sixteen twenty one seventy two ingram versus john proles neck arguments not to exceed fifteen minutes per side mr mann has for man haas for the courts here did not review either of these claims on the merits therefore this courtroom view is to no go at the standard of review does not apply so the state courts found procedural default under the state procedural procedure befall the us no your honor there's certain requirements that have to be satisfied for procedural default to be recognized by federal courts and so for example with regard to the ineffective assistance claims one of those fundamental requirements was not met and that's that the procedural the folk around needs to be an adequate and independent state ground and the particular requirement there is that it has to be a firmly established rule that the defendant will isn't firmly established in the michigan i was on the court for sixteen years and i think that's the way i was ruling and i am i wrong well there's a bit of confusion because the trial court here didn't separate out the ineffective assistance claims in terms of trial counsel and ok i'm just asking about i appealed on direct appeal as opposed to federal practice federal practice we require in a collateral proceeding or allow it in clear proceedings but michigan doesn't my correct correct or not granted your honor that's correct but need to be brought in pro se supplemental direct appeal briefs that that that claim was not before that in fact that's contrary to this court's precedent precedent and met for its consistently recognize that this michigan and that's for good reason the police reports that we have in the record are riddled with inconsistencies they give the date of mr ingram the rest wrong they get the date of robberies being investigated wrong and most importantly they contain manifest contradiction about the basis for why mr ingham was arrested specifically the farmington hills police reports say that mr ingham was arrested because he was identified in a lineup for the robbery of the wireless giant telephone store and they say that they were instructed by st clair shore st clair shores was a total array or an in person what it was a appears to be a photo lineup that was given to the victim of the wireless that would that were your position is i mean he was going to fight for one of the robberies right and the the police knew that they also had the car the car that was seen at one of the robberies showed up while your client was under surveillance and the third thing what is the third thing the codefendant i guess or i don't i don't know there are i think there were three three edition is a probable cause and two of which are raised these arguments they forfeited any argument that there was probably asking if they forfeit it if they don't raise in your brief your honor they've made no such argument they've made arguments about even if there was no probable cause there are reasons why perhaps counsel would not be ineffective for not raising that claim but they may no argument that there was probable cause and second of all it is true that the car situation is actually a mistake the car that was associated with  in the robbery it is he's under surveillance it is truly the car that is identified as the robbery car pull up and the defendant's there seems to me that that's probably because right there well it is true that he was under surveillance and that the four thunderbirds showed up at his residence and they had done a fight as the car that was used in the robbery but notably your honor the court with the police did not try to arrest mr ingram at that point they apparently didn't think that he had because they're trying to get even more evidence because the attorney would say you don't have enough so here is he in let's see i don't recall this but was he in the car that pulled up to the residence while it was being surve stations that's guilt by association your honor that's not i mean isn't probable cause a low standard i mean you're arguing well he's not guilty beyond a reasonable doubt but the all that all the officers need is probable cause that crime was committed and the defendant committed it which is not that high of a standard your honor it is but it does require a threshold and it's not and apparently the state does not believe that there was i'll ask the state well what we'll find out from them and i would just maintain that with regard to this car that's that's guilt by association that's not that's not probable cause for associating with the right with him with the arrest may have been another thing if he owned the black ford time or the fourth under but he did not and that was not the car that he was directly ask you about another one of the the point that was posited i believe is the basis of probable cause there was an unclear for me from the record but there was a reporting of a conversation between two individuals allegedly bragging about having been involved in robberies and that was styled as a report of a confidential informant and then obviously a confidential informant has to meet arrest based on like a problem but that is does not suffice for probably first again i would mention the state has not raised that but second of all as you mentioned the mere fact that there's a confidential tip given statement that he overheard the defendant brag about doing these robberies was itself not sufficient when combined with the other two matters why doesn't that well i mean because we don't combine and don't we rather than look at them individually what we do consider it's true what the aggregate now is of the arresting police officers were and but there with regard to this identification this they've shown no awareness of this other event of occasion  well i believe the correct standard is it is object it's an objective analysis of what the subjective knowledge of the police officers involved was so you look at what they knew and what was available to them but you don't look at their specific intent of why they were arresting inherently your honor i mean aside from the fact that this is waived in so it's not it should be considered here it wasn't even explored because trial council the town council didn't look at these manifestly contradictory  the case was decided more than seven years ago and it is in the room i mean what is there to support your source of this new rule well i'd like to just if i may before i'd address that i i want to go to the court