                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                              Nos. 10-3477 and 11-3166


                          UNITED STATES OF AMERICA

                                          v.

                       OMARI HOWARD PATTON, a/k/a "O"

                                               Omari Howard Patton,

                                                           Appellant No. 10-3477

                                          v.

                            GARY LEE, a/k/a GENERAL

                                               Gary Lee,

                                                           Appellant No. 11-3166



                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                (D. C. Nos. 2-02-cr-00093-001 and 2-02-cr-00093-007)
                    District Judge: Honorable Donetta W. Ambrose


                              Argued on April 26, 2012

         Before: GREENAWAY, JR, ROTH and TASHIMA*, Circuit Judges



       *Honorable A. Wallace Tashima, Senior United States Circuit Judge for the Ninth
Circuit, sitting by designation.

                                          1
                           (Opinion filed: October 23, 2012)

Lisa B. Freeland, Esquire
Federal Public Defender
Elisa A. Long, Esquire
Assistant Federal Public Defender
Peter R. Moyers, Esquire (Argued)
Staff Attorney
Office of the Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222

                    Counsel for Appellant Gary Lee

Roger A. Cox, I, Esquire (Argued)
Cox & Cox
350 Greater Butler Mart
Butler, PA 16001-3284

                    Counsel for Appellant Omari Howard Patton

David J. Hickton, Esquire
United States Attorney
Donovan J. Cocas, Esquire (Argued)
Assistant United States Attorney
Rebecca R. Haywood, Esquire
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219

                    Counsel for Appellee




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                                       OPINION


ROTH, Circuit Judge:

       In this consolidated matter Omari Patton and Gary Lee appeal the District Court’s

August 11, 2010, orders denying their 28 U.S.C. § 2255 petitions for relief. They

specifically assert that the trial court infringed upon their Sixth Amendment right to a

public trial when members of their families and the public were denied entry into the

courtroom to observe voir dire. For the reasons that follow, we will affirm the District

Court’s judgments.

I. Background

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       From 1998 to 2002, Patton and Lee participated in a high-volume cocaine and

heroin trafficking network. In March 2003, they were indicted on several charges,

including conspiracy to distribute at least a kilogram of heroin and at least five kilograms

of cocaine, in violation of 21 U.S.C. § 846.

       On November 8, 2004, at 10:45 a.m., the District Court commenced jury selection,

and informed Patton’s and Lee’s attorneys that individual voir dire would occur in the

jury room. Approximately five minutes later, the venire of sixty persons was brought




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into the courtroom.1 The court seated some of the venire in the jury box and the rest in

the spectator benches. The courtroom was crowded because the spectator benches

accommodated only thirty-two people, with some room for additional people in the rear

area. During the seventy-five minute morning session, the District Judge introduced

herself, counsel and the defendants, gave general instructions, asked general questions,

and distributed a questionnaire. Neither Patton’s nor Lee’s counsel objected to anything

that transpired.

       After the lunch recess, the District Court reconvened outside the presence of the

jury and reiterated that individual voir dire, including any for cause challenges, would be

conducted in the jury room. No one objected. After the venire reentered the courtroom,

the court asked several general questions and then the judge, counsel, Patton, and Lee

retired to the jury room for individual voir dire. After the individual voir dire, the judge,

the parties, and their counsel returned to the courtroom. The government utilized two

peremptory challenges at sidebar, the first twelve individuals were seated as the jury and

the following two as alternates. The court then swore the jury in and instructed them

before adjourning.

       After a two week trial, Patton and Lee were found guilty; we subsequently

affirmed their convictions. See United States v. Patton, 292 F. App’x 159 (3d Cir. 2009).

In January 2010, Patton and Lee filed 28 U.S.C. § 2255 petitions alleging, among other

       1
          Patton asserts that no members of the public were in the courtroom because the
voir dire was composed of ninety-six members. His claim, however, is contradicted by
the jury office records, which indicate that only sixty potential jurors were called into the
courtroom for voir dire.

                                              4
claims, that the trial courtroom was closed to their families and the general public during

jury selection on November 8, 2004.

