                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                          FILED
                                                                     U.S. COURT OF APPEALS
                              ________________________                 ELEVENTH CIRCUIT
                                                                           MAY 09, 2001
                                                                        THOMAS K. KAHN
                                    No. 00-12786                             CLERK
                             ________________________
                         D. C. Docket No. 97-07235-CV-S-NE

ERNEST RANDY JUDD,
                                                                       Petitioner-Appellant,

                                            versus

MICHAEL W. HALEY, Commissioner,
Alabama Department of Corections,
ARNOLD HOLT, Warden, Bullock
County Correctional Facility, BILL PRYOR,
                                                                    Respondents-Appellees.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________
                                    (May 9, 2001)


Before WILSON and COX, Circuit Judges, and RYSKAMP*, District Judge.




____________________
*Honorable Kenneth L. Ryskamp, U.S. District Judge for the Southern District of Florida, sitting
by designation.
WILSON, Circuit Judge:

      Ernest Randy Judd, an Alabama prisoner, appeals from the district court’s

dismissal of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. §

2254. Judd contends that the district court erred in finding that the doctrine of

procedural default precluded federal review of his underlying constitutional

claim–namely, that his right to a public trial under the Sixth Amendment of the

United States Constitution was denied by the Alabama trial court. After reviewing

the briefs and the record, and after the benefit of hearing oral argument, we

conclude that the doctrine of procedural default is inapplicable in this case. The

Alabama Supreme Court’s resolution of Judd’s appeal did not rest upon an

adequate state procedural ground, and thus does not operate as a bar to our review

of the merits of Judd’s federal constitutional claim. Furthermore, Judd’s

constitutional argument is meritorious, and entitles him to habeas relief. We

therefore reverse the decision of the district court, and remand the case with

instructions directing the district court to grant Judd’s habeas petition.

                                  BACKGROUND

      Judd was indicted by an Etowah County, Alabama, Grand Jury in June of

1993 on multiple counts of rape, sodomy, and sexual abuse. Judd’s adopted




                                           2
daughter, J.D.J., who was 14 at the time of the indictment, was the alleged victim

of these crimes.1

       On the morning Judd’s trial was to begin, in June of 1994, the prosecutor

and Judd’s defense attorneys met with the trial judge in chambers to resolve

various evidentiary matters. A court reporter was present to preserve a record of

the meeting. When all of the evidentiary issues on the agenda were resolved, the

judge asked if the parties were ready to proceed to the courtroom and begin the

trial. After receiving an affirmative response, the judge and the parties began to

move towards the door.

      The court reporter was apparently the first person to leave after the

conclusion of the pre-trial meeting, and was thus not available to record any of the

subsequent conversations that took place in chambers. What we can glean from

the recollections of the parties involved (as manifested at an evidentiary hearing

held before a federal magistrate judge) is something along the lines of the

following: the prosecutor turned to the judge before they reached the courtroom

door, and indicated that he wanted the courtroom closed to all spectators during

J.D.J’s testimony. While the prosecutor could not recall the exact words he used,



      1
        Due to the sensitive nature of the underlying events in this case, we will
refer to the minor witness by her initials only.
                                          3
he explained to the judge that the reasons that he sought the closure related to the

graphic nature of J.D.J’s testimony, her young age, and the fact that she feared

testifying in a public forum.

      At this point, counsel for the defendant apparently voiced an objection to the

prosecutor’s proposal. Despite the objection, the judge indicated that he was

inclined to order the courtroom cleared during J.D.J’s testimony. The parties then

proceeded into the courtroom to prepare for opening statements.

      Following opening statements, the court made the following ruling on the

record:

      Okay, ladies and gentlemen, upon motion of the State of Alabama, which I
      have granted, the courtroom will be cleared during the testimony of the
      minor child. Y’all may leave now.


      After the courtroom was cleared, Judd’s attorney issued a lengthy objection,

saying in part:

      Judge, we object to my client’s constitutional rights being violated. He’s
      entitled, under the U.S. and Alabama Constitutions, to a free and open
      courtroom in this case. The Court has closed the that courtroom and we
      beleive my client’s rights have been violated in that aspect.




