Pouncy v. Palmer

Filing 61

ORDER Denying Petitioner's 60 MOTION for Reconsideration and Directing Respondent to Respond to Petitioner's Request to Amend His Habeas Petition. (Response due by 9/10/2015.) Signed by District Judge Matthew F. Leitman. (HMon)

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

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

v.
CARMEN D. PALMER,
Respondent.
__________________________________________________________________/
ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION
(ECF #60) AND DIRECTING RESPONDENT TO RESPOND TO
PETITIONER’S REQUEST TO AMEND HIS HABEAS PETITION
On July 20, 2015, this Court entered an Opinion and Order denying
Petitioner’s motion for summary judgment on his public-trial claim and denying
him habeas relief on that claim. (See ECF #58.) The Court held that Supreme
Court precedent did not clearly establish that a trial court must make the Waller
Inquiry and Required Findings (a term defined in the Opinion and Order) where a
criminal defendant does not object to the closure of the courtroom. Petitioner filed
a timely motion for reconsideration. (See ECF #60.) The Court DENIES the
motion because Petitioner has not demonstrated a “palpable defect by which the
Court … has been misled….” E.D. Mich. L. R. 7.1(h). The Court will not address

each and every argument in Petitioner’s motion, but it will offer the following
observations.1
Petitioner’s motion relies heavily on the following statement by the Supreme
Court in Presley v. Georgia, 558 U.S.209, 214 (2010): “The public has a right to
be present [in the courtroom] whether or not any party has asserted the right [to a
public trial].” (Emphasis added.) From this statement, Petitioner concludes that a
trial court may never close the courtroom without making the Waller Inquiry and
Required Findings – even if a party does not object. While this statement does
lend support to Petitioner’s position, it does not clearly establish that a trial court
violates a defendant’s Sixth Amendment rights when, absent an objection, it closes
the courtroom without making the Waller Inquiry and Required Findings. The
statement refers to the right of the public to an open courtroom. That right arises
under the First Amendment. See, e.g., Press-Enterprise Co. v. Superior Court of
Cal., Riverside Cty., 464 U.S. 501 (1984).

The Supreme Court has found

significant overlap between a criminal defendant’s Sixth Amendment right to an
open courtroom and the public’s right to attend a criminal trial. See, e.g. Waller v.
Georgia, 467 U.S. 39, 44 (1984) (relying on the First Amendment public trial
decision in Press-Enterprise Co., supra). But in Presley, itself, the Supreme Court

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To be clear, the fact that the Court does not address some of Petitioner’s
arguments in no way suggests that the Court finds merits in those arguments.
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acknowledged that “the extent to which the First and Sixth Amendment public trial
rights are coextensive is an open question….” Presley, 558 U.S. at 213 (emphasis
added). In the habeas context, this Court may not answer in Petitioner’s favor the
open question of whether a trial court violates a criminal defendant’s Sixth
Amendment right to a public trial when, absent an objection, it closes the
courtroom without making the Waller Inquiry and Required Findings.
Next, Petitioner argues that the Court made two errors in considering
decisions from the Sixth Circuit and Second Circuit that cut against Petitioner’s
claim that the rule he invoked was clearly established by Supreme Court
precedent.2 First, Petitioner says that a district court’s habeas review is completely
restricted to Supreme Court decisions and that a district court may not consider
circuit-level precedent for any purpose.

In Petitioner’s words, circuit-level

precedent is entirely “off the table.” (ECF #60 at 15, Pg. ID 6433.) That is
incorrect. The Supreme Court has – repeatedly – made crystal clear that a federal
court may not find clearly establish federal law in circuit-level decisions. But the
Supreme Court has never held that a federal court may not consult circuit-level
decisions for the extremely narrow purpose of determining whether Supreme Court
precedent clearly establishes a particular principle. Indeed, the Supreme Court has