       In his habeas petition, Patton averred that upon entering the courthouse on the

morning of jury selection, he noticed several members of his family in the hallway

outside the courtroom. According to Patton, once proceedings commenced, but before

the venire entered, the judge told the court reporter to turn off the recorder and instructed

the U.S. Marshals to close the courtroom doors until voir dire and jury empanelment were

completed.2 When Patton asked his trial counsel why his family members were not

present, he was informed that the judge closed the courtroom because it was too small to

fit all the jurors and the public at the same time. At this time, Patton also noticed a U.S.

Marshal standing in front of the Courtroom entrance door. Patton claimed that during the

afternoon session the courtroom remained closed to the public, even when seats became

available to accommodate potential observers.

       In support of his contention that the courtroom was inaccessible to the public,

Patton supplied an affidavit from his brother stating that he was turned away from the

courtroom when he attempted to enter at approximately 10:00 a.m. Patton’s brother did

not indicate that he had attempted to enter the courtroom at any other time.

       Lee’s petition contains similar averments. After noticing his family near the

entrance to the courtroom, Lee questioned his trial counsel about their absence. Lee’s

counsel explained that there was not enough room for everyone but it did not matter

because the court was only going to be conducting the jury selection and no testimony
       2
           The trial transcript reflected that the court held a discussion off the record.

                                                5
would be heard that day. Lee also supplied affidavits from family members claiming that

they were denied entry into the courtroom by U.S. Marshals. No family member,

however, identified the time that they were allegedly denied access or indicated whether

they attempted to enter more than once.

       The government opposed both petitions. The judge denied the § 2255 petitions

without conducting an evidentiary hearing. Lee and Patton appealed. Certificates of

appealability were granted, and we consolidated the two appeals.

II. Analysis

       The District Court had jurisdiction pursuant to 28 U.S.C. § 2255, and we have

jurisdiction under 28 U.S.C. §§ 1291 and 2253. We apply a clearly erroneous standard to

the District Court’s factual findings and exercise plenary review of its legal conclusions.

United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008). The court’s decision not to hold

an evidentiary hearing is reviewed for an abuse of discretion. Id.

       Patton and Lee assert that the District Court abused its discretion when it failed to

conduct an evidentiary hearing on their claims. Although a district court has discretion

on whether to hold an evidentiary hearing, § 2255 dictates that a hearing shall occur

“[u]nless the motion and the files and records of the case conclusively show that the

prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see Gov’t of the Virgin Islands v.

Forte, 865 F.2d 59, 62 (3d Cir. 1989). If the petitioner’s allegations raise an issue of

material fact, a hearing must occur. United States v. Biberfeld, 957 F.2d 98, 102 (3d Cir.

1992) (citations omitted). Consequently, a court abuses its discretion if it fails to conduct

an evidentiary hearing when the record is inconclusive on whether the petitioner is

                                              6
entitled to relief. United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005) (citations

omitted).

       The Sixth Amendment guarantees the “accused . . . the right to a . . . public trial,”

U.S. Const. amend. VI, and extends that guarantee to the voir dire of potential jurors.

Presley v. Georgia, 130 S.Ct. 721, 724 (2010). This right, however, is not absolute. An

unjustified courtroom closure only infringes a defendant’s Sixth Amendment rights if it

undermines the values the Supreme Court identified in Waller v. Georgia, 467 U.S. 39

(1984) as fundamental to the public trial guarantee. United States v. Gupta, 650 F.3d

863, 867 (2d Cir. 2011), reh’g en banc granted Sept. 15, 2011 (quoting Peterson v.

Williams, 85 F.3d 39, 43 (2d Cir. 1996)). If the closure did not jeopardize or subvert

these values, which (1) ensure a fair trial, (2) remind the government and judge of their

responsibility to the accused and importance of their functions, (3) encourage witnesses

to come forward, and (4) discourage perjury, it did not offend the Sixth Amendment

because the closure is considered trivial. Id. at 867; United States v. Perry, 479 F.3d 885,

890 (D.C. Cir. 2007) (“A courtroom closing is trivial if it does not implicate the values

served by the Sixth Amendment as set forth in Waller.”) (internal quotationmarks and

citations omitted); see United States v. Ivester, 316 F.3d 955, 960 (9th Cir. 2003); Braun

v. Powell, 227 F.3d 908, 918-20 (7th Cir. 2000).

