                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0398p.06

               UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                 X
                                                  -
 WILLIAM JOHNSON,
                                                  -
                             Petitioner-Appellant,
                                                  -
                                                  -
                                                      No. 08-1322
           v.
                                                  ,
                                                   >
                                                  -
                        Respondent-Appellee. -
 JERI ANN SHERRY, Warden,
                                                  -
                                                 N
                   Appeal from the United States District Court
                  for the Eastern District of Michigan at Detroit.
               No. 06-11214—Bernard A. Friedman, District Judge.
                                  Argued: August 7, 2009
                         Decided and Filed: November 13, 2009
               Before: COLE, CLAY, and KETHLEDGE, Circuit Judges.

                                    _________________

                                         COUNSEL
ARGUED: Elizabeth L. Jacobs, LAW OFFICE, Detroit, Michigan, for Appellant. Andrew
L. Shirvell, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan,
for Appellee. ON BRIEF: Elizabeth L. Jacobs, LAW OFFICE, Detroit, Michigan, for
Appellant. Brian O. Neill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee.
     CLAY, J., delivered the opinion of the court, in which COLE, J., joined.
KETHLEDGE, J. (pp. 12–15), delivered a separate dissenting opinion.
                                    _________________

                                         OPINION
                                    _________________

        CLAY, Circuit Judge. Petitioner William Johnson (“Johnson”) appeals the district
court’s judgment denying his petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. On appeal, he argues that the state violated his Sixth Amendment right to a public
trial when it excluded the public from the courtroom during portions of his jury trial and that


                                              1
No. 08-1322          Johnson v. Sherry                                                 Page 2


his Sixth Amendment right to effective assistance of counsel was violated when his trial
attorney failed to object to the closure. For the reasons that follow, we VACATE the
judgment of the district court and REMAND for an evidentiary hearing.

        I.      BACKGROUND

                A.      Procedural History

        On January 10, 2003, a jury convicted Johnson of one count of second degree murder
in violation of Michigan Compiled Laws (“MCL”) § 750.317; three counts of assault with
intent to commit murder in violation of MCL § 750.83; and possession of a firearm during
the commission of a felony in violation of MCL § 750.227b. Johnson was sentenced to
concurrent prison terms of thirty-five to sixty years for the murder conviction and twenty to
forty years each for the assault convictions, to be served consecutive to a two-year term for
the felony firearm conviction.

        Johnson timely filed a motion for a new trial and requested an evidentiary hearing,
but his motion was denied. His convictions were affirmed on direct appeal, and the
Michigan Supreme Court denied his application for leave to appeal. Johnson timely filed
a petition for a writ of habeas corpus in the United States District Court for the Eastern
District of Michigan and his petition was denied on February 12, 2008. Johnson timely filed
a notice of appeal, along with a request for a certificate of appealability (“COA”) on
numerous issues. The district court granted a partial COA, certifying Johnson’s claims that
he was denied his right to a public trial and that his attorney was ineffective in failing to
object to the closure of the courtroom. This Court entered an order stating that only the
claims certified by the district court would be heard.

                B.      Substantive Facts

        The Michigan Court of Appeals outlined the facts underlying Johnson’s convictions
as follows:

               Defendant’s convictions arise from the fatal shooting of Carlos
        Davis and non-fatal shooting assaults of James Mathis, Larry Lewis and
        Robert Richards outside a dance hall in Hamtramck on March 3, 2002. The
        shootings occurred after the victims and several other persons left the hall
No. 08-1322          Johnson v. Sherry                                                     Page 3


