NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 15-2170

________________

TERRANCE TUCKER

v.

SUPERINTENDENT GRATERFORD SCI,

 Appellant

________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2-11-cv-00966) 

District Judge: Honorable James Knoll Gardner

________________

Argued: June 7, 2016

Before: CHAGARES, KRAUSE, and SCIRICA, Circuit Judges

(Filed: February 3, 2017)

Susan E. Affronti

Ryan Dunlavey [ARGUED]

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Counsel for Appellant

Arianna J. Freeman

Thomas C. Gaeta [ARGUED]

Federal Community Defender Office for the Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellee
2

______________________

OPINION

______________________

SCIRICA, Circuit Judge.

Petitioner Terrance Tucker contends in this habeas corpus petition that he was 

denied effective assistance of counsel because his counsel on direct appeal did not raise 

the potential claim that Tucker’s Sixth Amendment right to a public trial was infringed 

during his state-court trial. The United States District Court for the Eastern District of 

Pennsylvania granted Tucker’s habeas petition, finding the Superior Court of 

Pennsylvania had unreasonably applied Supreme Court precedent, and ordered the 

Commonwealth of Pennsylvania to release Tucker or grant him a new trial. The 

Commonwealth appealed. We will reverse and remand for proceedings consistent with 

this opinion.

I.

A.

The charges against Tucker stem from the February 20, 2002 homicide of Mikal 

Scott. Scott provided statements to police against two members of a rival gang during a 

prior murder investigation in 2000, but recanted his statement prior to trial. According to 

 

 This disposition is not an opinion of the full Court and does not constitute binding 

precedent. I.O.P. 5.7
3

the Commonwealth’s theory of the case and evidence adduced at trial, in retaliation for 

Scott recanting his statement, Tucker and a co-conspirator shot and killed Scott.

B.

The Commonwealth charged Tucker with murder and several other offenses. His 

trial in the Court of Common Pleas of Philadelphia County began on November 12, 2003. 

J.A. 87. After holding an off-the-record discussion with counsel in chambers, the trial 

judge closed the courtroom to the public. The judge said, “I have determined that I am 

going to close the courtroom for the balance of this proceeding. No citizens will be 

permitted to observe this trial until I decide otherwise.” Id. at 182. The judge gave two 

reasons for closing the courtroom—courtroom disruptions and witness tampering and 

intimidation.

As to the first reason, the judge explained:

During the beginning instructions I noticed many, many citizens coming 

into the courtroom whose behavior was not cooperative. They were 

attempting to talk to Mr. Tucker. Mr. Tucker was attempting to 

communicate with them at points in time when [defense counsel] was 

focused on the jury, and to such a degree that I had to have a message sent 

to [defense counsel] to have Mr. Tucker stop.

Id. Earlier that day, the judge had twice admonished Tucker’s father and other people in 

the gallery for disrupting the trial by speaking to Tucker. Id. at 166, 171. Despite these 

admonishments to the gallery, the judge also had to instruct Tucker to “face forward” so 

spectators could not communicate with him. Id. at 182. The judge was concerned not 

only with the uncooperative behavior of Tucker, his father, and other spectators, but also 
4

with the “exceedingly complex” relationships among the witnesses scheduled to testify 

on behalf of the Commonwealth and Tucker,1and how that complexity might affect the 

orderly administration of trial. Id. at 183. Closing the courtroom would prevent disruption 

and keep witness testimony as “pristine as possible . . . so that the jury has a clean record 

with which to work.” Id. As the Superior Court of Pennsylvania later added, “[closure 

was] particularly [appropriate] since this case had its genesis in a gang-related dispute.” 

Id. at 58.

As to the second reason for closing the courtroom—witness tampering and 

intimidation—the trial judge explained that “[the court had] previously documented in 

this record that there may have been attempts at witness tampering.” Id. at 182. 

Specifically, an eyewitness to the murder, Tonaysha Austin,2failed to appear on the first 

scheduled day of trial because, as the Commonwealth’s attorney explained during the 

pretrial colloquy, one of Austin’s relatives who had recently been in jail with Tucker, and 

“who she would not identify . . . because she was scared,” had given her a message from 

Tucker.3Id. at 168. Tucker allegedly told Austin’s relative to tell her that “if [Austin] 

comes to court that she shouldn’t say he was the one that did it because he wasn’t the one 

 

1 For example, Naima Scott—the sister of Mikal Scott—was also the cousin of Damon 

Walls, who was involved in the prior homicide in 2000. See J.A. 297.