       In determining whether a closure was trivial, we examine the actions of the court

and their effect on the conduct of the trial. Gupta, 650 F.3d at 867 (citations omitted).

Although triviality is not determined by a single factor, Morales v. United States, 635

F.3d 39, 43 n.7 (2d Cir. 2011), a closure was trivial and did not implicate the values

                                              7
advanced by the public trial guarantee when the trial judge was unaware of the closure

and it was limited in both scope and duration. See United States v. Al-Smadi, 15 F.3d

153, 154 (10th Cir. 1994) (concluding that before a defendant can claim a violation of his

Sixth Amendment rights, “some affirmative act by the trial court meant to exclude

persons from the courtroom” must occur); Snyder v. Coiner, 510 F.2d 224, 230 (4th Cir.

1975).

         From the record here, we conclude that the alleged courtroom closure was trivial.

Patton and Lee averred that members of their family and the general public were barred

from entering the courtroom on November 8, 2004, at the commencement of jury

selection when the courtroom was full. Other attempts to enter, if any there were, are

unclear as to time and number. The government took the position that an evidentiary

hearing was not necessary because the District Judge had determined that:

                 [T]he transcript of the voir dire contains absolutely no suggestion
         that the courtroom was closed to the public . . . during the proceeding. The
         transcript is consistent with this Court’s regular practice, which does not
         involve the exclusion of the public. It is also consistent with my own
         recollections of the proceeding.

         Although a hearing is necessary if the appellants’ factual allegations raise an issue

of material fact, the allegations here are amorphous. The appellants have not presented

hard facts beyond a denial of admission at the commencement of the proceedings. The

remaining averments are vague and do not describe times or additional attempts by

family members to enter the courtroom.

         To the extent that members of Patton’s and Lee’s families were denied entry into

the courtroom because it was filled to capacity, no constitutional violation occurred. See

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Gibbons v. Savage, 555 F.3d 112, 116 (2d Cir. 2009) (“[N]o single member of the public

has a right to gain admittance to a courtroom if there is no available seat. That is, so long

as the public at-large is admitted to the proceedings, the Sixth Amendment does not

guarantee access to unlimited numbers”). The appellants’ affidavits speak in definite

terms of closure only at the outset when the courtroom was crowded. If appellants had

wished to present further specific facts to the court, they should have been more precise

in their statements. We conclude, therefore, that the closure was trivial, that appellants’

Sixth Amendment rights were not violated, and that the record conclusively shows that

appellants are not entitled to relief.3 Thus, no hearing was required.

III. Conclusion

       For the foregoing reasons, we will affirm the judgment of the District Court.4




       3
          In their briefs, Patton and Lee assert that Judge Ambrose was aware that the
court was closed during the afternoon session because individual voir dire occurred
behind closed doors in the jury room. This fact is constitutionally irrelevant. Applying
plain error review, we previously concluded that the Sixth Amendment’s public trial
guarantee was not violated when individual voir dire occurred in a closed jury room
adjacent to the courtroom. See United States v. Bansal, 663 F.3d 634, 661 (3d Cir. 2011);
see also Gibbons v. Savage, 555 F.3d 112, 121 (2d Cir. 2009) (noting in passing that no
constitutional violation occurred when individual voir dire was conducted in a room
adjacent to the courtroom); Commonwealth v. Harris, 703 A.2d 441, 446 (Pa. 1997).
4
 Patton also asserts that the District Court erred when it denied his motion seeking
discovery on whether the U.S. Marshals in the Western District of Pennsylvania have a
“policy” of excluding the public from courtrooms during voir dire. This argument is
meritless. Patton failed to provide any evidence beyond raw speculation that such a
policy exists. See Williams v. Beard, 637 F.3d 195, 209 (3d Cir. 2011).

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