FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 05-56795

D.C. Nos.

v.  CV-03-06459-R

MICHEL WITHERS, CR-97-01085-R-1

Defendant-Appellant. 

UNITED STATES OF AMERICA,  No. 08-55096

Plaintiff-Appellee, D.C. Nos.

v.  CV-03-06459-R

CR-97-01085-R-1 MICHEL WITHERS,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

December 1, 2009—Pasadena, California

Filed August 19, 2010

Before: Harry Pregerson, John T. Noonan and

Richard A. Paez, Circuit Judges.

Opinion by Judge Pregerson;

Dissent by Judge Noonan

12207
COUNSEL

Jennifer Yihyun Chou, Assistant United States Attorney, General Crimes Section, Los Angeles, California, for the plaintiff-appellee.

Verna Jean Wefald, Pasadena California, for the defendant-appellant.

OPINION

PREGERSON, Circuit Judge:

Michel Withers (“Withers”) appeals the district court’s

denial of his 28 U.S.C. § 2255 habeas motion.1 Withers also

appeals the district court’s decision that his notice of appeal

of the district court’s denial of his § 2255 motion was

1

28 U.S.C. § 2255(a) allows federal prisoners to “move the court which

imposed the sentence to vacate, set aside or correct the sentence.” This is

generally referred to as a habeas motion or a § 2255 motion. See, e.g.,

United States v. Lopez, 577 F.3d 1053, 1056 (9th Cir. 2009). 28 U.S.C.

§ 2255 is distinct from 28 U.S.C. § 2241, under which a federal prisoner

may petition for habeas relief. 

UNITED STATES v. WITHERS 12211
untimely. We have jurisdiction under 28 U.S.C. §§ 1291 and

2255(d), and, for the reasons explained below, we REVERSE.

I.

In 1998, a federal jury found Withers guilty of possession

of controlled substances with intent to distribute, money laundering, engaging in a continuing criminal enterprise, and conspiracy to possess controlled substances with the intent to

distribute. The district court sentenced Withers to life imprisonment plus 360 months, but eventually reduced the sentence

to 365 months concurrent with 360 months. 

In 2001, Withers filed a 28 U.S.C. § 2241 petition for

habeas relief. The district court denied that petition, and we

denied Withers’s request for a certificate of appealability. 

In 2003, Withers filed a 28 U.S.C. § 2255 motion for

habeas relief. Because Withers had previously filed a § 2241

habeas petition, the district court treated Withers’s § 2255

motion as a second or successive motion filed without permission, and denied it. Withers appealed. On appeal, the government conceded that, under Castro v. United States, 540 U.S.

375 (2003),2 the district court erred in treating Withers’s

§ 2255 habeas motion as a second or successive motion.

Accordingly, we remanded for the district court to consider

the merits of Withers’s § 2255 motion. 

On remand, however, the district court did not consider the

merits of Withers’s § 2255 motion, but instead erroneously

reconsidered Withers’s sentence. As a result, we again

remanded for the district court to consider the merits of Withers’s § 2255 motion. 

2

In Castro v. United States, the Supreme Court held that a district court

may not re-characterize a pro se litigant’s pleading as a § 2255 motion

without first warning the litigant that he may consequently be barred from

pursuing a later § 2255 motion. 540 U.S. at 383. 

12212 UNITED STATES v. WITHERS
On July 1, 2005, the district court filed a three-sentence

order denying Withers’s § 2255 motion: 

This matter was remanded by USCA 9th Circuit for

this court to consider the merits of appellant’s 2255

motion pursuant to the Supreme Court’s decision in

Castro v. United States.

This court has considered the merits of appellant’s

2255 motion pursuant to the Supreme Court’s decision in Castro v. United States.

The motion is denied. 

On November 7, 2005, Withers filed a notice of appeal.

The district court concluded that Withers failed to make a

“substantial showing of the denial of a constitutional right,”

and, on that basis, declined to issue Withers a certificate of

appealability. Undeterred, Withers continued to pursue his

appeal and sought a certificate of appealability from this

court. 

On August 2, 2007, we granted a certificate of appealability

on whether the district court erred by failing to discuss the

merits of Withers’s § 2255 motion or by failing to make findings of fact and conclusions of law. We also ordered a limited

remand to the district court to determine whether Withers’s

notice of appeal was timely. We stayed consideration of the

appeal until the district court’s resolution of the timeliness

issue. 