closing yes but go ahead i just want to lay out one thing that i think might not have been clear from the briefs and i just want to clarify for this court which is you've raised one of our arguments about why procedural default would be excused and there's two of  one is that there is a new rule of law the other is if it was an appellate counsel was ineffective for not raising that claim but i want to emphasize the first one which is that the michigan state courts apply their procedural default rules and correctly because that's not an argument that this excused that's an argument that there was no procedural default and that means there's no need to show prejudice for the public trial right claim that there was a violation of the public trial right then that's it there's a new trial as to how does how does presley even apply here pressly the supreme court issued a per curiam opinion in lieu of granting search and holding it in presley contrary to your argument i see is that the war dear in a criminal case is part of the fundamental rights of a public trial and poor dear therefore must be made public and we don't have a for situation here so i fail to see how pressley has any effect on the established rule of law which was in waller versus georgia which is one thousand nine hundred four case which established the firm right of the rule of public trials and the requirement that the judge articulate reasons for closing the courtroom so tell me why pressley which the holding of which is that the  dear jury selection is subject to public trial how that impacts your case because that's just that's the way i read the whole game and i don't see it happening in impact on your case presently has multiple holdings and i don't think so i let me explain to you presently there was no reasonable alternatives that were offered by anything but those were the facts exactly there was no reasonable alternatives offered by any party by anyone and the supreme court says and presently even when no one recovers reasonable alternatives the court the court has to and that's a that's not changing the law well if you read our briefs i think you'll see that there were a number of courts occluding the fourth circuit on bonk and the second circuit and a number of others that found exactly the opposite that in when a party does not object or does not offer results when it is the there's no onus on the court to do those things and so the supreme court announced a rule that was contrary to what a slew of courts had said was not the case so so we have differing interpretations here of what presley stands for but in this case the court basically tailored  closure to this one with a witness in the court said we are only going to close the court after this one witness where the government posited that there had been threats maybe even death threats i think your  concern is that the court did not articulate that but from the colloquy there there there there is at least in the record the basis asserted by the government which apparently the court adopted that's an inference you can draw but i but i would say even if you draw that inference that doesn't speak to the reasonable alternatives point of which there were many and we've laid out in our brief you know there's plenty of compromise positions where it's not a full closure you know the put up all applied here if even if there was a need to close the courtroom which we don't necessarily agree with mr mann house you have three minutes rebuttal you can use it now or you can save it now i will save it thank you for the questions  the there absolutely was probable cause there was absolutely nothing wrong with this arrest and i know we've raised several different layers of defenses that we have to the first claim and those are all adequate and any one of those on its own would be enough to affirm the are getting a very there was probable cause that argument i think i think my brother is correct i think we kind of let the district court's decision which that was the basis of the district court's denial of relief and we raised sort of a number of alternate grounds procedural defense procedural default statute of limitations waiver forfeiture nine retroactivity i don't think you can find a case where hevia scored a said there was no constitutional violation here but the state failed to argue that there wasn't a constitutional violation here so we're to grant habeas relief in the absence of a constitutional violation because of the state's briefing i don't think that's correct i think the this court has an independent obligation to assure itself that there was actually a constitutional violation before a relief and so i don't think that that can be held against the state especially in light of the fact that the district court based it's really so it's not like this isn't before the court we have it in the district court opinion and we never attacked it or disavowed it either ha argued that there was no probable cause for the arrest and i want to focus on that very moment and go back to those three bases and look at independently because i think i think  really amount to a report of a confidential informant on the record i don't think that that alone because that alone didn't identify if i recall correctly the confidential informant said he was bragging about robbing a party store and other robberies i think was the language in the affidavit so if you want to say we're arresting him for the robbery of the wireless giant the robbery of city financial i think it would be a tough argument to say well he bragged about some robberies and that's  going to be able to i don't know because i don't think that issue was ever raised so we've never really had a chance to look at that and i would say that even without that piece even if you remove that from the equation i think the most powerful thing  described as fire out and next go to the the driving up of the car well the car exactly now he makes a lot of something of the fact that the he was arrested in a different car but judge griffin was right is that the car that was involved in the wireless giant robbery mattia the scription of the car that was involved in the mugging jug robbery and the car that was registered to him thomas and that car pulled up to mr ingram it's residence now again that alone just because you're a robber and you drive a car to somebody's house that doesn't mean that person in that house is also a robber that alone would not