                    Case: 12-10334          Date Filed: 09/25/2012   Page: 1 of 7




                                                                         [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10334
                                        Non-Argument Calendar
                                      ________________________

                            D.C. Docket No. 6:10-cv-01488-LSC-PWG



DENNIS GUYTON,

llllllllllllllllllllllllllllllllllllllll                                  Petitioner-Appellant,

                                              versus

FREDDIE BUTLER,
ATTORNEY GENERAL OF THE STATE OF ALABAMA,

llllllllllllllllllllllllllllllllllllllll                               Respondents-Appellees.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Alabama
                                  ________________________

                                           (September 25, 2012)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Dennis Guyton, an Alabama state prisoner proceeding pro se, appeals the

district court’s denial of his 28 U.S.C. § 2254 federal habeas petition. The district

court granted a certificate of appealability on the following two issues:

             (1) Whether the Alabama court’s decision that Guyton’s
             right to a public trial under the Sixth and Fourteenth
             Amendments was not violated because he “agreed that
             the courtroom be closed” was contrary to, or involved an
             unreasonable application of, clearly established Federal
             law, as determined by the Supreme Court of the United
             States or was based on an unreasonable determination of
             the facts in light of the evidence presented in the State
             court proceeding.

             (2) Whether the Alabama courts’ decision that Guyton’s
             counsel did not render ineffective assistance in violation
             of the Sixth and Fourteenth Amendments by expressly
             agreeing to the full closure of the courtroom for all
             testimony was contrary to, or involved an unreasonable
             application of, clearly established Federal Law, as
             determined by the Supreme Court of the United States or
             was based on an unreasonable determination of the facts
             in light of the evidence presented in the State court
             proceeding.

After careful review, we affirm.

      We review the district court’s grant or denial of a habeas corpus petition de

novo. Guzman v. Sec’y, Dept. of Corrections, 663 F.3d 1336, 1345 (11th Cir.

2011). Federal petitions filed by state prisoners after April 24, 1996, are governed

by 28 U.S.C. § 2254. Guzman, 663 F.3d at 1345. A state court’s factual



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conclusions are presumed to be correct, and may only be corrected on a showing

of clear and convincing evidence. Id. at 1346; 28 U.S.C. § 2254(e)(1). The

district court’s factual findings are reviewed for clear error, and mixed questions

of law and fact are reviewed de novo. Ward v. Hall, 592 F.3d 1144, 1155 (11th

Cir.), cert. denied, 131 S.Ct. 647 (2010).

      In order to grant a habeas petition, we must conclude that the petitioner’s

constitutional claims are meritorious, and that the state court’s resolution of those

claims:

             (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); see also Guzman, 663 F.3d at 1345-46.

      A state court’s decision is contrary to clearly established federal law if the

state court (1) applies a legal rule contradictory to Supreme Court precedent or,

(2) confronted with materially indistinguishable facts from the Supreme Court,

arrives at a different result. Guzman, 663 F.3d at 1346. A state court’s decision is

a reasonable application of clearly established law where, at a minimum,



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“fairminded jurists could disagree” on the correctness of the decision. Id.

                                           I.

      The Sixth Amendment guarantees criminal defendants the right to a public

trial. U.S. Const. amend. VI. That right is extended to defendants in state

prosecutions through the Fourteenth Amendment. See Waller v. Georgia, 467

U.S. 39, 40-41, 104 S.Ct. 2210, 2212 (1984). The Supreme Court has recognized

that a contempt defendant waives his due process right to a public trial where he

does not object to a closed courtroom. Levine v. United States, 362 U.S. 610, 618-

19, 80 S.Ct. 1038, 1043-44 (1960).

      The state court found that Guyton, through his counsel, affirmatively

consented to the courtroom’s closure. The record does not contradict that finding,

and we presume it to be correct. See 28 U.S.C. § 2254(e)(1). No clearly

established Supreme Court precedent holds that a defendant cannot waive the right

to a public trial, nor that the court must balance the interests of closure absent an

objection. Accordingly, it was not contrary to, or an unreasonable application of,

clearly established federal law for the state court to conclude that it had not

violated Guyton’s Sixth Amendment rights.

                                          II.

      An ineffective assistance of counsel claim in a habeas petition is a mixed

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question of law and fact subject to de novo review. Ward, 592 F.3d at 1155.

         In order to make out an ineffective assistance claim, the court must conclude

if the alleged conduct was “outside the wide range of professionally competent

assistance.” Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066

(1984). Counsel is strongly presumed to have given adequate assistance. Id. at

689, 104 S.Ct. at 2065. Further, the reasonableness of a counsel’s actions may be

determined based on the defendant’s statements or actions. Id. at 691, 104 S.Ct. at

2066.

         Once a defendant consents, at the outset of a criminal proceeding, to be

represented by counsel, the counsel has the power to make binding strategic

decisions in many areas. Faretta v. California, 422 U.S. 806, 820-21, 95 S.Ct.

2525, 2533-34 (1975). Certain fundamental rights, however, cannot be waived by

counsel without the express, knowing and voluntary consent of the defendant. See

Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312 (1983) (identifying the

fundamental rights that could not be waived by counsel as “whether to plead

guilty, waive a jury, testify in his or her own behalf, or take an appeal . . . .”). The

Supreme Court has not held that counsel cannot waive his client’s right to a public

trial.

         Structural defects, such as the closing of a trial to the public, are presumed

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to be prejudicial when raised on direct appeal. See Arizona v. Fulminante, 499

U.S. 279, 309-11, 111 S.Ct. 1246, 1264-65 (1991). However, the Supreme Court

has identified only three scenarios in which ineffective assistance of counsel is

presumed to be prejudicial on collateral review: (1) an actual or constructive

denial of counsel altogether; (2) state interference with counsel’s assistance; and

(3) where counsel has an actual conflict of interest. Strickland, 466 U.S. at

691-92, 104 S.Ct. at 2066-67. Absent those circumstances, a habeas petitioner

must demonstrate that the ineffective assistance had an effect on the judgment. Id.

at 691-93, 104 S.Ct. at 2066-67. Applying Strickland, we have held that, even

when dealing with structural error, a habeas petitioner must show actual prejudice

when advancing an ineffective assistance claim. Purvis v. Crosby, 451 F.3d 734,

743 (11th Cir. 2006).

      The state court found that Guyton’s counsel consented to closure in

Guyton’s presence, and that Guyton acquiesced. Even though Guyton has denied

giving his approval, the record does not refute the state court finding. With that

factual finding, it was not ineffective assistance for Guyton’s counsel to consent to

the closure. Further, there is no clearly established federal law stating that counsel

cannot waive the right to a public trial as a strategy decision without his client’s

consent.

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      Even if he met the first part of the ineffective assistance inquiry under

Strickland, Guyton has failed to demonstrate any resulting actual prejudice. See

Purvis, 451 F.3d at 743. As a result, it was not contrary to, nor an unreasonable

application of, federal law, or the facts, for the state court to conclude that Guyton

failed to establish ineffective assistance of counsel. Accordingly, the district court

did not err in denying Guyton’s habeas petition, and we affirm.

      AFFIRMED.1




      1
             Guyton’s motion for appointment of counsel is DENIED.

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