtroom, and the Court explained that Waller and
Presley did not hold that a trial court must apply the Waller test before closing the

THE COURT: So you’d agree with me that their denial of that
claim receives deference.
MR. MOFFITT: Yes, Your Honor.
(6/17/2015 Hr’g Tr., ECF No. 57, PageID.6307.)
6

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courtroom where, as here, the defendant failed to object to the closure. (See id.) The
Court concluded that because the holdings of Waller and Presley did not directly
apply to the circumstances under which the state trial court closed the courtroom –
i.e., in the absence of an objection – the state appellate court’s decision denying relief
on Pouncy’s public trial claim was neither contrary to, nor an unreasonable
application of Waller or Prelsey. (See id.)
C
Pouncy now seeks reconsideration of the Court’s ruling denying relief on his
public trial claim. (See Mot. for Reconsid., ECF No. 342.) Despite his prior
confirmation that the claim was subject to AEDPA deference, Pouncy now contends
that the Court erred when it failed to review the claim de novo. (See id. at
PageID.13166-13167.) Pouncy says that a Sixth Circuit decision issued after he filed
his motion for summary judgment on his public trial claim – and of which he was
not aware at the time of the hearing before the Court – revealed to him for the first
time that the Court should have reviewed the claim de novo. (See id., citing Barton
v. Warden, 786 F.3d 450 (6th Cir. 2015)).3

3

In a prior order, the Court said that because Pouncy previously agreed that his
public trial claim was subject to AEDPA deference, there was “no good faith basis”
for Pouncy to argue that the Court erred in applying that standard. (See Order, ECF
No. 340, PageID.13150.) On further consideration, the Court concludes that there
was a good faith basis for the argument that the claim should be reviewed de novo;
that argument is not frivolous. However, the Court continues to believe that Pouncy
did not present the argument in the most appropriate manner. He should have
7

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Respondent filed a response opposing Pouncy’s motion for reconsideration on
November 6, 2020. (See Resp., ECF No. 358.) Pouncy has filed a reply brief in
further support of the motion. (See Reply, ECF No. 373.)
II
Pouncy primarily argues that this Court was bound to review his public trial
claim de novo under the Sixth Circuit’s decision in Barton, supra, but his reliance
on that decision is misplaced. The petitioner in Barton was convicted of involuntary
manslaughter and aggravated burglary, and he thereafter filed a direct appeal of his
convictions. Barton, 786 F.3d at 456. In that direct appeal, he did not argue that the
prosecution had failed to disclose exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). See id. at 458. In a later post-appeal motion for postconviction relief in the state trial court, the petitioner presented a Brady claim for
the first time. See id. The trial court held that the petitioner was “barred” from
raising the claim because he had not raised it on direct appeal. Id. (quoting state trial
court decision). After denying relief on the procedural ground, the trial court
expressed “strong reservations” about the merits of the claim. Id. (quoting trial court
decision). The petitioner then appealed to the Ohio Court of Appeals, and that court

acknowledged his prior express agreement that the public trial claim was subject to
AEDPA deference and the Court’s reliance on that agreement, and he then should
have explained that he had come to the opposite conclusion after reviewing
additional case law.
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held that he was “barred” from raising his Brady claim in his post-appeal motion for
post-conviction relief because he had not raised the claim on direct appeal. Id.
(quoting appellate court decision). The appellate court did not say anything about
the merits of the petitioner’s claim.
The petitioner later filed a federal petition for a writ of habeas corpus in which
he presented his Brady claim for review. When the case reached the Sixth Circuit,
that court had to decide whether the claim was subject to review under AEDPA or
whether the claim could be reviewed de novo. The Sixth Circuit held that the claim
was subject to de novo review. The basis of that holding was straightforward. The
Sixth Circuit explained that a claim is subject to review under AEDPA if and only
if it was decided on the merits by the state courts, and the Sixth Circuit concluded
that the state courts had not decided the petitioner’s Brady claim on the merits.
Instead, those courts had invoked a procedural bar and had declined to review the
merits of the petitioner’s Brady claim. The Sixth Circuit reasoned as follows:
Here, the Ohio Court of Common Pleas made clear that,
“[b]y not raising any Brady issues on direct appeal, the
defendant is barred from raising this issue here,” a classic
example of applying a procedural bar to the matter at hand.
R. 11–2 (Ohio Ct. of Common Pleas Decision and Entry
Den. Def.’s Pet. For Post–Conviction Relief 3) (Page ID #
614) (emphasis added). The Ohio Court of Appeals
affirmed, reiterating that, because “appellant did not raise
any Brady issues on direct appeal ... appellant is barred
from raising any Brady issues in this postconviction relief
proceeding.” R. 11–2 (Ohio Ct. of Appeals Op. Affirming
Decision to Den. Def.’s Pet. For Post–Conviction Relief
9