be enough but the fact that that car was used in the wireless joint robbery the wireless victim  described one of the robbers in the exact same way as the city financial victim did and identified the handgun in the exact same way as the city financial victim described the handgun so you've got that correlation between those two victims description of the robber and the handgun and then you've also got the car the car is registered to kim thomas the car also goes to mr ingram's house and mr ingram is bragging about now i did say even if you eliminate that i think that's kind of the the the the icing on the cake right but if we allow that then you've got that bragging and those i think that counts for things that you put all together maybe five if you separate the handgun out as a separate thing so that all leads to probable cause and that's why the magistrate issued an arrest warrant in st clair shores and so not only do you have probable cause but you have actually have an arrest warrant now farmington hills didn't have that warrant in their hand but they had information from st clair shores that there was probable cause to arrest him now they have the arrest warrant and then i think you make a backup argument in good faith based or you well i think legally on organ i think the good faith argument that we've made is that sinclair shores let's assume all of that is wrong just for the sake of argument sinclair shore still told farmington hills there was probable cause to arrest him and this is not now the supreme court has said sort of in dicta that you can't have one officer sort of lied to another officer officer a knows there's no probable cause but still as officer be there isn't an officer be makes the arrest and then we say good faith but there's nothing like that that happened here if there was any problem which again our position is there wasn't it was just a mistake either on the part of farmington bad stop right and unconstitutional seizure and then the police officer discovered that there was a valid valid warrant for the arrest and he challenge the street challenge the arrest on the basis that well without the stop you wouldn't found the warrant you wouldn't rest to be in the supreme court says no when you have a valid war so i think even if farmington hills had done something wrong here the warrant came after the stop the warrant in st oh in this case you know the warrant was before but i don't know if farmington hills i don't think the record it doesn't matter if they knew about projected standard on the fourth amendment and that's what scenario here is there is a arrest warrant issued by a magistrate has in effect before the stop right and then that's what i'm saying is that whether farmington hills knew about the warranty not whether the particular officer knew about it doesn't matter if he wrecked tarp correct about it the department may have known about it and the warrant existed anyway whether anyone knew about it it seems to me that  already reviewed all this stuff and it's found probable cause exactly and i just really a winner for you go so i think so i would absolutely rely on that as a winning argument i guess i see this kind of argument is proceeding in many different layers and so i wanted to get to the core of it which is that there was probable cause that also there's a warrant also there was you know attenuation also we've got the you know protections of the ineffective assistance standard and then procedural and so what about the court closure argument a trial argument why don't you go to that sure your honor i think the simplest way as we said in the brief to resolve this is on procedural default i think we can win either way procedural default is the easiest presley didn't announce a new rule that's relevant in this case the new rule and presently is the forty year presently explicitly said the fact that the court has to consider alternatives even when parties don't raise them is clear from our precedents that's almost an exact quote from pres y so the idea that this is a new rule is not correct and so this should have been raised i mean if there were any merit to it it should have been raised on direct appeal either in the council brief it could've should've been raised in the standard for brief it should have been raised in the first motion for relief from judgment and now it doesn't come along until the second motion from the from judgment now there's this argument that the trial court somehow misapplied michigan's rules and that that somehow a gotcha pass procedural default the court will say you can't judgment asserted that there was a new rule the assertion was incorrect but it was perfectly reasonable for the trial for the court clerk instead of returning it without filing to say this is certainly a rule send it to the judge i think that's reasonable i don't think we want clerks deciding the merits of well is this assertion of a new rule legally correct or incorrect i think that's a determination for a judge and the judge said the judge could have said this isn't a new rule the judge could have said this should have been raised earlier in the latter is what the judge did the michigan supreme court was the last reasoned decision in the case and says this is barred as a second or successive motion for relief from judgment under g two that last reasoned decision is what controls the two is a procedural right correct or no merit defenses there it's all procedure it's procedural yes i would say so i think the you can infer from it that the michigan spring court was holding that presently didn't announce a new rule  also the michigan supreme court did not reach the merits of whether the trial court had properly the wall are factors right that wasn't in the michigan supreme court order it was just there's no new new rule here you should have raised it before you didn't hear out that was the last reasoned decision and that's correct and on the basis of that procedural default that's enough for that this court to affirm to get to the merits presently did say that the court was required to consider reasonable alternatives pressley did not say the court was required to make it explicit record of having considered reasonable alternatives and the as the district court h district courts sorry the trial courts treatment of the next witness came thomas to testify shows that this this court was not simply rubber stamping the prosecution's requests for a courtroom closure of the