Ernest Sutton Bell v.  Mack Jarvis; Robert Smith

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 ERNEST SUTTON BELL,
Petitioner-Appellant,
v. No. 98-7002 
MACK JARVIS; ROBERT SMITH,
Respondents-Appellees. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-97-232-5-H)
Argued: May 2, 2000
Decided: December 29, 2000
Before WILKINSON, Chief Judge, WIDENER, MURNAGHAN,*
WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL,
MOTZ, TRAXLER, and KING, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
Affirmed by published opinion. Judge Traxler wrote the majority
opinion, in which Chief Judge Wilkinson and Judges Widener, Wil-
kins, Niemeyer, Luttig, Williams, and King joined. Judge Motz wrote
a dissenting opinion, in which Judge Michael joined. Senior Judge
Butzner wrote a dissenting opinion.
*Judge Murnaghan heard oral argument in this case but died prior to
the time the decision was filed.

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COUNSEL
ARGUED: James Phillip Griffin, Jr., NORTH CAROLINA PRIS-
ONER LEGAL SERVICES, INC., Raleigh, North Carolina, for
Appellant. Ellen Bradshaw Scouten, Special Deputy Attorney Gen-
eral, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellees. ON BRIEF: Kathryn L. VandenBerg,
NORTH CAROLINA PRISONER LEGAL SERVICES, INC.,
Raleigh, North Carolina, for Appellant. Michael F. Easley, Attorney
General of North Carolina, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina, for Appellees.
OPINION
TRAXLER, Circuit Judge:
Ernest Sutton Bell appeals the district court’s decision denying his
petition for writ of habeas corpus, see 28 U.S.C.A. § 2254 (West 1994
& Supp. 2000), in which he challenges his convictions in North Caro-
lina state court of multiple counts of sexual misconduct, including
rape, committed against his minor step-granddaughter.1 We affirm.
I.
In January 1994, Bell was convicted by a jury in North Carolina
of fifty-eight counts of sexual misconduct — comprised of eight
counts of first degree rape, four counts of first degree sexual offense,
nineteen counts of second degree rape, and twenty-seven counts of
taking indecent liberties with a minor — all of which involved his
step-granddaughter Wendy.2 The offenses spanned a two-year period,
1Because Bell’s petition for writ of habeas corpus was filed after the
April 24, 1996 enactment of the Antiterrorism and Effective Death Pen-
alty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, the
amendments to 28 U.S.C.A. § 2254 effected by § 104 of the AEDPA
govern the resolution of this appeal. See Slack v. McDaniel, 120 S. Ct.
1595, 1602 (2000).
2The record indicates that twenty-seven additional counts were dis-
missed during the course of the trial.
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beginning in March 1990, when Wendy was awakened on a Saturday
morning by Bell, who proceeded to rape her by vaginal and anal inter-
course while she begged him to stop. Afterwards, Bell told Wendy
that he would stop loving her if she told anyone what he had done.
Wendy was twelve years old and in the sixth grade. Bell was fifty-
five years old, a family member and trusted adult figure in Wendy’s
life, known to her since birth.
The threat was effective. For the next two years, Bell, who lived
nearby, sexually molested Wendy by vaginal and anal intercourse,
oral sex, and other indecent sexual touchings once or twice each
month in his home, while his wife was sleeping or at work, and
approximately twice a week at Wendy’s home, and in her bed, during
her after-school hours. Wendy, too frightened to tell her parents about
the abuse, began to withdraw from others and to sleep on the floor
instead of in her bed. In addition, Wendy’s schoolwork, already made
difficult by a learning disability, began to deteriorate.
Evidence at trial revealed that, in addition to Wendy, Bell had sex-
ually molested two other adolescent girls, both of whom lived nearby
and were friends of Wendy. The first, Toni, testified that Bell had
repeatedly molested her by vaginal and anal intercourse, over the
course of approximately one year, and that Bell utilized threats of
hurting her sister to keep Toni from telling anyone. Toni also testified
that she was present at Bell’s home on one occasion when he sexually
molested Wendy. Locked outside of the house, Toni testified that she
could hear Wendy’s screams. Toni was eleven years old when the
abuse began.
The third minor, Vicki, testified that while visiting Bell with
Wendy in the fall of 1990, Bell touched her breasts, anus, and vagina
through her clothing. At the time, Bell’s wife was cooking dinner and
Vicki, unsure of what had occurred, got up from the floor where she
had been playing with a puppy and sat on the couch. The next day,
Vicki asked Wendy if Bell had done anything like that to her, prompt-
ing Wendy to confide in her friend. At the time, Vicki was twelve
years old. Afterwards, Wendy continued to confide in Vicki about
Bell’s actions, but Vicki kept silent. She also refused Wendy’s
requests that Vicki go with her to Bell’s home. In May 1992, how-
ever, Vicki finally agreed to again accompany Wendy to Bell’s home,
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hoping Bell would leave Wendy alone if Vicki was present. Instead,
Bell turned his attention to Vicki. While Bell’s wife and Wendy slept,
Bell again touched Vicki in the same places, although this time he did
so beneath her clothing. Vicki was able to temporarily avoid further
assault, first by telling Bell she needed to go to the restroom, and later
by the stirrings of Bell’s sleeping wife. Undaunted, Bell repeated
these actions the following day while swimming with Vicki and
Wendy. Like her friends, Vicki continued her silence.
In fact, each of the girls kept quiet until June 1992, when Wendy
and Vicki attended a slumber party together and saw a television
show about rape and the sexual molestation of children. Vicki told
Wendy that she "couldn’t take it anymore, [and] was telling [her] par-
ents the next day when [she] got home." J.A. 451. Wendy agreed to
do the same. The following afternoon, Wendy told her mother and
aunt about Bell’s sexual abuse, and law enforcement officers were
contacted. Shortly thereafter, Wendy was examined by a pediatrician
who found physical evidence consistent with repeated sexual penetra-
tion.
The day before Bell’s trial began, the state trial judge held a pre-
trial hearing to address several evidentiary issues, Bell’s motion to
sequester the minor witnesses, which was granted, and the state’s
motion to consolidate the charges involving Wendy with those
involving Toni and Vicki, which was denied. The state had also
moved to close the courtroom during the testimony of each girl, but
at least as to Wendy. Bell objected to closure, on Sixth Amendment
public trial grounds, but offered no alternative to the temporary clo-
sure request proposed by the state. The trial judge, noting that the tes-
timony would be "of an apparent delicate nature," agreed that a
temporary closure would be appropriate, but ruled that it would be
carried out as discreetly as possible so as not to call it to the jury’s
attention. J.A. 281.
The next day, the courtroom was closed to the public during
Wendy’s testimony.3 At a minimum, however, the court reporter,
3Before the jury entered the courtroom, the state informed the judge
that Wendy would be the first witness. This resulted in the closure being
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court personnel, the jury, the prosecutor, Bell’s attorney, and the fam-
ily members and friends of the minor witnesses were allowed to remain.4
Also, the testimony was recorded as was standard, and was available
for transcription to the public. Of the 700-plus-page trial transcript,
spanning four days, approximately forty-four pages comprised the
testimony of Wendy.
At the conclusion of Wendy’s testimony, the courtroom was imme-
diately reopened.5 At that time, the trial judge specifically asked
whether Bell wanted his wife to return to the courtroom. Bell’s coun-
sel refused, indicating that they did not want her to return, after which
the trial judge stressed that Bell was entitled to have anyone he
wanted in the courtroom with him.6
implemented for a short time before Wendy actually testified — specifi-
cally, during the swearing of the jury and the very brief openings, all of
which comprised five pages of transcript. By doing so, the trial judge
purposely eliminated the need to return the jury to the jury room after
openings and served the goal of carrying out the closure as discreetly as
possible. Although technically beyond the scope of the original closure
order, Bell’s trial counsel lodged no objection to the closure being han-
dled in this manner and no appeal is taken in this regard.
4The state contends that the press was also permitted to stay, but Bell
contends that this is unclear. It is indeed unclear. The transcript does not
indicate whether the press was present in the courtroom or whether any
member of the press wanted to be present. Although there was pre-trial
publicity associated with the trial, there is no indication that the press
objected to the closure.
5Although the state originally asked for closure of the courtroom dur-
ing the testimony of Toni and Vicki, it is also unclear as to whether the
courtroom was ever closed again — a fact that the state and Bell do not
dispute. Bell’s petition for habeas relief complains that "the trial judge
closed the courtroom during the complainant’s testimony," J.A. 92, and,
in any event, if Bell cannot show that the courtroom was closed during
the testimony of Toni and Vicki, he obviously cannot show a violation
of his right to a public trial on that basis. Accordingly, we limit our dis-
cussion to the closure of the courtroom during Wendy’s testimony.
6With the exception of his wife, Bell points to no one who was actually
excluded by the trial judge’s order. The specific colloquy regarding her
return was as follows:
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Bell was ultimately convicted by the jury and sentenced to two life
terms plus seventy years. On direct appeal, counsel selected four
assignments of error to pursue in briefing. The convictions and sen-
tence were affirmed on direct appeal. See State v. Bell, 453 S.E.2d
877 (N.C. App. 1995) (table).
Bell then filed a motion for appropriate relief ("MAR"), see N.C.
Gen. Stat. § 15A-1415 (1999), in the Pitt County Superior Court,
asserting that he received ineffective assistance of counsel on direct
appeal, in violation of his Sixth Amendment right to counsel, because
his appellate counsel did not pursue a claim that his Sixth Amend-
ment right to a public trial was violated by the trial judge’s closure
of the courtroom during Wendy’s testimony. The Superior Court
denied Bell’s MAR, and the North Carolina Court of Appeals denied
his subsequent petition for certiorari.
Bell thereafter filed a petition for writ of habeas corpus, pursuant
to 28 U.S.C.A. § 2254, in the federal district court, asserting as the
sole claim that his counsel was ineffective for failing to raise the pub-
lic trial claim on direct appeal. The district court, rejecting the magis-
trate judge’s recommendation that Bell be granted either a new state
appeal or trial, dismissed Bell’s petition and, pursuant to 28 U.S.C.A.
§ 2253(c)(2) (West Supp. 2000), denied him a certificate of appeala-
bility. See Bell v. Jarvis, 7 F.Supp.2d 699 (E.D.N.C. 1998).
After this court granted Bell a certificate of appealability on the
issue of whether he received ineffective assistance of counsel on
direct appeal, a panel of the court reversed the district court’s denial
of habeas relief and remanded for the conditional issuance of the writ,
holding that the state trial judge’s closure of the courtroom violated
Bell’s Sixth Amendment right to a public trial and that Bell’s counsel
THE COURT: All right.
Do you want Mrs. Bell to come in here?
MR. O’KELLEY: Your Honor, I don’t actually. We’ll just
leave her out of the courtroom, that will be
fine.
THE COURT: Well, you are welcome to have anybody in
here you want now.
MR. O’KELLEY: Yes, sir, I understand.
J.A. 339.
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was constitutionally ineffective for failing to pursue the public trial
claim on direct appeal to the North Carolina appellate court. See Bell
v. Jarvis, 198 F.3d 432 (4th Cir. 1999) (vacated). A majority of the
active circuit judges thereafter voted to hear the appeal en banc.
Because we conclude that the state court’s rejection of Bell’s MAR
was not an unreasonable adjudication of Bell’s Sixth Amendment
claims, see 28 U.S.C.A. § 2254(d), we now affirm the district court’s
decision to deny Bell’s habeas petition.
II.
A.
We begin our analysis with the recognition, recently highlighted by
the United States Supreme Court, that we may not review Bell’s Sixth
Amendment claims de novo. Rather, because Bell’s ineffective assis-
tance of counsel claim was adjudicated on the merits by the North
Carolina state court, our review is limited by the deferential standard
of review set forth in § 2254(d), as interpreted by the Supreme Court
in Williams v. Taylor, 120 S. Ct. 1495, 1518-23 (2000): We may not
grant federal habeas relief unless we conclude that North Carolina’s
adjudication of the claim "was contrary to, or involved an unreason-
able application of, clearly established Federal law, as determined by
the Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1);
see Williams, 120 S. Ct. at 1518.
In Williams, the Supreme Court held that a state court decision is
"contrary to . . . clearly established Federal law, as determined by the
Supreme Court," 28 U.S.C.A. § 2254(d)(1), "if the state court arrives
at a conclusion opposite to that reached by th[e] Court on a question
of law or if the state court decides a case differently than th[e] Court
has on a set of materially indistinguishable facts," Williams, 120
S. Ct. at 1523. In such cases, "a federal court will be unconstrained
by § 2254(d)(1) because the state-court decision falls within that pro-
vision’s ‘contrary to’ clause." Id. at 1520. The Court also upheld the
principle that a state court decision "involve[s] an unreasonable appli-
cation of[ ] clearly established Federal law, as determined by the
Supreme Court," 28 U.S.C.A. § 2254(d)(1), when the state court
"identifies the correct governing legal principle from th[e] Court’s
decisions but unreasonably applies that principle to the facts of the
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prisoner’s case." Williams, 120 S. Ct. at 1523. However, the Court left
open the question of whether a decision represents an unreasonable
application of precedent if the state court decision "unreasonably
extend[s] a legal principle from our precedent to a new context where
it should not apply (or unreasonably refuse[s] to extend a legal princi-
ple to a new context where it should apply)." Id. at 1521; see Green
v. French, 143 F.3d 865, 869-70 (4th Cir. 1998), cert. denied, 525
U.S. 1090 (1999). Instead, the Court held that "[f]or now it is suffi-
cient to hold that when a state-court decision unreasonably applies the
law of th[e] Court to the facts of a prisoner’s case, a federal court
applying § 2254(d)(1) may conclude that the state-court decision falls
within that provision’s ‘unreasonable application’ clause," id. at 1521.
Finally, the Court made it clear that "an unreasonable application of
federal law is different from an incorrect application of federal law."
Id. at 1522 (emphasis added). Thus, "a federal habeas court may not
issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly estab-
lished federal law erroneously or incorrectly. Rather, that application
must also be [objectively] unreasonable." Id.
In this case, the North Carolina state court did not articulate the
rationale underlying its rejection of Bell’s Sixth Amendment claim.