        after a large brawl broke out among partygoers. Only two persons, Robert
        Richards and Damon Ramsuer, reported seeing the shooter.
                Richards told the police that he saw the shooter, and he gave a
        detailed description of his clothing. The police obtained photographs taken
        by a hired photographer before the fight broke out, and showed the
        photographs to Richards, who identified defendant as the shooter from one
        of these photographs. Richards identified [Johnson] at the preliminary
        examination, but Richards was killed before defendant’s trial. His
        preliminary examination testimony was read [to the jury] at trial.
                 The police also interviewed Ramsuer, who signed a statement
        declaring that he saw the shooter. Ramsuer also identified defendant from
        the party photographs. Ramsuer failed to appear for the preliminary
        examination. When he testified at trial, he denied seeing the shooter, denied
        telling the police that he saw the shooter, and denied making an
        identification. The prosecutor impeached him with the signed statement, and
        with the testimony of the officer who took the statement. . . .
                At the start of trial, the prosecutor moved to close the courtroom to
        spectators during the testimony of three prosecution witnesses, Mathis,
        Lewis, and Ramsuer, who were afraid to testify publicly. The prosecutor
        explained that two other prosecution witnesses had been killed under
        suspicious circumstances: Richards was killed in his bed, and Elvin
        Robinson was killed before the preliminary examination. Defense counsel
        agreed to exclude spectators for these witnesses, but asked the trial court not
        to do so in the jury’s presence. The trial court never removed anyone from
        the courtroom, but instead instructed defendant’s relatives not to arrive
        before 11:00 a.m. on the day that Mathis, Lewis, and Ramsuer testified, and
        to remain outside the courtroom until permitted to enter.
(R. at 85-86.)

        Following his conviction, Johnson filed a motion for a new trial claiming denial of
the right to a public trial. In denying the motion, the trial court noted that counsel agreed to
the suggested closure and that counsel asked members of Johnson’s family not to appear in
the courtroom until after 11:00 a.m. the following day. After exhausting this claim and an
ineffective assistance of counsel claim in the state courts, Johnson filed a petition for habeas
relief in federal district court pursuant to 28 U.S.C. § 2254. Among other claims, Johnson
claimed that his right to a public trial was violated and that counsel was ineffective for
failing to assert that right. In the district court’s opinion denying habeas relief, the court held
that Johnson’s claim was procedurally defaulted, providing the following explanation:
No. 08-1322            Johnson v. Sherry                                                          Page 4


         [I]n this case, Respondent’s procedural default argument is not based upon
         defendant’s failure to object, it is based upon his consent, through counsel,
         to the courtroom closure. Respondent argues that this acquiescence
         constituted a waiver of this claim. The Court finds that Petitioner waived his
         right to a public trial by his acquiescence, through his attorney, to the
         closure.
(R. at 1602.) The district court also explained, in the alternative, that the claim would fail
on the merits:

         The Court finds that the state court’s conclusion was a reasonable
         application of Waller. While the trial court’s findings could have been more
         clearly articulated on the record, it was, as observed by the Michigan Court
         of Appeals, a reasonable conclusion that the suspicious deaths of two
         witnesses had, in the trial court’s opinion, sparked enough fear in three
         witnesses and sufficiently placed their well-being at risk to override
         Petitioner’s right to a public trial. The trial court limited the closure to just
         three witnesses and ensured that the closure would not be evident to the jury.
         Considering these circumstances, the Court finds that the state court’s
         application of the Waller factors was not unreasonable.
(R. at 1603.)

         With respect to Johnson’s ineffective assistance of counsel claim, the Michigan
Court of Appeals concluded that “trial counsel’s acquiescence was neither objectively
                                                                      1
unreasonable, nor outcome-determinative.” (R. at 1148.)                   The district court agreed,
holding that because “the decision to close the courtroom for a limited time was not an
unreasonable application of Waller . . . Petitioner has failed to establish that the failure
to object to the closure fell ‘outside the wide range of professionally competent
assistance’” as required by Strickland v. Washington, 466 U.S. 668, 689 (1984). (R. at
1611.)




         1
           It is unclear what “outcome determinative” means, because, as discussed below, if the counsel’s
actions resulted in a closure that was unjustified or broader than necessary, prejudice would be presumed.
No. 08-1322          Johnson v. Sherry                                                Page 5


        II.     DISCUSSION

                A.      Standard of Review

        Because Johnson filed his habeas petition in 2006, his petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Benge v.
Johnson, 474 F.3d 236, 241 (6th Cir. 2007). Under the AEDPA, Johnson may obtain
relief only if he can show that the state court’s decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law,” 28 U.S.C. § 2254(d)(1),
or that the state court relied on an “unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2). In reviewing
a district court’s decision to grant or deny habeas relief, this Court reviews questions of
fact under a “clearly erroneous” standard and questions of law de novo. Carson v.
Burke, 178 F.3d 434, 436 (6th Cir. 1999).