process the court was considering this and that's why the court rejected it when it came reasonable inference from the fact that the court didn't just adopt the government's argument when it came time for mr thomas to testify if that were the court's attitude not considering reasonable alternatives then it would have come time for him thomas the prosecutor said we still want to close the courtroom in the court would've said well of course you brief there was a difference recognized between the two witnesses in that kim thomas was in michigan department of corrections custody at the time and so had better security whereas that supports the argument of a narrower tailoring limited to one witness so what did the court you know his security if there is it's more important for his security to close the courtroom whereas mr thomas is in the custody of the m t o c and therefore there's more you adopted the defendant's defense counsel's argument which was that because he's in the that ruling on the subsequent witness was district judge was viewing the alternatives for the closure with yes i think that's absolutely a reasonable inference that explanation although the the appellant's brief does contain other alternatives it doesn't contain any other reasonable alternatives three of the alternatives advanced they have to i mean i doubt that's what wall or earth yeah well or versus george or was that the court s alternatives here is a reasonable alternative that could have adopted and so the appellant does have that obligation and they didn't do that every year they did raise alternatives i'm saying those alternatives aren't reasonable three of them trample on the defendant's constitutional right to confrontation and we don't know if he would have waived that or not which a protective screen close circuit t v or i care about the other one but it's another one where he's not face to face with that if we miss is not face to face of the defendant the fourth one is that the trial court do you mind if i finish this well my time is i'm sorry i'll be  as the trial court would somehow figure out which people in the audience were mr ingram's associates and only exclude them and that's i think it's pretty obvious that that's not reasonable because you can't figure out who is  a threat and who doesn't and so i don't think that is a reasonable alternative my time is up i'd be glad to answer any other questions anything else you want to bring your attention just very briefly on the first issue they've raised no argument a procedural default of ineffect claims are not subject because over here through the back door of ineffective assistance of counsel we are reviewing fourth amendment claims from a state court isn't that just logically inconsistent i don't think i logically inconsistent because as as the state started its argument they don't said that there was no constitutional violation here but there was a constitutional vote i mean if this were a standalone fourth amendment claim you would agree with me as a federal court we could not review it would you know yes i believe that's correct ok but isn't it odd that we can review a fourth fourth amendment state claim if it's brought up on the basis of ineffective assistance we know because defendant has an independent right to effective assistance of counsel and that's precisely what was missing here that was the constitutional violation ineffective assistance of counsel to the extent this court has questions about some of these bases that were not raised by the state about why there might be probable cause would be perfectly appropriate for this court to order an evidentiary hearing into these issues which have not been briefed and have not been talked about the state know whether there's any case on the question of whether you can have a judge merit but i would say that i i don't think it's been established that there is no cognizable fourth amendment elation there is these theoretical other bases that are now being raised at the eleventh hour by the state and more importantly the state says that well the made these findings a federal district court but the federal district court applied for a standard of review to issues that were not adjudicated on the merits and in fact there's no findings about probable cause in the state court proceedings so we think will be perfectly appropriate if this court feels like there are perhaps the reasons to explore these other bases to order an evidentiary hearing if the reason there wasn't evidence rehearing on the fourth amendment issue is because it was procedurally default and i mean it wasn't raised ineffective assistance of counsel investigation has to occur to see well that's precisely the investigation a reasonable counsel would have done in those circumstances and that's what may be appropriate here for the court all right you're out of time you want to wrap it up a row briefly  yeah i just want to briefly address the public trial claim and point out that there was a clear misapplication of michigan procedural default rules which rules out the need to show prejudice it's a structural  air the state said on argument that well courts can go address the good cause bar before they dress the success of most of the bar that's that's contrary to michigan law we have repeated cases people be slain because of success a motion for relief from judgment may only be filed if after the first motion there is a retroactive change in law or new evidence that is discovered the good cause an actual prejudice requirements of m c r six point five zero e d three are not relevant until and are only relevant if the trial court determine that the success of motion falls within one of the two exceptions to m c r six point five zero eighty three so the court could not have moved to that analysis unless it had found one of the exceptions when the only one argued here was retroactive change in law second point i want to make is the state refers to the michigan supreme court decision as a last reasoned decision that's not the case the state erroneous lee said that it relied on six point five zero two g two in fact it only just cited six point five zero two g which is the broader rule which says that denials of successive motions may not be appealed so they deny that rule that appeal because it's not within their jurisdiction to make a decision on the success of motions they did not say gee two they said a g the last reason decision here is a trial court which