However, we may not "presume that [the] summary order is indica-
tive of a cursory or haphazard review of [the] petitioner’s claims."
Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998). Rather, the
state court decision is no less an "adjudication" of the merits of the
claim and must be reviewed under the deferential provisions of
§ 2254(d)(1). See id. at 156-57. In such cases, we conduct an indepen-
dent examination of the record and the clearly established Supreme
Court law, see Bacon v. Lee, 225 F.3d 470, 478 (4th Cir. 2000); Baker
v. Corcoran, 220 F.3d 276, 291-92 n.14 (4th Cir. 2000), but we must
still "confine our review to whether the court’s determination
‘resulted in a decision that was contrary to, or involved an unreason-
able application of, clearly established Federal law, as determined by
the Supreme Court of the United States.’" Bacon, 225 F.3d at 478
(quoting 28 U.S.C.A. § 2254(d)(1)).
B.
Our colleagues in dissent take issue with this standard of review,
asserting that we should also require federal habeas courts to "‘inde-
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pendently ascertain whether the record reveals a violation’ of [the
petitioner’s] constitutional rights — i.e., whether the state court erred
in denying the writ" — before turning to the § 2254(d) question of
whether the state court determination resulted in a decision that was
contrary to, or involved an unreasonable application of, the applicable
law. Infra at 40. We disagree.
1.
In support of the argument that federal habeas courts must render
an independent determination of whether the state court, in its judg-
ment, "erred in denying the writ," the dissent relies primarily upon
our decision in Cardwell v. Greene, 152 F.3d 331 (4th Cir. 1998). In
Cardwell, a panel of this court held that the failure of a state court to
articulate any rationale for its adverse determination of a constitu-
tional claim renders a "review [of] that court’s ‘application of clearly
established Federal law’" impossible and necessitates that federal
habeas courts "independently ascertain whether the record reveals a
violation of" the petitioner’s constitutional rights. Id. at 339. Under
these circumstances, the court held, "the distinction between de novo
review and reasonableness review becomes insignificant." Id. (inter-
nal quotation marks and alterations omitted).
a.
As an initial premise, we note that Cardwell does not require fed-
eral habeas courts to independently ascertain whether a prisoner’s
constitutional rights have been violated as an interim step to a "rea-
sonableness" determination, as the dissent would now have us inter-
pret it. Rather, it effectively accords no deference to state court
decisions unaccompanied by articulated reasons, and nowhere is this
more evident than in its explicit statement that in such cases there is
no difference of significance between the pre-AEDPA de novo review
and the reasonableness review called for by the AEDPA amendments.
See e.g., Aycox, 196 F.3d at 1177-78 (noting conflict between those
circuits which "look to the state court’s result and defer to it even
where analysis is lacking" and Cardwell’s requirement that federal
habeas courts reviewing a summary state court decision "indepen-
dently ascertain whether the record reveals a violation of" the peti-
tioner’s constitutional rights).
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When issued, Cardwell was inconsistent with our prior opinion in
Wright, in which we had declined to review summary state court adju-
dications de novo. See Wright, 151 F.3d at 156-57. In Wright, we held
that the criterion of a reasonable determination for purposes of
§ 2254(d) is not "whether [the state court decision] is well reasoned,"
but "whether the determination is at least minimally consistent with
the facts and circumstances of the case." Id. at 157 (quoting Hennon
v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997)). Thus, while we noted
that "a detailed state court order is more likely to withstand federal
judicial scrutiny," id. at 157, we, too, declined to interpret the term
"unreasonable" in § 2254(d) "as having reference to the quality of the
reasoning process articulated by the state court in arriving at the
determination," Hennon, 109 F.3d at 334. Such an interpretation, as
recognized by the court in Hennon "would place the federal court in
just the kind of tutelary relation to the state courts that the recent
amendments [were] designed to end." Id. at 335; see also Aycox, 196
F.3d at 1178 n.3 (although "[a] state court’s explanation of its reason-
ing would avoid the risk that we might misconstrue the basis for the
determination, and consequently diminish the risk that we might con-
clude the action unreasonable at law or under the facts at hand, . . .
when presented with a summary disposition, . . . we will do our best
under the standard of review mandated by the AEDPA.")
Without mention of the decision in Wright, the Cardwell court
improperly equated the "reasonableness" inquiry of § 2254(d) with
"the quality of the reasoning process articulated by the state court in
arriving at the determination," Hennon, 109 F.3d at 334, thereby
adopting the precise approach we had just rejected. See Jones v.
Angelone, 94 F.3d 900, 905 (4th Cir. 1996) (noting that a panel of this
court cannot "overrule the decision of another panel; only the en banc
court may overrule a prior panel decision"). The Cardwell decision is
now also inconsistent with the Supreme Court’s recent interpretation
of the standard of review called for by the AEDPA amendments to
§ 2254(d)(1).
b.
Prior to the enactment of the AEDPA amendments, federal courts
were required to exercise independent judgment when entertaining a
state prisoner’s application for habeas relief. See Williams, 120 S. Ct.
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at 1516 (O’Conner, J., concurring). "In other words, a federal habeas
court owed no deference to a state court’s resolution" of "questions
of constitutional law [or] mixed constitutional questions (i.e., applica-
tion of constitutional law to fact)," id., and precedent "dictated that a
federal court should grant a state prisoner’s petition for habeas relief
if that court were to conclude in its independent judgment that the rel-
evant state court had erred," id. at 1517.
In Williams, however, the Supreme Court expressly rejected the
view that "§ 2254(d)(1) does not alter th[is] previously settled rule of
independent review," as well as the notion that if a federal court, after
"carefully weighing all the reasons for accepting a state court’s judg-
ment, . . . remains convinced that a prisoner’s custody violates the
Constitution, that independent judgment should prevail." Id. at 1518
(internal quotation marks omitted). Such an interpretation, the Court
held, "gives the 1996 amendment no effect whatsoever," id., and
"avoid[s] confronting the specific meaning of the statute’s ‘unreason-
able application’ clause and its ramifications for the independent-
review rule," id. at 1519.
Accordingly, since our decision in Cardwell, the Supreme Court
has made it clear that de novo, independent, or plenary review of state
court adjudications is no longer appropriate, that there are indeed
important distinctions between the "reasonableness" review called for
by the AEDPA and the de novo review of the past, and that a writ of
habeas corpus may no longer issue simply because a federal habeas
"court concludes in its independent judgment that the relevant state-
court decision applied clearly established federal law erroneously or
incorrectly." Id. at 1522. Despite attempts to characterize it otherwise,7
7See Barnabei v. Angelone, 214 F.3d 463, 469 (4th Cir.), cert. denied
121 S. Ct. 24 (2000) (recognizing that "de novo review by a federal
habeas court [is] inappropriate under § 2254(d)," but that Cardwell none-
theless requires federal habeas courts reviewing summary state court
decisions to "‘independently ascertain whether the record reveals a viola-
tion’" of the petitioner’s constitutional rights"; Green v. Catoe, 220 F.3d
220, 223 (4th Cir. 2000) (noting that although a "perfunctory rejection"
of petitioner’s constitutional claim is an "adjudication" for purposes of
§ 2254(d), we must nonetheless "review th[e] claims under the Cardwell
standard" of review which considers "the distinction between de novo
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the decision in Cardwell plainly calls for just such a review when the
state court decision fails to articulate the rationale behind its denial of
a claim. It requires federal habeas courts to "independently ascertain
whether the record reveals a violation" of the petitioner’s constitu-
tional rights, Cardwell, 152 F.3d at 339, and thereby pass judgment
on whether the state court has erred. Accordingly, to the extent that
Cardwell requires federal habeas courts to conduct a de novo or effec-
tively de novo review of a summary state court adjudication, or to
grant habeas relief based upon an independent determination that the
state court has violated the constitutional rights of the petitioner, it
must be overruled.
2.
Cardwell aside, we turn to the question of whether there are other
persuasive reasons for requiring federal habeas courts, as an essential
part of the § 2254(d) inquiry, to independently ascertain whether the
state court has "erred" before turning to the question of whether the
state court decision is contrary to or involves an unreasonable applica-
tion of the controlling Supreme Court precedents. We find none.
First and foremost, the language of § 2254(d) does not support such
a requirement. Section 2254(d) requires federal habeas courts to
ascertain whether the underlying state court adjudication of a claim
on the merits "resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established" Supreme Court
precedent. 28 U.S.C.A. § 2254(d)(1) (emphasis added). It does not
require that a state court cite to federal law in order for a federal court
to determine whether the state court decision is an objectively reason-
able one, nor does it require a federal habeas court to offer an inde-
pendent opinion as to whether it believes, based upon its own reading
of the controlling Supreme Court precedents, that the defendant’s
constitutional rights were violated during the state court proceedings.
review and ‘reasonableness’ review [to be] insignificant") (emphasis in
original); Goins v. Angelone, 226 F.3d 312, 326 (4th Cir. 2000) (holding
that because the state court "decided the[ ] claims without written analy-
sis, the distinction between section 2254(d) ‘reasonableness’ review and
de novo review becomes insignificant").
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The recent Supreme Court decision in Williams also counsels against
imposing an inflexible requirement upon a federal habeas court to
independently ascertain whether it would find a constitutional viola-
tion were it presented with an identical factual situation. Such a deter-
mination fulfills no statutory duty and runs contrary to the spirit of
§ 2254(d)(1), for a writ of habeas corpus may no longer be issued
simply because a federal court concludes in its independent judgment
that the state court erred. See Williams, 120 S. Ct. at 1521-22.8
8The dissent points to the Supreme Court’s decisions in Weeks v.
Angelone, 120 S. Ct. 727 (2000) and Wilson v. Layne, 526 U.S. 603
(1999) as indicators that the Court would impose such an "independent
determination" requirement. We simply do not find these inferences
appropriate.
The Weeks Court affirmed our denial of habeas relief, concluding that
the petitioner had not demonstrated a constitutional violation under
clearly established Supreme Court precedents and "a fortiori[,] that the
adjudication of the Supreme Court of Virginia affirming petitioner’s con-
viction and sentence was neither ‘contrary to,’ nor did it involve an
‘unreasonable application of,’ any of our decisions." Id. at 734. The dis-
sent claims that, because the Supreme Court rendered an independent
decision on the merits based upon its own precedents in a case involving
a summary state court disposition, we should presume that the Court
would require lower federal courts to do so as well. However, we could
just as easily imply the opposite conclusion. Despite our explicit refer-
ence to the summary nature of the state court disposition, see Weeks v.
Angelone, 176 F.3d 249 (4th Cir. 1999) (reiterating Wright’s holding that
"[a] state court’s perfunctory decision is reasonable if it ‘is at least mini-
mally consistent with the facts and circumstances of the case’"), the
Supreme Court made no mention of the summary nature of the state
court’s adjudication below, gave no indication that the standard of
review required by § 2254(d) was to be altered by how extensively the
state court has articulated the underlying basis for its determination, and
could have — but did not — impose such a methodology of review upon
itself or the lower federal courts.
The dissent’s reliance upon Wilson v. Layne is equally unpersuasive.
In Wilson, the Court clarified that federal courts addressing claims under
42 U.S.C.A. § 1983 (West Supp. 1998) must decide whether the plain-
tiff’s constitutional rights were violated before turning to the question of
whether the state official charged with violating the plaintiff’s rights is
entitled to qualified immunity because the constitutional right was not
clearly established at the time of the alleged violation. See id. at 609.
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Nor are we presented with other persuasive reasons or purposes,
not expressed in the statute, which would support our imposing upon
ourselves and our district courts a "methodology" of review in
§ 2254(d) cases that requires a determination of whether the state
court has "erred" before a determination of whether the state court
result is unreasonable in light of clearly established Supreme Court
precedents. Cardwell provides no insight into the question of why we
should require federal habeas courts to conduct a de novo review
prior to conducting a reasonableness review of the constitutional
questions before it, most likely because it did not purport to require
the independent determination as an interim step towards determining
reasonableness.
Thus, we appear to be left with the dissent’s reliance upon Van
Tran v. Lindsey, 212 F.3d 1143, 1154-55 (9th Cir.), cert. denied, 121
S. Ct. 340 (2000), in which the Ninth Circuit imposed, in all cases,
this non-statutory requirement of determining whether the state court
"erred" before turning to inquiry necessitated by the AEDPA. "Re-
quiring federal courts to first determine whether the state court’s deci-
sion was erroneous, prior to considering whether it was contrary to or
involved an unreasonable application of controlling law under
AEDPA," the court held, "promotes clarity in our own constitutional
jurisprudence and also provides guidance for state courts, which can
look to our decisions for their persuasive value." Id. at 1155. To the
extent these rationales are offered by the dissent in support of its view
that we should likewise adopt this proposed methodology, at least in
cases involving summary state court adjudications, we are unper-
suaded.9
This order of procedure, the Court held, "promotes clarity in the legal
standards for official conduct, to the benefit of both the officers and the
general public." Id. However, unlike in the doctrinally distinct area of
qualified immunity, our decisions in federal habeas cases do not create
"clearly established" law for state courts deciding future habeas cases.
Only the Supreme Court can create "clearly established" law for pur-
poses of § 2254(d)(1). See Williams, 120 S. Ct. at 1523 (holding that
§ 2254(d) explicitly "restricts the source of clearly established law to [the
Supreme] Court’s jurisprudence").