                B.      Analysis

        Johnson’s appeal presents two interrelated issues: (1) whether his Sixth
Amendment right to a public trial was violated when the court closed the courtroom
during the testimony of three prosecution witnesses; and (2) whether trial counsel was
constitutionally ineffective for failing to object to the closure.

        The Sixth Amendment to the United States Constitution guarantees that, “[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”
U.S. Const. amend. VI; see also In re Oliver, 333 U.S. 257, 278 (1948) (holding this
right to be binding on the states through the due process clause of the Fourteenth
Amendment). “The requirement of a public trial is for the benefit of the accused; that
the public may see he is fairly dealt with and not unjustly condemned, and that the
presence of interested spectators may keep his triers keenly alive to a sense of their
responsibility and to the importance of their functions.” Waller v. Georgia, 467 U.S. 39,
46 (1984) (internal quotation marks and citations omitted). Because of the “‘great,
though intangible, societal loss that flows’ from closing courthouse doors,” the denial
of a right to a public trial is considered a structural error for which prejudice is
No. 08-1322             Johnson v. Sherry                                                            Page 6


presumed. Id. at 50 n.9 (quoting People v. Jones, 47 N.E.2d 1335, 1340 (N.Y. 1979)).
In light of these concerns, to justify the closure of a courtroom over the objections of a
defendant, “the party seeking to close [a public] 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
(applying the test set forth in Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510
(1984), to a Sixth Amendment public trial claim).2

         In the instant case, the prosecution moved to close the courtroom during the
testimony of three prosecution witnesses. The prosecutor informed the court that two
witnesses had been killed “under very suspicious grounds” near the time of the
preliminary examination and that a number of the remaining witnesses were afraid to
testify at trial. (R. at 138-39.) The trial court expressed concerns regarding the closure,
stating that the prosecutor was “treading on some very dangerous ground,” and inquired
“[w]ell, if these persons are essentially being protected . . . what is their concern about?”
(R. at 138-40.) Nonetheless, defense counsel acquiesced to the closure, stating:

         Judge, let me make this very simple. Mr. Johnson and I have discussed
         this issue since [the prosecution] brought it to my attention. If the Court
         wants to do that, [i.e., close the courtroom], we don’t really have any
         objection to it for those certain witnesses. The only thing I’m concerned
         about is that we do it well away from the jury; that either we excuse, you
         know, so it doesn’t look like it’s some weird circumstance. I mean, I
         don’t have any problem.
(R. at 387.) The court accepted defense counsel’s position without making further
inquiry or findings, and defense counsel instructed members of Johnson’s family to
remain outside of the courtroom during the testimony at issue.




         2
           The four-part test discussed above was first developed in Press-Enterprise, 464 U.S. at 510,
which addressed the First Amendment right to public jury selection. The Waller Court adopted the test
in the context of the Sixth Amendment right to a public trial, explaining that “there can be little doubt that
the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit
First Amendment right of the press and public.” 467 U.S. at 46 (emphasis added).
No. 08-1322          Johnson v. Sherry                                                  Page 7


        Johnson concedes that his attorney acquiesced to the closure, but argues that
because the right to a public trial is a fundamental constitutional right and a structural
guarantee, his attorney’s statements were insufficient to constitute waiver. While we
agree that the right to a public trial is an important structural right, it is also one that can
be waived when a defendant fails to object to the closure of the courtroom, assuming the
justification for closure is sufficient to overcome the public and media’s First
Amendment right to an open and public trial proceeding. See Freytag v. Commissioner,
501 U.S. 868, 896 (1991) (“[T]he Sixth Amendment right to a trial that is ‘public,’
provide[s] benefits to the entire society more important than many structural guarantees;
but if the litigant does not assert [it] in a timely fashion, he is foreclosed.”) (collecting
cases); see also Peretz v. United States, 501 U.S. 923, 936-37 (1991) (citing Levine v.
United States, 362 U.S. 610, 619 (1960)). Because Johnson failed to object to the
closure, his claim is procedurally defaulted unless he can show cause and prejudice for
the default. Coleman v. Thompson, 501 U.S. 722, 750 (1991).