On August 6, 2007, the district court decided that Withers’s

notice of appeal was untimely. Withers appealed that decision. This court consolidated that appeal with the earlier, previously stayed appeal on whether the district court erred by

failing to discuss the merits of Withers’s § 2255 habeas

motion or by failing to make findings of fact and conclusions

of law. 

UNITED STATES v. WITHERS 12213
Accordingly, the issues that we must now decide are

whether the district court erred in deciding that Withers’s

notice of appeal was untimely, and whether the district court

erred by failing to discuss the merits of Withers’s § 2255

habeas motion or by failing to make findings of fact and conclusions of law.

II.

We review de novo the timeliness of a notice of appeal.

Ford v. MCI Commc’ns Corp. Health & Welfare Plan, 399

F.3d 1076, 1079 (9th Cir. 2005). We review a district court’s

denial of a motion to reopen the time for filing an appeal for

abuse of discretion. In re Stein, 197 F.3d 421, 424 (9th Cir.

1999). 

We review de novo the district court’s denial of a § 2255

motion. United States v. Rodrigues, 347 F.3d 818, 823 (9th

Cir. 2003).

III.

A. Withers’s Notice of Appeal Was Timely

[1] Under Federal Rule of Appellate Procedure 4(a)(1)(B),

a notice of appeal is timely if it is filed within sixty days after

the entry of the order or judgment that is the subject of the

appeal. Withers filed his notice of appeal on November 7,

2005—more than sixty days after the July 1, 2005, district

court order denying Withers’s § 2255 motion. Federal Rule of

Appellate Procedure 4(a)(6), however, allows an appellant to

move to reopen the time to file an appeal if the appellant did

not receive timely notice of the entry of the order or judgment

from which he appeals. 

[2] Although Withers did not file a motion to reopen the

time for filing an appeal, we conclude that the district court

should have construed his pro se notice of appeal as a motion

12214 UNITED STATES v. WITHERS
to reopen. For the reasons the Eleventh Circuit describes in

Sanders v. United States, we hold that we must construe a pro

se appellant’s notice of appeal as a motion to reopen the time

for filing an appeal when he alleges that he did not receive

timely notice of the entry of the order or judgment from

which he seeks to appeal. See Sanders v. United States, 113

F.3d 184, 187 (11th Cir. 1997). This is consistent with our

practice of liberally construing pro se litigants’ filings as the

appropriate motion or notice necessary for them to pursue

their legal claims on appeal. See Turner v. Calderon, 281 F.3d

851, 864 (9th Cir. 2002) (treating a pro se notice of appeal as

a request for a certificate of probable cause or appealability);

Brannan v. United States, 993 F.2d 709, 710 (9th Cir. 1993)

(construing a pro se letter as a notice of appeal). Construing

Withers’s notice of appeal as both a notice of appeal and a

motion to reopen, the question becomes whether the district

court erred in denying the motion to reopen. 

Under Federal Rule of Appellate Procedure 4(a)(6), “[t]he

district court may reopen the time to file an appeal for a

period of 14 days after the date when its order to reopen is

entered” if:

(A) the court finds that the moving party did not

receive notice under Federal Rule of Civil Procedure

77(d) of the entry of the judgment or order sought to

be appealed within 21 days after entry;

(B) the motion is filed within 180 days after the

judgment or order is entered or within 14 days after

the moving party receives notice under Federal Rule

of Civil Procedure 77(d) of the entry, whichever is

earlier; and

(C) the court finds that no party would be prejudiced.

[3] Rule 4(a)(6) gives a district court discretion in deciding

whether to grant a motion to reopen. But that discretion is

UNITED STATES v. WITHERS 12215
limited. See Arai v. Am. Bryce Ranches Inc., 316 F.3d 1066,

1070 (9th Cir. 2003); Nunley v. City of Los Angeles, 52 F.3d

792, 798 (9th Cir. 1995). Where a moving party makes an

unchallenged assertion that he did not receive timely notice of

judgment, and the other Rule 4(a)(6) conditions are not at

issue, a district court errs in denying the motion to reopen

based solely on the party’s failure to learn independently of

the entry of judgment. Nunley, 52 F.3d at 796, 798. 