9Although the dissent does not explicitly advocate that we require fed-
eral courts to pass judgment on whether the state court has erred in cases
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By amending § 2254(d), Congress prohibited federal courts from
granting habeas relief to a state court defendant unless the state court
adjudication resulted in a decision that was contrary to or involved an
unreasonable application of Supreme Court precedents, thereby
explicitly "restrict[ing] the source of clearly established law to [the
Supreme] Court’s jurisprudence." Williams, 120 S. Ct. at 1523; see
also Harris v. Stovall, 212 F.3d 940, 944 (6th Cir. 2000) (The "clearly
established" provision of the AEDPA "marks a ‘significant change’
and prevents the district court from looking to lower federal court
decisions in determining whether the state court decision is contrary
to, or an unreasonable application of, clearly established federal
law."). Because a federal court may now grant habeas relief only if
it determines that the state court decision is contrary to, or an unrea-
sonable application of Supreme Court jurisprudence, and not circuit
court precedent, any independent opinions we offer on the merits of
where the state court has articulated its rationale, the Van Tran court has
required this predecessor determination in all cases. The requirement, it
seems, stems from the court’s decision to equate an "unreasonable" state
court decision for purposes of § 2254(d) with one which is "clearly erro-
neous." See id. at 1153-54. So long as the court is "left with a ‘definite
and firm conviction’ that an error has been committed," id. at 1153, the
application will be considered "unreasonable" under § 2254(d)(1) and the
writ will issue, see id. at 1153-54. This circuit has not equated the "un-
reasonable" standard of § 2254(d) with a "clearly erroneous" standard;
nor did the Supreme Court in Williams, although the Court did make it
clear that an erroneous or incorrect decision is not the equivalent of an
unreasonable one and seemed to reject the "firmly convinced" line of rea-
soning. Williams, 120 S. Ct. at 1518 (rejecting notion that if a federal
court, after "carefully weighing all the reasons for accepting a state
court’s judgment, . . . remains convinced that a prisoner’s custody vio-
lates the Constitution, that independent judgment should prevail.") (inter-
nal quotation marks omitted); see also Francis v. Stone, 221 F.3d 100,
110 (2d Cir. 2000) (noting that Van Tran’s "approach . . . focuses on how
sure the habeas court is that the state court has committed error, not
whether the state court decision reveals an increment of wrongness
beyond error"); Hennon, 109 F.3d at 334 ("[T]he statute commands def-
erence to the state court’s judgment by using the word ‘unreasonable,’
which is stronger than ‘erroneous’ and maybe stronger than ‘clearly erro-
neous.’") In any event, we to have not been asked to adopt the "clearly
erroneous" standard as the standard for reasonableness under § 2254(d),
and we decline do so today.
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the constitutional claims will have no determinative effect in the case
before us, nor any precedential effect for state courts in future cases.
At best, it constitutes a body of constitutional dicta.
Nor is there a persuasive need to require federal habeas courts to
offer opinions on significant constitutional questions simply in the
interest of providing "guidance" to the state courts within our circuits.
We have no reason to presume that state courts are in need of our
guidance in interpreting and applying the controlling Supreme Court
precedents. Our charge under the statute is only to determine whether
the state court’s adjudication of the claims before it was a reasonable
one in light of the controlling Supreme Court law.10
10On at least one occasion, a panel of this court has indicated that in
cases where we might reach a contrary conclusion on a "close" issue, the
state court adjudication is not unreasonable. See Tucker v. Catoe, 221
F.3d 600, 614 (4th Cir. 2000). Today, we hold that a federal court con-
clusion that a state court has "erred" in its opinion on a "close" case is
not required. A federal habeas court may determine that the issue is
"close," and therefore not unreasonable, without rendering an opinion as
to whether it would reach the same conclusion if presented with the iden-
tical issue on direct appeal or by way of a § 2255 application. See e.g.,
Vick v. Williams, No. 99-7406, 2000 WL 1724031, at *6 (4th Cir. Nov.
20, 2000) (noting "that a state court’s decision may be objectively rea-
sonable even where . . . a federal court deciding the issue on direct
appeal would come to a different conclusion."); Sanders v. Easley, No.
00-2, 2000 WL 1624498 at *7 (4th Cir. Oct. 31, 2000) (noting that the
question is not whether the state court has erred in our view, but whether
the decision of the state court was contrary to or involved an unreason-
able application of Supreme Court law). Indeed, this represents the spirit
of § 2254(d)(1)’s deference to state court decisions on federal constitu-
tional claims.
This does not mean, however, that it is unacceptable for a federal
habeas court to conclude that the state court decision was correct and,
therefore, not an unreasonable application of Supreme Court precedent.
Clearly, it is acceptable to do so. See e.g., Weeks v. Angelone, 176 F.3d
249 (4th Cir. 1999), aff’d, 120 S. Ct. 727 (2000); McCarver v. Lee, 221
F.3d 583, 594 n.6 (4th Cir. 2000). We simply decline to dictate to federal
habeas courts any strict methodology by which they are to arrive at the
ultimate, statutorily mandated determination of whether the state court
adjudication has resulted in a decision that is contrary to, or which
involves an unreasonable application of, clearly established Supreme
Court law. See Francis, 221 F.3d at 110 (noting that in the wake of the
Supreme Court’s decision in Williams, the courts have applied the "un-
reasonable application" phrase of § 2254(d) in varied ways).
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3.
We have consistently held that a summary state court decision on
the merits of a federal constitutional claim is an "adjudication" of the
claim for purposes of § 2254(d), and we reaffirm that holding today.
See Bacon, 225 F.3d at 478; Baker, 220 F.3d at 291 n.14. Wright, 151
F.3d at 156-57; Cardwell, 152 F.3d at 339. When the state court fails
to articulate the rationale behind its ruling, we must independently
review the record and the applicable law. See Bacon, 225 F.3d at 478;
Baker, 220 F.3d at 291 n.14. However, this independent review of the
record and applicable law must be distinguished from a de novo
review of the petitioner’s claims and from a requirement that we
make an independent determination on the merits of those claims.
See, e.g., Aycox, 196 F.3d at 1178. It does not render the difference
between de novo review and reasonableness review insignificant or
equate to a requirement that the federal court independently ascertain
whether, in its judgment, there has been a violation of the petitioner’s
constitutional rights prior to determining whether the state court’s
decision was reasonable. Rather,
we must uphold the state court’s summary decision unless
our independent review of the record and pertinent federal
law persuades us that its result contravenes or unreasonably
applies clearly established federal law, or is based on an
unreasonable determination of the facts in light of the evi-
dence presented. . . . Our review is in fact deferential
because we cannot grant relief unless the state court’s result
is legally or factually unreasonable.
Id. (emphasis added); see also Harris, 212 F.3d at 943 n.1 ("Where
a state court decides a constitutional issue by form order or without
extended discussion, a habeas court should then focus on the result
of the state court’s decision, applying the standard articulated" by the
AEDPA) (emphasis added).
In summary, we have not "independently ascertained" whether
Bell’s Sixth Amendment rights were violated during the state court
proceedings or rendered an "independent determination" as to
whether we would find a constitutional violation if we were presented
with this identical factual scenario in the context of either a criminal
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trial held at the federal district court level or a motion brought under
42 U.S.C.A. § 2255 (West Supp. 2000). We have not done so because
it is not an essential part of the inquiry under § 2254(d). Thus, our
choice cannot be construed, as our colleagues suggest, as "implicit
recognition that counsel’s failure to appeal the blatant public trial vio-
lation clearly violated federal law," infra at 52, but may acceptably
be interpreted as explicit recognition that we accord to state judicia-
ries the deference called for by § 2254(d) and that we are, by virtue
of Congress’ amendments to § 2254(d), no longer permitted to review
de novo their decisions on the merits.
C.
With these standards in mind, we turn now to identify the clearly
established federal law, as determined by the Supreme Court, which
governs Bell’s claim that his Sixth Amendment right to effective
assistance of counsel was violated by his counsel’s failure to pursue,
on direct appeal, a claim that his Sixth Amendment right to a public
trial was violated when the trial judge temporarily closed the court-
room while Wendy related the details of Bell’s sexual attacks upon
her.
1.
The Sixth Amendment requires that "[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence." U.S. Const. amend. VI. In addition, case law
requires that to satisfy the right, the assistance must be effective. See
Strickland v. Washington, 466 U.S. 668, 686 (1984). This right to
effective assistance of counsel extends to require such assistance on
direct appeal of a criminal conviction. See Evitts v. Lucey, 469 U.S.
387, 396 (1985).
In order to establish a claim that appellate counsel was ineffective
for failing to pursue a claim on direct appeal, the applicant must nor-
mally demonstrate (1) that his "counsel’s representation fell below an
objective standard of reasonableness" in light of the prevailing profes-
sional norms, Strickland, 466 U.S. at 688, and (2) that "there is a rea-
sonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different," id. at 694. See
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Smith v. Robbins, 120 S. Ct. 746, 764 (2000) (holding that habeas
applicant must demonstrate that "counsel was objectively unreason-
able" in failing to file a merits brief addressing a nonfrivolous issue
and that there is "a reasonable probability that, but for his counsel’s
unreasonable failure . . ., he would have prevailed on his appeal").
In applying this test to claims of ineffective assistance of counsel
on appeal, however, reviewing courts must accord appellate counsel
the "presumption that he decided which issues were most likely to
afford relief on appeal." Pruett v. Thompson, 996 F.2d 1560, 1568
(4th Cir. 1993). Counsel is not obligated to assert all nonfrivolous
issues on appeal, as "[t]here can hardly be any question about the
importance of having the appellate advocate examine the record with
a view to selecting the most promising issues for review." Jones v.
Barnes, 463 U.S. 745, 752 (1983); see also Smith v. South Carolina,
882 F.2d 895, 899 (4th Cir. 1989). Indeed, "‘[w]innowing out weaker
arguments on appeal and focusing on’ those more likely to prevail, far
from being evidence of incompetence, is the hallmark of effective
appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986)
(quoting Jones, 463 U.S. at 751); see also Smith, 882 F.2d at 899
(counsel’s failure to raise a weak constitutional claim may constitute
an acceptable strategic decision designed "to avoid diverting the
appellate court’s attention from what [counsel] felt were stronger
claims"). Although recognizing that "[n]otwithstanding Barnes, it is
still possible to bring a Strickland claim based on counsel’s failure to
raise a particular claim" on direct appeal, the Supreme Court has
recently reiterated that "it [will be] difficult to demonstrate that coun-
sel was incompetent." Robbins, 120 S. Ct. at 765. "‘Generally, only
when ignored issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be overcome.’" Id.
(quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986).
2.
The Sixth Amendment is also the origin of the accused’s "right to
a speedy and public trial." U.S. Const. amend. VI. Finding its roots
in English common law, "the guarantee has always been recognized
as a safeguard against any attempt to employ our courts as instru-
ments of persecution." In re Oliver, 333 U.S. 257, 270 (1948) (grant-
ing habeas relief to accused convicted of contempt of court by a state
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judge acting as a one-man grand jury in secret session). The origin of
"[t]he traditional Anglo-American distrust for secret trials has been
variously ascribed to the notorious use of this practice by the Spanish
Inquisition, to the excesses of the English Court of Star Chamber, and
to the French monarchy’s abuse of the lettre de cachet." Id. at 268-69
(footnotes omitted).
Today, the constitutional right to a public trial remains grounded
in the belief that "‘judges, lawyers, witnesses, and jurors will perform
their respective functions more responsibly in an open court than in
secret proceedings,’" Waller v. Georgia, 467 U.S. 39, 46 n.4 (1984)
(quoting Estes v. Texas, 381 U.S. 532, 588 (1965) (Harlan, J., concur-
ring)), and that "‘contemporaneous review in the forum of public
opinion is an effective restraint on possible abuse of judicial power,’"
id. (quoting In re Oliver, 333 U.S. at 270). "The central aim of a crim-
inal proceeding [is] to try the accused fairly" and the public trial guar-
antee serves the purpose of "ensuring that judge and prosecutor carry
out their duties responsibly . . . , encourag[ing] witnesses to come for-
ward[,] and discourag[ing] perjury." Id. at 46. Hence, "[t]he right to
a public trial is not only to protect the accused but to protect as much
the public’s right to know what goes on when men’s lives and liberty
are at stake, for a secret trial can result in favor to as well as unjust
prosecution of a defendant." Lewis v. Peyton, 352 F.2d 791, 792 (4th
Cir. 1965) (granting habeas relief based upon the denial of the
accused’s right to a public trial in a rape case where the accused
waived his right to a jury trial, the judge heard all testimony at the
home and in the bedroom of the eighty-seven-year-old bedridden pro-
secutrix, and even the neighbors were told to leave the bedroom to
make room for the court personnel); see also Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555, 580 (1980) (holding that, under the
First Amendment, the trial of a criminal defendant must ordinarily be
open to the public and press). The violation of the constitutional right
to a public trial is a structural error, not subject to harmless error anal-
ysis. See Neder v. United States, 527 U.S. 1, 8 (1999); Waller, 467
U.S. at 49-50, n.9; Sherman v. Smith, 89 F.3d 1134, 1138 (4th Cir.
1996); see also McGurk v. Stenberg, 163 F.3d 470, 473 (8th Cir.
1998) (noting that the prejudice component of the Strickland analysis
may be presumed if the nature of the deficient performance is that of
a structural error).
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In light of these general principles, the Supreme Court has recog-
nized that there is a presumption in favor of open trials. See Waller,
467 U.S. at 45; Richmond Newspapers, 448 U.S. at 573. Yet the right
is not absolute, and the Supreme Court has long recognized that trial
judges have discretion to impose reasonable limitations on access to
a trial when overriding interests, "such as the defendant’s right to a
fair trial or the government’s interest in inhibiting disclosure of sensi-
tive information," are likely to go unprotected if closure is not
employed. Waller, 467 U.S. at 45; see also Bell v. Evatt, 72 F.3d 421,
433 (4th Cir. 1995) ("Although there is a strong presumption in favor
of openness, the right to an open trial is not absolute. The trial judge
may impose reasonable limitations on access to a trial in the interest
of the fair administration of justice.").
Examined in the context of a First Amendment challenge by the
press to a courtroom closure, the Court first recognized "that the press
and public have a qualified First Amendment right to attend a crimi-
nal trial." Waller, 467 U.S. at 44. Specifically, the Court held that:
[t]he 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 find-
ings specific enough that a reviewing court can determine
whether the closure order was properly entered.
Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984)
("Press-Enterprise I"). Applying these same principles in the context
of a defendant’s Sixth Amendment challenge to the complete closure
of a courtroom proceeding, the Supreme Court likewise held that the
right to a public trial may give way if:
(1) the party seeking to close the hearing advances an
overriding interest that is likely to be prejudiced,
(2) the closure is no broader than necessary to protect that
interest,
(3) reasonable alternatives to closing the proceeding are
considered by the trial court, and
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(4) findings adequate to support the closure are made by
the trial court.