      The Court responded, “Due to the nature of the case and I don’t see any

prejudice to the defendant, at this time I will deny your motion.” The trial record

                                          4
does not indicate when, if ever, spectators were permitted to return to the

courtroom, though both the prosecutor and the judge testified at the federal

evidentiary hearing that the courtroom was reopened following J.D.J’s testimony.

      The jury found Judd guilty of two counts of sodomy in the first degree and

three counts of sexual abuse in the first degree. The court sentenced Judd to two

concurrent thirty-year terms on the sodomy convictions, and three concurrent five-

year terms on the convictions for sexual abuse.

      Judd’s motion for a new trial was denied, and he appealed his convictions to

the Alabama Court of Criminal Appeals. One of the arguments Judd advanced on

appeal was that the trial court had violated his rights to a public trial under both the

Alabama and the United States Constitutions. The Alabama Court of Criminal

Appeals affirmed Judd’s convictions in an unpublished memorandum, and Judd

timely filed a petition for a writ of certiorari with the Alabama Supreme Court.

      The Alabama Supreme Court agreed to consider Judd’s claim that his right

to a public trial was violated, and issued an opinion on the matter in April of 1997.

See Ex Parte Judd, 694 So.2d 1294 (Ala. 1997). The opinion began with an

evaluation of relevant federal and state precedent on the scope of the right to a

public trial, and sought to develop a coherent set of principles that lower courts and

litigants could use as guidance when confronted with the issue. The court


                                           5
announced as a matter of law that there was no conflict between state and federal

authorities on the scope and nature of that right. In fact, the court formally adopted

the test the U.S. Supreme Court articulated in Waller v. Georgia, 467 U.S. 39

(1984), as a means of determining when a defendant’s right to a public trial has

been violated under the Alabama Constitution in the event of a total closure of a

courtroom. See Ex Parte Judd, 694 So.2d at 1297 (“[W]e adopt the Waller v.

Georgia test for determining when a courtroom can be closed . . . without violating

a defendant’s constitutional right to a public trial.”). However, the court never

reached the merits of Judd’s appeal. The court resolved Judd’s constitutional claim

on a procedural ground, as explained in the final paragraph of the court’s opinion:

       Judd failed to preserve for the record the proceedings on the motion to close
       the courtroom, the considerations that led to the closure of the courtroom,
       who was cleared from the courtroom, or whether the courtroom remained
       closed after the victims testimony. The burden is on the appellant to bring
       the record before an appellate court. Montgomery v. State, 504 So.2d 370,
       372 (Ala. Crim. App. 1987). Because Judd failed to have the relevant facts
       and proceedings included in the record, we cannot consider whether Judd’s
       constitutional rights were violated when the courtroom was closed in his
       case.
       Id.

       In August of 1997, Judd filed the instant petition for a writ of habeas corpus

in the U.S. District Court for the Northern District of Alabama. In it, Judd repeated

his assertion that the Alabama trial court violated his Sixth Amendment right to a

public trial.

                                          6
      Judd’s petition was initially assigned to a magistrate judge, who held an

evidentiary hearing on the matter and issued a Report and Recommendation. The

magistrate judge found that the doctrine of procedural default was inapplicable to

Judd’s case. Thus, the magistrate judge was able to reach the merits of Judd’s

claim, and found that Judd’s Sixth Amendment right to a public trial had been

violated. The magistrate judge therefore concluded that the district court should

grant Judd’s habeas petition.

      The district court, in a memorandum opinion, sustained the respondents’

objections to the Report and Recommendation. The court found that the doctrine

of procedural default precluded federal review of the merits of Judd’s claim, and

dismissed Judd’s habeas petition. In June of 2000, the district court granted Judd a

certificate of appealability, and Judd subsequently filed the instant appeal.

                                   DISCUSSION

                                          I.