Here, Withers made an unchallenged assertion that he did

not receive timely notice of judgment. Specifically, Withers

claimed that he did not receive the district court’s order denying his § 2255 habeas motion until November 4, 2005—three

days before he filed his notice of appeal on November 7,

2005. Additionally, the other Rule 4(a)(6) conditions, (B) and

(C), are not at issue. Condition (B) is not at issue because

Withers filed his notice to reopen within fourteen days of

receiving notice of the district court’s order denying his

§ 2255 habeas motion. Condition (C) is not at issue because

the government does not argue that it was prejudiced. Accordingly, the only question is whether the district court erred in

declining to reopen the time to file an appeal even though

Withers made an unchallenged assertion that he did not

receive the notice of the entry of judgment until November 4,

2005. We conclude that the district court did so err. 

By asserting that he did not receive the notice of the entry

of judgment until November 4, 2005, Withers alleged, albeit

inartfully, that he did not timely file his notice of appeal

because of his late receipt of the notice of judgment. The district court did not acknowledge Withers’s asserted late receipt

of the notice of judgment, but rather ruled that his notice of

appeal was untimely because he was “given notice on July, 1,

2005,” but “did not file his notice of appeal until November

10, 2005.” Consequently, the district court erred by denying

the motion to reopen despite Withers’s unchallenged assertion

that his late filing was due to his late receipt of the notice of

judgment. 

12216 UNITED STATES v. WITHERS
[4] Withers’s notice of appeal should have been generously construed as both a notice of appeal and a motion to

reopen the time for filing an appeal. Additionally, that motion

to reopen should have been granted because Withers asserted

that he did not receive a copy of the district court order denying his § 2255 motion until three days before he filed his

notice of appeal—an assertion the Government does not contest. Accordingly, the district court erred when it found that

Withers’s notice of appeal was untimely.

B. The District Court Erred in Summarily Dismissing

Withers’s § 2255 Habeas Motion

Under 28 U.S.C. § 2255, a federal court may vacate, set

aside, or correct a federal prisoner’s sentence if the sentence

was imposed in violation of the Constitution or laws of the

United States. 28 U.S.C. § 2255(a); Davis v. United States,

417 U.S. 333, 344-45 (1974). 

[5] When a district court reviews a § 2255 habeas motion,

“[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the

court shall . . . grant a prompt hearing thereon, determine the

issues and make findings of fact and conclusions of law with

respect thereto.” 28 U.S.C. § 2255(b). In determining whether

a hearing and findings of fact and conclusions of law are

required, “[t]he standard essentially is whether the movant has

made specific factual allegations that, if true, state a claim on

which relief could be granted.” United States v. Schaflander,

743 F.2d 714, 717 (9th Cir. 1984) (citing United States v.

Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980)). Under this standard, a district court may summarily dismiss3

 a § 2255 motion

3

In the context of § 2255 habeas motions, “summarily dismissed”

means the district court dismissed the motion based on a facial review

without ordering responsive briefing and without conducting a hearing or

making “findings of fact and conclusions of law.” See, e.g., United States

v. Howard, 381 F.3d 873, 877 (9th Cir. 2004); Molina v. Rison, 886 F.2d

1124, 1127 n.4 (9th Cir. 1989). 

UNITED STATES v. WITHERS 12217
only if the allegations in the motion, when viewed against the

record, do not give rise to a claim for relief or are “palpably

incredible or patently frivolous.” Id.

[6] Here, the district court summarily dismissed Withers’s

§ 2255 motion, which included eighteen claims for relief. We

conclude that sixteen of Withers’s claims were sufficiently

frivolous to warrant summary dismissal. Withers’s remaining

two claims, however, are supported by non-incredible and

non-frivolous allegations which, if true, would warrant habeas

relief. Those two claims are: (1) Withers’s claim that the district court violated his Sixth Amendment right to a public trial

by closing the courtroom to the public during voir dire; and

(2) Withers’s claim that his trial counsel was ineffective for

failing to object to the closure of the courtroom. For the reasons set forth below, we conclude that the district court erred

in summarily dismissing these two claims. 

1. Sixth Amendment Right to a Public Trial Claim

a. The Merits of Withers’s Public Trial Claim

Withers claims that he is entitled to habeas relief because

the district court violated his Sixth Amendment right to a public trial. The Sixth Amendment guarantees a defendant the

right to a public trial, which includes a right to have the public

present during voir dire. U.S. CONST. amend. VI; Presley v.