        The doctrine of procedural default provides:

        In all cases in which a state prisoner has defaulted his federal claims in
        state court pursuant to an independent and adequate state procedural rule,
        federal habeas review of the claims is barred unless the prisoner can
        demonstrate cause for the default and actual prejudice as a result of the
        alleged violation of federal law, or demonstrate that failure to consider
        the claims will result in a fundamental miscarriage of justice.
Id. Here, it is undisputed that Johnson failed to make a contemporaneous objection to
the closure, which is required by an “independent and adequate state procedural rule.”
United States v. Frady, 456 U.S. 152, 168 (1982). It is also evident that the last state
court from which Johnson sought review invoked the state procedural rule as a basis for
its decision to reject review of the claim. (See R. at 86 (state court of appeals stated that
Johnson “expressly waived his right by assenting to the trial court’s decision to close the
courtroom during the three witnesses’ testimony.” (citations omitted).) Thus, the district
No. 08-1322             Johnson v. Sherry                                                              Page 8


court found that Johnson’s claim was denied based on an independent and adequate state
procedural rule.3

         Under these circumstances, federal habeas review of Johnson’s public trial claim
is barred unless Johnson can “demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
Johnson argues that he has demonstrated cause for the default because his counsel was
ineffective in failing to object to the closure of the trial. Consequently, both of
Johnson’s claims on appeal turn on whether his counsel was constitutionally ineffective.4

         In order to establish ineffective assistance of counsel, a defendant must
demonstrate that “counsel’s representation fell below an objective standard of
reasonableness,” and that “the deficient performance prejudiced [his] defense.”
Strickland, 466 U.S. at 687-88. In the instant case, we agree that defense counsel’s
failure to object to the closure of Johnson’s trial may have fallen below an “objective
standard of reasonableness” as required in Strickland. Courts have been clear that while
the closure of a trial may be justified in certain cases, “[s]uch circumstances will be rare
. . . and the balance of interests must be struck with special care.” Waller, 467 U.S. at
45; see also Press-Enterprise, 464 U.S. at 510 (holding that a closure may be justified
only by “an overriding interest based on findings that closure is essential to preserve
higher values and is narrowly tailored to serve that interest”); Owens v. United States,
483 F.3d 48, 64 (1st Cir. 2007) (holding that the failure to object to the courtroom


         3
           Johnson argues that the state procedural default was not an independent and adequate state
ground barring subsequent federal review because Michigan courts “regularly waive contemporaneous
objection defaults where the issue is perceived to concern constitutional due process rights” and that, here,
the state court did so when it reached the merits of his public trial claim. (Johnson’s Reply Br. 4.)
However, while the state court did discuss the merits of Johnson’s public trial claim, it clearly did so as
an alternative basis for denying the claim, and the procedural default rule applies. (See R. at 86
(“[D]efendant expressly waived his right by assenting to the trial court’s decision. . . . Moreover, the right
to a public trial is not absolute . . . .”)); see also Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (“[A] state
court need not fear reaching the merits of a federal claim in an alternative holding. . . . [R]econsideration
of the federal issue on federal habeas [is curtailed] as long as the state court explicitly invokes a state
procedural bar rule as a separate basis for decision.”) (emphasis in original).
         4
           Attorney error can only constitute cause if it constitutes ineffective assistance of counsel under
the test enunciated in Strickland, 466 U.S. 668. See Coleman, 501 U.S. at 752; see also Murray v. Carrier,
477 U.S. 478, 488 (1986).
No. 08-1322           Johnson v. Sherry                                                          Page 9


closure for a day of jury selection deprived defendant of a substantial fair trial right).
Counsel’s failure to object to the closure of the courtroom during the testimony of three
key prosecution witnesses, arguably the most important phase of Johnson’s trial, denied
Johnson a substantial fair trial right and counsel should have approached the issue with
caution.

