                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-4378
                                    ___________

Barry Caesar Garcia,                   *
                                       *
                                       *
            Petitioner-Appellant,      *
                                       *     Appeal from the United States
      v.                               *     District Court for the District of
                                       *     North Dakota.
Leann K. Bertsch, Director of the      *
North Dakota Department of             *
Corrections                            *
                                       *
                                       *
            Respondent-Appellee.       *
                                  ___________

                          Submitted: September 25, 2006
                              Filed: December 12, 2006 (Corrected on 12/14/06)
                                   ___________

Before ARNOLD, BYE, and MELLOY, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       Barry Caesar Garcia was convicted in North Dakota state court of murder and
aggravated assault and was sentenced to life in prison without the possibility of parole
with a concurrent five-year sentence. Garcia exhausted all of his state court remedies
and then filed this habeas petition in federal district court. The district court1 denied
his petition. Garcia is appealing three claims: violation of his Sixth Amendment
public-trial right, ineffective assistance of counsel in failing to adequately address
alleged juror misconduct, and ineffective assistance of counsel in failing to present
mitigating information at sentencing. We now affirm.

I.    Background

      We adopt the following facts from the North Dakota Supreme Court’s decision
on direct review. State v. Garcia, (“Garcia I”) 561 N.W.2d 599 (N.D. 1997).

       On the evening of November 15, 1995, a group of young men, including Barry
Garcia, Jaime Guerrero, and Michael Charbonneau, drove around the Fargo-Moorhead
area in a brown, 1975 Ford sedan owned by one of their mothers. In the car they had
ten to fifteen red and green shotgun shells and a sawed-off shotgun owned by the
Skyline Piru Bloods, a gang to which Guerrero and some of the other young men
belonged. Around 10 p.m., while driving through a West Fargo residential
neighborhood, Garcia asked the driver to stop. Garcia and Charbonneau, who was
much taller than Garcia, got out of the car. Garcia took the gun with him. The car
continued down the street and came to a stop. Garcia and Charbonneau began
walking around the neighborhood.

       At the same time, Pat and Cherryl Tendeland were dropping off their friend,
Connie Guler, who lived in the West Fargo neighborhood. After Pat pulled into
Guler’s driveway, Guler noticed two young men walking toward them. Guler thought
that the shorter of the two was carrying a gun. Pat disagreed, thinking it was an
umbrella. After standing near Guler’s driveway for awhile, the two young men turned


      1
        The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.

                                          -2-
around and walked back toward the brown Ford. Finding their behavior suspicious,
Pat decided to back out of the driveway and follow the boys “‘to see where they
[were] going.’” Guler remained in the car with Pat and Cherryl.

        As the Tendeland car approached the brown Ford, Charbonneau walked briskly
toward the Ford while Garcia lagged behind. The Ford began to pull away. Guler
testified at trial that at that moment something caught her eye, she turned, and she saw
the shorter boy standing right outside the Tendeland car. She saw him raise the gun
and shoot. Cherryl was shot in the forehead and shotgun pellets struck Pat’s face.
Cherryl was pronounced dead at the emergency room.

       Garcia’s trial prompted much publicity in the area, and the trial court had
granted expanded media coverage. At the trial, the state called Jaime Guerrero as a
witness. When asked his name, Guerrero responded, “I am not going to say nothing.”
The court called a recess. Away from the jury, Guerrero asked to speak with a lawyer,
and the court appointed a lawyer who was already representing Guerrero in juvenile
court. While Guerrero was still conferring with his lawyer, the State’s attorney
requested to clear the courtroom of media and anyone other than the families of Garcia
and the victim. The State’s attorney cited concerns over the television coverage and
the large number of spectators. The State’s attorney urged the court to “present a
more friendly environment . . . for the testimony of this child, who is only fifteen
years of age.” Garcia’s lawyer objected, arguing that there was “no compelling reason
to shut things down at this point.”

        The court then held a conference in chambers with Garcia and his lawyer,
Guerrero’s lawyer, and the State’s attorney. Guerrero himself was not present. The
State’s attorney explained that he had just promised to dismiss with prejudice the
juvenile charges against Guerrero in exchange for Guerrero’s truthful testimony in
Garcia’s trial. Guerrero’s attorney stated that Guerrero was reluctant to testify in front
of all the cameras and that he was “intimidated by the whole spectacle of the trial.”