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6) (Page ID # 741). Again, instead of issuing a merits
decision, both the Ohio Court of Common Pleas and the
Ohio Court of Appeals made clear that they were applying
a procedural bar and thus not considering the merits of
Barton’s Brady claim. The Supreme Court has held, in
decisions issued post-Richter, that such rulings are not
subject to on-the-merits AEDPA deference. Johnson v.
Williams, –––U.S. ––––, 133 S.Ct. 1088, 1097, 185
L.Ed.2d 105 (2013) (“The language of 28 U.S.C. §
2254(d) makes it clear that this provision applies only
when a federal claim was adjudicated on the merits in
State court.”) (emphasis in original) (internal quotation
marks omitted).
Id. at 460-61.
The Sixth Circuit then said, in dicta, that petitioner’s Brady claim would still
be subject to de novo review even if the state trial court’s decision could have been
regarded as “both a procedural ruling and a ruling on the merits.” Id. at 462. The
Sixth Circuit explained that the later reasoned decision of the Ohio Court of Appeals
– in which that court applied a procedural bar and said nothing about the merits of
the Brady claim – “stripped” the trial court’s merits adjudication of its “effect” under
AEDPA. Id. at 464.
For at least two reasons, Barton does not compel this Court to reconsider its
denial of Pouncy’s public trial claim and to review that claim under a de novo
standard of review. First, the actual holding of Barton says nothing about whether
de novo review applies to Pouncy’s public trial claim. As set forth in detail above,
the actual holding of Barton was that the petitioner’s Brady claim should have been

10

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reviewed de novo because no state court had ever adjudicated the claim on the merits.
Here, as Pouncy acknowledged at the hearing before the Court, the Michigan Court
of Appeals did adjudicate Pouncy’s public trial claim on the merits. The actual
holding in Barton does not speak to the standard of review to be applied where at
least one state court has adjudicated a claim on the merits. Thus, Barton does not
compel the Court to review Pouncy’s public trial claim de novo.
Second, while the dicta in Barton did address whether AEDPA deference
applies where one state court has adjudicated a claim on the merits and another court
has later denied the claim for procedural reasons alone, that dicta does not help
Pouncy here. There is a critical distinction between the procedural bar invoked in
Barton and the state trial court’s procedural ruling in this case on which Pouncy rests
his claim for de novo review. In Barton, the procedural bar was invoked by a higher
court after a lower court had expressed a view of the merits. Here, in sharp contrast,
a lower court (the state trial court) held that it could not review Pouncy’s public trial
claim because a higher court (the Michigan Court of Appeals) had previously
decided the claim against Pouncy on the merits. (St. Ct. Op. and Order, ECF No. 837, PageID.3164.)

Barton cannot reasonably be read to suggest that a ruling by a

lower state court that it lacks the authority to address a claim that a higher court has
previously rejected on the merits somehow strips the higher court’s earlier merits
ruling of effect under AEDPA.