      The central issue in this appeal is whether a particular claim is subject to the

doctrine of procedural default; this is a mixed question of fact and law, which we

review de novo.2 See Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999).



      2
       We review a district court’s findings of fact in a habeas case for clear error.
See Byrd v. Hasty, 142 F.3d 1395, 1396 (11th Cir. 1998)
                                          7
      A state prisoner seeking federal habeas relief cannot raise a federal

constitutional claim in federal court unless he first properly raised the issue in the

state courts. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977). The doctrine of

procedural default was developed as a means of ensuring that federal habeas

petitioners first seek relief in accordance with established state procedures. See

Presnell v. Kemp, 835 F.2d 1567, 1578-79 (11th Cir. 1988). A state court’s

rejection of a petitioner’s constitutional claim on state procedural grounds will

generally preclude any subsequent federal habeas review of that claim. See

Harmon v. Barton, 894 F.2d 1268, 1270 ( 11th Cir. 1990). However, a state

court’s rejection of a federal constitutional claim on procedural grounds will only

preclude federal review if the state procedural ruling rests upon “independent and

adequate” state ground. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991);

Harris v. Reed, 489 U.S. 255, 262 (1989).

      In Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990), we established a three-

part test to enable us to determine when a state court’s procedural ruling constitutes

an independent and adequate state rule of decision. First, the last state court

rendering a judgment in the case must clearly and expressly state that it is relying

on state procedural rules to resolve the federal claim without reaching the merits of

that claim. See id. at 1516. Secondly, the state court’s decision must rest solidly


                                           8
on state law grounds, and may not be “intertwined with an interpretation of federal

law.” Id. Finally, the state procedural rule must be adequate; i.e., it must not be

applied in an arbitrary or unprecedented fashion. The state court’s procedural rule

cannot be “manifestly unfair” in its treatment of the petitioner’s federal

constitutional claim to be considered adequate for the purposes of the procedural

default doctrine. Id. at 1517.

      Applying this three pronged-test to the instant case, we can assume, without

deciding, that the Alabama Supreme Court’s decision meets the first two prongs of

the Card test; i.e. that the court explicitly stated that it was relying on a procedural

bar to resolve the case, and that its application of the procedural bar was not

“intertwined with” interpretations of federal law. We need not address either of

these issues, because the Alabama Supreme Court’s opinion in Ex Parte Judd

cannot meet the third prong of the Card test. This prong requires the state

procedural rule to be adequate, meaning that the application of the rule must not be

manifestly unfair in its treatment of Judd’s federal claims. We find that the

Alabama Supreme Court’s application of its procedural rule in this case was

fundamentally unfair to Judd, and we must conclude that it was an inadequate basis

for the court’s refusal to consider the merits of Judd’s appeal. To understand why

the procedural rule employed by the court in Ex Parte Judd was not adequate to


                                            9
preclude federal habeas review of Judd’s underlying constitutional claim, we will

first need to examine the relevant federal precedent on the right to a public trial

afforded criminal defendants by the Sixth Amendment.

                                          II.

      The Sixth Amendment to the United States Constitution states (in part): “In

all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial . . . .” Perhaps the most definitive statement the United States Supreme Court

has issued on the scope of one’s right to a public trial came in the 1984 case of

Waller v. Georgia, 467 U.S. 39. In Waller, the Court considered the case of a

group of defendants that had been convicted in Georgia state court of racketeering

and gambling offenses. Much of the evidence against the defendants came from

wiretap recordings that the defendants alleged were obtained without probable

cause. The defendants thus moved to suppress the wiretap evidence. The state

argued that the suppression hearing should be closed to spectators, as some of the

recordings could violate the privacy rights of uncharged persons whose voices

could be heard on the tapes. The trial court granted the state’s motion, and closed

the hearing (which lasted seven days) to the public. The defendants were

eventually convicted, and after the Georgia Supreme Court affirmed those

convictions, the United States Supreme Court granted certiorari to consider


                                          10
whether the closure of the suppression hearing violated the defendants’ Sixth

Amendment right to a public trial.