2 Austin had been seated in the car behind Scott when he was shot, and had been with 

Tucker earlier that day.

3 These incidents of witness tampering impeded the administration of the trial. Because 

Austin failed to appear on the first day of trial, the trial had to be postponed to 

Wednesday of that week. J.A. 167.
5

who did it.” Id. The Commonwealth acknowledged this threat was “oblique,” id., but 

because Austin was “afraid about coming to testify” and “concerned about herself, her 

family, and . . . this relative,” the Commonwealth placed her in a hotel “out of 

Philadelphia” for “her to feel like she [was] going to be safe,” id. at 169. In her testimony 

at Tucker’s trial, Austin expressed she was still “scared” “to be in the room with 

[Tucker].” Id. at 197.4

Tucker’s attorney objected to the closure. Id. at 183. The trial judge overruled the 

objection, but stated the issue was preserved for review. Id. The jury heard testimony 

from fourteen witnesses over the course of three days. Aside from Austin, who testified 

on the first and second days of trial, the other testifying witnesses were Anne Williams 

(another eyewitness), id. at 259, a medical examiner, id. at 291, two detectives, id. at 236, 

239–240, four police officers, id. at 246, 253, 309–10, 316–17, and Tucker’s prior 

counsel, id. at 304. Scott’s sister also testified, id. at 296, as did three witnesses for 

Tucker during the second half of the third day of witness testimony, id. at 322, 327, 330–

31.

 

4 The Commonwealth also alleged, and evidence supports, that Austin failed to appear at 

the preliminary hearing because she was influenced by a friend of Tucker’s. When asked 

at the preliminary hearing if she was threatened not to come, Austin responded “Amir 

Muhammed told me that if I didn’t come to Court three times that it would be all thrown 

out.” Id. at 308. When pressed on this at Tucker’s trial, Austin testified that prior to the 

preliminary hearing, Muhammed, the brother of Isa Muhammed and a friend of Tucker’s, 

took Austin to see a lawyer. Id. at 196. “Muhammed went into the room to talk to the 

lawyer while [Austin] was sitting outside waiting for him to finish. Then he came back 

out and he told me if I don’t come to court three times that it will be dismissed.” Id.
6

Although the record is unclear, it appears the courtroom was not entirely closed 

during the entirety of witness testimony. On the first day of witness testimony, during the 

first half of Austin’s direct examination, there was a detective in the courtroom who was 

on another case as well as an intern for the Commonwealth. Id. at 185. The intern, who 

we do not consider a member of the public, was allowed to stay, but the detective was 

asked to leave for the remainder of Austin’s direct examination and the first half of her 

cross examination. Id. at 198. At the start of the second day, which continued with 

Austin’s cross examination, the trial judge noted that her friend, a professor from Drexel 

University, and her students were in attendance, taking notes. Id. at 227. It is unclear 

from the record how long they stayed. It is also unclear whether any members of the 

public were present during the third day of witness testimony.

Once witness testimony had concluded, the trial judge reopened the rest of the 

proceedings to the public.5 Id. at 333. On November 19, 2003, the jury found Tucker 

guilty of third-degree murder, possessing an instrument of crime, reckless endangerment, 

and criminal conspiracy. Id. at 378. He was sentenced to an aggregate prison term of 

thirty to sixty years. Id. at 519.

 

5 The trial court judge initially only contemplated letting the mothers of the victim and 

defendant in, but explained that she “[didn’t] know who Mr. Tucker’s mother [was] 

because so many people were trying to get into the courtroom” and “[d]ifferent people 

kept claiming that they were [Tucker’s] mom. All kinds of people claimed to be 

[Tucker’s] mom.” J.A. 333.
7

C.

Tucker appealed his conviction and sentence to the Superior Court of 

Pennsylvania. Tucker, represented on appeal by his trial counsel, raised six challenges,6

but did not challenge the courtroom closure. Id. at 806–07. Tucker’s conviction and 

sentence were affirmed, id. at 73–84, and the Supreme Court of Pennsylvania denied 

review, Commonwealth v. Tucker, 911 A.2d 935 (Pa. 2006) (table).

Tucker filed a petition for collateral relief under the Pennsylvania Post-Conviction 

Relief Act (PCRA) in the Court of Common Pleas of Philadelphia County. J.A. 768. 

