1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

PHILLIP CHARLES GIBBS, 

 Petitioner, Case No. 14-cv-14028 

 Hon. Matthew F. Leitman 

v. 

JEFFREY WOODS, 

 Respondent. 

__________________________________________________________________/

OPINION AND ORDER (1) DETERMINING THAT PETITIONER 

PHILLIP GIBBS’ PUBLIC TRIAL CLAIM IS PROCEDURALLY 

DEFAULTED; (2) DETERMINING THAT THE PROCEDURAL DEFAULT 

IS NOT EXCUSED; (3) DENYING HABEAS RELIEF ON GIBBS’ PUBLIC 

TRIAL CLAIM; AND (4) GRANTING A CERTIFICATE OF 

APPEALABILITY 

 In 2014, Petitioner Phillip Gibbs filed a Petition for a Writ of Habeas Corpus 

in this Court. He later amended the Petition. In the Amended Petition, Gibbs 

claimed, among other things, that the state trial court violated his right to a public 

trial when it prevented members of the public from entering the courtroom during 

voir dire. Respondent countered that this claim was procedurally defaulted because 

Gibbs had not objected to the state trial court’s closure of the courtroom. 

 The Court had serious questions about whether Gibbs’ failure to object could 

be considered a procedural default because there was no indication in the record that 

Gibbs was (or reasonably could have been) aware of the state trial court’s closure of 

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the courtroom. The Court did not believe that a party’s failure to object to an 

unknown act by a state trial court could amount to a procedural default. Nonetheless, 

the Court reluctantly concluded that the Sixth Circuit’s decision in Bickham v. Wynn, 

888 F.3d 248 (6th Cir. 2018), compelled the conclusion that even if Gibbs was not 

aware that the state trial court closed the courtroom, Gibbs’ failure to object 

constituted a procedural default of his public trial claim. The Court granted Gibbs a 

certificate of appealability on this claim. 

 On appeal, the Sixth Circuit vacated this Court’s judgment. Gibbs v. Huss, 12 

F.4th 544 (6th Cir. 2021). The Sixth Circuit held that Gibbs’ failure to object would 

not constitute a procedural default of his public trial claim if he was not (and could 

not reasonably have been) aware of the courtroom closure. The Sixth Circuit then 

remanded the case with instructions that this Court should determine “whether Mr. 

Gibbs was aware of the courtroom closure or whether there were other circumstances 

that should have put him on notice of the closure.” Id. at 554. The Sixth Circuit 

further directed that “if [this Court] finds that Mr. Gibbs’ claim is procedurally 

defaulted [because Gibbs was or should have been aware of the courtroom closure 

and did not object], then it will need to address” whether Gibbs can show cause and 

prejudice to excuse the default. Id.

 The Court has now completed the tasks ordered by the Sixth Circuit. The 

Court held an evidentiary hearing to determine whether Gibbs was or should have 

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been aware of the courtroom closure. For the reasons explained below (and as Gibbs 

now concedes), his attorney was aware of the closure, and thus his public trial claim 

is procedurally defaulted. As further explained below, the Court concludes that 

Gibbs has not shown cause and prejudice sufficient to excuse the default. 

Accordingly, the Court DENIES relief on Gibbs’ public trial claim – the sole 

remaining claim in the Amended Petition. However, the Court will GRANT Gibbs 

a certificate of appealability so that he may obtain review of the Court’s ruling. 

I

 The Court reviewed the factual and procedural background of Gibbs’ case in 

detail in its prior Opinion and Order denying relief on Gibbs’ Amended Petition. 

(See Op. & Order, ECF No. 40, PageID.1745–1754.) The Court will not repeat this 

background in detail here and, instead, sets forth only what is essential to the present 

motion. 

A 

 The charges against Gibbs arose from an armed robbery of a store in Flint, 

Michigan on October 26, 2010. Gibbs’ trial began in the Genesee County Circuit 

Court on June 28, 2011. Just prior to the start of voir dire, the state trial court said 

that “if any spectators would like to come in [for jury selection] they’re welcome.” 

(6/28/2011 Trial Tr., ECF No. 8-11, PageID.250.) The court then proceeded to pick 

the jury. 