      Justice Powell, writing for the Court, found that the closure of the

suppression hearing did indeed violate the defendants’ Sixth Amendment rights.

In reaching this conclusion, the Court noted the possibility that other rights or

interests may sometimes override a defendant’s interest in a public trial. However,

the Court pointed out that “[s]uch circumstances will be rare. . . and the balance of

interests must be struck with special care.” Waller, 467 U.S. at 45. The Court then

articulated the steps that must be taken if a courtroom is to be completely cleared

of spectators:

      [T]he party seeking to close the hearing must advance an overriding interest
      that is likely to be prejudiced, the closure must be no broader than necessary
      to protect that interest, the trial court must consider reasonable alternatives
      to closing the proceeding, and it must make findings adequate to support the
      closure.

Id. at 48.
        Two more notes about Waller are relevant for our purposes. First, a

violation of one’s right to a public trial is structural error. See id. at 49; Johnson v.

United States, 520 U.S. 461, 469 (1997) (citing Waller as one of the “limited class”

of cases where structural error has been found). Structural error is a “defect

affecting the framework within which the trial proceeds, rather than simply an

error in the trial process itself.” Arizona v. Fulminate, 499 U.S. 279, 310 (1991).

                                           11
As such, structural errors are not subject to harmless error analysis. See id. at 309.

Therefore, once a petitioner demonstrates a violation of his Sixth Amendment right

to a public trial, he need not show that the violation prejudiced him in any way.

The mere demonstration that his right to a public trial was violated entitles a

petitioner to relief.

       Second, we have recognized a distinction between total closures of

proceedings, as in Waller, and situations where the courtroom is only partially

closed to spectators. See Douglas v. Wainwright, 739 F.2d 531, 532 (11th Cir.

1984). When access to the courtroom is retained by some spectators (such as

representatives of the press or the defendant’s family members), we have found

that the impact of the closure is not as great, and not as deserving of such a

rigorous level of constitutional scrutiny. See id. at 533; Aaron v. Capps, 507 F.2d

685, 688 (5th Cir. 1975).3 Both partial and total closures burden the defendant’s

constitutional rights, and before either is undertaken, a court must “hold a hearing

and articulate specific findings.” See Douglas, 739 F.2d at 532. However, in the

event of a partial closure, a court need merely find a “substantial” reason for the




       3
      In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), we
adopted as precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
                                          12
partial closure, and need not satisfy the elements of the more rigorous Waller test.

See id. at 533; United States v. Brazel, 102 F.3d 1120, 1155 (11th Cir. 1997).

      We have relatively little precedent on the right to a public trial generally,

and have not specifically addressed the question of how to analyze the total

clearing of a courtroom during a portion of a criminal trial. However, the

precedent that we do have defines “partial closures” as situations in which the

public retains some (though not complete) access to a particular proceeding. See

Douglas, 739 F.2d at 532 (“The most important distinguishing factor is that Waller

involved a total closure . . .the press and the public having been specifically

excluded, whereas Douglas entailed only a partial closure, as the press and family

members of the defendant, witness, and decedent were all allowed to remain”).

Nowhere does our precedent suggest that the total closure of a courtroom for a

temporary period can be considered a partial closure, and analyzed as such.

      Furthermore, our prior cases have articulated the values that we have sought

the Constitution’s public trial guarantee seeks to protect, which include permitting

the public to see that a defendant is dealt with fairly, ensuring that trial participants

perform their duties conscientiously, and discouraging perjury. See id. at 531;

Brazel, 102 F.3d at 1155. These values are only moderately burdened when the

courtroom is partially closed to the public, as certain spectators remain and are able


                                           13
to subject the proceedings to some degree of public scrutiny. However, a total

closure of the courtroom, even for a temporary period, eliminates for a time the

valuable role the presence of spectators can have on the performance of witnesses

and court officials, and can create a public perception that the defendant is not

being treated justly.

