               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit



No. 13-1291

                             DAVID JORDAN,

                      Petitioner, Appellant,

                                    v.

                    UNITED STATES OF AMERICA,

                       Respondent, Appellee.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF MASSACHUSSETTS

          [Hon. George A. O'Toole, U.S. District Judge]



                              Before
                      Selya, Circuit Judge,
                   Souter,* Associate Justice,
                    and Lipez, Circuit Judge.




     David J. Nathanson, with whom Dan Horowitz and Wood &
Nathanson, LLP were on brief, for appellant.
     Randall E. Kromm, Assistant U.S. Attorney, with whom Carmen
M. Ortiz, U.S. Attorney, was on brief, for appellee.




     * Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
July 14, 2015
            SOUTER,     Associate     Justice.             This     is   our     second

consideration of David Jordan's appeal from the denial of relief

on    federal   habeas.      The   first     time,    we    remanded       for   a    new

evidentiary hearing, after which the district court again held

against Jordan.      We affirm.

                                        I.

            Jordan was tried and convicted of federal crimes in a

joint trial with Anthony Bucci.                The defendants later filed

unsuccessful     habeas     petitions      under     28    U.S.C.    §   2255,       each

contending (in principal part) that his Sixth Amendment right to

a public trial was violated by a partial courtroom closure during

voir dire proceedings.         Although on appeal we agreed with the

petitioners that "the courtroom closure here likely violated the

Sixth Amendment," Bucci v. United States, 662 F.3d 18, 26 (1st

Cir. 2011), we held that each had procedurally defaulted his claim

by failing to raise it at trial, id. at 27-29 (Bucci); id. at 33-

34 (Jordan).     We affirmed the district court's judgment in Bucci's

case,   owing   to    his   failure   to     show    the    cause    and    prejudice

necessary to overcome the procedural default.                     Id. at 29-32.       As

to Jordan, we expressed doubt that he could overcome the same

default, id. at 33-34, but we nevertheless ordered a remand because

the evidentiary hearing had not addressed his specific allegations

for excusing his failure to make a timely objection, id. at 34-

35.


                                      - 3 -
          On remand, the district court held a two-day hearing and

made the following supportable findings of fact.     On the day of

the voir dire, the courtroom was opened around 9 a.m. and began to

fill with family relations, members of the public, lawyers, the

defendants, and courtroom staff.      At some point, the principal

attorneys (including Jordan's counsel) were handed a list of

prospective jurors, which they promptly began to study.   Somewhat

later, after the jury venire arrived, the clerk realized that the

courtroom was too small to hold everyone and asked all spectators

to leave. After someone complained that family members had a right

to be present, the clerk consulted with the judge, who let Bucci's

mother and wife and Jordan's wife back into the courtroom.     The

venire then entered, the judge took the bench, and the jury was

ultimately chosen.

          The district court acknowledged that the evidence was

ambiguous as to whether Jordan's counsel was actually conscious of

the partial courtroom closure.     Although it was undisputed that

counsel was in the room at the time, and that the clerk audibly

announced the partial closure from around the front of the section

for public seating, Jordan's lawyer testified that he had no

recollection one way or the other.      Nevertheless, the district

court concluded:

          That does not mean, however, that [Jordan's
          counsel] was unaware of it. On the contrary,
          I find that he was. Given what appears from


                              - 4 -
             the evidentiary record to be an undisputed
             sequence   of   events,    it   is   virtually
             inconceivable that any person present in the
             courtroom, as the lawyers and their clients
             were, would not have observed that at some
             point all the spectators in the gallery got up
             and left together and shortly thereafter the
             venire arrived and filled the gallery but for
             one bench. Even if he did not hear the clerk
             announce the clearing of the courtroom, an
             experienced trial attorney like [Jordan's
             counsel] would have understood that it was not
             just a curious coincidence that all the
             spectators exited at once and that shortly
             afterwards the gallery was filled with the
             venire.

                                        II.

             As    mentioned     earlier,     for   Jordan    to    overcome    the

procedural        default   of   his   Sixth    Amendment     claim,    he     must

demonstrate "cause" excusing the default and "actual prejudice"

from the underlying error.         United States v. Frady, 456 U.S. 152,

167-68 (1982). Such cause can be either of two sorts: "the factual

or legal basis for a claim was not reasonably available to counsel"

due to "some objective factor external to the defense," Murray v.

