Martez Bickham v. Thomas Winn
Opinion
SILER, J., delivered the opinion of the court in which THAPAR, J., joined in part and in the result. THAPAR, J. (pg. 253), delivered a separate opinion concurring in part and in the judgment. WHITE, J. (pp. 253-56), delivered a separate dissenting opinion.
Petitioner Martez Bickham appeals the district court's denial of his petition for habeas corpus, in which he argues that the Michigan trial court violated his Sixth Amendment right to a public trial by closing the courtroom during voir dire.
We affirm the district court's denial of Bickham's petition because he failed to comply with Michigan's contemporaneous-objection rule and is, therefore, procedurally barred from pursuing his Sixth Amendment habeas claim.
FACTUAL AND PROCEDURAL BACKGROUND
Following a jury trial in Michigan state court, Bickham was convicted of second-degree
*250
murder, armed robbery, assault with intent to commit armed robbery, and possession of a firearm during the commission of a felony. As voir dire was about to commence at Bickham's trial, court officers began to clear the public from the courtroom. Bickham's counsel objected to the public's removal, citing
Presley v. Georgia
,
The Court is not excluding people from being in the courtroom. Right now the deputies are removing the spectators or people who are in the courtroom in order to allow ... the jury panel of over fifty people be allowed in, and so that they are not intermixed with the audience, and so once the whole panel is in, those who fit separately from the jury can be allowed in. But we cannot bring a jury in with the number of people in this courtroom. They fill the bleachers, and in order to conduct voir dire, we need the jury panel to fit into the courtroom.
[BICKHAM'S COUNSEL]: I understand, Judge, I just wanted to bring that to your attention.
THE COURT: I'm well aware of it. Thank you.
After jury selection concluded, Bickham's attorney asserted:
Judge, I would just once again under [ Presley ], the other family members of the defendant, supporters and possible witnesses were not allowed to come back in, or were not allowed to be seated in the courtroom during voir dire after they were excluded for the seating.
THE COURT: All right. Thank you. I would state that there was no additional request made after the court explained the situation, and that the jury panel being [a] fifty-two member panel filled the entire courtroom, except for the small bench that can hold two people. If there was a request for two people to be in, specifically because there was a crowd of probably fifty people in the courtroom, some may be family or friends, or some having to do with other cases, I have no idea who they were. But there was no ruling made on any request. It was not made.
Bickham appealed his conviction, arguing that his Sixth Amendment right to a public trial was violated when the public was removed from the courtroom during jury selection and was not permitted to reenter.
See
People v. Bickham
, No. 300952,
In 2014, Bickham filed a petition for habeas corpus pursuant to
DISCUSSION
A petitioner who fails to satisfy state procedural requirements forfeits his
*251
right to present a habeas claim.
Seymour v. Walker
,
A habeas petitioner procedurally defaults a claim if: (1) the petitioner failed to comply with a state rule; (2) the state enforced the rule against the petitioner; and (3) the rule is an "adequate and independent" state ground foreclosing review of a federal constitutional claim.
Willis v. Smith
,
All three elements from
Willis
have been met in this case, and Bickham has procedurally defaulted his Sixth Amendment habeas claim. First, Michigan's contemporaneous-objection rule requires parties to "raise objections at a time when the trial court has an opportunity to correct the error, which could thereby obviate the necessity for further legal proceedings."
People v. Grant
,
Although Bickham objected when the trial court ordered members of the public to exit the courtroom, the court responded that it was only initially removing the public in order to bring in the jury panel and that some of the public would be permitted to reenter after the panel was seated. Following entry of the jury panel, the court bailiffs apparently did not allow members of the public to reenter. As noted by the Michigan trial court, Bickham did not request that the court allow members of the public to reenter after the jury panel was seated, and the trial court, therefore, was unable to rule on such a request. In order to preserve his claim, Bickham should have objected when the jury panel had been seated and members of the public were not permitted to reenter. He objected a second time following voir dire, but this objection came too late for the court to take corrective actions.
See
Grant
,
Bickham argues that his failure to object when members of the public were denied reentry was excusable because defense counsel reasonably relied upon the court's assurance that the public would be able to reenter after the jury panel was seated. Cases cited by Bickham in support of this proposition, however, involve trial courts' granting of evidentiary motions prior to trial.
See, e.g.
,
People v. Hernandez
,
As to the second element from
Willis
, the Michigan Court of Appeals ruled that Bickham did not preserve his Sixth Amendment challenge with a timely objection.
Bickham
,
Third, Michigan precedent makes clear that the contemporaneous-objection rule was "firmly established and regularly followed" in the public-trial context at the time of Bickham's trial.
Ford v. Georgia
,
Bickham nevertheless suggests that the rule was not firmly established and regularly followed because the Michigan Supreme Court had not specifically weighed in on the rule's application to voir dire at the time of his trial.
See
People v. Vaughn
,
Thus, the three procedural default elements have been satisfied,
see
Willis
,
AFFIRMED .