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After trial, Gibbs learned that his mother, sister, and brother-in-law were not 

allowed to enter the courtroom during voir dire. Those family members said in 

sworn affidavits that they were told by a “male official in [the state trial judge’s] 

courtroom that since a jury was being picked, [they] could not enter and watch the 

proceedings.” (Courtney Jones Aff. at ¶ 3, ECF No. 8-18, PageID.1289; Elverta 

Theresa Gibbs Aff. at ¶¶ 3–4, ECF No. 8-18, PageID.1288; Seandra DavidsonColeman Aff. at ¶ 3, ECF No. 8-18, PageID.1290.) Gibbs did not object to their 

exclusion during voir dire. 

At the conclusion of the trial, the jury convicted Gibbs of “two counts of 

armed robbery and one count of unarmed robbery.” People v. Gibbs, 830 N.W.2d 

821, 828 (Mich. Ct. App. 2013) 

B 

 Gibbs then filed an appeal of right in the Michigan Court of Appeals. Gibbs 

argued, among other things, that the state trial court violated his Sixth Amendment 

right to a public trial when it prevented his family members and other members of 

the public from entering the courtroom during voir dire. 

 Gibbs’ appointed appellate counsel filed a motion to remand to the state trial 

court so that that court could create a full record related to the closure of the 

courtroom. (See Mot. to Remand, ECF No. 8-18, PageID.1317–1347.) The 

Michigan Court of Appeals granted the motion to remand on June 20, 2012. (See 

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Order, ECF No. 8-18, PageID.1376.) In the order granting the motion, the Michigan 

Court of Appeals specifically instructed the state trial court that it “shall conduct an 

evidentiary hearing based on the closure of the courtroom during voir dire.” (Id. 

(emphasis added).) 

C 

 On remand, however, the state trial court did not hold an evidentiary hearing. 

Instead, the trial judge said to the lawyers who appeared for the hearing that it was 

her policy (1) to admit members of the public to observe voir dire if they enter the 

courtroom before voir dire begins and (2) to preclude members of the public from 

entering the courtroom if they arrive after voir dire has begun. The judge explained 

her policy (the “Voir Dire Policy”) as follows: 

[O]nce we start with the selection in filling the seats, I do 

not allow anybody to come or go. So if that clarifies it and 

I'm suppose to stop and let people come and go. If they 

came after we started, then they would not have been 

allowed in. I absolutely agree. [...] So I don't think there's 

much else I can say of that. I can't troll in the halls for 

spectators. And if someone wants in, we have special 

arrangements for them to sit at the side out of the jury pull. 

And if someone comes after we've started selecting the 

jury, they will not be allowed in, that's absolutely right. 

*** 

I'm telling you, after we start, when the panel is in the 

room, you're absolutely right no one would be coming or 

going. I agree with that. If that's a violation, then I violated. 

I don't have them in afterwards of that period nobody 

comes and goes. And if a juror has to go to the bathroom, 

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the deputy or court clerk has to take them. We can't do that 

during jury selection. It's much too confusing. 

(See 7/16/2012 Hr’g Tr., ECF No. 8-17, PageID.1218–1219, 1220 (emphases 

added).) The state trial court thereafter denied Gibbs’ motion for a new trial. 

D 

 Gibbs then returned to the Michigan Court of Appeals. That court 

acknowledged that the state trial court did not hold an evidentiary hearing as it had 

been ordered to do. But the court nonetheless denied relief on Gibbs’ public trial 

claim. 

The court first held that plain-error review applied to Gibbs’ public trial claim 

because Gibbs did not object to the state trial court’s closure of the courtroom 

pursuant to Voir Dire Policy. Gibbs, 830 N.W.2d at 824. The court then explained 

that Gibbs could obtain relief on his public trial claim under plain-error review only 

if he showed: “(1) that the error occurred, (2) that the error was ‘plain,’ (3) that the 

error affected substantial rights, and (4) that the error either resulted in the conviction 

of an actually innocent defendant or seriously affected the fairness, integrity, or 

public reputation of judicial proceedings.” Id. (quoting People v. Vaughn, 821 

N.W.2d 288, 297 (Mich. 2012)). Finally, the court held that Gibbs was not entitled 

to relief because he had not established the first or fourth prongs of the plain error 

test. The court reasoned as follows: 

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Gibbs contends that his family and members of the public 

were prevented from entering the courtroom during jury 

selection. The record reveals that before jury selection 

began, the trial court stated, “And if any spectators would 

like to come in they’re welcome but they do have to sit 

over here by the law clerk, not in the middle of the pool.” 

Gibbs submitted affidavits indicating that individuals were 

not allowed to enter the courtroom during jury selection. 

