                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                             FOR THE NINTH CIRCUIT                             FEB 16 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

RAFAEL ANGIANO,                                  No. 08-56577

              Petitioner,                        2:06-cv-06518-DOC-PLA

  v.                                             MEMORANDUM *

A.K. SCRIBNER, Warden

              Respondent.


                     On Petition for Review of an Order of the
                           Central District of California
                     David O. Carter, District Judge, Presiding

                            Submitted February 11, 2010**
                                Pasadena, California

Before: THOMAS and SILVERMAN, Circuit Judges, and BEISTLINE, *** Chief
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
       Following a jury trial, Petitioner was found guilty of kidnaping and first

degree murder. During the course of the trial, Petitioner’s wife was excluded from

the courtroom. Petitioner was sentenced to life without the possibility of parole.

The conviction was affirmed in full by the California Court of Appeal. The

California Supreme Court denied review, as did the United States Supreme Court.

       Petitioner filed a federal habeas petition complaining that he was denied his

Sixth Amendment right to a public trial because his wife was excluded from the

courtroom. The petition was dismissed, and this appeal follows. We have

jurisdiction pursuant to 28 U.S.C. § 1294(1) and 28 U.S.C. § 2253, and we affirm.

       The Sixth Amendment guarantees a criminal defendant the right to a public

trial. However, the United States Supreme Court has recognized that the Sixth

Amendment guarantee of a public trial, which was created “for the benefit of the

defendant” in that public access could provides assurance of a fair trial, must bend

in certain cases to other rights or interests that are essential to the fair

administration of justice. Waller v. Georgia, 467 U.S. 39, 45-46 (1984). In

Waller, the United States Supreme Court established a four-part test to apply when

a proceeding is closed to the public, to determine whether a defendant’s right to a

public trial is violated.




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      This Court is limited by the AEDPA, which bars federal habeas corpus relief

on that claim unless the state-court adjudication was either (1) “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or (2) “based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d); Price v. Vincent, 538 U.S. 638-39.

Under the AEDPA, "clearly established federal law" is the "governing legal

principle or principles set forth by the Supreme Court at the time the state court

renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71 (2003).

      The Circuits are split as to the applicability of the four-part test in Waller to

“partial closures,” where only one person is excluded from a trial. On federal

habeas review, relief is not available based on conflicting interpretations of circuit

precedent. Williams v. Taylor, 529 U.S. 362, 381 (2000). Accordingly, we cannot

conclude that the state court’s exclusion of Petitioner’s wife was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” Presley v. Georgia, 558

U.S. ---, --- S.Ct. ----, 2010 WL 154813 (Jan. 19, 2010), does not impact our

analysis. Although there happened only to be one person observing voir dire, the




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state court judge violated clearly established federal law because he did not engage

in the proper analysis before closing the courtroom to the public at large.

      AFFIRMED.




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