Among various ineffectiveness claims, Tucker claimed his appellate counsel was 

ineffective for failing to challenge the courtroom closure. Id. at 772. The closure, he 

contended, violated his Sixth Amendment right to a public trial because it failed to pass 

the standard set by the Supreme Court of the United States in Waller v. Georgia, 467 U.S. 

39, 45 (1984). Id. at 772–75. The PCRA court denied Tucker’s petition, explaining the 

trial court’s reasoning for not closing the courtroom as follows:

This case grew out of a dispute between two rival gangs. It was preceded 

by at least two other murders. The relationship between these groups was 

 

6 On direct appeal, Tucker alleged: 

(1) the trial court erred in admitting hearsay testimony to establish a motive; (2) 

the trial court erred in limiting the cross-examination of a prosecution witness; (3) 

the trial court erred in admitting hearsay testimony; (4) the trial court erred in 

permitting the court reporter to read back portions of testimony; (5) the evidence 

of third-degree murder and conspiracy was insufficient; and (6) the trial court 

failed to consider Tucker’s background during sentencing and failed to adequately 

explain the length of the sentence.

J.A. 28 (citing Direct Appeal Op. at 4–5).
8

complex and not completely clear. It involved documented violent incidents 

of witness intimidation and retaliation. During opening statements a large 

group of young men entered the courtroom and attempted quite obviously 

to have inappropriate contact with [Tucker], who also attempted to 

communicate with the people in the courtroom. As a result, both counsel 

were advised of the necessity to close the courtroom in order to preserve the 

sanctity of the proceedings.

Id. at 68 (internal citations to the trial record omitted).7

On appeal, the Superior Court of Pennsylvania affirmed the PCRA order, citing 

the above language. Id. at 58. Instead of applying the Waller test, however, it analyzed 

the legality of the closure under a state-law standard, and found the closure permissible. 

Id. at 57–59. Accordingly, the Superior Court of Pennsylvania held Tucker’s appellate 

counsel was not ineffective. Id. The Supreme Court of Pennsylvania again denied review. 

Commonwealth v. Tucker, 8 A.3d 345 (Pa. 2010) (table).

D.

Tucker reasserted his ineffective assistance claim in a timely habeas petition. See 

28 U.S.C. § 2254; J.A. 569, 646. A Magistrate Judge recommended Tucker’s “petition be 

denied as meritless.” J.A. 26. He found the decision to close the courtroom justified under 

Waller, because “[a]s the trial court found, many spectators attempted to communicate 

with Tucker during opening statements,” and “[t]here had been documented concerns of 

 

7

Judge Renee Caldwell Hughes presided over Tucker’s initial trial and the PCRA trial. 

This is common practice in the Pennsylvania courts. See Lambert v. Blackwell, 387 F.3d 

210, 229 n.13 (3d Cir. 2004); Commonwealth v. Ligons, 971 A.2d 1125, 1140 (Pa. 2009) 

(noting in passing “that the PCRA judge . . . [is] oftentimes . . . the same judge who 

presided over the petitioner’s trial”).
9

witness intimidation earlier in the case, and the relationships between Tucker, the 

decedent, and various witnesses were complex.” Id. at 36. 

The District Court disagreed with the Magistrate Judge’s Waller analysis, declined 

to adopt his recommendation, and issued a writ of habeas corpus, ordering the 

Commonwealth to either release Tucker or grant him a new trial. Tucker v. Wenerowicz, 

98 F. Supp. 3d 760, 781 (E.D. Pa. 2015). The court reasoned the courtroom closure 

violated the rule announced by the Supreme Court of the United States in Waller, see id.

at 765–66, and held appellate counsel was ineffective for failing to appeal this “plainlymeritorious claim,” id. at 779. The Commonwealth appealed. J.A. 1.

II.8

The Commonwealth contends we must reverse the District Court’s decision 

because the Superior Court of Pennsylvania’s resolution of Tucker’s ineffective 

assistance claim was not contrary to a clearly established holding of the Supreme Court 

of the United States. We disagree. The Superior Court applied a standard contrary to 

established federal law that was less favorable to Tucker in evaluating the underlying 

courtroom closure claim. However, we nonetheless reverse the order of the District Court 

granting the petition for a writ of habeas corpus because we conclude, conducting our 

own de novo Strickland review, Tucker has failed to meet his burden of demonstrating a 

 

8 The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254. We have 

jurisdiction under 28 U.S.C. §§ 1291 and 2253. We exercise plenary review over the 

District Court’s decision to grant Tucker’s habeas petition. Lewis v. Horn, 581 F.3d 92, 

100 (3d Cir. 2009).
10

reasonable probability that the outcome in his case would have been different but for his 

counsel’s failure to raise the closure issue on appeal.