Even accepting Gibbs’s contention as true, we find no 

error given the trial court’s statement. It appears that the 

courtroom was opened to the public initially, but then 

closed once jury selection began. On remand, the trial 

court did not conduct a full hearing and acknowledged that 

once jury selection had begun, the courtroom was closed 

and suggested that it was “too confusing” to allow 

individuals to come and go during jury selection. Even if 

we were to find error on the basis of the trial court’s 

admitted refusal to allow individuals to enter once jury 

selection began, Gibbs is not entitled to a new trial or 

evidentiary hearing. As in Vaughn, both parties engaged 

in vigorous voir dire, there were no objections to either 

party’s peremptory challenges, and each side expressed 

satisfaction with the jury. Further, the venire itself was 

present. Accordingly, Gibbs fails to satisfy the fourth 

prong as set forth in Vaughn and is not entitled to a new 

trial. 

Gibbs, 830 N.W.2d at 825 (emphases added). Gibbs then filed an Application for 

Leave to Appeal with the Michigan Supreme Court. That court denied the 

Application. See People v. Gibbs, 838 N.W.2d 875 (Mich. 2013). 

E 

 In 2014, Gibbs filed his Petition for a Writ of Habeas Corpus in this Court. 

(See Pet., ECF No. 1.) After the Court temporarily stayed the case to permit Gibbs 

to attempt to exhaust one of his claims, Gibbs filed his Amended Petition. (See 

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Order, ECF No. 14.) In his Amended Petition, Gibbs claimed, among other things, 

that the courtroom closure during voir dire “denied [him] a Public Trial[.]”

(Amended Petition, ECF No. 13, PageID.1562.) In his Answer, Respondent 

countered that Gibbs’ public trial claim was procedurally defaulted. (See Ans., ECF 

No. 15.) The Court thereafter appointed counsel for Gibbs and directed the parties 

to file supplemental pleadings on the public trial claim. Both parties did so. (See 

Supp’l Brs., ECF No. 25, 26.) 

 On June 9, 2020, the Court issued an Opinion and Order denying relief on all 

of Gibbs’ claims. (See Op. & Order, ECF No. 40.) As noted above, the Court 

reluctantly determined that the Sixth Circuit’s decision in Bickham compelled the 

conclusion that Gibbs procedurally defaulted his public trial claim because he did 

not object to the courtroom closure during his trial. (Id., PageID.1759.) The Court 

granted Gibbs a certificate of appealability on his public trial claim. (Id., 

PageID.1772–1774.) Gibbs filed a Notice of Appeal on September 30, 2020. (See 

Notice of Appeal, ECF No. 43.) 

F 

On appeal, the Sixth Circuit vacated this Court’s ruling that Gibbs had 

procedurally defaulted his public trial claim. Gibbs, 12 F.4th 544. The Sixth Circuit 

explained that Gibbs’ failure to object to the courtroom closure did not necessarily 

render his public trial claim procedurally defaulted under Bickham. Instead, the key 

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issue under Bickham was whether Gibbs “knew” or “reasonably should have known” 

of the closure. Id. at 554. If he knew or reasonably should have known of that 

closure, then, under Bickham, his failure to object would amount to a procedural 

default. See id. If he was not (or should not reasonably have been) aware of the 

closure, then his failure to object “would be an inadequate state procedural ground 

for a default,” and his public trial claim would not be defaulted. Id. 

 The Sixth Circuit noted that it was “unclear from the record whether Mr. 

Gibbs was aware of or reasonably should have been aware of” the courtroom closure. 

Id. at 546. Accordingly, the Sixth Circuit remanded the case back to this Court for 

further proceedings. Id. The Sixth Circuit explained this Court’s inquiry on remand 

as follows: 

The district court shall determine in the first instance 

whether Mr. Gibbs was aware of the courtroom closure or 

whether there were other circumstances that should have 

reasonably put him on notice of the closure. If he was 

not—and could not reasonably have been—aware of the 

closure, then Bickham does not control his case. Rather, 

the contemporaneous-objection rule would not have been 

an adequate state procedural ground to default Mr. Gibbs’s 

claim, and there would be no procedural default. 

Id. at 554. The Sixth Circuit further instructed that if this Court determined Gibbs’ 

claim was defaulted, then this Court to address whether that default was excused. Id. 

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G 

 Following remand from the Sixth Circuit, this Court held an evidentiary 

hearing on November 9, 2021. The purpose of the evidentiary hearing was to 

determine if Gibbs was “aware” or “should he reasonably have been aware” of the 

courtroom closure. (11/9/21 Hr’g Tr., ECF No. 54, PageID.1831.) The Court heard 

testimony from two witnesses: (1) Gibbs’ trial counsel, Jeffrey Skinner; and (2) 

Gibbs. 