      Given these facts, we think that the only conclusion that can fairly be drawn

from our precedent is that a total closure of a criminal trial during the presentation

of evidence even for a temporary period, such as during the testimony of a

particular witness, must be analyzed as a “total closure,” and subjected to the four-

pronged test established in Waller. Notably, our sister circuits have also applied

the stringent Waller test to circumstances in which the courtroom was completely

cleared during the testimony of particular witnesses. See English v. Artuz, 164

F.3d 105, 108 (2d Cir. 1997); Bell v. Jarvis, 236 F.3d 149, 165-66 (4th Cir. 2000).

                                          III.

      Given the status of federal precedent on the Sixth Amendment’s right to a

public trial (as outlined above), we can now examine the adequacy of the Alabama

court’s application of its procedural rule in a contextually appropriate manner.

      First of all, it is important to note that we do not challenge the legitimacy of

the well-established Alabama procedural rule placing the burden upon the


                                          14
appellant to furnish reviewing courts with an adequate record on appeal. Alabama

has long required appellants to ensure that the record on appeal supports their

claims of error; an appellant’s failure to furnish an appeals court with a record

demonstrating such error dooms the appellant’s case. See Montgomery v. State,

504 So.2d 370, 372 (Ala. Crim. App. 1987); Harris v. State, 420 So.2d 812, 816

(Ala. Crim. App. 1982); Miller v. State, 405 So.2d 41, 47 (Ala. Crim. App. 1981).

There can be no doubt that the procedural rule itself is firmly entrenched in

Alabama law. Our problem is with the application of the procedural rule in this

matter.

      The root of our concern is that the Alabama court’s determination that the

record was insufficient to review a Sixth Amendment claim is itself based on a

misreading of federal law concerning the right to a public trial. An examination of

the supposed deficiencies in the record illustrates the problematic nature of the

Alabama Supreme Court’s opinion.

      The Alabama Supreme Court found that Judd failed to include in the record

“ who was cleared from the courtroom, or whether the courtroom remained closed

after the victim’s testimony.” Ex Parte Judd, 694 So.2d at 1297. Respondent

contends that these are substantial omissions from the record. The Eleventh

Circuit has found that partial closures of courtrooms or proceedings do not


                                          15
implicate the same fairness concerns as total closures, and are evaluated by

reviewing courts in a less demanding way. See Douglas, 739 F.2d at 532-33.

Absent evidence in the record as to whether the closure was partial or total, it is

impossible for a reviewing court to properly evaluate whether the closure violated

the defendant’s Sixth Amendment rights.

       The problem with this defense of the Alabama Supreme Court opinion is that

a fair reading of the record reveals that it is not at all deficient as to the scope of the

closure. The trial judge was unequivocal in his request that the courtroom be

cleared prior to J.D.J’s testimony, and the record reflects the clarity of his

language. He mentioned that the courtroom was to be “cleared during the

testimony of the minor child,” and then stated, “[You all] may leave now.” Neither

of these remarks, by their terms, except any spectators. The court reporter made a

notation in the record stating that “the courtroom was cleared” following the

judge’s ruling. There is no ambiguity in the record on this point. The absence of

anything in the record suggesting that certain spectators were permitted to remain

in the courtroom indicates that the clearing of the court was complete. The only

conclusion that can fairly be drawn from the record the Alabama court had is that

the courtroom was completely cleared of spectators prior to the start of J.D.J’s

testimony.


                                            16
      There is nothing in the record indicating the duration of the closure, though

the Alabama Supreme Court acknowledges that the closure continued at least

through the testimony of J.D.J..4 However, this omission in the record in no way

precludes review of the merits of the claim. Even if spectators were permitted to

return immediately following J.D.J.’s testimony, the fact remains that the record

reflects a total closure of the courtroom during the testimony of a critical witness.

Given the absence of any public access to the courtroom during this key portion of

Judd’s trial, the closure cannot appropriately be rationalized as “partial” under our

precedent.