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The circuit-level cases in question were: Johnson v. Sherry, 586 F.3d 439 (6th
Cir. 2009); Johnson v. Sherry, 465 Fed. App’x 477 (6th Cir. 2012); and Downs v.
Lape, 657 F.3d 97 (2d Cir. 2011).
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expressly authorized lower federal courts to consult circuit precedent in order “to
ascertain whether [the appellate court] has already held that the particular point in
issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers,
133 S. Ct. 1446, 1450 (2013). And the Sixth Circuit continues to consider circuitlevel decisions for the narrow and appropriate purpose of determining whether
Supreme Court precedent clearly establishes a particular rule. See, e,g., Hill v.
Curtin, --- F.3d ---, 2015 WL 4114658 at *5 (6th Cir., July 9, 2015) (en banc)
(looking to decisions of the Ninth and Eleventh Circuits in determining whether
Supreme Court’s decisions concerning right to self-representation clearly
established a particular principle). The rule, in short, is that circuit-level precedent
“cannot form the basis for habeas relief under AEDPA.” Id. at *3. This Court did
not violate that rule when it consulted circuit-level cases for the narrow purpose of
determining whether Supreme Court precedent clearly established the rule that
Petitioner sought to invoke.
Second, Petitioner attacks the Court’s conclusion that the existence of
decisions from the Sixth and Second Circuits that are contrary to the rule proposed
by Petitioner “strongly suggest” that the rule is not clearly established by Supreme
Court precedent. (Opinion and Order, ECF #58 at 20, Pg ID 6407.) Petitioner
insists that the existence of contrary authority does not “establish that a rule” is not
clearly established. Petitioner and the Court are both correct. As Petitioner insists,
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the existence of contrary authority does not automatically mean that a legal rule is
not clearly established, but, as the Court observed, the existence of such authority
does weigh against a finding that the rule is clearly-established:
The fact that lower federal courts or state courts reached
conflicting results on a legal issue does not necessarily
mean that a rule is not ‘clearly established’ by Supreme
Court precedent. Nevertheless, it is evidence of that fact,
particularly where the conflict is great or the weight of
authority favors the state court’s decision.
Brian R. Means, Postconviction Remedies (June 2015), Section 29:28; see also
Miller v. Colson, 694 F.3d 691, 698 (6th Cir. 2012) (“As we have previously
noted, a disagreement among the circuits is evidence that a certain matter of
federal law is not clearly established.”) (citations omitted). The Court did not hold
that the existence of the circuit-level authority contrary to the rule urged by
Petitioner absolutely precluded a finding that the rule was clearly established; the
Court held only that the contrary authority weighed against such a conclusion.
That was not error.
Finally, Petitioner faults the Court for not holding Respondent to a purported
“waiver.” (ECF #60 at 2, Pg. ID 6421.) More specifically, Petitioner insists that
the State of Michigan “never” argued in any of the state court proceedings that
Petitioner could not prevail on his public-trial claim because he did not object, and
Petitioner argues that Respondent thus may not invoke Petitioner’s failure to object
in any manner in these proceedings. (Id. at 3, Pg. ID 6422.) However, Petitioner’s
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description of the State’s prior positions is wrong. The State did, indeed, argue to
the state courts that Petitioner’s failure to object took his case outside of
controlling Supreme Court precedent. When Respondent sought to invoke Presley
in the state court, the State said:
Thus, Presley addressed circumstances where a party opposed the
closure at trial. That case does not control circumstances where, as
here, the defendant did not object to the closure at trial but seeks to
use the closure on appeal to reverse his conviction. Although a
defendant need not object to a closure to raise the issue on appeal, the
failure to do so raises issues not before the Court in Presley. State v.
Bowen, --- P.3d --- (Wash. App., Div. 2, 2010); (2010 WL 2817197).
(People’s Answer in Opposition to Defendant’s Supplemental Issue Based on
Retroactive Change in Law, ECF # 8-28 at Pg. ID 2676.)3
And even if the State had not made this argument, there would be no waiver
of Respondent’s right to argue here that the rule Petitioner seeks to invoke – that
the trial court had to undertake the Waller Inquiry and Required Findings even

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In prior filings, Petitioner has seized on the State’s statement that a defendant
“need not object to a closure to raise the issue on appeal.” Petitioner reads this
statement as a concession that the trial court was required to make the Waller
Inquiry and Required Findings even absent an objection. It is not such a
concession. It is simply says that Petitioner is not procedurally barred from raising
a public-trial claim on appeal even though he did not object at trial; it says nothing
about whether he is ultimately entitled to relief on appeal even though he did not
object. Moreover, the entire point of the passage containing the statement is that
Petitioner is not entitled to relief under Presley because he did not object. Indeed,
the holding of the Washington state court in the Bowen case cited by the State was
that a criminal defendant who does not object to the closure of a courtroom is not
entitled to relief under Presley. See Bowen, 239 P.3d 1114, 1118 (Wash. Ct. App.
2010).
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absent his objection – does not amount to “clearly established federal law.” The
“clearly established federal law” standard first became applicable in these habeas
proceedings, and Respondent contested Petitioner’s ability to satisfy that standard
at his first opportunity.4
Like his prior filings, Petitioner’s motion for reconsideration raises a number
of serious arguments in support of his claim. The Court has no doubt that another
reasonable jurist could reach a different conclusion concerning the proper
resolution of Petitioner’s public-trial habeas claim. But the Court is not persuaded
that it committed a palpable error – or any error – in denying relief on that claim.
So the Court DENIES the motion for reconsideration.
Petitioner has also asked for leave to amend his habeas petition to add a
claim for ineffective assistance of counsel based upon his trial lawyer’s failure to
object to the courtroom closure. (See ECF #60 at 32-33, Pg. ID 6451-52.) The
Court DIRECTS Respondent to respond to that request by no later than
September 10, 2015. Any response filed by Respondent shall explain all bases on
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Furthermore, while this Court has not exhaustively researched the issue, one
would think that the Court likely had an independent duty to determine whether the
rule invoked by Pouncy constituted “clearly established federal law.” That duty
would appear to stem from the language of 28 U.S.C. 2254(d)(1), which provides
that a district court “shall not” grant a writ of habeas corpus unless, among other
things, a state court decision violated “clearly established federal law.” Cf. Brown
v. Smith, 551 F.3d 424, 428 n. 2 (6th Cir. 2008), overruled on other grounds by
Cullen v. Pinholster, 131 S. Ct. 1388 (2011) (“[A] party cannot ‘waive’” the
governing legal standard under AEDPA).
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which Respondent opposes the request to amend and shall include the legal
authority supporting each ground of opposition. Petitioner may file a reply brief in
further support his request to amend within twenty-one days after Respondent’s
filing.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: August 13, 2015
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on August 13, 2015, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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