                                           -3-
After Garcia’s lawyer objected again, the State’s attorney alluded to the fact that
another potential witness who had been subpoenaed “has indicated a reluctance to
provide testimony . . . because of actual repercussions that he’s already experienced.”
The State’s attorney stated, however, that he had no personal knowledge of those
events.

      The court declined to rule on the motion until it had heard arguments from a
media representative. Once the media had an opportunity to be heard, the court ruled:

      It is the opinion of the Court that in this particular case that it is in the
      interest of justice to suspend the expanded media coverage order for this
      witness, and to suspend the rule as regards to media coverage.

      Exercising the inherent powers of the Court to control the courtroom, I
      am going to order that the courtroom be cleared, that the feeds to the
      radio and the television be terminated, and that all persons [leave the
      courtroom], except for counsel, Mr. Garcia, and Detective Warren, and
      the immediate family of . . . Mr. Garcia, and the immediate family of
      Mrs. Tendeland.

      When I say “the immediate family” of Mrs. Tendeland, I mean Pat
      Tendeland and the two sons. And that’s it. And when I say the
      immediate family of Mr. Garcia, I mean Mr. Garcia’s grandmother and
      Mr. Garcia’s brother is present. And I think that’s it.

      The cautionary instruction I intend to give . . . will read as follows:
      Ladies and gentlemen of the jury, as you are aware, Mr. Guerrero has
      indicated an unwillingness to testify. He has expressed a concern about
      all the media coverage, all of the people–and all the people in the
      courtroom.

      Taking into consideration the youth of Mr. Guerrero and his concerns,
      the Court has determined that in order to facilitate his testimony, the
      courtroom will be cleared of all persons. You are not to draw any
      conclusions or inferences from the clearance of the courtroom.

                                          -4-
        The court then gave the cautionary instruction, and in front of only immediate
family members of Garcia and the victim and one representative chosen by the media,
Guerrero testified that Garcia was the shooter. According to Guerrero, Garcia was
still carrying the gun when he and Charbonneau returned to the car, and Garcia said
“they got her,” and “next time, don’t look at me.” After Guerrero’s testimony, the
court reopened the courtroom to the public and media.

       Garcia appealed his conviction, arguing, among other things, that his Sixth
Amendment right to a public trial was violated when the trial court partially closed the
courtroom during the testimony of Jaime Guerrero. The North Dakota Supreme Court
affirmed Garcia’s conviction on April 1, 1997. Garcia I, 561 N.W.2d at 612. Garcia’s
petition for writ of certiorari was denied by the United States Supreme Court on
October 6, 1997. Garcia v. North Dakota, 522 U.S. 874 (1997).

       Garcia then filed a petition for post-conviction relief in state trial court. In his
petition, Garcia argued that he was entitled to relief because of several instances of
ineffective assistance of counsel, including a failure to adequately respond to alleged
juror misconduct and a failure to present mitigating evidence during sentencing.2 The
trial court denied relief, and Garcia appealed to the North Dakota Supreme Court.
While on appeal, Garcia filed a second petition for post-conviction relief in state trial
court. The North Dakota Supreme Court temporarily remanded his first application
to allow the trial court time to act on Garcia’s second petition. After the trial court
dismissed Garcia’s second petition, the North Dakota Supreme Court took up both
petitions and affirmed the trial court’s denials of the petitions. Garcia v. State,
(“Garcia II”) 678 N.W.2d 568, 578 (N.D. 2004).




      2
          We address the facts material to the ineffective assistance of counsel claims
below.

                                           -5-
       Garcia then filed this petition for a writ of habeas corpus in the United States
District Court for the Southern District of Illinois, which was later transferred to the
District of North Dakota. The district court denied all of Garcia’s claims, but granted
a certificate of appealability for the following claims: violation of Sixth Amendment
public-trial rights, ineffective assistance of counsel in failing to adequately address
alleged juror misconduct, and ineffective assistance of counsel in failing to present
mitigating information during sentencing. We review these claims in turn.