A.

Because Tucker’s ineffective assistance claim was adjudicated on the merits by 

the Superior Court of Pennsylvania, it is subject to the Antiterrorism and Effective Death 

Penalty Act of 1996, 110 Stat. 1214 (“AEDPA”). Under AEDPA, habeas relief is 

unavailable unless the state court’s decision (1) “was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as determined by the 

Supreme Court of the United States” or (2) “was based on an unreasonable determination 

of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. 

§ 2254(d). Tucker does not contend the Superior Court’s decision was factually 

erroneous. Instead, he contends, as framed by the District Court, it involved an 

“unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984)”—the 

Supreme Court case addressing ineffective assistance of counsel claims—“vis-à-vis 

Waller v. Georgia, 467 U.S. 39 (1984).” Tucker, 98 F. Supp. 3d at 765.

A decision by a state court is “contrary to . . . clearly established law if it applies a 

rule that contradicts the governing law set forth” in Supreme Court precedent. Price v. 

Vincent, 538 U.S. 634, 640 (2003) (quotations and citations omitted). A state court need 

not have cited any particular Supreme Court decisions, and this standard affords 

considerable latitude to the state court, “so long as neither the reasoning nor the result of 

the state-court decision contradicts” federal law. Early v. Packer, 537 U.S. 3, 8 (2002) 
11

(per curiam) (emphasis added). In this regard, the state court’s decision need not even be 

accompanied by an explanation, as long as there was a “reasonable basis for the state 

court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011). 

However, “when the state court pens a clear, reasoned opinion, federal habeas 

courts may not speculate as to theories that ‘could have supported’ the state court’s 

decision.” Dennis v. Sec’y, Pa. Dep’t of Corrs., 834 F.3d 263, 283 (3d Cir. 2016) (en 

banc). If a state court does provide reasoning, the state court decision is not entitled to 

deference if no “fairminded jurist[]” could “disagree that those arguments or theories are 

inconsistent with the holding in a prior decision of” the Supreme Court. Richter, 562 U.S. 

at 102. The state court may not add or remove a factor from a clearly established federal 

law test. Dennis, 834 F.3d at 307 (concluding that adding an admissibility requirement to 

Fourteenth Amendment Brady inquiry constituted “an unreasonable application of” and 

was “contrary to” clearly established federal law); see also Benn v. Lambert, 283 F.3d 

1040, 1051 n.5 (9th Cir. 2002) (“The addition, deletion, or alteration of a factor in a test 

established by the Supreme Court . . . constitutes a failure to apply controlling Supreme 

Court law under the ‘contrary to’ clause of AEDPA.”).

B.

The federal claim here is an ineffective assistance of counsel claim, which requires 

a defendant to establish (1) constitutionally deficient representation, and (2) resulting 

prejudice. Strickland, 466 U.S. at 687. The ineffective assistance of counsel claim serves 

as the vehicle for the actual error alleged—the Superior Court of Pennsylvania’s analysis 
12

of whether there was a violation of Tucker’s Sixth Amendment right to a public trial 

under Supreme Court precedent. The Superior Court engaged in a Sixth Amendment 

analysis when determining whether Tucker’s counsel constitutionally erred by not 

appealing the courtroom closure, and concluded that because there was no viable Sixth 

Amendment claim to appeal, Tucker’s appellate counsel could not have been deficient in 

choosing not to appeal it. 

Under Supreme Court precedent, closing a courtroom is permissible only if the 

following requirements are met: (1) there is “an overriding interest that is likely to be 

prejudiced,” (2) the closure is “no broader than necessary to protect that interest,” (3) the 

trial court considers “reasonable alternatives” to closure, and (4) the trial court makes 

“findings adequate to support the closure.” Waller, 467 U.S. at 48.9

The Superior Court of Pennsylvania did not apply Waller, but instead applied a 

less rigorous standard from Commonwealth v. Berrigan, 501 A.2d 226 (Pa. 1985). Under 

this standard, “[w]here trial courts perceive a threat to the orderly administration of 

 

9 On appeal, the Commonwealth contends for the first time that Waller does not apply 

because the closure was “partial” rather than “complete.” See Appellant’s Br. 44–45. 