         Given the absence of on-the-record findings by the trial court, it is difficult for
us to discern whether it was necessary for the courtroom to be closed to all spectators for
the testimony at issue. However, on the record before us, we are far from convinced that
this was the “rare” circumstance where closure was justified, or that the closure was “no
broader than necessary” to protect the interest advanced by the state under Waller, 467
U.S. at 48. While the prosecution made general allegations that two prosecution
witnesses—Elvin Robinson and Robert Richards—had been murdered, Johnson stresses
that another individual was charged with the stabbing of Elvin Robinson, and the
prosecution offered no proof that Johnson or any member of Johnson’s family was
involved in the death of those individuals. See Waller, 467 U.S. at 48 (requiring the
party seeking the closure to provide specific evidence of an overriding interest that was
likely to be prejudiced). The prosecution presented no witnesses or evidence in support
of the closure, and did not point to any incidents in which the witnesses at issue had been
threatened or otherwise contacted by any member of Johnson’s family. In fact, both the
court and the prosecution acknowledged that the request was on thin or dangerous
ground.5 Notwithstanding these circumstances, defense counsel made no effort to limit
the closure to less than three witnesses, or to ensure that the excluded individuals be
limited to those individuals who might be perceived as a threat to the witnesses. Under
these circumstances, defense counsel’s acquiescence to the closure appears unjustified.6

         5
          The prosecutor stated that “[t]he only case law I really found deals with small children [who
we]re intimidated by someone present in those cases,” acknowledged that his motion was on “very thin
ground,” and noted that he was sure that defense counsel would have an objection to the closure. (R at
138-39.) When the prosecution requested closure, the trial court stated that the prosecutor was “treading
on some very dangerous ground.” (Id. at 138.)
         6
           Johnson alleges that the family members who were excluded included four aunts, ranging from
38 to 50 years in age, and a female first cousin who was 38 years old. Johnson’s Br. 7. In In re Oliver,
333 U.S. 257, 272 (1948), the Supreme Court explained that a defendant has a particularly compelling
interest in having his family present at his trial.
No. 08-1322         Johnson v. Sherry                                               Page 10


        To be sure, counsel’s decision would be owed deference if it could be viewed as
strategic, and counsel may have been privy to information of which we are unaware. See
Strickland, 466 U.S. at 689 (explaining that a defendant must overcome the presumption
that, under the circumstances, the challenged action might be considered sound trial
strategy). For example, defense counsel may have known that Johnson’s family
members had a history of contact with the relevant witnesses or he may have known
more about the nature of the alleged witness killings than the record revealed. However,
if counsel had additional relevant information, it is not evident from the record. No court
below conducted an evidentiary hearing to explore these matters, and, on the record
before us, it is difficult to see how the failure to object to the closure could have been
strategic. See id; see also Owens, 483 F.3d at 66 (remanding for an evidentiary hearing
when there was no indication that counsel’s failure to object to a closure was strategic).
Consequently, an evidentiary hearing is warranted to determine if trial counsel’s failure
to object to the closure constitutes deficient performance.

        If Johnson can establish that counsel’s performance was deficient, he will also
be required to demonstrate that he was prejudiced by the error. See Coleman, 501 U.S.
at 750 (requiring a showing of prejudice to excuse procedural default of a claim);
Strickland, 466 U.S. at 687 (requiring a showing of prejudice to establish ineffective
assistance of counsel). There would be no prejudice—either with respect to Johnson’s
ineffective assistance of counsel claim or with respect to the showing of prejudice
necessary to excuse procedural default—if the government’s interest in closure was so
compelling that the closure at issue would have been ordered notwithstanding counsel’s
objection. However, in light of the compelling interest in a public trial and the rigorous
test set forth in Waller, we are far from confident that the closure would have been
implemented as suggested by the prosecution over Johnson’s objections. Because the
right to a public trial is a structural guarantee, if the closure were unjustified or broader
than necessary, prejudice would be presumed. See Waller, 467 U.S. at 50 n.9; see also
United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006) (citing Waller for the
proposition that “violation of the public-trial guarantee is not subject to harmlessness
review because ‘the benefits of a public trial are frequently intangible, difficult to prove,
No. 08-1322             Johnson v. Sherry                                                           Page 11


or a matter of chance’”). Consequently, if evidence reveals that counsel’s failure to
object fell below an objective standard of reasonableness, there is a strong likelihood that
counsel’s deficient performance would be deemed prejudicial.7

         In sum, we are deeply concerned by the lack of attention afforded to Johnson’s
fundamental right to a public trial and conclude that further exploration of this issue is
warranted.8 On this record, it is virtually impossible to determine whether the closure
of the trial was justifiable. Once further facts are available, the district court will be
better equipped to determine whether closure of the trial was justified, whether trial
counsel was constitutionally ineffective for failing to object, and whether the cause and
prejudice components of Johnson’s public trial claim can be satisfied.