II.   Standard of Review

        When reviewing the district court’s denial of a habeas petition, “‘[w]e review
the district court’s findings of fact for clear error and its conclusions of law de novo.’”
Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir. 2005) (quoting Hall v. Luebbers, 341
F.3d 706, 712 (8th Cir. 2003) (alteration in original)). If an issue has been adjudicated
on the merits in state court, we will only grant habeas relief if the state court
proceeding “(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was 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). “A state court’s decision is ‘contrary to’ .
. . clearly established law if it ‘applies a rule that contradicts the governing law set
forth in [Supreme Court] cases’ or if it ‘confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at
a result different from [its] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16
(2003) (quoting Williams v. Taylor, 528 U.S. 362, 405-06 (2000)). “‘[I]t is not
enough for us to conclude that, in our independent judgment, we would have applied
federal law differently from the state court; the state court’s application must have
been objectively unreasonable.’” Middleton v. Roper, 455 F.3d 838, 845 (8th Cir.
2006) (quoting Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006)).



                                           -6-
III.   Sixth Amendment Right to a Public Trial

      Garcia first argues that the trial court violated his Sixth Amendment right to an
open trial when it partially closed the courtroom during the testimony of Jaime
Guerrero. The North Dakota Supreme Court’s resolution of this issue was not
objectively unreasonable, therefore, we affirm.

      The Sixth Amendment protects the accused’s right to a public trial. See Waller
v. Georgia, 467 U.S. 39, 44-47 (1984). This right helps to ensure “that judge and
prosecutor carry out their duties responsibly” and “encourages witnesses to come
forward and discourages perjury.” Id. at 46. The right to an open trial, however,
“may give way in certain cases to other rights or interests.” Id. at 45. “Such
circumstances will be rare, however, and the balance of interests must be struck with
special care.” Id. According to the Court:

       The presumption of openness may be overcome only by an overriding
       interest based on findings that closure is essential to preserve higher
       values and is narrowly tailored to serve that interest. The interest is to
       be articulated along with findings specific enough that a reviewing court
       can determine whether the closure order was properly entered.

Id. (quoting Press-Enterprise Co. v. Superior Ct. of Cal., 464 U.S. 501, 510 (1984)).

       Many courts, including this one, have distinguished the complete closure in
Waller from partial closures. In cases where a trial judge orders a partial closure at
the request of one party, courts have required only a “substantial reason” for the
partial closure, instead of the more stringent “overriding interest” required by Waller.
See United States v. Osborne, 68 F.3d 94, 98-99 (5th Cir. 1995) (noting that the
Second, Eighth, Ninth, Tenth, and Eleventh Circuits all apply the “substantial reason”
test for partial closures). This test is appropriate in partial closure cases “because a
partial closure does not ‘implicate the same secrecy and fairness concerns that a total


                                          -7-
closure does.’” United States v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994) (quoting
Woods v. Kuhlmann, 977 F.2d 74, 76 (2nd Cir. 1992)).

       Garcia argues that the reasons given by the trial court for the closure of the
courtroom—his age and the need to facilitate testimony—were not “substantial.” He
claims that Guerrero himself never gave any reasons, even through his lawyer, for
being reluctant to testify in public, and that the reasons courts have deemed substantial
in other cases were not present in this case. He also contends that the trial court did
not make findings adequate to support the closure, instead relying on “vague
statements” made by the State’s attorney and Guerrero’s attorney.

        We believe the North Dakota Supreme Court properly distinguished this case
from Waller, and was correct in applying the Farmer rule. We do not necessarily
agree, however, that the facts of this case satisfy the rule in Farmer. In Farmer, we
upheld the partial closure of the courtroom during the testimony of a seventeen-year-
old victim of sexual assault. See Farmer, 32 F.3d at 370. Citing the Tenth Circuit’s
decision in United States v. Galloway, 937 F.2d 542, 546 (10th Cir. 1991), we
recognized that when determining whether a partial closure is supported by substantial
reasons, the “appropriate factors to weigh include the age of an alleged victim, the
nature of an alleged offense and the potential for harm to the victim.” Farmer, 32 F.3d
at 371. In Farmer, we found evidence in the record that the defendant “had threatened
the [seventeen-year-old] victim [of sexual assault] and that she feared retaliation” by
him and his family. Id. at 372. The facts in this case are different. Guerrero was only
fifteen years old when he testified, which would seem to make partial closure more
justifiable, but he was not the victim of a crime. Quite the contrary, he was present
at the time of Cherryl Tendeland’s murder and Garcia had named him as the gunman.

      The partial closure of a courtroom while a non-victim is testifying is rare. In
one case, Woods, 977 F.2d at 76-77, the court held that protecting the safety of a
witness is an interest substantial enough to allow the partial closure of the courtroom.