      A fair look at the record the Alabama Supreme Court had before it in Ex

Parte Judd thus indicates that the courtroom was completely cleared of spectators

during J.D.J.’s testimony. The court was therefore obliged to apply the stringent,

four-part test laid out in Waller to the events surrounding the closure of the

courtroom in Judd’s case. However, the court found other deficiencies in the

record that apparently precluded it from reviewing Judd’s claim under the

standards articulated in Waller–namely, the absence of evidence concerning “ the




      4
         The court’s note that the record did not reflect “whether the courtroom
remained cleared after the victim’s testimony.” is an implicit acknowledgement
that the court was cleared for the duration of her testimony.
                                          17
proceedings on the motion to close the courtroom [and] the considerations that led

to the closure of the courtroom . . . .” See Ex Parte Judd, 694 So.2d at 1297.

      Waller places the burden upon the party seeking closure to demonstrate two

things: (1) an overriding interest that is likely to be prejudiced by an open

courtroom, and (2) that the closure sought is no broader than is necessary to protect

that interest. See Waller, 467 U.S. at 348. The trial court then must: (1) consider

reasonable alternatives to a closure, and (2) make findings adequate to support a

closure of the courtroom. See id. The holding of Waller thus requires the court

and the party seeking a total closure to take affirmative steps ensuring that closing

the courtroom is the least restrictive way to protect another valuable interest, an

interest so valuable that it supersedes the rights of the defendant and the public to

open proceedings in matters of public record. The absence of any evidence that

these affirmative steps were taken, on the face of the record, cuts in favor of the

party objecting to closure of the courtroom, not in favor of those who sought the

closure.

      Respondent defends the Alabama Supreme Court’s view that the record was

inadequate for it to appropriately apply Waller in the following way: the Alabama

Supreme Court was not privy to any information about what took place in

chambers prior to the beginning of the trial–all they knew was that certain


                                          18
conversations relating to closing the courtroom had taken place off the record.

Presumably, the drafters of the Alabama opinion assumed it possible that

discussions and findings had taken place off the record that justified closure under

Waller. Therefore, it was up to Judd to supplement the record to reflect what

considerations held sway in the off the record discussions about the issue.

      This argument is implausible given the holding and purposes of Waller. One

of the precedents Waller relied upon was Press-Enterprise Co. v. Superior Court of

California, 464 U.S. 501 (1984). The Press-Enterprise court established the

fundamental balancing test with respect to the closure of courtrooms in language

quoted in and relied upon by Waller:

      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. at 510; (quoted in Waller, 467 U.S. at 45). The import of the text quoted above

is that a court’s determination that total closure of the courtroom is the least

restrictive way to protect an overriding interest must be placed on the record if it is

to be acceptable. There is nothing that could possibly have happened in non-

transcribed, off the record proceedings that could satisfy Waller’s requirement that



                                           19
the trial court articulate on-the-record findings specific enough to enable a

reviewing court to evaluate the closure order.

      Furthermore, the notion that a permissible Waller hearing could be held off

the record contradicts not only the text of Waller, but also any contextually

reasonable reading of the Waller opinion. The purposes of the Constitution’s

public trial guarantee, a guarantee that Waller seeks to protect, include enabling the

public to see that the accused is being treated fairly, and that the judge and

prosecutor are carrying out their duties responsibly. See Waller, 467 U.S. at 46.

These values are obviously not promoted when a court holds a non-transcribed, off

the record proceeding, closed to the public, that results in a decision to exclude all

spectators from portions of a criminal trial.

      Ultimately, it is clear that the Alabama Supreme Court had an adequate

record before it to properly evaluate Judd’s Sixth Amendment claim. The court

misconstrued federal law in finding the record insufficient for a consideration of

Judd’s appeal on the merits. The Alabama Supreme Court’s determination that the

record was insufficient to evaluate Judd’s constitutional claim was manifestly

unfair in its treatment of Judd’s federal arguments, and is thus not adequate for the

purposes of the procedural default doctrine. See Upshaw v. Singletary, 70 F.3d

576, 579-80 (11th Cir. 1995) (finding state court’s denial of post-conviction relief


                                          20
on procedural grounds “inadequate” due to manifest unfairness); Spencer v. Kemp,

781 F.2d 1458, 1470-71 (11th Cir. 1986) (manifestly unfair application of state

procedural rules not adequate to preclude federal review of petitioner’s

constitutional claim).