Whether a closure is complete or partial “depends not on how long a trial is closed, but 

rather who is excluded during the period of time in question.” United States v. Thompson, 

713 F.3d 388, 395 (8th Cir. 2013). While not without doubt, the facts of Thompson are 

sufficiently distinguishable that we do not address the standard articulated in that case for 

reviewing partial closures. Thompson involved a closure limited only to defendant’s 

relatives and only for a single witness’s testimony. Id. In Tucker’s case, the trial judge 

chose to close the courtroom during the testimony of all witnesses, including the six law 

enforcement officers who testified, and to all members of the public, save for a detective 

and a group of students, who were in attendance at the request of a friend of the trial 

judge.
13

justice in their courtrooms by an unmanageable public, they may always place reasonable 

restrictions on access to the courtroom, so long as the basic guarantees of fairness are 

preserved . . . .” Berrigan, 501 A.2d at 234. The Superior Court explained it “is the 

responsibility of the court to maintain not only the control but also the security of the 

courtroom,” J.A. 672 (citing Commonwealth v. Pantano, 836 A.2d 948 (Pa. Super. Ct. 

2003)), and that the right to a public trial “serves two purposes: (1) it prevents the 

accused from being subject to a Star Chamber proceeding; and (2) assures the public that 

the standards of fairness are being observed.” Id. at 682 (citing Commonwealth v. 

Constant, 925 A.2d 810, 817 (Pa. Super. Ct. 2007)).

The standard applied by the Superior Court of Pennsylvania is contrary to Waller. 

Specifically, the Superior Court failed to consider the second, third, and fourth prongs of 

the Waller test. The Superior Court identified an overriding interest that would be 

prejudiced, specifically “disruption caused by the spectators in the courtroom, 

particularly since this case had its genesis in a gang-related dispute.” Id. at 683. However, 

having identified this interest, the Superior Court concluded its analysis, because “by no 

means did the trial resemble a proceeding in the Star Chamber and we have a record of 

the proceedings to review on appeal.” Id. at 683.

The standard articulated in Berrigan that allows “reasonable restrictions” on 

public access to the courtroom is inconsistent with the narrow tailoring required by 

Waller. The Superior Court did not consider whether the closure was narrowly tailored, 
14

whether reasonable alternatives to a complete closure existed,10 and did not evaluate 

whether the trial court’s findings on the record justified the scope of the closure. See 

Waller, 467 U.S. at 48. Moreover, the interests identified by the Superior Court and relied 

on for its conclusion—preventing “Star Chamber” proceedings and preserving a record 

for review—are dramatically narrower than the interests that must be considered under 

controlling federal law. See Waller, 467 U.S. at 47 (identifying “strong interest” of the 

“public in general” in exposing court proceedings to “the salutary effects of public 

scrutiny”). Because both prongs of the Superior Court’s Strickland analysis necessarily 

depended on the analysis of the underlying Waller claim, the Superior Court’s Strickland

analysis is an unreasonable application of and contrary to clearly established federal law. 

We are deeply concerned that Pennsylvania courts, including the Superior Court in 

Tucker’s case, are not applying Waller when analyzing defendants’ Sixth Amendment 

public-trial claims. In the first few years after Waller, two Pennsylvania courts of appeal 

concluded the closures in those cases violated the defendant’s Sixth Amendment right to 

a public trial because the trial courts had failed to make specific findings in support of the 

closure as required under Waller. See Commonwealth v. Penn, 562 A.2d 833, 836–39 

(Pa. Super. Ct. 1989); Commonwealth v. Murray, 502 A.2d 624, 627–29 (Pa. Super. Ct. 

1985). But more recent Pennsylvania decisions, even those with thorough discussions on 

 

10 As discussed infra, the trial court may not have had a clearly established duty to 

consider alternatives sua sponte, but the Superior Court failed to even address this clear 

Waller requirement.
15

closure, have reverted to Pennsylvania’s less rigorous Berrigan standard. See, e.g., 

Commonwealth v. Tirado, No. 3088 EDA 2010, 2013 WL 11259149, at *2 (Pa. Super. 