                                          -8-
In Woods, unlike this case, the prosecutor explained to the trial judge that the witness
was “‘scared to death’ because she had been threatened by at least one member of the
defendant’s family.” Id. at 76. The trial judge also had an “exchange” with the
witness, where she told the judge herself that she was reluctant to testify because she
feared for the safety of herself and her family. Id. at 77. In this case, however,
Guerrero himself did not say why he was reluctant to testify. The trial court did not
hold an evidentiary hearing to clarify the reasons for Guerrero’s silence. As such,
there is no evidence in the record of any specific threats against him personally, or
against his family members. It is also not clear from the record whether the trial court
properly weighed the alternatives to a closure. While Farmer does not require specific
findings by the trial court in order to uphold the decision to grant a partial closure, the
appellate court must be able to “glean sufficient support for a partial temporary
closure from the record.” Farmer, 32 F.3d at 371. We are not confident that sufficient
facts can be found on this record.

        Even though we may not have approved the partial closure had this case come
to us on direct appeal of a federal trial, habeas relief is not available based on
conflicting interpretations of circuit precedent. Williams v. Taylor, 529 U.S. 362, 381
(2000) (“[T]he lower federal courts cannot themselves establish such a principle with
clarity sufficient to satisfy the AEDPA bar.”); see also Carter v. Kemna, 255 F.3d 589,
592 (8th Cir. 2001) (stating that in the absence of controlling Supreme Court
precedent, a lower federal court cannot reverse a state court decision even though it
believes the state court’s decision was “possibly incorrect”) . For us to grant habeas
relief in this case the state court’s decision must be contrary to Supreme Court law,
or “different than the Supreme Court’s conclusion on a set of materially
indistinguishable facts.” Carter, 255 F.3d at 591. The Supreme Court has not spoken
on the partial closure issue, and the Court’s closest case, Waller, is distinguishable on
its facts. Our belief that the issue may have been decided differently in our court or
in another circuit court is not grounds for granting habeas relief.



                                           -9-
       In Garcia I, the North Dakota Supreme Court expressed concern about the lack
of an evidentiary hearing and stated that it would have been better if Guerrero himself
had explained his reluctance to testify. Garcia I, 561 N.W.2d at 606. Ultimately,
however, the court determined that the trial court’s stated reasons, Guerrero’s age and
the need to facilitate his testimony, were substantial enough to warrant a partial
closure of the courtroom. Id. at 606-07. It also found that the trial court properly
considered reasonable alternatives, and determined that a partial closure was the only
adequate solution for the court. Id. Because the North Dakota Supreme Court’s
decision does not conflict with Supreme Court precedent and because the court’s
decision was not objectively unreasonable, we affirm the district court’s denial of
Garcia’s habeas petition.

IV.   Ineffective Assistance of Counsel

        Garcia also argues that ineffective assistance from his trial attorney violated his
Sixth Amendment rights because his attorney failed to report alleged juror misconduct
to the judge and because he did not present mitigating evidence at Garcia’s sentencing
hearing. Ineffective assistance of counsel claims are mixed questions of law and fact,
reviewed de novo. Kenley v. Armontrout, 937 F.2d 1298, 1301 (8th Cir. 1991). In
order to prevail on his ineffective assistance of counsel claims, Garcia must
demonstrate that “(1) his trial counsel’s performance was so deficient as to fall below
an objective standard of the customary skill and diligence displayed by a reasonably
competent attorney, and (2) there is a reasonable probability the outcome of the trial
would have been different absent the substandard actions of trial counsel.” Middleton,
455 F.3d at 846. “A reasonable probability is one ‘sufficient to undermine confidence
in the outcome.’” Winfield v. Roper, 416 F.3d 1026, 1033 (8th Cir. 2006) (quoting
Wiggins v. Smith, 539 U.S. 510, 534 (2003)).




                                           -10-
      A.     Failure to Report Juror Misconduct

       In an affidavit submitted during the state court post-conviction proceeding,
Garcia’s family friend Jill Johnson-Danielson stated that she had observed one of the
jurors socializing and smoking with non-jurors outside the entrance to the courthouse
during breaks on two days of the trial. She claimed she informed Garcia’s trial
counsel about what she had observed and, to her knowledge, he took no action. The
state submitted an affidavit from Garcia’s trial counsel in which he stated that he did
not recall the conversation with Johnson-Danielson, but that, if it occurred, he
probably would have told her she should keep an eye on it and he would also.