 Skinner testified first. Skinner said that he had been trying criminal cases, 

largely in Genesee County, for approximately thirty years. (See id., PageID.1837–

1838.) He noted that he had appeared before Gibbs’ trial judge “[m]any times.” (Id., 

PageID.1838.) He testified that he was aware of the Voir Dire Policy and understood 

that it would be enforced in connection with Gibbs’ trial. He understood that under 

that Policy, “if you’re in, you can stay in,” but that “[o]nce [voir dire] start[s], people 

aren’t going to be coming in and out.” (Id., PageID.1851.) He explained that his 

experience in the trial judge’s courtroom, and in Genesee County Circuit Court 

generally, was that, once voir dire began, “there would be a deputy, one or more 

deputies, at th[e] door into the courtroom and if someone attempted to enter,” that 

they would not be permitted “to enter during jury selection.” (Id., PageID.1835–

1836.) 

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 Skinner also testified that he did not find the Voir Dire Policy to be 

objectionable. (See id., PageID.1846–1847.) He explained that during voir dire, “a 

hundred percent of my attention is directed at what’s going on in that courtroom.” 

(Id., PageID.1851–1852.) Thus, he doesn’t “want any distractions” during voir dire. 

(Id., PageID.1851.) He said that it was “very much” distracting to have people 

entering and exiting the courtroom “especially during voir dire.” (Id.) 

 Finally, Skinner testified that he did not recall whether Gibbs’ family 

members told him that they intended to be in courtroom during voir dire. (See id., 

PageID.1836.) 

 Gibbs testified next. Gibbs said that he was not aware that the state trial closed 

the courtroom during voir dire. (See id., PageID.1856.) He also testified that he did 

not talk to his family about whether they planned to attend his trial. (See id., 

PageID.1859–1860.) He added that he first learned that his family members were 

prevented from entering the courtroom during voir dire only after he was sentenced. 

(See id., PageID.1861.) 

 At the end of the hearing, the Court requested post-hearing briefing from both 

parties. Gibbs filed his brief on December 6, 2021. (See Post-Hr’g Br., ECF No. 

55.) Responded filed a response on January 10, 2022 (see Post-Hr’g Resp., ECF No. 

57), and Gibbs replied on January 27, 2022. (See Post-Hr’g Reply, ECF No. 58.) 

The Court heard oral argument on February 25, 2022. 

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II

 The first question before the Court is whether Gibbs procedurally defaulted 

his public trial claim. To answer that question, the Court must determine whether 

Gibbs “was aware of the courtroom closure or whether there were other 

circumstances that should have reasonably put him on notice of the closure.” Gibbs, 

12 F. 4th at 554. In his post-hearing brief, Gibbs concedes that Skinner’s testimony 

at the evidentiary hearing “supports the finding that the defense was aware or 

reasonably could have been aware of the courtroom closure in this case during trial.” 

(Post-Hr’g Br., ECF No. 55, PageID.1874.) Indeed, Skinner testified that the Voir 

Dire Policy was well-known to him. Accordingly, the Court concludes that Gibbs 

knew or reasonably should have known about the courtroom closure under the Voir 

Dire Policy at his trial. Under these circumstances, Gibbs’ failure to object to the 

closure of the courtroom pursuant to that policy amounts to a procedural default of 

his public trial claim. 

III

 The Court’s inquiry does not end there, however. As the Sixth Circuit noted, 

even if Gibbs’ public trial claim is defaulted, this Court must still address whether 

Gibbs can show sufficient cause and prejudice to excuse the default. The Court turns 

to that issue below. 

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A

 Gibbs argues that his attorney’s failure to object to the state trial court’s 

enforcement of the Voir Dire Policy constituted ineffective assistance of counsel and 

that counsel’s ineffectiveness constitutes sufficient cause and prejudice to excuse the 

procedural default. “Generally speaking, counsel’s deficient performance in state 

court can serve as grounds for excusing a petitioner’s procedural default.” Williams 

v. Burt, 949 F.3d 966, 973 (6th Cir. 2020). “[T]o show ineffective assistance of 

counsel excusing a procedural default,” Gibbs must “show that his [ ] counsel's 

failure to raise the claim rose to the level of a constitutional violation under 

Strickland v. Washington, 466 U.S. 668 (1984).” Chase v. MaCauley, 971 F.3d 582, 

592 (6th Cir. 2020) (internal quotation marks omitted). “Satisfying the Strickland

standard, however, is difficult.” Williams, 949 F.3d at 974. “Strickland sets forth a 

two-prong analysis for assessing ineffective-assistance-of-counsel claims: 1) ‘the 

defendant must show that counsel's performance was deficient[,]’ and 2) ‘the 

defendant must show that the deficient performance prejudiced the defense.’” Chase, 