Ct. July 12, 2013) (applying Berrigan in a Sixth Amendment public-trial challenge); 

Commonwealth v. Constant, 925 A.2d 810, 817 (Pa. Super. Ct. 2007) (same); 

Commonwealth v. Conde, 822 A.2d 45, 50 (Pa. Super. Ct. 2003) (same). So too here. 

Although Tucker cited and argued Waller in both his PCRA petition and in his appellate 

brief, the Superior Court of Pennsylvania ignored the Waller standard and applied the less 

rigorous Pennsylvania standard. J.A. 58 (concluding the trial court did not abuse its 

discretion when it closed the courtroom because the trial court was “acutely—and 

justifiably—concerned about the disruption caused by the spectators in the courtroom”).

Because the Superior Court’s Strickland analysis turned on an analysis of the right 

to a public trial that is inconsistent with Waller, § 2254(d)(1) is satisfied and the decision 

of the Superior Court is not entitled to AEDPA deference.

C.

Having determined that the state court decision is not entitled to deference under 

AEDPA, we proceed to a de novo evaluation of the constitutional claim on the merits. 

Panetti v Quarterman, 551 U.S. 930, 953 (2007) (“When . . . the requirement set forth in 

§ 2254(d)(1) is satisfied[,] [a] federal court must then resolve the claim without the 

deference AEDPA otherwise requires.”). As explained previously, Tucker raises a claim 

of ineffective assistance of counsel under Strickland and thus must establish (1) 

constitutionally deficient representation, and (2) resulting prejudice. Strickland, 466 U.S. 
16

at 687. We may consider the Strickland prongs in either order, and we have observed that 

“it is often practical to consider the prejudice prong first.” United States v. Fazio, 795 

F.3d 421, 426 (3d Cir. 2015). To demonstrate prejudice, petitioner must show “a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Strickland, 466 U.S. at 694.

In this case, to establish prejudice, Tucker must establish that but for his counsel’s 

failure to raise the courtroom closure claim on direct appeal, the outcome of his appeal 

would have been different. Thus, Tucker must demonstrate that the underlying Waller

claim would have had a reasonable probability of success—“sufficient to undermine 

confidence in the outcome.” Strickland, 466 U.S. at 694. The “mere possibility” that the 

outcome would have been different is not sufficient to establish Strickland prejudice. 

Rountree v. Balicki, 640 F.3d 530, 538 (3d Cir. 2011). Tucker has not met this burden.

Under the first prong of Waller, the interests cited by the trial judge—maintaining 

order and preventing witness intimidation and tampering—were overriding. See 

Codispoti v. Pennsylvania, 418 U.S. 506, 514 (1974) (“[C]ases in this Court have 

consistently . . . . [recognized] the need to maintain order and a deliberative atmosphere 

in the courtroom.” (internal citation and quotation marks omitted)); Cox v. Louisiana, 379 

U.S. 559, 562 (1965) (“[I]t is of the utmost importance that the administration of justice 

be absolutely fair and orderly. This Court has recognized that the unhindered and 

untrammeled functioning of our courts is part of the very foundation of our constitutional 

democracy.”). See generally 18 U.S.C. § 1512(b), (d) (federal witness-tampering statute); 
17

18 Pa. Stat. & Cons. Stat. Ann. § 4952 (West 2002) (state witness-tampering statute). 

These interests were likely to be prejudiced in the absence of closure because audience 

members had already disrupted the trial on multiple occasions. More significantly, 

Tucker’s trial was part of a dispute between two rival gangs that had previously resorted 

to witness intimidation, and Austin feared testifying after Tucker purportedly threatened 

her. See Tucker, 98 F. Supp. 3d at 776. 

On the second prong, the scope of the closure was not overbroad based on 

adequate findings of fact—as required under the fourth prong of Waller. With respect to 

witness tampering and intimidation, on each day the courtroom was closed, witnesses 

testified who either had already been tampered with or intimidated, or for whom there 

was a strong likelihood of tampering or intimidation. Austin testified on days one and 

two, Anne Williams (another eyewitness who lived in the neighborhood) on day two, and 

Naima Scott (the sister of the victim) as well as Tucker’s witnesses testified on day three. 

These witnesses had connections to rival gangs and to one another. The trial judge 

observed on the record that it was impossible to tell who was who in the gallery, 

particularly because some observers when asked provided obviously false identities. J.A. 