       During the state post-conviction evidentiary hearing the court allowed Garcia’s
counsel to make an offer of proof that Garcia’s aunt, Ms. Alexander, was prepared to
testify that she observed two or more members of the jury talking to members of the
Tendeland family during a break. She stated that she had informed Garcia’s trial
counsel and requested that he bring it to the court’s attention and that he did not do so.
Garcia’s trial counsel testified that he did not report the contact claimed by Johnson-
Danielson but that he had talked to the bailiffs about it. This statement was
inconsistent with his earlier affidavit. He also testified that he did not recall having
any conversations with Alexander about juror misconduct.

       Garcia argues that his trial attorney’s performance was ineffective because he
failed to report alleged juror misconduct. The North Dakota Supreme Court properly
identified Strickland v. Washington, 466 U.S. 668 (1984), as the controlling case, and
decided Garcia’s claim on prejudice grounds. Garcia II, 678 N.W.2d at 574, 577; see
also Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice . . . that course should be followed.”).
We will limit our discussion to the prejudice issue as well, and we affirm.




                                          -11-
       Garcia relies on Remmer vs. United States, 347 U.S. 227 (1954), to argue that
prejudice must be presumed in this case. The Court in Remmer held that “[i]n a
criminal case, any private communication, contact, or tampering directly or indirectly,
with a juror during a trial about the matter pending before the jury is, for obvious
reasons, deemed presumptively prejudicial.” Id. at 229. In Remmer, a juror reported
to the judge that “a person unnamed” had “remarked to him that he could profit by
bringing in a verdict favorable” to the defendant. Id. at 228. The Court vacated the
defendant’s conviction and remanded the case for “a hearing to determine whether the
incident complained of was harmful to the [defendant], and if after hearing it is found
to have been harmful, to grant a new trial.” Id. 230.

       The North Dakota Supreme Court correctly distinguished Remmer from the
facts of this case because, unlike Remmer, Garcia presented no evidence that any
conversations that took place involved “communication about a matter pending before
the jury.” Additionally, we find no suggestion in the record that persons who
allegedly took part in prohibited discussions were unavailable for interviews or to sign
affidavits. The North Dakota Supreme Court’s decision that Remmer does not apply
and that actual prejudice must be proved in this case is not objectively unreasonable.

       Similarly, the North Dakota Supreme Court’s determination that Garcia did not
prove actual prejudice is not objectively unreasonable. There is no evidence that the
jurors were influenced in any way by their contact with non-jurors. Garcia had an
opportunity to put forth such evidence, and again, we find nothing in the record
indicating that those participating in prohibited discussions were unavailable. Further,
the state trial court’s verdict was supported by ample evidence, including the
testimony of Guler and Guerrero at trial. We agree with the district court that without
any proof, “any claim that the outcome of the trial would have been different amounts
to nothing more than utter speculation.”




                                         -12-
      B.     Failure to Present Mitigating Evidence During Sentencing

      Garcia also contends that his attorney failed to present mitigating evidence
during his sentencing hearing and that this constituted ineffective assistance. The
North Dakota Supreme Court disposed of this issue on prejudice grounds as well. We
affirm the district court’s ruling that the court’s decision was not objectively
unreasonable.

       At the sentencing hearing, Garcia’s trial counsel made an impassioned argument
as to why the court should consider a sentence less than life without parole. He spoke
of Garcia’s youth and the possibility that young people can change. He also stated
that Garcia’s family could testify as to his positive characteristics.

       However, Garcia’s counsel did not present any other mitigating evidence, nor
did he include the mitigating circumstances relating to Garcia’s traumatic and chaotic
childhood in his argument. He did not have any members of Garcia’s family or any
of Garcia’s neighbors testify at the sentencing hearing. The presentence investigation
report contained no letters from Garcia’s family and friends, although it did contain
one paragraph discussing his troubled childhood. The paragraph stated that Garcia
had “a history significant for extreme family chaos and instability.” He was “exposed
to criminal activity at a very early age,” his mother was murdered when he was
twelve-years-old, and his father was incarcerated “on a parole violation for an original
conviction of murder.” It also noted that prior to his arrest, Garcia had lived with his
Grandmother and his three younger brothers. Garcia did not testify at the hearing.