971 F.3d at 592 (citing Strickland, 466 U.S. at 687). 

 This Court reviews de novo whether ineffective assistance of counsel exists 

to excuse Gibbs’ procedural default. As the Sixth Circuit explained recently: 

“An argument that ineffective assistance of counsel should 

excuse a procedural default is treated differently than a 

free-standing [habeas] claim of ineffective assistance of 

counsel.” Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 

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2009). In particular, “[t]he latter must meet the higher 

AEDPA standard of review, while the former need not.” 

Id. at 237; see also, e.g., Smith v. Warden, Toledo Corr. 

Inst., 780 F. App'x 208, 225 (6th Cir. 2019); Joseph v. 

Coyle, 469 F.3d 441, 459 (6th Cir. 2006). Thus, we review 

de novo the question of whether ineffective assistance of 

appellate counsel excuses [the petitioner's] procedural 

default. 

Chase, 971 F.3d at 592. 

B 

 The Court first addresses whether Gibbs has demonstrated that Skinner’s 

failure to object to the courtroom closure under the Voir Dire Policy constituted 

deficient performance. To meet this prong, Gibbs must establish that Skinner’s 

performance “fell below an objective standard of reasonableness.” Strickland, 466 

U.S. at 688. And he must overcome the “strong presumption that counsel's conduct 

f[ell] within the wide range of reasonable professional assistance; that is, [Gibbs] 

must overcome the presumption that, under the circumstances, the challenged action 

might be considered sound trial strategy.” Id. at 689. 

 Gibbs argues that Skinner’s failure to object to the courtroom closure under 

the Voir Dire Policy was deficient because “[t]he constitutional violation here should 

have been obvious to Skinner,” based on the leading court closure cases, Waller v. 

Georgia, 467 U.S. 39 (1984) and Presley v. Georgia, 558 U.S. 209 (2010). (Post 

Hr’g Br., ECF No. 55, PageID.1876.) In those cases, the Supreme Court held that a 

trial court may not exclude the public from the courtroom during trial or voir dire 

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unless and until the court makes a series of findings as to why the closure is required. 

Waller, 467 U.S. at 48; Presley, 558 U.S. at 213. Gibbs says that the state trial court 

plainly violated Waller and Presley by closing the courtroom pursuant to the Voir 

Dire Policy without making any of the findings required to support a closure. Gibbs 

contends that any reasonable attorney in Skinner’s position would have spotted the 

state trial court’s patent violation of Waller and Presley and would have immediately 

objected to the closure. The Court disagrees. 

 First, the Court is not convinced that it would have been “obvious” to any 

reasonable attorney that Waller and Presley required the state trial court to make 

findings before enforcing the Voir Dire Policy. Waller and Presley both dealt with 

situations where the public was excluded entirely from certain courtroom 

proceedings. Waller, 467 U.S. at 42 (concerning seven-day suppression hearing 

“closed to all persons other than witnesses, court personnel, the parties, and the 

lawyers.”); Presley, 588 U.S. at 210 (concerning voir dire proceedings where trial 

court removed defendant’s uncle, the lone member of the public present, from the 

courtroom). In contrast, the Voir Dire Policy did not result in the exclusion of all 

members of the public from the courtroom. Under that policy: (1) members of the 

public could observe voir dire proceedings if they arrived in the courtroom prior to 

the beginning of said proceedings; but (2) once those proceedings began, members 

of the public not already in the courtroom would not be allowed in (and those already 

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in the courtroom would not be allowed out). Thus, only late-arriving members of 

the public were prevented from entering the courtroom. At oral argument, the Court 

asked Gibbs’ counsel whether he could identify a case holding that a trial court is 

obligated to make the findings required under Waller and Presley when, as under the 

Voir Dire Policy, it (1) allows members of the public to enter the courtroom (and to 

remain in the courtroom) if they arrive before proceedings begin and then (2) 

excludes members of the public who attempt to enter the courtroom after the 

commencement of proceedings. Gibbs’ counsel could not do so. In the absence of 

such authority, the Court is not persuaded that it would have been obvious to every 

attorney that the state trial court was required to make findings under Waller and 

Presley before closing the courtroom under the Voir Dire Policy.1

 Second, even if the state trial court’s closure of the courtroom under the Voir 

Dire Policy was an obvious constitutional violation, it does not follow that Skinner’s 

failure to object to the closure necessarily amounted to deficient performance. 

