739 F2d 531 Douglas v. L Wainwright H

739 F.2d 531

Howard Virgil Lee DOUGLAS, Petitioner-Appellant,
Louie L. WAINWRIGHT, Secretary, Florida Department of
Offender Rehabilitation, and David H. Brierton,
Superintendent of Florida State Prison
at Starke, Florida,

No. 81-5927.

United States Court of Appeals,
Eleventh Circuit.

Aug. 1, 1984.

Elliott C. Metcalfe, Jr., Public Defender, Larry Helm Spalding, Sarasota, Fla., Steven M. Goldstein, Tallahassee, Fla., for petitioner-appellant.

Alan Ellis, Philadelphia, Pa., for amicus curiae Nat. Ass'n of Criminal Defense Lawyers.

Louis Carres, Public Defender, West Palm Beach, Fla., for amicus curiae Florida Public Defenders Ass'n.

Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

On Remand from the Supreme Court of the United States.

Before RONEY and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.



The Supreme Court, --- U.S. ----, 104 S.Ct. 3575, --- L.Ed.2d ----, granted the petition for writ of certiorari in this case, vacating our judgment in Douglas v. Wainwright, 714 F.2d 1532 (11th Cir.1983), and remanded for further consideration in light of Waller v. Georgia, --- U.S. ----, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) and Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because we find that Waller and Strickland do not significantly change the basis of our holding in Douglas, we continue to abide by our prior decision.



In Douglas, as did the Supreme Court in Waller, we looked to the Court's prior holdings on the first amendment right to attend criminal trials for guidance in deciding the scope of a defendant's sixth amendment right to a public trial. We identified several purposes of the public trial guarantee: allowing the public to see that a defendant is fairly dealt with, encouraging trial participants to perform their duties more conscientiously, discouraging perjury, and bringing forth witnesses who might not otherwise testify. 714 F.2d at 1541-42. The Court's opinion in Waller focused on basically the same aims of the guarantee as those identified in Douglas. --- U.S. at ----, 104 S.Ct. at 2213-17.


Likewise, we find Waller and Douglas in agreement as to the stringent test that must be met for a complete closure to be justified. In Douglas, the panel relied on Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), in concluding that complete closure is "proscribed absent a most compelling justification," 714 F.2d at 1540, and that a court must hold a hearing and articulate specific findings before ordering either a total or partial closure, id. at 1545. The Waller Court articulated a very similar test:


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.


--- U.S. at ----, 104 S.Ct. at 2215 (quoting Press-Enterprise Co. v. Superior Court, --- U.S. ----, ---- - ----, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984)). The Court further noted that the test articulated in Waller was in accord with its holding in Globe Newspaper Co., the case relied upon by the panel in Douglas.


The different results in Douglas and Waller are thus not attributable to the application of differing legal standards, but to the application of the same legal standards to dissimilar facts. The most important distinguishing factor is that Waller involved a total closure, with only the parties, lawyers, witnesses, and court personnel present, the press and public specifically having been excluded, while Douglas entailed only a partial closure, as the press and family members of the defendant, witness, and decedent were all allowed to remain. Moreover, the closure in Waller was for the entire seven days of the suppression hearing although the playing of the disputed tapes lasted only two-and-one-half hours, whereas in Douglas the partial closure was limited to the one witness' testimony. Douglas, therefore, presented this court with a fact situation different and unique from that faced by the Waller Court.


Because only a partial closure was involved in Douglas, we relied upon the binding precedent of Aaron v. Capps, 507 F.2d 685 (5th Cir.1975),1 which had held that where a partial closure is involved, a court must look to the particular circumstances to see if the defendant still received the safeguards of the public trial guarantee. Id. at 688. In Aaron, the court held that no constitutional violation had occurred because, inter alia, members of the press and the defendant's relatives and clergymen were present at the trial. As in Aaron, the Douglas panel found that the impact of the closure was "not a kind presented when a proceeding is totally closed to the public," 714 F.2d at 1544, and therefore only a "substantial" rather than "compelling" reason for the closure was necessary. Id. The panel further found that a substantial reason--protection of the witness from unnecessary insult to her dignity--existed that justified the partial closure. Id. at 1544-45.


Douglas thus involved an application of the general sixth amendment public trial guarantee to the specific situation of a partial closure, a situation not addressed in Waller. We do not read Waller as disapproving of Aaron's adaptation of the general standards governing closures, standards on which Douglas and Waller are in accord,2 to a case where only a partial closure is involved and at least some access by the public is retained. Consequently, we reaffirm the denial of habeas relief on the public trial issue.




The Court also remanded for further consideration in light of its holding in Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the panel opinion we held that counsel's performance at the penalty phase constituted ineffective assistance warranting habeas relief.


In Washington, the Court identified two components of a general ineffective assistance of counsel claim: the defendant must demonstrate (1) that counsel's performance "fell below an objective standard of reasonableness," id. at ----, 104 S.Ct. at 2065, and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at ----, 104 S.Ct. at 2068. Moreover, the defendant must satisfy both the performance and prejudice prongs to be entitled to relief. Id. at ----, 104 S.Ct. at 2069.


In the panel opinion, we found that defense counsel's performance had fallen below a standard of reasonableness; indeed, we observed that "counsel's ineffectiveness cries out from a reading of the transcript." 714 F.2d at 1557. The first prong of the Washington test was thus satisfied in Douglas.


As to the prejudice prong, we noted in our opinion that Washington was before the Supreme Court and that the circuits were in conflict as to what standard of prejudice was to be used. We further explained, however, that we did not need to withhold our decision until the Supreme Court decided Washington, because "under virtually any standard, prejudice is evident on the face of the record." Id. Later in the opinion, we expressly stated that counsel's ineffectiveness created a "great 'likelihood that counsel's inadequacy affected the outcome of the trial,' " id. at 1558, thus satisfying a standard even more strict than Washington's "reasonable probability" standard, see --- U.S. at ----, 104 S.Ct. at 2067. We therefore reaffirm our original holding that the district court erred in denying habeas corpus relief on the ineffective assistance of counsel claim.


For the foregoing reasons the panel opinion is reinstated.

RONEY, Circuit Judge, dissenting:


I dissent for the reasons set forth in my dissent to the original panel opinion. Douglas v. Wainwright, 714 F.2d 1532 (11th Cir.1983).


The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981


As did the Waller Court, the Douglas panel found that "an opportunity to be heard and adequate findings are required where any closure of the trial is contemplated and the defendant objects and requests an opportunity to be heard." 714 F.2d at 1546. See also Waller, --- U.S. at ----, 104 S.Ct. at 2213. The defendant in Douglas, however, had failed to specifically object to the absence of a hearing or findings, resulting in procedural default. 714 F.2d at 1546; see also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)