       The trial court evaluated the fourteen “guiding” sentencing factors set forth in
N.D. Cent. Code § 12.1-32-04. The court determined that the factors favored the
State’s position of life imprisonment without the possibility of parole. As it had
discretion to do, the court also looked at “other factors,” and ultimately based its



                                         -13-
sentence on the cold, senseless nature of the crime, Garcia’s long and often violent
criminal history, and Garcia’s unwillingness to accept responsibility and acknowledge
the wrongfulness of his actions.

       At the state post-conviction evidentiary hearing, Garcia provided a number of
affidavits from people stating that they would have testified that Garcia was a hard-
working, kind boy who took care of his younger brothers and was trusted by his
neighbors. The affidavits also describe his troubled childhood in more detail than the
one paragraph included in the presentence investigation report. In his testimony
during the post-conviction hearing, Garcia’s trial counsel stated that he had not
presented any mitigating evidence because he believed that it would not do any good
given that Garcia was maintaining his innocence and not accepting responsibility for
the offense.

       To show he was prejudiced by his attorney’s actions, Garcia must demonstrate
a reasonable probability that he would have received a punishment other than life in
prison without the possibility of parole had the sentencing court heard the testimony
in question. Middleton, 455 F.3d at 847; see also Strickland, 466 U.S. at 699-700
(stating that prejudice does not exist if “there is no reasonable probability that the
omitted evidence” would have resulted in a lesser sentence).

       The North Dakota Supreme Court concluded that there was no reasonable
probability that the sentence would have been less harsh if the additional mitigating
evidence had been presented. Garcia II, 678 N.W.2d at 577. Garcia’s argument that
he was prejudiced relies in part on the trial court’s statement that it “came into this
case, looking for some reason, some justification, some excuse, to hand down a
sentence less than the maximum. Mr. Garcia has given me no alternative, he has
given me no opportunity.” The court did appear frustrated. Looking at the complete
statement, however, it appears that the real source of the court’s frustration was



                                         -14-
Garcia’s refusal to accept responsibility and to “express a real willingness to make
amends to the fullest extent possible.” The court was looking for evidence showing
that Garcia was in a position to change so that it could justify giving him a lower
sentence.

        Under North Dakota law, the court had guidelines to follow in imposing
Garcia’s sentence. However, the court was also given considerable discretion to look
at other factors, such as Garcia’s youth, before determining the ultimate sentence. The
trial court stated at the outset of sentencing that in determining Garcia’s sentence, it
would use information in the presentence investigation report, documents in the court
file, police reports, a report from the North Dakota State Hospital, and victim impact
statements. The information about Garcia’s troubled upbringing in these documents,
although brief, gave the court the information it needed to properly assess the
sentencing factors. While the testimony from his friends and family may have been
impassioned and would have elaborated on his troubled childhood, it would not have
been materially different from the information in the presentence investigation report.
Further, given the other evidence, such as Garcia’s violent past and his unwillingness
to accept responsibility for the crime, any mitigating testimony likely would have been
outweighed even if presented. We do not think the testimony from Garcia’s friends
and family would have resulted in a more lenient sentence than Garcia received. We
agree with the district court that the North Dakota Supreme Court’s resolution of this
issue was not objectively unreasonable.




                                         -15-
V.    Conclusion

      For the forgoing reasons, we affirm the district court’s decision to deny
Garcia’s habeas petition.

ARNOLD, Circuit Judge, dissenting.

       I would grant habeas relief in this case because I believe that the action of the
trial court in closing Mr. Garcia's trial to the public ran contrary to the Supreme
Court's holding in Waller v. Georgia, 467 U.S. 39 (1984). It is true, as the court notes,
that the present case is not factually identical to Waller, but our case falls within its
rule because it is sufficiently like it in every material respect. The rule of Waller
requires the trial court to hold a hearing and make specific findings with respect to
why certain identified interests allow the closing of a court room. Here, the trial court
failed to do that: It took no testimony from anyone, much less the reluctant witness;
and the allegations of counsel, even if credited, were much too vague to support a
conclusion that interests sufficient to trump a right to the traditional public procedure
were at risk. I would therefore hold that the trial court violated Waller and that
Mr. Garcia is entitled to relief.

      In denying Mr. Garcia's petition, I believe that the court reads Waller too
narrowly and greatly circumscribes the right to a public trial that the Sixth
Amendment rather explicitly confers on criminal defendants. I therefore respectfully
dissent from the judgment.
                      ______________________________




                                          -16-