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Indeed, Pouncy’s contrary reading of Barton – as holding that AEDPA
deference does not apply where a lower state court holds that it may not review a
claim previously rejected on the merits by a higher state court – would effectively
eviscerate AEDPA. Under Pouncy’s interpretation of Barton, a defendant who has
been convicted in a Michigan state court and then lost his direct appeal could evade
AEDPA’s deferential standard of review simply by filing a post-appeal motion in
the trial court, re-raising all of the claims he presented on direct appeal, and having
the trial court rule – as it would be required to do, see Mich. Ct. Rule 6.508(D)(2) –
that it lacked the authority to review the claims. The Sixth Circuit could not possibly
have intended to chart such a course around AEDPA. Nor has Pouncy cited a single
decision in which any other federal court has ever held that de novo review applies
where a state appellate court has rejected a claim on the merits and a state trial court
has later held that it lacks the authority to review the rejected claim. Simply put,
Pouncy has failed to persuade the Court that a petitioner may secure de novo review
of issues he has lost on direct appeal by having a state trial court hold that it may not
review the claims rejected by the appellate court.4

4

Pouncy argues that the Sixth Circuit’s decision in Reign v. Gidley, 929 F.3d 777
(6th Cir. 2019), provides strong support for his argument that the state trial court’s
ruling stripped the Michigan Court of Appeals’ decision of AEDPA deference. (See
Reply, ECF No. 373, PageID.13846-13847.) It does not. In that decision, the Sixth
Circuit did not address any question concerning the stripping of AEDPA deference.
Moreover, that case did not involve a trial court’s refusal to review a claim that had
previously been decided on the merits by a higher court.
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III
Pouncy argues in the alternative that he should have prevailed even under
AEDPA’s deferential standard of review. The Court disagrees.
A
Pouncy first argues that he should have won under AEDPA because the
Michigan Court of Appeals’ decision denying relief on his public trial claim cannot
be squared with the relief that the Supreme Court granted to one of the
defendants/appellants in Waller named Clarence Cole. (See Reply, ECF No. 373,
PageID.13838-13839.) Cole was tried in the same trial was Waller. Unlike Waller
and the other defendants, Cole did not object to the closure of the courtroom. See
Waller, 467 U.S. at 42 n. 2. Even though Cole failed to object, the Supreme Court
reversed his conviction and remanded for further proceedings in state court. Id. The
Supreme Court’s entire discussion of Cole’s public trial claim was contained in a
single footnote that said the following:
Counsel for petitioners Waller, Thompson, Eula Burke,
and W.B. Burke lodged an objection to closing the
hearing. Counsel for petitioner Cole concurred in the
prosecution’s motion to close the suppression hearing.
App. 14a, 15a. Respondent argues that Cole is precluded
from challenging the closure. The Georgia Supreme Court
appears to have considered the objections of all the
petitioners on their merits. 251 Ga. 124, 126–127, 303
S.E.2d 437, 441 (1983). Cole’s claims in this Court are
identical to those of the others. Since the cases must be
remanded, we remand Cole’s case as well. The state courts

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may determine on remand whether Cole is procedurally
barred from seeking relief as a matter of state law.
Id.
Pouncy insists that there is not a single material difference between himself
and Cole, and he argues that the Supreme Court’s grant of relief to Cole compels
this Court to grant him relief on his public trial claim. (See Reply, ECF No. 373,
PageID.13838-13839.) Stated another way, Pouncy contends that (1) the grant of
relief to Cole clearly establishes that a trial court must apply the Waller test even
where a defendant does not object to the closure of the courtroom and (2) the
Michigan Court of Appeals’ decision denying his public trial claim is “contrary to”
the decision in Cole’s appeal.
The Court carefully considered and rejected this argument in its earlier
Opinion and Order. (See Opinion and Order, ECF No. 58, PageID.6408-09.) The
Court continues to believe that the Supreme Court’s treatment of Cole does not
clearly establish that a trial court must apply the Waller test even absent an objection
by the defendant. As the Court highlighted in its earlier ruling, the Supreme Court’s
Opinion in Waller – which, again, disposed of Cole’s claim in a short footnote –
carefully limited the scope of its holding to closures made over the defendant’s
objection. See Waller, 467 U.S. at 47 (“In sum, we 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 [i.e., the Waller