See Waller, 467 U.S. at 48.
D.
In this case, the North Carolina court rejected Bell’s claim that his
appellate counsel was ineffective for failing to pursue a claim that his
public trial right was violated by the temporary closure of the court-
room during Wendy’s testimony. The magistrate judge and district
judge, in reviewing Bell’s habeas petition, focused on the public trial
claim, agreeing that the temporary closure complied with Waller’s
first three requirements, but disagreeing on the adequacy of the trial
judge’s findings, i.e., whether there were "‘findings specific enough
that a reviewing court can determine whether the closure order was
properly entered.’" Id. at 45 (quoting Press-Enterprise I, 464 U.S. at
510). Ultimately, the district judge rejected the claim that a reason-
ably competent attorney would have raised the public trial issue and
conversely concluded that "a competent attorney likely would have
recognized the futility of such an argument considering the factual
circumstances present in this case." Bell, 7 F.Supp.2d at 704-05.
In this appeal, we too must review Waller’s requirements for court-
room closures, but in doing so remain always mindful of the limited
nature of our inquiry. Both the state court’s determination of whether
Bell’s appellate counsel’s performance fell below an acceptable level,
see Strickland, 466 U.S. at 688, and our review of the state court’s
determination for reasonableness, see 28 U.S.C.A. § 2254(d), require
an inquiry into the strength of the underlying, defaulted public trial
claim. However, the ultimate success of the underlying public trial
claim was not determinative before the reviewing court, in this case
the North Carolina appellate court, which need "only [have] deter-
mine[d] whether [counsel] made a reasonable decision in refusing to
raise the claim." Smith, 882 F.2d at 898-99 (emphasis added). And,
this court does not review Bell’s ineffective assistance of counsel
claim under Strickland or his underlying public trial claim under Wal-
ler on a de novo basis. We reiterate that we may not grant habeas
relief even if we were inclined to decide those issues differently than
the North Carolina courts. See Williams, 120 S. Ct. at 1522. Rather,
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in order to obtain federal habeas relief, Bell must demonstrate that
North Carolina’s rejection of his ineffective assistance of counsel
claim in state post-conviction proceedings involved an "unreason-
able," and not just an "erroneous[ ] or incorrect[ ]" application of such
precedent. Id.
III.
A.
Turning now to the requirements for courtroom closure articulated
by the Supreme Court in Waller, we begin with the question of
whether the state advanced an overriding interest justifying a tempo-
rary closure of the courtroom in this case. The interest, of course, was
the protection of Wendy while she related the details of the repeated
sexual abuse she sustained at the hands of Bell. We have no difficulty
in determining that the state advanced a compelling interest in closing
the courtroom while Wendy testified and that neither the state court
nor counsel for Bell was unreasonable in failing to conclude other-
wise.
It has long been recognized that, "[s]hort of homicide, [rape] is the
‘ultimate violation of self.’" Coker v. Georgia, 433 U.S. 584, 597
(1977). Indeed, few would question the Supreme Court’s recognition
of the "highly reprehensible" nature of this type of crime, "both in a
moral sense and in its almost total contempt for the personal integrity
and autonomy of the female victim and for the latter’s privilege of
choosing those with whom intimate relationships are to be estab-
lished." Id. Thus, the practice of closing courtrooms to members of
the public while a victim of sex crimes testifies has not been uncom-
mon. See United States ex rel. Latimore v. Sielaff, 561 F.2d 691, 694
(7th Cir. 1977) (noting that "exclusion of spectators during the testi-
mony of an alleged rape victim ‘is a frequent and accepted practice
when the lurid details of such a crime must be related by a young
lady’") (quoting Harris v. Stephens, 361 F.2d 888, 891 (8th Cir.
1966)); see also United States v. Kobli, 172 F.2d 919, 923 (3d Cir.
1949) (noting the common practice of closing the courtroom to mem-
bers of the public not directly concerned with the trial when "the pros-
ecuting witness is of such tender years as to be seriously embarrassed
in giving her testimony by the presence of spectators not concerned
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with the trial"). As noted by the Seventh Circuit, the "[p]rimary justi-
fication for this practice lies in protection of the personal dignity of
the complaining witness." Latimore, 561 F.2d at 694.
Rape constitutes an intrusion upon areas of the victim’s life,
both physical and psychological, to which our society
attaches the deepest sense of privacy. Shame and loss of
dignity, however unjustified from a moral standpoint, are
natural byproducts of an attempt to recount details of a rape
before a curious and disinterested audience. The ordeal of
describing an unwanted sexual encounter before persons
with no more than a prurient interest in it aggravates the
original injury. Mitigation of the ordeal is a justifiable con-
cern of the public and of the trial court.
Id. at 694-95.
In support of his claim that the state failed to advance a sufficiently
compelling interest in closing the courtroom during Wendy’s testi-
mony, Bell relies primarily upon the Supreme Court’s decision in
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-08
(1982), in which the Court struck down, on First Amendment
grounds, a Massachusetts statute that required trial judges, without
exception, to close the courtroom during the testimony of minor vic-
tims of specified sexual offenses. We fail to find sufficient support in
Globe, however, for Bell’s claim that his right to a public trial was
violated by the closure of the courtroom during Wendy’s testimony.
Although the Court in Globe rejected Massachusetts’ removal of
the trial court’s discretion by requiring courtroom closures in all such
cases, the Court made clear that "safeguarding the physical and psy-
chological well-being of a minor" victim of sex crimes, including pro-
tecting them from further trauma and embarrassment, is precisely the
type of compelling interest that can overcome the presumption in
favor of an open trial. Id. at 607. Indeed, the Court took care to
explicitly point out the limited nature of its holding:
We emphasize that our holding is a narrow one: that a rule
of mandatory closure respecting the testimony of minor sex
victims is constitutionally infirm. In individual cases, and
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under appropriate circumstances, the First Amendment does
not necessarily stand as a bar to the exclusion from the
courtroom of the press and general public during the testi-
mony of minor sex-offense victims. But a mandatory rule,
requiring no particularized determinations in individual
cases, is unconstitutional.
Globe, 457 U.S. at 611, n. 27 (emphasis added); see also Press-
Enterprise Co. v. Superior Court, 478 U.S. 1, 9 n.2 (1986) ("Press-
Enterprise II") (noting Globe’s recognition that "[t]he protection of
victims of sex crimes from the trauma and embarrassment of public
scrutiny may justify closing certain aspects of a criminal proceed-
ing"). Thus, closing the courtroom in circumstances such as these is
indisputably appropriate under Supreme Court jurisprudence, pro-
vided the trial judge "determine[s] on a case-by-case basis [that] the
State’s legitimate concern for the well-being of the minor victim
necessitates closure." Globe, 457 U.S. at 609.11
11We recognize that, while the Supreme Court has never set forth a less
rigorous standard for partial closures, some circuits have relaxed the first
Waller requirement where a temporary or partial closure of a proceeding
is at issue. Specifically, these circuits have required only that the state
advance a "substantial reason" for closing the proceeding because, unlike
those situations involving a complete closure, a partial closure does not
threaten as acutely the historical concerns sought to be addressed by the
Sixth Amendment. See e.g., United States v. Osborne, 68 F.3d 94, 98-99
(5th Cir. 1995); United States v. Farmer, 32 F.3d 369, 371 (8th Cir.
1994); United States v. Sherlock, 962 F.2d 1349, 1356-57 (9th Cir.
1992); Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir. 1989); Douglas v.
Wainwright, 739 F.2d 531, 532-33 (11th Cir. 1984) (per curiam). Simi-
larly, where a partial closure is involved, courts have "‘look[ed] to the
particular circumstances to see if the defendant still received the safe-
guards of the public trial guarantee.’" Sherlock, 962 F.2d at 1357 (quot-
ing Douglas, 739 F.2d at 532). However, we need not consider whether
Waller’s stringent test for complete closures applies equally in the con-
text of a temporary or partial closure, or whether the state could have
shown something less than a compelling interest to justify the temporary
closure of the courtroom during Wendy’s testimony, because we believe
it to be settled that the state’s interest in protecting minor rape victims
is a compelling one. See Globe Newspaper Co. v. Superior Court, 457
U.S. 596, 607 (1982).
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Accordingly, we are satisfied that the state demonstrated an over-
riding, compelling interest in protecting a child victim from the
embarrassment and trauma associated with relating the details of mul-
tiple rapes and sexual molestation by a family member, meeting the
first Waller requirement, and that neither the state court nor Bell’s
counsel was unreasonable in so concluding. Indeed, if the facts under-
lying this case are insufficient to establish an overriding interest, we
can think of none.
B.
We are likewise satisfied that it was reasonable to conclude that
Waller’s second requirement — that the closure be no broader than
necessary to protect the compelling interest at stake — was met in this
case. Because the compelling interest for closing the courtroom was
the protection of Wendy during her testimony, limiting the closure to
her testimony was imminently tailored to serve that interest. Addition-
ally, the courtroom was not unnecessarily restricted. Court personnel,
the attorneys, and the court reporter remained and, of course, the jury,
comprised of the public, was present. The entire proceedings were
recorded, the recording was available for transcription to the public,
and there is no claim that anything occurred which is not reflected in
the transcript. Cf. Ayala v. Speckard, 131 F.3d 62, 72 (2d Cir. 1997)
(en banc) (noting availability of transcript as a consideration in decid-
ing whether a limited closure designed to protect a single witness dur-
ing his testimony was violative of the Sixth Amendment right to a
public trial), cert. denied, 118 S. Ct. 2380 (1998); Press-Enterprise I,
464 U.S. at 512 (noting, as a consideration in a First Amendment
challenge to the limited closure of jury voir dire, that "the constitu-
tional values sought to be protected by holding open proceedings may
be satisfied later by making a transcript of the closed proceedings
available within a reasonable time, if the judge determines that disclo-
sure can be accomplished while safeguarding the juror’s valid privacy
interests").
The limited and temporary nature of the courtroom closure during
Bell’s trial was fully consistent with protecting Wendy during her tes-
timony. And, we are satisfied that it was reasonable for the state court
and Bell’s counsel to conclude that the closure was properly limited
and narrowly tailored to achieve the intended purpose of protecting
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this young girl while she was being asked to discuss the details of
Bell’s repeated sexual assaults upon her.
C.
Next, Waller provides that trial courts are to consider reasonable
alternatives to closing the courtroom. We likewise find no deficiency
in this regard.
As an initial premise, we think it reasonable to conclude that the
limited nature of the closure directed by the trial judge, and his con-
cern that it be carried out in the most discreet way possible, suggests
that he considered the situation and determined the most appropriate
means to balance the goal of protecting Wendy with Bell’s constitu-
tional right to a public trial. The failure of Bell to suggest any alterna-
tives to the temporary, narrowly-tailored closure at issue only bolsters
our conclusion.
In response to the state’s motion for a temporary closure, Bell’s
counsel objected on the basis of the Sixth Amendment public trial
provision, but provided nothing in the way of argument. Once the trial
judge determined that the interest in protecting Wendy outweighed
Bell’s interest in an open courtroom, Bell again proposed no alterna-
tive to the limited closure.12 Under these circumstances, we cannot
presume that the trial judge failed to consider any alternatives to the
one proposed by the state simply because he did not discuss others in
open court. Waller counsels trial courts to consider alternatives to a
complete closure of a public proceeding. But, it is not unreasonable
to conclude that Waller does not require a trial court, faced with mini-
12Bell now asserts that possible alternatives included excluding only
certain people, or allowing the press to remain, or using a screen or pri-
vacy device to block Wendy’s view of the audience, or using a closed-
circuit television. We find these post hoc suggestions unpersuasive at
best. Bell did not propose these or any other alternatives prior to the clo-
sure. Even now he does not specify what limitations on the exclusions
could have been employed. It is far from clear that the press was ever
excluded. And, the latter two alternatives would have failed to serve the
purpose of carrying out the closure in a discreet manner and, of course,
raise the different issue of Bell’s right to confront his accuser.
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mal, indeed perfunctory, opposition to a request that a courtroom be
temporarily closed in a child sex abuse case while the victim testifies,
to invent and reject alternatives to the proposed closure. See, e.g.,
Ayala, 131 F.3d at 71 (finding "nothing in the First Amendment cases
or in Waller to indicate that once a trial judge has determined that
limited closure [to protect a single witness during his testimony] is
warranted as an alternative to complete closure, the judge must sua
sponte consider further alternatives to the alternative deemed appro-
priate").
In this case, the closure under consideration extended only to the
testimony of a single witness for her protection, and it would be
utterly pointless to require the trial judge to conjure up alternative
methods of protecting the witness only to reject his own proposals.
Obviously, the trial judge is not in a superior position to suggest alter-
natives which may be more acceptable to the defendant and his coun-
sel. We certainly cannot conclude that North Carolina was
unreasonable in its adjudication of Bell’s claim on this basis.
D.
Finally, in determining whether the defendant’s Sixth Amendment
right to a public trial has been violated, Waller requires that the trial
court "make findings adequate to support the closure." Waller, 467
U.S. at 48. Bell contends that inadequate findings were made to sup-
port the trial judge’s closure of the courtroom during Wendy’s testi-
mony and, in particular, asserts that, because the trial judge did not
articulate explicit, detailed findings about Wendy’s maturity, under-
standing, and willingness to testify, one must also conclude that the
trial judge did not make an individualized determination of the need
to close the courtroom in Wendy’s case and instead applied a per se
rule of closure of the type condemned in Globe. See Globe, 457 U.S.
at 609 (holding that, although the mandatory courtroom closure stat-
ute violated the First Amendment, closure of the courtroom while a
child victim of sexual abuse testifies will be appropriate provided the
trial judge "determine[s] on a case-by-case basis [that] the State’s
legitimate concern for the well-being of the minor victim necessitates
closure"); Waller, 467 U.S. at 45 ("The presumption of openness may
be overcome only by an overriding interest based on findings that clo-
sure is essential to preserve higher values and is narrowly tailored to
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serve that interest." (internal quotation marks omitted)). Like the dis-
trict court, we believe it reasonable to conclude that the temporary
closure of Bell’s trial did not run afoul of the decision in Globe or
otherwise fall short of Waller’s findings requirement.