*253 CONCURRING IN PART AND IN THE JUDGMENT
THAPAR, Circuit Judge, concurring in part and concurring in the judgment.
I join Judge Siler's thoughtful opinion with one reservation: We have no business deciding whether the Michigan court properly applied its contemporaneous-objection rule. Accordingly, I would not reconsider whether the timing of Bickham's objections amounted to procedural default under Michigan law. Once we determine that the state court applied a procedural rule that was independent of federal law and adequate to support the state court's judgment, we should go no further.
State courts have the final say on the meaning of state law.
See
Estelle v. McGuire
,
DISSENT
HELENE N. WHITE, Circuit Judge, dissenting.
I do not agree that Bickham procedurally defaulted his Sixth Amendment claim. The majority states that "Bickham should have objected when the jury panel had been seated and members of the public were not permitted to reenter. He objected a second time following voir dire, but this objection came too late for the court to take corrective actions." (Op., at 251.) Thus, the majority essentially characterizes Bickham's first objection as premature and his second objection as belated. But, Bickham's first objection was timely, and, having justifiably relied on the trial court's assurance that his right to a public trial would not be violated, Bickham was not required to make a second objection.
I. Bickham's First Objection
Michigan courts require parties to "raise objections at a time when the trial court has an opportunity to correct the error ...."
People v. Grant
,
Here, the trial court acknowledged that "deputies [were] removing the spectators or people who are in the courtroom[,]" but believed that seating restrictions allowed it to order them to do so. (R. 5-10, PID 664-665.) As
Presley
made clear, however, articulation of a generalized concern over limited space and the number of prospective jurors is not sufficient to rebut the strong presumption of openness.
Importantly, as the parties have stipulated, the exclusion of every member of the public was not necessary to accommodate the venire because a "smaller bench [in the courtroom] could have accommodated at least two members of the public, and the large one at least a dozen." (R. 5-22, PID 1873, ¶ 6.) The parties have also stipulated that the trial court failed to "consider[ ] [using additional chairs] as an alternative to barring members of the public from jury selection," ( Id. at ¶ 7), and that "the judge did not instruct the deputies to let any specific person or persons back in, and so none were." ( Id. at 1872, ¶ 5.) After the trial court's order of ouster, courtroom deputies refused entry to all members of the public: a deputy told Bickham's brother that he could not reenter the courtroom; Bickham's mother observed a deputy telling another woman the same; and a sign was hung on the courtroom door that read: "JURY SELECTION IN PROGRESS DO NOT ENTER." ( Id. at 1874.)
There is no indication in the record that Bickham's counsel was aware of the local practice of "deny[ing] access to anyone who attempted to enter" while displaying a prohibitory sign.
See
United States v. Gupta
,
Thus, I would hold that Bickham's first objection was contemporaneous with the constitutional violation and adequately preserved his Sixth Amendment claim.
II. Bickham's Second Objection
As the majority states, a habeas petitioner procedurally defaults a claim if: (1) the petitioner failed to comply with a state rule; (2) the state enforced the rule against the petitioner; and (3) the rule is an "adequate and independent" state ground foreclosing review of a federal constitutional claim.
Willis v. Smith
,
Bickham preserved his Sixth Amendment claim because he was assured by the trial court that his right to a public trial would not be violated, and he justifiably relied on that assurance. The trial court stated that it was "well aware" of the potential constitutional violation and its obligations under
Presley
. (R. 5-10, 664-665.) Nothing in the trial court's statements indicated that the matter needed to be raised again or that subsequent requests "to readmit any spectators" were required, as the Michigan Court of Appeals concluded.
People v. Bickham
, No. 300952,
It was not until after it was too late that the trial court informed Bickham of the court's requirement that additional requests be made. Indeed, the parties have stipulated that "[i]n reliance upon [the trial court's] statement that the public would be readmitted once the whole panel entered the courtroom, defense counsel did not ask that any specific people be readmitted to the courtroom during jury selection." (R. 5-22, PID 1872, ¶ 5.)
Neither the government nor the majority has identified a firmly established and regularly followed rule in Michigan requiring parties to reassert objections after those objections have been acknowledged by the court. Therefore, reliance on such a rule cannot serve as an adequate ground to bar review of Bickham's habeas petition.
See
Walker v. Martin
,
Thus, accepting that the state court's application of Michigan law was correct, the state court nevertheless applied a rule that was neither firmly established nor regularly followed; thus, it cannot constitute an adequate and independent state ground foreclosing review of Bickham's federal constitutional claim.
III. Conclusion
Because Bickham did not procedurally default his Sixth Amendment claim, and the denial of a right to a public trial is a structural error that does not require a showing of actual prejudice,
Arizona v. Fulminante
,
In
Presley v. Georgia
,
Reference
- Full Case Name
- Martez Romal BICKHAM, Petitioner-Appellant, v. Thomas WINN, Warden, Respondent-Appellee.
- Cited By
- 125 cases
- Status
- Published