333 (“[A]ll these different women kept coming up saying I am his mother . . . .”). In view 

of these findings by the trial court, even if it is possible that an appellate court could hold 

that a more specific parsing of the closure throughout the day would have been feasible, 

we cannot say that there was a reasonable probability that the outcome of the appeal 

would be different. On the contrary, a reviewing court would likely conclude—given the 
18

gang related origins of the case, the number of people involved in the underlying 

incidents and resulting witness intimidation, the frequent and unexpected disruptions, and 

the repeated disregard of the trial court's many admonishments to Tucker and the 

gallery—that the trial court's decision to close the courtroom for the entirety of the 

witness testimony was not overly broad and was necessary to stymie further witness 

intimidation and to maintain control of the courtroom. 

With respect to the third prong, at the time of Tucker’s trial, there was some 

uncertainty whether this step of the Waller test compelled courts to consider reasonable 

alternatives sua sponte, or whether the party opposing closure had to propose them.11 In 

2010, several years after Tucker’s trial, the Supreme Court of the United States resolved 

this possible uncertainty, holding that “trial courts are required to consider alternatives to 

closure even when they are not offered by the parties . . . .” Presley v. Georgia, 558 U.S. 

209, 214 (2010). 

The trial court no doubt could have been more explicit in considering alternatives 

to closure on the record. But implicit in the trial court's findings and the observations she 

made on the record was her consideration and rejection of a number of alternatives, 

including addressing disruptions as they arose, J.A. 182 (trial judge explaining that her 

 

11 See, e.g., Ayala v. Speckard, 131 F.3d 62, 71 (2d Cir. 1997) (en banc) (declining to 

consider “[w]hether or not a sua sponte obligation exists [under Waller] to consider 

alternatives to complete closure”); Bell v. Jarvis, 236 F.3d 149, 169 (4th Cir. 2000) (en 

banc) (concluding sua sponte consideration was unnecessary in the context of partial 

closure involving a child abuse victim).
19

repeated admonishments to the gallery and Tucker had been unsuccessful as they 

continued “attempting to communicate” with each other to the point that she needed to 

send defense counsel “a message . . . to have Mr. Tucker stop”), barring particular 

persons who were disruptive from the courtroom, id. at 182-83 (trial court stating that 

during the opening instructions “many, many citizens [came] into the courtroom whose 

behavior was not cooperative” and indicating exclusion of only those persons was not 

feasible due to the “exceedingly complex” relationships among the parties who are 

related both “by blood, [and] by marriage” and who “live in the same neighborhood 

together”), and allowing certain non-disruptive persons back into the courtroom, id. at 

333 (trial court noting it was amenable to allowing Tucker's and victim's mothers back 

into courtroom but was unable to distinguish among the many women who represented 

themselves as Tucker's mother). In addition, the trial court's decision to close the 

courtroom was preceded by an off-the-record discussion with counsel. Id. at 182. It is 

apparent under these circumstances that the trial judge did consider alternatives, and, 

particularly given the incidents of witness tampering and complicated relationships 

between the people in the courtroom and the fact that Tucker was charged with the 

murder of a witness to a prior homicide in an ongoing gang dispute, id. at 241-42, she 

reasonably concluded that none would have alleviated the concerns of witness tampering 

and courtroom control. See Presley, 558 U.S. at 209 (“Trial courts are obligated to take 

every reasonable measure to accommodate public attendance at criminal trials.”).
20

The fourth prong of Waller is satisfied as well. Under the fourth prong, “the 

particular interest, and threat to that interest, must ‘be articulated along with findings 

specific enough that a reviewing court can determine whether the closure order was 

properly entered.’” Presley, 558 U.S. at 215 (quoting Press-Enterprise Co. v. Super. Ct. 

of Cal., Riverside Cnty., 464 U.S. 501, 510 (1984)). As outlined above, the trial judge 

articulated the overriding interests on the record and explained why she decided that a 

closed trial was the best way to protect those interests. J.A. 182–83. While the trial judge 

could have been more explicit as to why she rejected alternatives short of a complete 

closure, the findings are sufficient to determine whether the closure order was properly 

entered.

We conclude that Tucker has failed to meet his burden of showing that but for the 

failure of his appellate counsel to raise the Waller claim there is a reasonable probability 

the outcome of his appeal would have been different. For this reason, we will reverse the 

District Court’s order granting Tucker’s petition for a writ of habeas corpus and remand 

for proceedings consistent with this opinion.