                                            CONCLUSION

         For the reasons stated above, we VACATE the district court’s judgment denying
habeas relief and REMAND for an evidentiary proceeding to determine whether the trial
closure was justifiable, whether trial counsel was constitutionally ineffective for failing
to object, and whether the cause and prejudice components of Johnson’s public trial
claim can be satisfied.




         7
           As discussed in Owens, 483 F.3d at 64 n.13, Johnson must make two showings of prejudice.
First, he must show that counsel’s failure to object to the trial closure prejudiced him for purposes of
determining whether there was ineffective assistance of counsel. Strickland, 466 U.S. at 687. Second, he
must show prejudice to excuse his procedural default on the public trial claim. Coleman, 501 U.S. at 750.
As was true in Owens, “[w]e believe that these showings of prejudice overlap , and we [address] them
simultaneously.” 483 F.3d at 64 n.13; Cf. Strickler v. Greene, 527 U.S. 263, 282 (1999) (“In this case,
cause and prejudice [for procedural default] parallel two of the three components of the alleged [trial error]
itself.”)
         8
           While defense counsel’s objection triggers the trial court’s duty to make factual findings under
Waller, the court could have averted the issues presented in this appeal by conducting a detailed inquiry
before agreeing to the prosecutor’s request. The Supreme Court has made clear that trial closures infringe
upon an important structural guarantee and that they should be rare. Waller, 467 U.S. at 45. Moreover,
while First Amendment issues were not raised in this case, the public and the press also have a compelling
First Amendment interest in a public trial. See Press-Enterprise, 464 U.S. at 509-10 (“[The] circumstances
under which the press and public can be barred from a criminal trial are limited; the State’s justification
in denying access must be a weighty one.”) (internal quotation marks and citation omitted). Given the
great, though intangible, societal loss that flows from closing courthouse doors, Waller, 467 U.S. at 50 n.9,
a prudent court should carefully scrutinize a party’s request before agreeing to close a courtroom.
No. 08-1322         Johnson v. Sherry                                              Page 12


                                 __________________

                                      DISSENT
                                 __________________

        KETHLEDGE, Circuit Judge, dissenting. In defending a murder charge, it is a
bad idea, I think, to leave the judge with a smoldering suspicion that your client had a
role in killing two of the prosecution’s key witnesses before trial. A lawyer who
minimizes that danger—by consenting to, rather than fighting, closure of the courtroom
during the testimony of three surviving witnesses, out of a total of 18 testifying
witnesses in the case—does not thereby render constitutionally ineffective assistance of
counsel. That is all the more true, in my opinion, when there is not a shred of evidence
that the closure had the slightest effect on the trial’s outcome.

        The majority concludes otherwise. The majority suggests that the closure fight
here was one worth having—indeed, that it was constitutionally mandated—its ethereal
upside and concrete downside notwithstanding. The majority then sidesteps the absence
of any actual prejudice resulting from Johnson’s consent to the closure—and with it, the
plainly stated actual-prejudice requirement of Strickland v. Washington, 466 U.S. 668
(1984)—by holding that Johnson need not show any prejudice at all in support of his
ineffective-assistance-of-counsel claim. That holding is not supported by “clearly
established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1),
which means that we are without power to impose it on the Michigan state courts in this
habeas case. I respectfully dissent.

                                        *    *      *

        The majority and I agree that Johnson’s habeas petition fails unless he can prove
his ineffective-assistance-of-counsel claim. To prove that claim, Johnson must first
show that his “counsel’s errors were so serious as to deprive [him] of a fair trial, a trial
whose result is reliable.” Strickland, 466 U.S. at 687. That showing requires, of course,
proof that counsel committed errors in the first place. Second, Johnson “must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. We review for an abuse of
No. 08-1322        Johnson v. Sherry                                             Page 13


discretion a district court’s decision whether to hold an evidentiary hearing on these
issues. See Ivory v. Jackson, 509 F.3d 284, 297 (6th Cir. 2007).