In this case, before ruling on the motion to close the courtroom, the
trial judge was aware of the nature of the charges against Bell, includ-
ing the extraordinary number of counts and the span of time over
which they were committed, the age of the victim, and the defen-
dant’s familial relationship to the victim. The judge was aware that
Bell had been indicted for over eighty counts of sexual misconduct,
including multiple counts for first degree statutory rape of a minor
under the age of thirteen, second degree rape, and taking indecent lib-
erties with a minor. During a pre-trial hearing, conducted while the
state’s motion for temporary closure was pending, the judge had the
opportunity to become familiar with the heinous nature of the alleged
crimes, the child’s long silence, and her forecasted testimony, as well
as the opportunity to observe the minor witness and Bell in the court-
room. Specifically, the judge was made aware that the case involved
the alleged sexual molestation of three minor children, and that the
principal victim had been abused over the course of a two-year
period, beginning when she was twelve, by her fifty-eight-year-old
step-grandfather. The judge was aware that Bell’s victims were
friends with one another, neighbors of Bell and his wife, and that on
at least one occasion, one of the girls was present at Bell’s home
while Wendy was being molested. The judge had also been provided,
in the context of the state’s motion to consolidate the offenses, with
a summary of when and how the abuse occurred, including the
repeated sexual abuse of both Wendy and Toni. In addition, the trial
judge was aware that Wendy had kept quiet about the abuse from the
time that she was twelve years old until, two years later, she and
Vicki were prompted to come forward by the television show on child
molestation and rape. Also, when the courtroom was closed, the trial
judge was aware that Wendy’s performance at school was lagging
significantly.
With this knowledge, the trial judge, noting that the testimony
would be "of an apparent delicate nature," J.A. 281, agreed with the
state’s request for a temporary closure of the courtroom while Wendy
testified, but ruled that the closure would be carried out as discreetly
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as possible so as not to call it to the jury’s attention. He did so over
what could only be characterized as a perfunctory Sixth Amendment
public trial objection, offered without argument or alternatives. Nor,
for that matter, did counsel object to the lack of findings at the time.
First, we are unpersuaded by Bell’s claim that, because the trial
judge did not articulate explicit, detailed findings about Wendy’s
maturity, understanding, and willingness to testify, one must conclude
that the trial judge did not make an individualized determination of
the need to close the courtroom in Wendy’s case, applying instead a
mandatory or per se rule of closure of the type condemned in Globe.
When the trial judge granted the state’s motion for a temporary clo-
sure, North Carolina state law provided that "[i]n the trial of cases for
rape or sex offense . . . , the trial judge may, during the taking of the
testimony of the prosecutrix, exclude from the courtroom all persons
except the officers of the court, the defendant and those engaged in
the trial of the case." N.C. Gen. Stat. § 15-166 (1999) (emphasis
added). Hence, unlike the statute in Globe, North Carolina imposed
no mandatory rule of closure. Rather, the trial judge was vested with
the discretion to evaluate, on a case-by-case basis, the propriety of a
temporary closure. See also Globe, 457 U.S. at 608 n.22 (noting that
the Court "intimate[d] no view regarding the constitutionality of . . .
state statutes," including specifically N.C. Gen. Stat. § 15-166, which
allow a trial judge to close a criminal sex-offense trial during the testi-
mony of a minor victim, but do not mandate closure).13
13The dissent seeks to rely upon an affidavit of the state trial judge,
addressing the courtroom closure, as an indication that the trial judge did
not carefully consider the decision to close the courtroom at the time that
it was done. In the affidavit, and in a similar written memorandum, the
trial judge in fact confirms that which is obvious from the record: He had
reviewed the indictments, was aware of the unusually vile nature of this
child molestation case, observed the defendant and the child before him,
and made the discretionary decision that "partial closure of the court-
room was necessary to enable the minor child victim to testify freely and
to minimize potential embarrassment and emotional harm to the child
from having to recount details of unnatural sexual activity committed on
her person by an adult." J.A. 168. However, because the affidavit and
memorandum were issued by the state trial court after the state court
ruled upon Bell’s MAR, and were submitted for the first time on federal
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Additionally, although Globe sets forth factors that a trial judge
should consider when determining the propriety of closing a court-
room during the testimony of a minor victim of a sex crime, such as
"the minor victim’s age, psychological maturity and understanding,
the nature of the crime, the desires of the victim, and the interests of
parents and relatives," id. at 608 (footnote omitted), the Court did not
prescribe any that were determinative and, in fact, also recognized
that trial judges would necessarily need to "exercise [their] discretion"
in weighing these factors, as well as others not yet defined, id. at 609.
We find no basis upon which to conclude that the trial judge failed
to carefully consider the individual facts of this case before making
his decision, or that he otherwise shirked his duty in this regard. On
the contrary, the record reveals that he possessed a great deal of infor-
mation concerning the case before him, and certainly knowledge suf-
ficient to exercise the discretion afforded him under both federal and
state law. The graphic nature of Wendy’s ultimate testimony only
serves to bolster the obvious conclusion that the trial judge followed
an acceptable course in temporarily closing the courtroom. And,
although perhaps understated, he was certainly correct when he con-
cluded that the delicate nature of the testimony was "apparent."14
habeas review by the state in support of its motion for summary judg-
ment, we did not reference or rely upon them. See e.g., Wilson v. Moore,
178 F.3d 266, 272-73 (4th Cir.), cert. denied, 120 S. Ct. 191 (1999) (fed-
eral habeas courts may not take into account new evidence not presented
to the state court).
14Given its graphic nature, we see no purpose in discussing the precise
testimony in more detail, which would seem to serve the same type of
prurient interests that the closure was intended to avoid. Suffice it to say
that Wendy was called upon to discuss in detail the method of Bell’s
indecent touchings and ultimate rape of her, by both vaginal and anal
intercourse, beginning when she was twelve years old and continuing for
two years. We also note that we summarily reject any reliance by Bell
upon the fact that Wendy, who was sixteen years old at trial, answered
the questions directed to her on the witness stand, including those of a
distressing nature. Of course, it was necessary for Wendy to do so in
order for the state to convict Bell. But the transcript certainly does not
indicate that Wendy did so stress-free.
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Second, we cannot say that the trial court’s findings, although lim-
ited, otherwise ran afoul of Waller’s requirement that the trial court
make "findings adequate to support the closure." Waller, 467 U.S. at
48. This requirement stems directly from the Court’s previous hold-
ing, in Press-Enterprise I, that the overriding interest "‘be articulated
along with findings specific enough that a reviewing court can deter-
mine whether the closure order was properly entered.’" Waller, 467
U.S. at 45 (quoting Press-Enterprise I, 464 U.S. at 510). We are satis-
fied that we can make the requisite determination and that the North
Carolina court could as well.
As an initial premise, we note that the Waller Court prescribed no
particular format to which a trial judge must adhere to satisfy the find-
ings requirement, and we read nothing in Waller that would require
a reviewing court to evaluate the trial judge’s closure order solely on
the basis of the explicit factual findings and, thereby, ignore facts of
record which fully support the decision and belie a claim that Bell’s
right to a public trial was actually violated by the closure. We also
reject Bell’s urging that we should attribute no significance to the fact
that Waller, unlike Globe, does not address a temporary closure of
courtroom proceedings during the testimony of a child victim of sex-
ual abuse.15 Nor do the other controlling Supreme Court cases, which
have considered "closure" challenges brought by the press pursuant to
the First Amendment where the defendant has requested closure in
order to protect the right to a fair and impartial trial. See Press-
Enterprise I, 464 U.S. 501; Press-Enterprise II, 478 U.S. 1. In a case
involving long-standing sexual abuse of a minor by a family member,
when the trial judge has obviously made a particularized determina-
15In Waller, the Court addressed the propriety of the complete closure
of a seven-day hearing, held to address the admissibility of wiretap and
other evidence in a proceeding brought under the Georgia Racketeer
Influenced and Corrupt Organizations Act and other commercial gam-
bling statutes. Although the stated basis for the closure was to protect the
privacy of non-parties and the admissibility of the evidence under state
law, the evidence sought to be protected comprised less than two and
one-half hours of tape and the state was not specific as to whose privacy
interests might be infringed. Thus, the trial judge’s findings were deemed
too broad and general to justify a complete closure of the hearing. See
407 U.S. at 48-49.
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tion that closure is appropriate and has articulated the basic rationale
for closing the courtroom, additional "findings" would be little more
that a statement of the obvious.16 And, we certainly cannot say that
16In Press-Enterprise I, the Court vacated the state court’s decision to
deny the press a copy of the transcript of jury voir dire in a highly publi-
cized case, where the voir dire lasted six weeks and the court made no
findings beyond concluding that disclosure would threaten the juror’s
privacy interests and the defendant’s Sixth Amendment right to a fair and
impartial trial. As in Waller, the Court also found it significant that the
six-week closure "was not limited to information that was actually sensi-
tive and deserving of privacy protection." 464 U.S. at 513. Similarly, in
Press-Enterprise II, the Court reversed the state court’s wholesale denial
of the transcript of a forty-one day preliminary hearing when the state
court did not demonstrate that an open proceeding would result in unfair,
one-sided publicity which would prejudice the defendant’s right to a fair
and impartial trial. The Court held that such "preliminary hearings
. . . cannot be closed unless specific, on the record findings are made
demonstrating that ‘closure is essential to preserve higher values and is
narrowly tailored to serve that interest’"; specifically, that "there is a sub-
stantial probability that the defendant’s right to a fair trial will be preju-
diced by publicity that closure would prevent" and that "reasonable
alternatives to closure cannot adequately protect the defendant’s fair trial
rights." 478 U.S. at 14-15 (quoting Press-Enterprise I, 464 U.S. at 510).
Our circuit, also in the context of First Amendment challenges to
courtroom closures, has reiterated the requirement of findings set forth
in Press-Enterprise I and Press-Enterprise II. Yet, they too involved
First Amendment challenges to courtroom closures in cases where the
overriding interests and reasons justifying the closure were not immedi-
ately apparent. In our latest opinion, In re South Carolina Press Associa-
tion, 946 F.2d 1037, 1044 (4th Cir. 1991), we upheld the complete
exclusion of the media from in camera voir dire in a case involving
extortion charges brought against state legislators, holding that the defen-
dants’ right to a fair trial outweighed the media’s right to disclose infor-
mation in the already highly publicized proceeding. Earlier, in In re
Charlotte Observer, 882 F.2d 850, 854-55 (4th Cir. 1989), we held that
the complete closure of a change of venue hearing — in federal mail and
wire fraud prosecutions arising from the PTL religious organization —
violated the First Amendment rights of the press and public because on
de novo review this court was not convinced that the defendants’ right
to a fair trial would be prejudiced by publicity, or that closure in the
already highly publicized case would prevent such prejudice. And, in In
re Knight Publishing Company, 743 F.2d 231, 234-35 (4th Cir. 1984),
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it would be unreasonable for a court or defendant’s counsel to con-
clude that there was no public trial violation based upon the absence
of more detailed findings. See United States v. Osborne, 68 F.3d 94,
99 (5th Cir. 1995) (upholding trial court’s partial closure of the court-
room while a twelve-year-old victim of sexual assault testified
because, despite the paucity of the trial court’s explicit findings, the
court was able to "infer that [the trial court] eventually ordered the
partial closure" to protect the young victim from the trauma and
intimidation that her public testimony would produce); United States
v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994) (rejecting defendant’s
Sixth Amendment public trial challenge based upon the trial court’s
temporary exclusion, during defendant’s trial for aggravated sexual
abuse and kidnaping, of all spectators other than the members of the
victim’s family during a portion of a seventeen-year-old victim’s tes-
timony because "specific findings by the district court are not neces-
sary if we can glean sufficient support for a partial temporary closure
from the record"); see also Brown v. Kuhlmann, 142 F.3d 529, 538
(2d Cir. 1998) (refusing to grant habeas relief for an alleged Sixth
Amendment public trial violation, holding that even where the rea-
sons given are "neither entirely accurate nor particularly compelling,
the strength of the judge’s findings must be evaluated by reference to
the very limited scope of the closure that they support [and that] by
that standard, the trial court’s findings were adequate"); Woods v.
Kuhlmann, 977 F.2d 74, 77-78 (2d Cir. 1992) (holding that, despite
the lack of specific findings of fact, when the "information gleaned
[from the record] . . . [was] sufficient to support the partial, temporary
closure of petitioner’s trial," the fourth Waller factor was satisfied);
but see Davis v. Reynolds, 890 F.2d 1105, 1112 (10th Cir. 1989)
(holding that defendant’s right to a public trial was violated in a case
involving a minor sex crime victim, in part because the trial judge
we held that the complete courtroom closure and order sealing certain
records and excising others in the criminal prosecution of a North Caro-
lina state senator violated the First Amendment. The district judge made
no findings to support the closure and considered no alternatives that
would better satisfy conflicting interests between the defendant’s right to
a fair trial and the First Amendment rights of the press. Id.
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made no "specific, reviewable findings adequate to support the gen-
eral closure").17
In summary, although the better course would have been for the
trial judge to make detailed findings, the findings made, viewed in
conjunction with the known circumstances of the case and the record
developed, provide a sufficient basis for reviewing courts (the state
court, the district court, and this court) to assess the propriety of the
closure. Clearly established Supreme Court precedent governing
courtroom closures does not require appellate courts to review closure
orders in isolation of the record, nor does it mandate a conclusion that
17The dissent asserts that we have run afoul of the Supreme Court’s
rejection of our holding in Green that state courts unreasonably apply
clearly established federal law only when they interpret or apply such
law "‘in a manner that reasonable jurists would all agree is unreason-
able,’" Williams, 120 S. Ct. at 1521 (quoting Green, 143 F.3d at 870), by
citing decisions from other circuit courts of appeal. We find the assertion
that we have improperly relied upon supportive circuit court jurispru-
dence in evaluating the objective reasonableness of the state court deci-
sion to be surprising, given that the dissent has relied upon arguably
contrary circuit court jurisprudence to reach a contrary conclusion. How-
ever, we are satisfied that Williams does not act as an absolute prohibi-
tion against our use, or the dissent’s use, of circuit precedent.