Indeed, a defense attorney may reasonably decide that there is a strategic reason to 

withhold an objection to a patent constitutional violation. For instance, it could be 

a reasonable strategy for a defense attorney to withhold an objection (under the 

1

 To be clear, the Court is not concluding that the state court was free to close the 

courtroom pursuant to the Voir Dire Policy without making the findings required by 

Waller and Presley. The Court concludes only that it would not have been obvious 

to every reasonable attorney that the state trial court was required to make those 

findings before implementing the Voir Dire Policy. 

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Confrontation Clause) to the admission of a confession by a non-testifying codefendant if aspects of the co-defendant’s confession supported a defense that 

counsel was attempting to pursue. Likewise, in this case, Skinner had a reasonable 

strategic reason for withholding an objection to the closure of the courtroom under 

the Voir Dire Policy. As he testified before the Court, he found it distracting when 

members of the public entered and exited the courtroom during voir dire. Thus, the 

exclusion of late-arriving members of the public pursuant to the Voir Dire Policy 

helped him to focus on the all-important selection of the jury. Under these 

circumstances, Gibbs has not shown that Skinner’s failure to object to the courtroom 

closure under the Voir Dire Policy was not a permissible judgment call. See 

Williams, 949 F. 3d at 975 (“Absent other indicators, counsel’s failure to object [to 

a public trial right violation] could fairly be described as a judgment call by counsel, 

something that rarely amounts to constitutionally ineffective assistance.”). Simply 

put, Gibbs has not overcome the Strickland presumption that Skinner’s decision to 

withhold an objection to the implementation of the Voir Dire Policy was within the 

boundaries of what “might be considered sound trial strategy.” Strickland, 466 U.S. 

at 689. 

 Gibbs counters that even if Skinner’s goal of limiting distractions during voir 

dire was reasonable, Skinner’s decision to withhold an objection to the closure of 

the courtroom under the Voir Dire Policy was not reasonable. Gibbs says that 

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Skinner should have asked the state trial court to explore options that would have 

simultaneously (1) avoided distractions during voir dire and (2) allowed late-arriving 

members of the public to observe voir dire. He contends, for example, that Skinner 

could have asked the state trial court to periodically pause voir dire to allow 

members of the public to enter and exit the courtroom in a manner that would not 

have interrupted in-progress jury selection. This is a reasonable suggestion, and it 

may have been preferable for Skinner to have proceeded in this manner. However, 

the Court cannot conclude that Skinner’s withholding of an objection altogether was 

so unreasonable as to constitute deficient performance. 

 For all of the foregoing reasons, the Court concludes that Gibbs has not 

established that Skinner’s failure to object to closure of the courtroom under the Voir 

Dire Policy constituted deficient performance. 

C 

 The Court next turns to whether Gibbs has demonstrated prejudice from 

Skinner’s failure to object to the courtroom closure under the Voir Dire Policy. He 

has not. 

1 

The Sixth Circuit recently explained that a habeas petitioner who invokes 

ineffective assistance of counsel to excuse a procedural default for “failure to object 

to a potential public trial violation” bears the “heavy” burden of demonstrating 

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Strickland prejudice. Williams, 949 F.3d at 978. In Williams, the court explained 

that a petitioner seeking to demonstrates prejudice in this context bears the burden 

of showing either (1) “a reasonable probability of a different outcome in [his] case” 

(i.e., “Actual Prejudice”); or (2) that the “violation was so serious as to render the 

trial fundamentally unfair,” (i.e., “Presumed Prejudice”). Id. (quoting Weaver v. 

Massachusetts, 137 S. Ct. 1899, 1911 (2017)). Gibbs contends that he has 

demonstrated both types of prejudice here. The Court disagrees. 