       The district court did not abuse its discretion here, because Johnson’s claim
clearly fails on both grounds. First, prior to trial, two witnesses identified Johnson as
the shooter in a barrage that left Carlos Davis dead, Larry Lewis and James Mathis
wounded, and Robert Richards untouched by the bullets that Johnson fired toward him.
Richards was unavailable to testify at trial—because he had been shot to death, in bed,
after his testimony at Johnson’s preliminary exam. Another prosecution witness, Elvin
Robinson, was shot to death before he was able to testify at Johnson’s exam. At trial,
the prosecution moved to close the courtroom during the testimony of three surviving
witnesses: Damon Ramsuer, who was the sole surviving witness to have identified
Johnson as the shooter; and Lewis and Mathis, two of the persons Johnson shot. In
support of its motion, the prosecution explained that all three witnesses were “literally
terrified” and were “cowering, refusing to come to court, even under threat of being
arrested, because they [were] afraid for their lives.” Johnson’s counsel chose not to pick
this particular fight—truly a strategic decision if there ever was one—and, after
consulting with Johnson, affirmatively agreed to the three-witness closure.

       The question before us is whether that decision was so far outside the bounds of
competent representation as to amount to constitutionally ineffective assistance of
counsel. I do not think the decision can possibly be seen that way. Having reviewed the
trial transcript, it seems to me instead that the decision was correct. Johnson’s counsel
essentially agreed to close the courtroom during the testimony of three witnesses, out of
a total of 18 witnesses at trial. Strategically the net effect of that closure, as Johnson
now describes it, was that several of his “female relatives” did not witness the testimony
of those three witnesses. In return, Johnson’s counsel deflected the trial judge from a
line of inquiry—as to why, exactly, these three witnesses were so terrified to testify
against Johnson—that almost certainly would have reflected poorly on his client. That
avoidance appears all the wiser given that it emerged at Johnson’s sentencing—and
perhaps could have emerged sooner, had Johnson’s counsel fought the closure—that
No. 08-1322         Johnson v. Sherry                                               Page 14


Richards was shot to death with ammunition from the same lot that Johnson used to kill
Davis and wound Lewis and Mathis. The Constitution, suffice it to say, permitted this
strategic choice.

        Second, there is no evidence in the record—which includes the entire transcript
of Johnson’s trial—that Johnson’s consent to closure as to three witnesses had any effect
on the outcome of his murder trial. The majority does not assert the contrary. Instead,
the majority holds, “[b]ecause the right to a public trial is a structural guarantee, if the
closure were unjustified or broader than necessary, prejudice would be presumed.” Maj.
Op. at 10. In so holding the majority drives right past the distinction between a Waller
claim and a Strickland one. What the majority says is true enough for a Waller claim,
but Johnson’s petition undisputedly turns on a Strickland one; and Strickland repeatedly
and unequivocally says that actual prejudice is required. See, e.g., 466 U.S. at 694
(“The defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different”) (emphasis
added); id. at 693 (“It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding”).

        Reasonable jurists can disagree as to whether, when a defendant asserts an
ineffective-assistance claim based on an underlying violation of his right to a public trial,
the Waller definition of prejudice should trump the Strickland one, or vice versa. In a
lengthy analysis of this very issue, the Eleventh Circuit held that the Strickland actual-
prejudice requirement applies. See Purvis v. Crosby, 451 F.3d 734, 743 (11th Cir. 2006).
(Our decision today directly conflicts with that decision.) The First Circuit has held that
the Waller definition prevails, see Owens v. United States, 483 F.3d 48, 64-66 & n.14
(1st Cir. 2007)—although, critically, it did so in considering a challenge to an underlying
federal conviction, see 28 U.S.C. § 2255, and thus was not limited, as we are here, to
deciding whether “clearly established Federal law, as determined by the Supreme
Court,” requires that result. Id. § 2254(d)(1) (emphasis added). But I simply do not see
how, when Johnson presents a Strickland claim and Strickland by its terms imposes an
No. 08-1322        Johnson v. Sherry                                           Page 15


actual-prejudice standard, we can hold that clearly established Supreme Court precedent
required the Michigan state courts to apply a presumed-prejudice standard instead.

       What has been clearly established for decades is that “a court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance[.]” Strickland, 466 U.S. at 689. Johnson has not touched that
presumption here. I respectfully dissent.