Habeas relief under the "unreasonable application" provision of
§ 2254(d)(1) requires that we find the state court decision to be objec-
tively reasonable in light of Supreme Court jurisprudence, not circuit
court jurisprudence. See Williams, 120 S. Ct. at 1523. And, in rejecting
the "reasonable jurists" standard as being too subjective, the Williams
Court made it clear that federal habeas courts may not base the reason-
ableness decision "on the simple fact that at least one of the Nation’s
jurists has applied the relevant federal law in the same manner the state
did in the habeas petitioner’s case." Id. at 1522. However, the Williams
decision did not "suggest[ ] or command[ ] that this court make [the rea-
sonableness] determination in a vacuum." Vick v. Williams, No. 99-7406,
2000 WL 1724031 at *9 (4th Cir. Nov. 20, 2000). "Where . . . the other-
wise objectively reasonable bases for a state court’s interpretation of a
given precedent are common to the reasoned decisions of many courts,
it would be judicial myopia of the first order to ignore the force of con-
sensus in assessing the objective reasonableness in the particular case."
Id.
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Bell’s public trial right was violated simply because the trial judge
failed to recite exhaustively every fact and inference which justified
the obvious.18 Under the circumstances of this case, we are satisfied
that the record and factual findings underlying the state trial judge’s
decision to close the courtroom during Wendy’s testimony are suffi-
cient for us to determine that the closure order was properly entered
and that this was not a situation where the purposes behind the public
trial guarantee were in jeopardy. Bell was not subjected to "secret
proceedings" or to the "persecution" sought to be prevented by the
public trial guarantee. See Waller, 467 U.S. at 46 n.4; In re Oliver,
333 U.S. at 270; cf. Lewis, 352 F.2d at 792. We cannot conclude that
the state court unreasonably rejected Bell’s Sixth Amendment claims
on this basis.
18This court has also declined, in the context of a § 2254 petition, to
place such undue emphasis on explicit findings made by a state trial
court when the facts of record supported the trial court’s challenged rul-
ing. See Fields v. Murray, 49 F.3d 1024, 1036-37 (4th Cir. 1995) (en
banc). In Fields, we rejected a state court defendant’s allegation that his
Sixth Amendment right to self-representation had been violated by the
trial judge’s refusal to allow him to personally cross-examine minor vic-
tims of his alleged sexual abuse. Noting that the state’s interest in pro-
tecting child abuse victims from emotional trauma was sufficiently
important to outweigh the defendant’s right to cross-examine them per-
sonally, we declined to find a Sixth Amendment violation simply
because the trial court failed to make "a more elaborate finding," id. at
1036, to support his decision where sufficient support was present in the
record:
We think it reasonable for the trial court to have concluded on
the basis of the facts before it that the[ ] eleven through thirteen-
year-old girls who had experienced repeated sexual abuse would
be emotionally harmed if they were personally cross-examined
in open court by [the defendant], their alleged abuser. We there-
fore find adequate the trial court’s determination that denial of
this personal cross-examination was necessary to prevent emo-
tional trauma to the girls.
Id.
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IV.
Having reviewed the clearly established Supreme Court precedents
which would have governed Bell’s Sixth Amendment claim that he
was unconstitutionally deprived of his right to a public trial — had
his counsel pursued it on direct appeal to the North Carolina appellate
court — we turn to the ultimate issue before us: Was North Carolina’s
rejection of Bell’s Sixth Amendment claim that his counsel was
objectively unreasonable, and therefore ineffective, for failing to pur-
sue the public trial claim on direct appeal itself an unreasonable appli-
cation of those precedents? We are satisfied that it was not.
On direct appeal, Bell’s appellate counsel made the decision to pur-
sue four out of twenty-six assignments of error. Under Strickland,
Bell’s appellate counsel was entitled to a presumption that he decided
which issues were most likely to afford relief on appeal and Bell must
demonstrate that counsel’s decision not to pursue the public trial
claim "fell below an objective standard of reasonableness" in light of
the prevailing professional norms. Strickland, 466 U.S. at 688. For the
reasons previously discussed, we cannot say that the North Carolina
court unreasonably concluded, in rejecting Bell’s MAR, that Bell’s
counsel did not act in an objectively unreasonable manner when he
failed to pursue on direct appeal a claim that Bell’s right to a public
trial was violated by the trial court’s temporary closure of the court-
room while Wendy recounted the details of Bell’s repeated sexual
attacks upon her.19 Because North Carolina’s determination in this
regard was neither contrary to nor an unreasonable application of
19We are also unpersuaded by Bell’s reliance upon State v. Jenkins,
445 S.E.2d 622, 625 (N.C. Ct. App. 1994), decided after Bell’s convic-
tion but before his appeal, which held that the trial court erred in closing
the courtroom during the testimony of an adult victim of a sexual offense
without making sufficient findings in support. The facts, which involved
an adult woman alleged to have been raped by her former live-in boy-
friend, are distinguishable from the ones we consider today, and Jenkins
obviously had no effect upon the state appellate court’s subsequent dis-
position of Bell’s application for post-conviction relief. Furthermore, the
question before us is whether North Carolina’s rejection of Bell’s claim
is unreasonable in light of Supreme Court precedent, not whether the
state court properly applied its own precedent.
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clearly established federal law, see 28 U.S.C.A. § 2254(d), we deny
Bell’s request for a certificate of appealability and affirm the district
court’s dismissal of Bell’s petition for writ of habeas corpus.
AFFIRMED.
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
The Sixth Amendment guarantees every person accused of a crime
— no matter how ugly the crime or how clear the guilt — "the right
to a speedy and public trial." U.S. Const. amend. VI. A public trial
"ensur[es] that judge and prosecutor carry out their duties responsibly
. . . and discourages perjury." Waller v. Georgia, 467 U.S. 39, 46
(1984). For these reasons, as the Supreme Court has recognized, the
right to a public trial is critical to "[t]he central aim of a criminal pro-
ceeding" — affording the accused a fair trial. Id. Accordingly, there
is a strong presumption that a trial will be open to the public; a pre-
sumption that can only be "overcome" in those "rare" circumstances
where "the balance of interests [has been] struck with special care."
Id. at 45 (emphasis added). Thus, prior to closing a trial, the presiding
judge must: (1) determine that the party seeking closure has advanced
"an overriding interest that is likely to be prejudiced," (2) fashion a
closure that is "no broader than necessary to protect that interest," (3)
"consider reasonable alternatives to closing the proceeding," and (4)
"make findings adequate to support the closure." Id. at 48.
When Ernest Sutton Bell was tried in Pritt County North Carolina
Superior Court in January 1994, the presiding judge removed the pub-
lic and press from the courtroom during the entire testimony of the
most critical prosecution witness1 without making findings adequate
1The majority notes that of the "700-plus-page trial transcript, span-
ning four days, approximately forty-four pages comprised the testimony
of Wendy," ante at 5; however, two trial days and more than 400 tran-
script pages were devoted to jury selection, argument of counsel, and
other non-evidentiary matters. Undoubtedly, Wendy’s testimony, which
was more than twice as long as that of any other prosecution witness,
constituted the most critical evidence against Bell. Yet, over Bell’s
objection, the trial judge closed the courtroom during this crucial testi-
mony, without citing any precedent or making adequate findings.
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to support such drastic action. Indeed, nothing in the record even evi-
dences that the judge recognized Waller as controlling, let alone con-
sidered alternatives or took "special care" to be sure that the closure
"advanced an overriding interest . . . likely to be prejudiced" and was
"no broader than necessary to protect that interest."
On direct appeal, Bell’s counsel failed to argue that the closure vio-
lated the Sixth Amendment right to a public trial. On state habeas
review, North Carolina courts summarily, and without explanation,
rejected Bell’s claim that this failure to pursue the Sixth Amendment
violation on appeal constituted ineffective assistance of counsel.
Because I believe the state court holding was "contrary to, or involved
an unreasonable application of clearly established Federal law, as
determined by the Supreme Court," I respectfully dissent from the
majority’s refusal to grant Bell’s petition for a writ of habeas corpus.
I.
A federal court may grant habeas relief only when a state’s adjudi-
cation of a petitioner’s claim "was contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States." 28 U.S.C.A.
§ 2254(d)(1). On state habeas review — termed a motion for appro-
priate relief in North Carolina — the state courts’ adjudication of
Bell’s ineffective assistance of counsel claim was perfunctory, at best.
The state trial judge’s order stated simply: "The undersigned, having
reviewed the Motion for Appropriate Relief, finds that it fails to state
a claim upon which relief can be granted. It is, therefore, denied."
This was followed by an Order signed by the Clerk of the North Caro-
lina Court of Appeals that stated, "The petition filed in this cause on
the 9th day of December 1996 designated ‘Petition for Writ of Certio-
rari’ is denied."
Under circuit precedent, such "perfunctory rejection" of a claim
constitutes an "adjudication" for purposes of § 2254(d)(1). See Green
v. Catoe, 220 F.3d 220, 223 (4th Cir. 2000). See also Cardwell v.
Greene, 152 F.3d 331, 339 (4th Cir.), cert. denied, 525 U.S. 1037
(1998); Wright v. Angelone, 151 F.3d 151, 156-57 (4th Cir. 1998).
Nonetheless, as we made clear in Cardwell and recently reiterated in
Green:
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[B]ecause the state court decision fails to articulate any
rationale for its adverse determination of Cardwell’s claim,
we cannot review that court’s "application of clearly estab-
lished Federal law," but must independently ascertain
whether the record reveals a violation of [a constitutional
right].
Green, 220 F.3d at 223; Cardwell, 152 F.3d at 339. See also Bacon
v. Lee, 225 F.3d 470, 478 (4th Cir. 2000); Baker v. Cochran, 220 F.3d
276, 291 n.14 (4th Cir. 2000).
Because the North Carolina courts provided no indication of how
they applied federal law to the facts of Bell’s constitutional claim, we
must review their decision under the Cardwell/Green standard.
Indeed, without state court analysis, we are left with no choice but to
independently evaluate the record and determine if a constitutional
violation occurred. Thus, we must (1) ascertain what law the Supreme
Court has established as to the constitutional right to a public trial and
effective assistance of counsel, (2) "independently ascertain whether
the record reveals a violation" of these constitutional rights — i.e.,
whether the state court erred in denying the writ, and finally (3) deter-
mine if the state court decision — if erroneous — is also contrary to,
or involves an unreasonable application of, clearly established law as
determined by the Supreme Court. The majority omits completely the
second part of this analysis.
A.
Since at least 1986, eight years prior to Bell’s trial, clear and abun-
dant Supreme Court precedent established the necessity of specific
findings before removing the public from a criminal trial. The Court
initially addressed the right to a public trial in 1980 in the context of
the First Amendment. In Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 561 (1980) (plurality opinion), the trial court closed the
courtroom during a murder trial, refusing to allow the press to witness
the proceedings. The question before the Supreme Court was whether
the press and the general public had a First Amendment right of
access to criminal trials. The Court answered this question in the affir-
mative, noting that "we are bound to conclude that a presumption of
40 BELL v. JARVIS

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openness inheres in the very nature of a criminal trial under our sys-
tem of justice." Id. at 573.
The Court then held that the trial court violated Richmond Newspa-
pers’s First Amendment right of access to the murder trial by closing
the courtroom during the proceeding, because "the trial judge made
no findings to support closure . . . . Absent an overriding interest
articulated in findings, the trial of a criminal case must be open to the
public." Id. at 580-81 (emphasis added).
The Supreme Court again focused on the public’s First Amend-
ment right of access to criminal trials in Globe Newspaper Co. v.
Superior Court, 457 U.S. 596 (1982). The Globe Newspaper Co.
("Globe") unsuccessfully attempted to gain access to a rape trial in
which the victims were underage females. Id. at 599. In denying
Globe’s request to gain access to the trial, the trial court cited a state
statute requiring the exclusion of the press and the public during the
testimony of a minor-victim of a sexual assault. See id. at 599, 602.
Globe objected to the mandatory closure statute, arguing that the stat-
ute violated its First Amendment right of access to criminal trials
because it did not require a case-by-case determination of whether the
press should be excluded.
The Supreme Court agreed, noting that "the circumstances under
which the press and public can be barred from a criminal trial are lim-
ited; the State’s justification in denying access must be a weighty
one." Id. at 606. The Court held that a mandatory closure rule "cannot
be viewed as a narrowly tailored means of accommodating the State’s
asserted interest." Id. at 609. Instead, whether a trial court should
close the courtroom must be analyzed on a case-by-case basis in
which the trial court weighs "the minor victim’s age, psychological
maturity and understanding, the nature of the crime, the desires of the
victim, and the interests of parents and relatives." Id. at 608 (footnote
omitted).
Four years later, in 1986, the Supreme Court specifically addressed
a criminal defendant’s Sixth Amendment right to a public trial. See
Waller v. Georgia, 467 U.S. 39 (1986). In Waller, the trial court, over
the defendant’s objection, closed the courtroom during a hearing on
a motion to suppress in a criminal case. See id. at 42. The Court con-
41 BELL v. JARVIS

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sidered whether the trial court’s closure of the courtroom violated the
defendant’s Sixth Amendment right to a public trial. Acknowledging
that its prior precedents concerned the right to a public trial under the
First Amendment, the Court nonetheless held "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." Id. at 46. The Court thus adopted the
following standard for closing a courtroom: "the 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 pro-
tect that interest, the trial court must consider reasonable alternatives
to closing the proceeding, and it must make findings adequate to sup-
port the closure." Id. at 48 (emphasis added). Moreover, the findings
supporting closure cannot be "broad and general," id.; rather, the
state’s interest in closing the courtroom must be "articulated along
with findings specific enough that a reviewing court can determine
whether the closure order was properly entered." Id. at 45 (quoting
Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501,
510 (1984)) (emphasis added).
Thus, of particular relevance here, well prior to Bell’s 1994 trial,
Supreme Court precedent — Globe, Waller, Richmond Newspapers,
and Press-Enterprise — clearly established that: (1) a trial court can-
not close the courtroom to the public during a criminal trial without
specific, on-the-record findings supporting closure; and (2) a trial
court may not enforce a per se rule mandating closure of a courtroom
simply because the witness is a minor-victim of a sexual assault.