Carrier, 477 U.S. 478, 488 (1986); or the default was attributable

to   constitutionally       ineffective       assistance     of    counsel   under

Strickland v. Washington, 466 U.S. 668 (1984), see Murray, 477

U.S. at 488-89.       Jordan cannot show cause either way.1

             The first is foreclosed by the district court's factual

findings.     The judge expressly found that Jordan's counsel was


      1   We therefore do not address "actual prejudice."


                                       - 5 -
aware of the partial courtroom closure, and reasonably should have

known of it, there being no impediment to awareness external to

the defense. Thus, the factual basis for the Sixth Amendment claim

was reasonably available to Jordan's counsel.

           To avoid this conclusion, Jordan challenges the district

court's findings, but he cannot clear the hurdle of showing clear

error, necessary to set them aside.         See United States v. Garcia-

Hernandez, 659 F.3d 108, 111 (1st Cir. 2011).                 The courtroom

closure was not conducted in secret, and it was reasonable for the

district   court   to   conclude   that    "any    person   present   in   the

courtroom,"   especially    one    with    legal   experience,   would     (or

should) have sensed and observed the exodus and replacement of

those in the public seating section.                While Jordan stresses

evidence that the clerk stood at the edge of the bar section and

the front of the public area of the courtroom, and argues that the

need to study newly supplied background information about the

venire was distracting, his argument falls short of showing clear

error in the district court's conclusions.            See deBenedictis v.

Brady-Zell (In re Brady-Zell), 756 F.3d 69, 72 (1st Cir. 2014)

("[W]here the facts can support two plausible but conflicting

interpretations of a body of evidence, the factfinder's choice

between them cannot be clearly erroneous.").          This is no less true

here, where the district court's crucial finding is an inference

about counsel's awareness on a point that he himself did not recall


                                   - 6 -
(either way) at the evidentiary hearing.             The deferential nature

of clear error review means that "when the district court chooses

to draw a reasonable (though not inevitable) inference from a

particular combination of facts, that inference is entitled to

respect."    Garcia-Hernandez, 659 F.3d at 111 (internal quotation

marks omitted).2

            The   second   way    Jordan    might    establish   "cause"    is

foreclosed by our prior decision in Bucci.             There, Bucci claimed

cause based on his counsel's ineffective assistance for failing to

object to the partial courtroom closure, which he was admittedly

aware of.   See Bucci, 662 F.3d at 29-31.           We rejected the argument

because "under the applicable objective standard [for attorney

performance],     competent      counsel    could     have   knowingly     and

reasonably declined to raise the constitutional issue in this case

[of partial closure] because doing so would be a waste of the

defense's time, energy, and resources."         Id. at 31.    Specifically,

"competent defense counsel could have reasonably concluded that

the presence of Bucci's family members sufficiently mitigated the

risk of actual prejudice to Bucci to the point that . . . his



     2 Jordan argues that the government should be estopped from
arguing that his trial counsel was aware of the courtroom closure,
because it originally argued that his lawyer should not have known
of the error. To the contrary, the government's prior position
was merely an arguendo assumption at that stage of litigation.
See Bucci, 662 F.3d at 33 ("The government so far has been willing
to assume that Jordan's counsel was unaware of the closure.").


                                    - 7 -
client's interests would be best served by moving the trial along

and focusing on the immediate task of jury selection."            Id. at 31-

32.   We see no reason for a different view here with respect to

Jordan.     During the partial closure, Jordan's wife was seated in

the courtroom and counsel was studying the list of prospective

jurors; counsel's choice to focus on that important task, in lieu

of making an objection of arguably minimal value, was objectively

reasonable for the reasons we gave in Bucci, 662 F.3d at 29-32.

            In attempting to distinguish his case from Bucci's,

Jordan points to testimony during the evidentiary hearing that his

lawyer, unlike Bucci's, thought it valuable to have the public

present.     But it is settled law that the ineffectiveness enquiry

applies     an   "objective   standard      of   reasonableness,"    not   a

subjective one, Strickland, 466 U.S. at 688, with the consequence

that nothing turns on the general views of Jordan's lawyer.           While

Jordan     alternatively   frames    the    argument   as   his   counsel's

objective failure to "implement his own chosen strategy" to include

all of the public, the testimony Jordan relies on demonstrates

only that his attorney had a preference for the public's presence,

not a proper "strategy."            Reasonable judgment may forsake a

preference in order to address a more pressing need, and a lawyer

who understands that is not constitutionally ineffective.




                                    - 8 -
                    III.

The judgment of the district court is affirmed.




                   - 9 -