2 

a

 The Court begins with Gibbs’ theory of Actual Prejudice. That theory 

proceeds as follows: 

1. Skinner’s failure to object to the state trial court’s 

enforcement of the Voir Dire Policy “led directly to 

the Michigan Court of Appeals applying plain-error 

review to Gibbs’ public- trial claim;” 

2. Plain error review is much more demanding than de 

novo review because, unlike de novo review, plain 

error review requires an appellant to demonstrate 

that he is actually innocent or that the claimed error 

seriously affected the fairness, integrity, or public 

reputation of judicial proceedings; 

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3. The Court of Appeals denied relief on the basis that 

Gibbs failed to show that he was actually innocent 

or that the claimed error seriously affected the 

fairness, integrity, or public reputation of judicial 

proceedings against him. This demonstrates that the 

application of plain error review was fatal to Gibbs’ 

public trial claim; 

4. On de novo review, the Court of Appeals would 

have held that the state trial court violated Gibbs’ 

Sixth Amendment right to a public trial when it 

enforced the Voir Dire Policy; and 

5. Therefore, but for Skinner’s failure to object to the 

enforcement of the Voir Dire Policy at Gibbs’ trial, 

the Court of Appeals “would have reversed [Gibbs’] 

conviction.” 

(Post-Hr’g Br., ECF No. 55, PageID.1879–1880.) 

 The problem with this theory of prejudice is that it ignores a key independent 

basis on which the Court of Appeals rejected Gibbs’ public trial claim. In addition 

to holding that the claim failed because Gibbs did not show that he was innocent 

and/or that the proceedings were fundamentally unfair, the Court of Appeals held 

that Gibbs was not entitled to relief because the state trial court committed “no error” 

when it closed the courtroom pursuant to the Voir Dire Policy. Gibbs, 830 N.W.2d 

at 825. This no-error finding demonstrates that the Court of Appeals would have 

rejected Gibbs’ public trial claim even if the court had reviewed the claim de novo. 

Accordingly, the Court cannot conclude that there is a reasonable probability that 

the outcome on direct appeal would have been different if Skinner had secured de 

novo review of Gibbs’ public trial claim by objecting to the courtroom closure. 

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 At oral argument, Gibbs countered that the Court of Appeals’ no-error finding 

was, itself, erroneous and would have been reversed, at the very least, on habeas 

review. Thus, Gibbs argued, he showed prejudice by demonstrating that if Skinner 

had objected to the courtroom closure and thereby preserved his public trial claim 

for federal habeas review, he would have obtained federal habeas relief on the claim. 

However, Gibbs has not cited any case in which any court has recognized such a 

relief-on-later-federal-habeas-review theory of Actual Prejudice. Moreover, Gibbs 

has not persuaded the Court that – given the deferential standard of review under 

AEDPA – there is a “reasonable probability” that he would have obtained federal 

habeas relief on his public trial claim if the claim had not been procedurallydefaulted by Skinner’s failure to object. See Williams, 949 F.3d at 978. 

 For all the foregoing reasons, the Court concludes that Gibbs has not 

established Actual Prejudice resulting from Skinner’s failure to object to the 

courtroom closure under the Voir Dire Policy. 

b 

 The Court turns now to Gibbs’ Presumed Prejudice argument. Gibbs contends 

that Presumed Prejudice exists in this case because the state trial court’s enforcement 

of the Voir Dire Policy was a “structural error” that rendered his trial “fundamentally 

unfair.” (Post-Hr’g Br., ECF No. 55, PageID.1880 (quoting Weaver, 137 S. Ct. at 

1908).) Once again, the Court is not persuaded. 

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 As Gibbs acknowledges, “not every public-trial violation will in fact lead to a 

fundamentally unfair trial.” (Id. (quoting Weaver, 137 S. Ct. at 1911).) Indeed, in 

Weaver, the Supreme Court held that a complete closure of the courtroom during 

voir dire did not render petitioner’s trial fundamentally unfair. It reasoned as 

follows: 

Although petitioner's mother and her minister were indeed 

excluded from the courtroom for two days during jury 

selection, petitioner's trial was not conducted in secret or 

in a remote place. The closure was limited to the jury voir 

dire; the courtroom remained open during the evidentiary 

phase of the trial; the closure decision apparently was 

made by court officers rather than the judge; there were 

many members of the venire who did not become jurors 

but who did observe the proceedings; and there was a 

record made of the proceedings that does not indicate any 

basis for concern, other than the closure itself. 

There has been no showing, furthermore, that the potential 

harms flowing from a courtroom closure came to pass in 

this case. For example, there is no suggestion that any 

juror lied during voir dire; no suggestion of misbehavior 

by the prosecutor, judge, or any other party; and no 

suggestion that any of the participants failed to approach 

their duties with the neutrality and serious purpose that our 

system demands. 