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test].”) (Emphasis added.) And the Supreme Court carefully framed the issue for
decision with respect the appeals of both Waller and Cole as whether a closure over
the defendant’s objection violates the Sixth Amendment. See id. at 40-41 (“These
cases require us to decide the extent to which a hearing on a motion to suppress
evidence may be closed to the public over the objection of the defendant consistently
with the Sixth and Fourteenth Amendment right to a public trial.”) (Emphasis
added.)
It would not be reasonable to read the single footnote resolving Cole’s claim
as clearly establishing that even absent an objection, a trial court must apply the
Waller test before closing a courtroom. Indeed, reading the footnote in that way
would render meaningless the Supreme Court’s efforts in the text of its Opinion to
limit the scope of its inquiry and its holding to closures made over the objection of
the defendant. Moreover, Pouncy has not cited a single decision from any court
reading the footnote concerning Cole’s claim as he does – as clearly establishing that
a trial court must apply the Waller test before closing a courtroom even where a
defendant does not object to the closure.
In the end, the Supreme Court’s handling of Cole’s public trial claim is
admittedly something of a puzzle. And Pouncy’s reliance on the fact that the
Supreme Court granted relief to Cole is understandable. But for all of the reasons
explained above and in the Court’s earlier ruling denying summary judgment on

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Pouncy’s public trial claim, the Court holds that Pouncy is not entitled to relief on
the basis that the state court decision denying his public trial claims is contrary to
the footnote concerning Cole’s claim in Waller.
B
Second, Pouncy argues that the state court decision rejecting his public trial
claim is contrary to a rule established by the synthesis of two related lines of
Supreme Court cases: (1) the Waller/Presley line of cases discussed above
concerning a criminal defendant’s Sixth Amendment right to a public trial and (2) a
line of Supreme Court cases concerning the right of the press and public to attend
trials under the First Amendment. (See Reply., ECF No. 373, PageID.13879, 1390013905, citing Press–Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464
U.S. 501 (1984); Gannett Co. v. DePasquale, 443 U.S. 368 (1979); and Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)). Pouncy contends that these
lines of cases, taken together, clearly establish that a criminal defendant’s right to a
public trial is “self-executing” – meaning that a defendant need not object to a
courtroom closure in order to trigger a trial court’s duty to make findings in support
of the closure. (See id.) He sums up his argument on this point as follows:
Where the Supreme Court has made it clear “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[,]” Waller, 467
U.S. at 48 (emphasis added), and the Supreme Court has
made it clear that the First Amendment right to a public
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trial is self-executing because it exists “whether or not any
party has asserted the right[,]” Presley, 558 U.S. at 214
(emphasis added), it is clear that the explicit Sixth
Amendment right to a public trial is likewise selfexecuting because the Sixth Amendment right is no less
protective than the First Amendment right. If the public
and press do not have to object in order to enjoy a public
trial under the implicit First Amendment, then the accused
do not have to object to enjoy the explicit Sixth
Amendment right to a public trial, because after all it was
“‘created for the benefit of the defendant.’” Waller, 467
U.S. at 46 (quoting Gannett, 443 U.S. at 380). It would be
contrary to clearly established Supreme Court precedent to
conclude that the public and the press do not have to object
to enjoy the implicit First Amendment right to a public
trial but that Petitioner has to object and assert his explicit
Sixth Amendment right to a public trial. This would
mean—contrary to Supreme Court precedent—that the
explicit Sixth Amendment right to a public trial is not selfexecuting and therefore less protective than the implicit
First Amendment right to a public trial.
(Id., PageID.13903-13904.)
Pouncy’s argument fails because the Supreme Court has never held that the
First Amendment right of the press and public to attend a criminal trial is “selfexecuting” in the sense that Pouncy uses that term. If anything, the Supreme Court’s
First Amendment public trial decisions suggest the opposite – that an objection is
relevant to whether a trial court violates the First Amendment rights of the press and
public by closing a courtroom. In Gannett, for instance, the Supreme Court cited
the lack of an objection by the press and public as one factor supporting its holding
that the closure did not violate any First Amendment right of access that the press