                                          IV.

      In light of the above, it is clear that the district court erred when it found that

the doctrine of procedural default precluded federal review of Judd’s Sixth

Amendment claim. Ordinarily, we would remand the case to the district court for

consideration of that claim on the merits. See, e.g., Meagher v. Dugger, 861 F.2d

1242, 1247 (11th Cir. 1988) (remanding case to district court for consideration of

the merits of the underlying claim after determining that claim was not subject to

the doctrine of procedural default). In this case, however, the record is more than

adequate for us to review the constitutional claim without remand. The magistrate

judge held a thorough evidentiary hearing on the events surrounding Judd’s trial;

the transcript of that hearing, coupled with the transcript of Judd’s trial, provides us

with sufficient information to consider the merits of Judd’s Sixth Amendment

claim. Remand for a consideration of the claim by the district court would amount

to a waste of judicial resources in the face of such an ample record. See, e.g.,

Perkins v. Matthews, 400 U.S. 379, 386-87 (1971) (“in the interest of judicial


                                           21
economy, we shall not remand to the district court . . . . The record is adequate to

enable us to decide [the issue on appeal], and we shall, therefore, decide this

question”); Wheeler v. City of Pleasant Grove, 896 F.2d 1347, 1351 (11th Cir.

1990) (finding remand unnecessary after district court had already held extensive

hearings on the relevant issues on appeal).

        The trial transcript, along with the testimony the principal parties offered at

the habeas evidentiary hearing, reflects the fact that the courtroom was completely

closed to spectators during J.D.J’s testimony. No spectators were permitted to

view a critical portion of the state’s case against Judd; we therefore will view this

matter as a total closure, and will apply the test articulated in Waller to the instant

case.

        We need only consider the fourth prong of Waller, which requires that a

court make findings adequate to support its decision to close the courtroom. In this

case, we have no findings on the record that support the drastic remedy of a total

closure of the courtroom during J.D.J’s testimony. The court did not take any

testimony concerning J.D.J’s age, psychological maturity, or particular fears or

concerns about testifying in open court; nor did the court explain why a total

closure, rather than a partial closure, was necessary in this case. The trial judge

admitted at the evidentiary hearing that he was not aware of Waller at the time he


                                           22
made his ruling, and this is reflected in the fact that he made no effort to justify his

decision to close the courtroom with any relevant findings on the record. We have

no findings on the record specific enough for us to determine that the closure order

was properly entered; as such, Judd has shown that the trial court did not satisfy

the fourth prong of the Waller test. We need not consider whether the other

elements of Waller were met in light of this fact.

      As a violation of the right to a public trial is structural error, Judd need not

show that he was prejudiced by the closing of the courtroom. All he must

demonstrate is that the trial court did not comply with the procedures outlined in

Waller prior to its decision to completely remove spectators from the courtroom.

Judd has successfully demonstrated that the closure of the courtroom in his case

was not conducted in conformity with the standards articulated in Waller;

therefore, he is entitled to habeas relief on his Sixth Amendment claim.

                                   CONCLUSION

      When considering Judd’s direct appeal of his 1994 state court convictions,

the Alabama Supreme Court applied a state procedural rule in a manner that

prevented them from reaching the merits of Judd’s federal constitutional claim.

However, the application of the procedural rule in this case was not an adequate

basis for the court’s refusal to consider Judd’s federal claim, and therefore does not


                                           23
preclude federal review of the merits of Judd’s constitutional argument. Judd’s

federal constitutional claim, which asserts that the Alabama trial court violated his

Sixth Amendment right to a public trial, is meritorious. Therefore, we reverse the

decision of the district court that found Judd’s Sixth Amendment claim

procedurally defaulted, and remand the case to that court, with instructions to grant

Judd’s petition for a writ of habeas corpus.

REVERSED and REMANDED.




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