Weaver, 137 S. Ct. at 1913. 

 Many of these circumstances exist here, as well. Gibbs’ trial, apart from voir 

dire, was open to the public. And, during voir dire itself, the courtroom was open 

to members of the public who arrived before voir dire proceedings began. Moreover, 

Gibbs does not contend that, apart from the state trial court’s enforcement of the Voir 

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Dire Policy itself, there was any misconduct during voir dire, or at any other point 

in trial, that “flow[ed] from” the Voir Dire Policy. See id. These factors suggest that, 

as in Weaver, the closure under the Voir Dire Policy did not render Gibbs’ trial 

fundamentally unfair. 

 Nonetheless, Gibbs insists that Weaver is distinguishable for three reasons: 

(1) the closure of the courtroom under Voir Dire Policy was a routine practice, rather 

than a one-off decision; (2) the Voir Dire Policy originated from the state court 

judge, rather than a courtroom employee; and (3) Gibbs challenged the closure on 

direct appeal, rather than on collateral review, and defendants who raise properly 

preserved public trial claims on direct appeal are “generally [] entitled to automatic 

reversal regardless of the error’s actual effect on the outcome.” (Post-Hr’g Br, ECF 

No. 55, PageID.1880–1882 (quoting Weaver, 137 S. Ct. at 1910 (internal quotation 

marks omitted).) Gibbs insists these distinctions warrant “presum[ing] prejudice in 

Gibbs’ case.” (Id., PageID.1880.) 

 The Court is not convinced that these distinctions establish that the closure 

here rendered Gibbs’ trial fundamentally unfair. The first two distinctions merely 

restate what the alleged violation in this case was – the closure under the Voir Dire 

Policy. They do not explain how that closure led to a fundamentally unfair trial for 

Gibbs. As for the third distinction, this argument is foreclosed by Williams. There, 

as here, petitioner raised his public trial claim on direct review. Williams, 949 F.3d 

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at 971. And there, even after agreeing that petitioner’s counsel was deficient for 

failing to object to a public trial violation, the Sixth Circuit saw “no basis to conclude 

that [petitioner] was prejudiced by the closure of the courtroom such that his 

procedural default should be excused.” Id. at 979. Thus, the fact that Gibbs raised 

his public trial claim on direct appeal does not warrant a presumption of prejudice. 

Accordingly, Gibbs has not persuaded the Court that the enforcement of the Voir 

Dire Policy rendered his trial fundamentally unfair, and he has therefore failed to 

establish Presumed Prejudice. 

D

 For all of the reasons explained above, Gibbs has neither demonstrated that 

Skinner’s failure to object to the courtroom closure under the Voir Dire Policy 

constituted deficient performance nor that it caused him prejudice. For these two 

independent reasons, he has failed to show that his default of his public trial claim 

is excused by ineffective assistance of counsel. 

IV

 For the foregoing reasons, the Court concludes that Gibbs’ public trial claim 

is procedurally defaulted, and that neither cause nor prejudice exist to excuse it. 

Accordingly, the Court DENIES habeas relief on Gibbs’ public trial claim. 

 Before Gibbs may appeal the Court’s decision, a certificate of appealability 

must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of 

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appealability may issue “only if the applicant has made a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies habeas 

relief on the merits, the substantial showing threshold is met if the petitioner 

demonstrates that reasonable jurists would find the court’s assessment of the claim 

debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner 

satisfies this standard by demonstrating that [...] jurists could conclude the issues 

presented are adequate to deserve encouragement to proceed further.” Miller-El v. 

Cockrell, 537 U.S. 322, 327 (2003). When a court denies relief on procedural 

grounds without addressing the merits, a certificate of appealability should issue if 

it is shown that jurists of reason would find it debatable whether the petitioner states 

a valid claim of the denial of a constitutional right and that jurists of reason would 

find it debatable whether the court was correct in its procedural ruling. See Slack, 

529 U.S. at 484-85. 

 The Court concludes that Gibbs has met this standard here. Accordingly, the 

Court GRANTS Gibbs a certificate of appealability with respect to the ruling set 

forth in this Opinion and Order. 

s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: April 14, 2022 

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 I hereby certify that a copy of the foregoing document was served upon the 

parties and/or counsel of record on April 14, 2022, by electronic means and/or 

ordinary mail. 

 s/Holly A. Ryan 

 Case Manager 

 (313) 234-5126 

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