B.
It is clear under Supreme Court precedent that the removal of the
public from the courtroom without specific findings supporting the
decision violated Bell’s Sixth Amendment right to a public trial. As
such, the failure of Bell’s appellate counsel to raise this claim consti-
tuted ineffective assistance.
1.
The following colloquy represents the only analysis conducted by
the state trial court before closing the courtroom:
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PROSECUTOR: And Judge, we have an outstanding
motion I forgot to bring up earlier that the State had about
closing the courtroom when at least Wendy testifies or all
of the children testify at the appropriate time.
THE COURT: Is there any objection to that motion?
BELL’S COUNSEL: Yes, sir, we would object to closing
the courtroom. We believe that would impact on our client’s
constitutional right to a public trial. We would oppose it.
THE COURT: Well —
PROSECUTOR: I would argue that that is contrary to
case law in this state.
THE COURT: The Court is going to allow that motion
and we’ll do it in the most discreet way possible so that the
jury doesn’t even notice it unless someone else calls it to
their attention. We can take a short recess, and I can excuse
the jury and I can tell the others — other people in the court-
room that this is testimony of an apparent delicate nature. I
don’t see anything wrong with that. I am going to allow that
motion.
J.A. 280-81 (emphasis added).
The trial court made no findings to support closure of the courtroom.2
The court’s conclusory statement that the testimony was of an "appar-
ent delicate nature" obviously does not constitute "findings" that are
"specific enough that a reviewing court can determine whether the
closure order was properly entered." Waller, 467 U.S. at 45 (quoting
Press-Enterprise, 464 U.S. at 510). The trial judge failed even to
acknowledge defense counsel’s assertion that closing the courtroom
would impact Bell’s constitutional right to a public trial. Indeed, the
judge stated that he "didn’t see anything wrong with" clearing the
2As noted above, because the presiding judge failed to make adequate
findings, nothing in the record demonstrates that he considered, let alone
correctly applied, the other Waller factors.
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courtroom without ever asking the witness if an open courtroom
would inhibit her testimony, thus failing the first Waller requirement.
He did not ask whether she feared for her safety, see, e.g., Woods v.
Kuhlmann, 977 F.2d 74, 77 (2d. Cir. 1992) (upholding closure
because the judge questioned the witness to determine if fears of spe-
cific threats were credible), or whether she felt so intimidated as to
warrant the drastic action of banning the public, see, e.g., Guzman v.
Scully, 80 F.3d 772, 775-76 (finding a public trial violation because
the judge never asked the witness whether she felt intimidated, or
whether any intimidation was sufficient to overcome the presumption
of an open trial).
Without knowing if a witness is threatened or intimidated, and if
so, why, it is impossible to determine whether the threat or intimida-
tion is so drastic as to warrant closure or whether removing the public
would even cure the problem. For instance, if Wendy had indicated
that Bell’s presence intimidated her, removing the public would not
have alleviated that intimidation. The judge’s lack of inquiry falls far
below the "special care" required to overcome the presumption that
court proceedings should be open to the public.
In fact, it is hard to imagine that a court could grant a motion to
close a courtroom in a more perfunctory manner. Indeed:
The trial court’s order excluding the public from the wit-
ness’ testimony, without any inquiry or findings concerning
the specific condition of the witness in this case, is essen-
tially equivalent to the blanket legislative closure rejected in
Globe Newspaper.
Davis v. Reynolds, 890 F.2d 1105, 1111 (10th Cir. 1989).
The trial judge also failed to consider reasonable alternatives to
excluding the public and press from the courtroom. Waller, 467 U.S.
at 48. This is unsurprising, however, because it is difficult to consider
alternatives to solve a yet-to-be determined problem. Moreover, the
trial judge’s "solution" was certainly "broader than necessary" to pro-
tect any possible interest that could have been articulated by Wendy,
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id., because the judge not only cleared the courtroom during Wendy’s
testimony, but also closed the courtroom prior to opening statements.3
As a result, contrary to established Supreme Court precedent, the
state trial court violated Bell’s Sixth Amendment right to a public trial
by closing the courtroom without making the necessary findings.
2.
Because Bell’s right to a public trial was so clearly violated, it is
equally clear that appellate counsel’s failure to raise the public trial
issue on appeal rendered his assistance constitutionally ineffective.
The right to the effective assistance of counsel extends to a criminal
defendant’s first appeal as of right. See Evitts v. Lucey, 469 U.S. 387,
396 (1985).
An ineffective assistance of counsel claim usually has two ele-
ments: counsel’s performance must have fallen "below an objective
standard of reasonableness," see Strickland v. Washington, 466 U.S.
668, 688 (1984), and there must be a "reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would
have been different." Id. at 694. However, as the majority properly
recognizes, when, as here, the deficient performance constitutes struc-
tural error "the prejudice component of the Strictland analysis may be
presumed." Ante at 20, (citing McGurk v. Stenburg, 163 F.3d 470,
473-74 (8th Cir. 1998)). See also Neder v. United States, 527 U.S. 1,
8 (1999). Thus, if appellate counsel’s failure to pursue Bell’s right to
a public trial fell below an objective standard of reasonableness, prej-
udice is presumed and the representation must be held constitutionally
ineffective.
Of course, appellate counsel does not have a duty to raise every
nonfrivolous argument on appeal, see Jones v. Barnes, 463 U.S. 745,
754 (1983), but "a petitioner may establish constitutionally inadequate
performance if he shows that counsel omitted significant and obvious
issues while pursuing issues that were clearly and significantly
weaker." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). When
3There is no indication that the public or press ever re-entered the
courtroom.
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appellate counsel fails to raise issues that are "clearly stronger than
those presented," the presumption that counsel rendered effective
assistance will be overcome. Gray v. Greer, 800 F.2d 644, 646 (7th
Cir. 1985).
As demonstrated within, well prior to Bell’s 1994 trial, Supreme
Court precedent required that trial courts express on-the-record find-
ings before closing a courtroom. Moreover, this is not a case where
trial counsel failed to object and appellate counsel was required to
plumb the record to find the unconstitutional closure and contend that
the closure constituted plain error. Here, Bell’s trial counsel did prop-
erly object to this clear constitutional violation, and yet appellate
counsel still did not find this issue important enough to brief. Instead,
appellate counsel chose to assert evidentiary challenges that had no
likelihood of success. Appellate counsel’s failure to raise the one
issue that would have been a "dead-bang winner" renders his assis-
tance constitutionally ineffective. See Banks v. Reynolds, 54 F.3d
1508, 1515 (10th Cir. 1995) ("[A]n appellate advocate may deliver
deficient performance and prejudice a defendant by omitting a ‘dead-
bang winner,’ even though counsel may have presented strong but
unsuccessful claims on appeal.") (quoting United States v. Cook, 45
F.3d 388, 394-95 (10th Cir. 1995)); see also Fagan v. Washington,
942 F.2d 1155, 1157 (7th Cir. 1991) ("His lawyer failed to raise either
[meritorious] claim, instead raising weaker claims. . . . No tactical
reason — no reason other than oversight or incompetence — has been
or can be assigned for the lawyer’s failure to raise the only substantial
claims that [defendant] had.").
In sum, controlling Supreme Court precedent establishes that Bell’s
right to a public trial was violated and that appellate counsel’s failure
to raise this claim constituted ineffective assistance of counsel.
C.
The only remaining question is whether the North Carolina courts’
clearly incorrect rejection of Bell’s ineffective assistance of counsel
claim was "contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court."
28 U.S.C.A. § 2254(d)(1).
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The Supreme Court has instructed that a state court decision is
"contrary to . . . clearly established Federal law, as determined by the
Supreme Court of the United States," if the state court "arrives at a
conclusion opposite to that reached by th[e Supreme] Court on a
question of law," Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000).
A state court decision involves an unreasonable application of clearly
established federal law if the state court "identifies the correct govern-
ing legal principle from th[e Supreme] Court’s decisions but unrea-
sonably applies that principle to the facts of the prisoner’s case." Id.
In this case, of course, we simply do not know what governing
legal principles (if any) formed the basis of the state courts’ rejection
of Bell’s ineffective assistance claim. We do not know why they con-
cluded that closure of Bell’s trial during the testimony of the most
crucial prosecution witness, without any indication that the required
Waller factors had even been considered, let alone correctly analyzed,
did not constitute obvious reversible error that should have been
raised by any competent appellate counsel. The North Carolina courts
did not provide any reasoning or cite a single legal principle or prece-
dent, let alone Supreme Court precedent, in support of their decision.
The record suggests that the North Carolina courts most likely fol-
lowed legal principles directly contrary to those mandated by the
Supreme Court. In opposing Bell’s objection to closure at trial, the
State asserted that refusal to grant the closure would be "contrary to
case law in this state." Similarly, when opposing Bell’s petition for
state habeas relief, the State relied heavily on State v. Burney, 302
N.C. 529, 537, 276 S.E.2d 693, 698 (1988), a pre-Waller case in
which the state court concluded that the defendant could not "fashion
support for a sixth amendment claim from a case which has manifest
first amendment underpinnings" and in any event, any error in closing
the proceedings was "harmless." If the state courts based their deci-
sion on either or both of these rationales, then certainly their decisions
are contrary to "clearly established Federal law, as determined by the
Supreme Court." 28 U.S.C.A. § 2254; see Williams, 120 S. Ct. at
1523. This is so because both of these rationales are diametrically
opposite to the conclusions reached by the Supreme Court in Waller.4
4In Waller the Court expressly held "there can be little doubt that the
explicit Sixth Amendment right of the accused is no less protective of a
47 BELL v. JARVIS

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Of course, although it seems unlikely, the state habeas courts may
have "identified the correct governing legal principles" from control-
ling Supreme Court precedent (Waller, Globe, Richmond Newspa-
pers, and Press-Enterprise) and concluded that the state trial court
had complied with those principles. This seems improbable in view
of the fact that the State never argued on state habeas review that the
trial court’s closure accorded with Waller, Globe, Richmond Newspa-
pers, Press-Enterprise, or other Supreme Court precedent. If the state
habeas courts had chosen to rely on an argument never made by the
state, it seems likely that they would have thought the issue worth
more than a perfunctory denial. But assuming — even though there
is no evidence this occurred — that the state habeas courts did iden-
tify the correct governing legal principles, I believe that their denial
of Bell’s habeas petition was an "unreasonable application of, clearly
established Federal law, as determined by the Supreme Court."
I recognize that not every incorrect decision is unreasonable, see
Williams, 120 S. Ct. at 1522, and that a federal habeas court cannot
simply substitute its own judgment for that of the state court. Rather,
in a "close" case, we must uphold the state court decision even if we
disagree with the outcome. See Tucker v. Catoe, 221 F.3d 600, 614
(4th Cir. 2000) (denying habeas on a "close issue" even though the
state court was incorrect). See also Francis v. Stone, 221 F.3d 100,
113 (2d Cir. 2000) (upholding state court habeas denial because it was
a "close question," even though state court might well have been
wrong).
But just as surely, when a state court fails to provide any rationale
for its decision, and when our mandated independent review of the
record reveals that the constitutional violation was not a close ques-
tion, it is our duty to correct an unreasonable application of Supreme
Court precedent. For example, in Delgado v. Lewis, the Ninth Cir-
cuit’s examination of a state court denial of habeas was "impeded . . .
public trial than the implicit First Amendment right of the press and pub-
lic," 467 U.S. at 46, and that "the defendant should not be required to
prove specific prejudice in order to obtain relief for a violation of the
public-trial guarantee," thus, "the harmless error rule is no way to gauge
the great, though intangible, societal loss that flows from closing court-
house doors." Id. at 49, 50 & n.9 (internal quotation marks omitted).
48 BELL v. JARVIS

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because no rationale for [the state court’s] conclusion was supplied."
No. 97-56162, 2000 WL 1191040, at *5 (9th Cir. Aug. 23, 2000). The
federal court reversed the state court decision because it had "a defi-
nite and firm conviction that an error ha[d] been committed." Id.
(quoting Van Tran v. Lindsey, 212 F.3d 1143, 1153 (9th Cir. 2000))
(emphasis added).
The constitutional ineffectiveness of Bell’s appellate counsel is not
a close issue. There was "no semblance of a tactical reason" for not
pursuing Bell’s public trial claim. Washington v. Smith, 219 F.3d 620,
630 (7th Cir. 2000). Bell’s counsel raised four arguments on appeal,
none of which possessed the obvious strength of the public trial viola-
tion. Indeed, disputing a judge’s evidentiary discretion rather than
appealing his complete disregard for the mandates of the Supreme
Court on a matter of constitutional law is hardly the action of reason-
able counsel. Because the constitutional violation was clear, the state
courts’ summary dismissal of Bell’s habeas petition was an "objec-
tively unreasonable" application of federal law.
II.
I find puzzling and unconvincing the majority’s holding that North
Carolina’s rejection of Bell’s claim was not objectively unreasonable.
A.
Puzzling, because the majority never attempts an essential part of
the analysis, i.e., an independent determination of whether Bell’s
appellate counsel was in fact constitutionally ineffective. See Green,
220 F.3d at 223; Cardwell, 152 F.3d at 339. Instead, the majority sim-
ply cites Strickland and concludes that the state courts’ denial of
Bell’s ineffective assistance claim was "neither contrary to nor an
unreasonable application of clearly established federal law." Ante at
37. The majority engages in no independent determination of whether
the state courts erred; only a conclusion that if there was error, it was
not unreasonable. This directly contradicts the Cardwell/Green man-
date that we "independently ascertain whether the record reveals a
violation of [a constitutional right]." Green, 220 F.3d at 223; Car-
dwell, 152 F.3d at 339.