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may have had. See Gannett, 443 U.S. at 392 (identifying the fact that “none of the
spectators present in the courtroom, including the reporter employed by the
petitioner, objected when the defendants made the closure motion” as one of the
“factors [that] lead to the conclusion that the actions of the trial judge here were
consistent with any right of access the petitioner may have had under the First and
Fourteenth Amendments.”).

Moreover, in Press-Enterprise and Richmond

Newspapers, the press did oppose and/or seek to vacate a closure order. See PressEnterprise, 464 U.S. at 503 (noting opposition to closure); Richmond Newspapers,
448 U.S. at 560-62 (noting motion to vacate closure order).5 Thus, the holdings in
those cases – that the trial courts erred by closing the courtrooms – say nothing about
whether an unopposed closure (or a closure order that a party has not attempted to

5

Pouncy quotes the following statement from the Richmond Newspapers plurality
opinion authored by Chief Justice Burger: “The record does not show that any
objections to the closure order were made by anyone present at the time, including
appellants Wheeler and McCarthy.” (Reply, ECF No. 373, PageID.13900, quoting
Richmond Newspapers, 448 U.S. at 560.) According to Pouncy, this quote shows
that the Supreme Court has granted relief on a public trial claim absent an objection.
(See id.) However, Pouncy fails to mention that after the trial court entered the
closure order in Richmond Newspapers, members of the press filed a motion to
vacate the closure order and to be permitted to attend the remainder of the trial. See
Richmond Newspapers, 448 U.S. at 560. The trial court denied the motion to vacate,
and the Virginia Supreme Court declined to overturn the trial court’s ruling. See id.
The case came to the Supreme Court on appeal from the denial of the motion to
vacate the closure order. Thus, the Supreme Court in Richmond Newspapers
reviewed a preserved contemporaneous challenge to a closure order. Nothing in
Chief Justice Burger’s plurality Opinion suggests that the Supreme Court would
have reached the closure issue if the press had not filed a motion to vacate the order
while it was still in effect.
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vacate) violates the First Amendment. Simply put, even if the First Amendment
public trial cases are instructive in determining the contours of a criminal
defendant’s Sixth Amendment right to a public trial, the cases do not suggest that
the lack of an objection is immaterial to a public trial claim. Moreover, Pouncy has
not cited a single decision from any court suggesting that the Supreme Court’s First
Amendment public trial cases support the notion that the lack objection is irrelevant
to a criminal defendant’s Sixth Amendment public trial claim.
Finally, Pouncy’s reading of the First Amendment public trial cases is belied
by the very Sixth Amendment public trial cases that he cites. Again, Pouncy
contends that the First Amendment public trial cases support the proposition that an
objection is immaterial to a criminal defendant’s Sixth Amendment public trial
claim. But in Waller and Presley – the two leading Sixth Amendment public trial
cases – the Supreme Court cited and discussed the First Amendment public trial
cases and carefully limited its holdings to closures made over a defendant’s
objection. If, as Pouncy contends, the First Amendment public trial cases supported
the proposition that an objection is immaterial to a criminal defendant’s Sixth
Amendment public trial claim, the Supreme Court surely would not have relied upon
those cases in Waller and Presley. In short, it is not reasonable to conclude, as
Pouncy does, that the Supreme Court’s First and Sixth Amendment public trial cases,

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taken together, clearly establish that an objection is immaterial to a criminal
defendant’s public trial claim.
IV
The Court concludes that it did not err when it denied relief on Pouncy’s
public trial claim. Accordingly, Pouncy’s motion for reconsideration is DENIED.
IT IS SO ORDERED.

Dated: February 9, 2021

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on February 9, 2021, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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