49 BELL v. JARVIS

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The majority does not contend to the contrary. Rather, in response
to my suggestion that it has failed to follow recent, directly control-
ling circuit precedent, the majority simply overrules that precedent.5
Although I recognize that the en banc court can create and destroy cir-
cuit precedent as it chooses, I believe that the majority’s action today
is unwise. There is no reason, except expediency, to reject the well-
established practice of this court — followed by all of our active
judges, including every member of today’s majority — of making an
independent determination of whether a constitutional violation has
occurred when evaluating whether a summary state court decision
"involved an unreasonable application" of federal law under
§ 2254(d). See Goins v. Angelone, 226 F.3d 312, 324 (4th Cir. 2000)
(finding that the state court "correctly rejected th[e] claim and, by def-
inition, its conclusion was not unreasonable"); Bacon v. Lee, 225 F.3d
470, 479 (4th Cir. 2000) (concluding that counsel was not ineffective
and thus the state court habeas denial was not "unreasonable" under
§ 2254(d)); Tucker v. Catoe, 221 F.3d 600, 614 (4th Cir. 2000) (find-
ing error, but nonetheless concluding that the state court was not
unreasonable); Barnabei, 214 F.3d at 469 (discussed infra at n.5);
Baker v. Corcoran, 220 F.3d 276, 293 (4th Cir. 2000) (concluding
that a jury instruction was correct and an ineffective assistance claim
was without merit, and thus the state habeas court did not unreason-
ably apply federal law in denying the writ); Cardwell, 152 F.3d at
339.
Indeed, the Supreme Court has twice recently indicated that our
well-established practice is proper. In Williams, while not addressing
this exact question, the Court’s language suggests that ours is the
appropriate methodology. The Court instructed:
5I agree with the majority that the language in Cardwell seemingly
requiring de novo review cannot be reconciled with the AEDPA. Of
course, this does not in any way require disavowal of our well-
established practice of initially making an independent determination as
to whether a state court decision was erroneous. Indeed, in Barnabei v.
Angelone, 214 F.3d 463 (4th Cir. 2000), we recognized that although "de
novo review by a federal habeas court remains inappropriate under
§ 2254(d)," a summary state court adjudication forces us to "indepen-
dently ascertain whether the record reveals a violation." Id. at 477 (inter-
nal quotations omitted).
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Under 2254(d)(1)’s "unreasonable application" clause, then,
a federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the rel-
evant state-court decision applied clearly established federal
law erroneously or incorrectly. Rather, the application must
also be unreasonable.
Williams, 120 S. Ct. at 1522 (emphasis added). The Williams Court
thus recognized the appropriateness of federal habeas courts indepen-
dently analyzing asserted claims as long as they "also" engage in the
AEDPA reasonableness determination. Moreover, just last term the
Supreme Court itself addressed an AEDPA claim by first evaluating
whether the state court decision was erroneous, and only after con-
cluding that it was not, holding that the state court had not unreason-
ably applied federal law. Weeks v. Angelone, ___ U.S. ___, ___, 120
S.Ct. 727, 734 (2000). See also Van Tran, 212 F.3d at 1155 (requiring
federal courts to first determine whether the state court’s decision was
erroneous because it "promotes clarity in our own constitutional juris-
prudence and also provides guidance for state courts, which can look
to our decisions for their persuasive value.")6
Under the AEDPA, federal courts have no business reversing even
perfunctory state habeas decisions that are "close" to the mark. See
Tucker, 221 F.3d at 614. A federal court must, however, find the mark
when the state court fails to do so by issuing a summary decision. At
some point in the judicial process, even a person convicted of heinous
6As the Van Tran Court noted, this approach is the only one consistent
with the Supreme Court’s recent clarification, in the analogous area of
qualified immunity, that before a court may decide whether a state
employee violated a constitutional right that was "clearly established," it
"must" decide whether a constitutional right was violated in the first
place. Wilson v. Layne, 526 U.S. 603, 609 (1999) (holding that it is
improper to dismiss a claim by simply concluding that a constitutional
right was not "clearly established" without reaching the antecedent ques-
tion); County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)
("[T]he better approach to resolving cases . . . is to determine first
whether the plaintiff has alleged a deprivation of a constitutional right at
all. Normally, it is only then that a court should ask whether the right
allegedly implicated was clearly established at the time of the events in
question.")
51 BELL v. JARVIS

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crimes deserves a rigorous and complete analysis of his constitutional
claims. If no state court provides such analysis, this task falls to the
federal courts. A summary conclusion that a case is "close," without
more, does not afford habeas petitioners a full and fair opportunity to
have their habeas claims diligently considered. In many cases, issues
that appear "close" at first may, in fact, show themselves as clearly
wrong after an exacting review.
That is not to say that federal courts may substitute their analysis
for a state court decision. But, in the process of evaluating constitu-
tional violations, federal habeas courts should satisfy themselves, the
reviewing court, and the petitioner that a "close" issue was in fact
"close," and a state court decision, no matter how cursory, was rea-
sonable.
It seems to me that the majority’s careful avoidance of the question
of whether the state courts’ decision was contrary to establish federal
constitutional law can only be explained as at least implicit recogni-
tion that counsel’s failure to appeal the blatant public trial violation
clearly violated federal law. This obviously undermines the majority’s
conclusion that the decision was nonetheless objectively reasonable.
After all, the North Carolina courts enunciated no reason for their
decision and from what can be gleaned from the record this most
likely was because they were unfaithful to well-established Supreme
Court precedent. State courts should not be allowed to insulate their
decisions by failing to express their reasoning.
B.
The majority attempts to obscure the clear and unreasonable inef-
fectiveness of Bell’s appellate counsel by portraying the trial judge’s
courtroom closure as a "proper" decision. The majority offers two
grounds for this portrayal. Neither is convincing.
First and principally, the majority constructs a new record to take
the place of the missing findings. Thus, the majority recounts in some
detail what the state judge was "aware of" or "made aware of" or "in-
formation" that he "possessed." Ante at 29-31. This may or may not
be so; we simply do not know what the trial judge was aware of and
what information he possessed. More importantly, we do not know
52 BELL v. JARVIS

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how, if at all, matters of which he was "aware" or "information he
possessed" figured in his decision to close the courtroom. We do not
know because, contrary to clear Supreme Court precedent, the trial
court did not provide findings justifying the closure.
The sole source the majority provides for its suggestions as to the
trial judge’s "awareness" is a pretrial hearing. But, no witnesses testi-
fied at this hearing. Whatever information the trial judge gleaned
from it was based entirely on the prosecutor’s argument; surely a law-
yer’s argument does not provide a satisfactory basis for assessing
guilt, or denying a public trial. Nor does an affidavit filed by the state
trial judge, four years after the trial, provide a basis for the closure.
Tellingly, in this affidavit, the judge merely states that he observed
that Wendy was under eighteen and gives assurances that he took the
embarrassment and emotional well-being of the child into account in
deciding to close the courtroom. Not even in this after-the-fact state-
ment does the judge assert that "an overriding interest likely to be
prejudiced" compelled the closure he ordered or that he made "im-
plicit" findings supporting the closure.
Even more significantly, in Waller, the Supreme Court expressly
rejected the view that the failure to make express findings can be cor-
rected by post hoc analysis of the record. See Waller, 467 U.S. at 49
n.8 ("The post hoc assertion by the Georgia Supreme Court that the
trial court balanced petitioners’ right to a public hearing against the
privacy rights of others cannot satisfy the deficiencies in the trial
court’s record."). Indeed, Waller made it clear that trial courts must
make findings "specific enough that a reviewing court can determine
whether the closure order was properly entered." Id. at 45. The major-
ity’s analysis turns Waller on its head. Under the majority’s reason-
ing, a trial court no longer has to make specific findings so that an
appellate court can properly review those findings; instead, an appel-
late court can now correct the errors of the trial court by relying on
the trial judge’s post hoc justifications or by creating its own "find-
ings," albeit without considering any evidence or viewing a single
witness.
The majority’s post hoc creation of a record to support the closure
of a courtroom also has the effect of violating the Supreme Court’s
holding in Globe, which prohibited a per se closure of a courtroom
53 BELL v. JARVIS

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during the testimony of a minor-victim of a sexual assault. As the trial
court never personally evaluated Wendy’s state of mind or inquired
into why she could not testify in open court, it could only have based
its decision upon the general nature of the crime alleged and the age
of the witness. To base a closure decision on these general character-
istics that are present in virtually all child abuse crimes is to apply a
per se rule. A case-by-case inquiry requires the trial court to actually
inquire into why a particular witness would encounter difficulty testi-
fying in a public courtroom.
Requiring explicit on-the-record findings is not a meaningless for-
mality. This requirement forces trial courts to weigh the evidence sup-
porting and opposing closure in a systematic fashion, thereby
ensuring that courtrooms are not closed after perfunctory dismissal of
a defendant’s Sixth Amendment rights. Under the majority’s analysis,
however, a trial court need not make an individualized determination
that closure is necessary. Rather, the majority would allow a trial
court to close the courtroom during the testimony of every minor-
victim of a sexual assault without any express findings supporting
closure.
The majority’s other reason for finding that the state courts did not
"unreasonably reject" Bell’s claim is that the instant case assertedly
involved only a "partial closure." Ante at 32-37. The majority con-
tends that it was not unreasonable for North Carolina to fail to apply
the principles so clearly articulated in Supreme Court precedent
because the Supreme Court cases involved complete closures of a
courtroom, while the present case involves only a "partial closure."
But in fact, the Supreme Court dealt with a "partial closure" of a
courtroom in Press-Enterprise, 464 U.S. at 503. There, three days of
a six-week voir dire were open to the public, and the remainder of the
proceeding was closed. See id. The proceeding thus was a "partial clo-
sure" under the majority’s analysis. The Supreme Court nonetheless
required "findings specific enough that a reviewing court can deter-
mine whether the closure order was properly entered." Id. at 510.
Accordingly, the Court held that petitioner’s First Amendment right
of access to a criminal trial was violated, because there had been "a
failure to articulate findings with the requisite specificity." Id. at 513.
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The majority’s "partial closure" distinction thus finds no support in
Supreme Court precedent.7
The majority also attempts to buttress its "partial closure" distinc-
tion by relying on decisions from other circuits to support the notion
that express findings are not always necessary when dealing with
some "partial closures." See ante at 32-37. The majority apparently
believes that North Carolina’s decision cannot be "unreasonable"
under the AEDPA if the decision finds some support in case law from
other circuits. Such a rationale echoes reasoning specifically rejected
by the Supreme Court in Williams. There the Court made it clear that
"[t]he federal habeas court should not transform the inquiry into a
subjective one by resting its determination . . . on the simple fact that
at least one of the Nation’s jurists has applied the relevant federal law
in the same manner the state court did in the habeas petitioner’s case."
Id. at 1521-22. Even if some circuits had held that every closure of
less than an entire proceeding constituted a partial closure, and that
such partial closures do not need to be justified by express findings,
such a holding would still be unreasonable because it directly con-
flicts with Supreme Court precedent, i.e. Press-Enterprise.8
Of course, no circuit has held anything of the kind. Rather, even
in those cases on which the majority so heavily relies, courts have
7While the closure in Press-Enterprise was more extensive than the
closure in this case, it only involved the voir dire of prospective jurors
while the closure here involved a far more critical portion of the trial —
the testimony of the key prosecution witness, whose testimony was nec-
essary to secure a conviction for the offenses charged.
8To the extent that we should look beyond Supreme Court precedent
under the AEDPA (and we should not), the application of Supreme Court
precedent by the North Carolina Court of Appeals has substantially more
probative value than decisions by other federal circuits. And the North
Carolina Court of Appeals has required express, on-the-record findings
before allowing a "partial closure" of a courtroom during the testimony
of a victim of a sexual assault. See State v. Jenkins, 115 N.C. App. 520,
525, 445 S.E.2d 622, 625 (1994). Jenkins was governing precedent in
North Carolina at the time of Bell’s appeal, making it clear beyond any
doubt that appellate counsel’s future to raise the public trial argument
was indeed the failure to raise a "dead-bang winner" and, therefore, inef-
fective assistance. See Banks, 54 F.3d at 1515.
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either ordered removal of only members of the defendant’s family,
see United States v. Osborne, 68 F.3d 94, 99 (5th Cir. 1995) (ordering
removal only of defendant’s sister allowing all other spectators
including other relatives of the defendant to remain in court); Woods
v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992) (permitting exclusion
only of members of defendant’s family during one witness’s testi-
mony), or required findings of, or at least some knowledge of, a spe-
cific threat to the testifying witness, in order to bar the press and
public. See Ayala v. Speckard, 131 F.3d 62, 64-65 (2d Cir. 1997) (en
banc) (closure of courtroom permitted to protect security of under-
cover police officers after a hearing on the issue); United States v.
Farmer, 32 F.3d 369, 372 (8th Cir. 1994) (upholding closure because
there was evidence in the record that the defendant had threatened the
victim/witness who feared retaliation by the defendant and his fam-
ily).
In contrast, Bell’s trial was totally closed during the testimony of
the most crucial prosecution witness; neither the public nor the press
was allowed to remain to safeguard the fairness of the proceeding.9
Moreover, the trial judge held no hearing, made no findings, ques-
tioned no witnesses, knew of no specific threat to any witness, and
based his decision on nothing more than the "apparent delicate
nature" of the testimony. See also United States v. Galloway, 937
F.2d 542, 547 (10th Cir. 1991) (in a case very similar to Bell’s,
reversing and remanding to district court for further findings regard-
ing a partial closure). Consequently, it is clear that Bell’s right to a
public trial was violated and counsel’s failure to pursue that argument
on appeal was undeniably ineffective assistance.
III.
If Ernest Sutton Bell committed the ugly crimes charged against
him, he merits stern punishment. But no matter how dreadful his
crimes, they do not entitle a state to deny his constitutional right to
a public trial, as North Carolina did. When Bell maintained that his
appellate counsel provided ineffective assistance in failing to so
argue, North Carolina courts rejected his claim without explanation.
9The trial judge allowed the complaining witness’s family to remain,
but that certainly did nothing to protect Bell’s right to a fair trial.
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That rejection was either contrary to, or involved an unreasonable
application, of clearly established law as determined by the Supreme
Court. Accordingly, Bell’s petition for a writ of habeas corpus should
be granted.
Judge Michael joins this dissent.
BUTZNER, Senior Circuit Judge, dissenting:
I dissent for the reasons stated in Bell v. Jarvis, 198 F.3d 432 (4th
Cir. 1999).
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