Georgia, 130 S. Ct. 721, 724 (2010); Press-Enterprise Co. v.

Superior Court of Cal., 464 U.S. 501, 511 (1984).

“The requirement of a public trial is for the benefit of the

accused; that the public may see he is fairly dealt with and not

unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their

responsibility and to the importance of their functions . . . .”

Waller v. Georgia, 467 U.S. 39, 46 (1984) (internal quotation

marks and citations omitted). For that reason, before totally

closing any part of a trial to the public, 

12218 UNITED STATES v. WITHERS
[t]he party seeking to close the hearing must advance

an overriding interest that is likely to be prejudiced,

the closure must be no broader than necessary to

protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it

must make findings adequate to support the closure.

Presley, 130 S. Ct. at 724 (quoting Waller, 467 U.S. at 48);

see also Press-Enterprise, 464 U.S. at 510.

A district court violates a defendant’s right to a public trial

when it totally closes the courtroom to the public, for a nontrivial duration, without first complying with the four requirements established by the Supreme Court’s Press-Enterprise

and Waller decisions. See Waller, 467 U.S. at 48; United

States v. Ivester, 316 F.3d 955, 959 (9th Cir. 2003) (holding

that trivial closures do not violate the Sixth Amendment);

United States v. Sherlock, 962 F.2d 1349, 1357 (9th Cir.

1992) (holding that partial closures are subject to less stringent requirements). Because such violations are structural

errors, they warrant habeas relief without a showing of specific prejudice. See Waller, 467 U.S. at 49-50.

[7] Withers claims that the district court violated his right

to a public trial by closing the courtroom just before voir dire

began. The record plainly supports this claim. The transcript

shows that the district court closed the courtroom by ordering

the public out before conducting voir dire:

We’re going to take a recess to bring down the jury

panel. All you people out there are going to have to

be out of the courtroom. We have to bring in a very

big panel of prospective jurors and we need the

entire courtroom, so all of you out.

Nothing in the record indicates that this closure was for a trivial duration, or that the district court complied with the PressEnterprise/Waller requirements. Therefore, Withers’s claim

UNITED STATES v. WITHERS 12219
that the district court violated his Sixth Amendment right to

a public trial by closing the courtroom during voir dire is not

palpably incredible or patently frivolous. 

[8] Withers’s entitlement to relief on his public trial claim,

however, will depend on whether the courtroom closure lasted

for more than a trivial duration and whether the district court

complied with the Press-Enterprise/Waller requirements.

Although there is nothing in the record before us indicating

that the closure lasted only a trivial duration, or that the district court complied with the Press-Enterprise/Waller requirements, neither is the record before us sufficient to conclude

that the closure lasted longer than a trivial duration or that the

district court did not comply with the Press-Enterprise/Waller

requirements. We therefore must remand for the district court

to determine these facts, unless the district court’s summary

dismissal was warranted because Withers procedurally

defaulted this claim. 

b. Potential Procedural Default of Withers’s Public

Trial Claim

[9] The government argues that Withers procedurally

defaulted his public trial claim by failing to raise it on direct

review. Thus, he is not entitled to habeas relief on this claim

unless he can overcome the procedural default by showing

cause and prejudice. See, e.g., Bousley v. United States, 523

U.S. 614, 622 (1998). Withers, however, had no obligation to

overcome procedural default in his motion. See Insyxiengmay

v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005) (explaining that

“[p]rocedural default is an affirmative defense”). Because the

district court did not order the government to respond to

Withers’s motion, the government never raised an affirmative

procedural bar defense in the district court. Withers therefore

had no opportunity in the district court to establish cause and

prejudice excusing his default. 

[10] Moreover, even if Withers were obligated to negate

procedural default in his motion by alleging cause and preju12220 UNITED STATES v. WITHERS
dice, he has made credible non-frivolous claims that he can do

so.

i. Withers made a credible, non-frivolous claim that

he can show cause

Withers claimed that his appellate counsel was ineffective

—a claim that, if successful, would satisfy the cause requirement that is necessary to overcome procedural default. See

Moormann v. Schriro, 426 F.3d 1044, 1059 (9th Cir. 2005).

To establish ineffective assistance of counsel, Withers must

show that his “counsel’s representation fell below an objective standard of reasonableness,” and that there is a “reasonable probability” that the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687-88, 694

(1984); see also Turner, 281 F.3d at 872 (explaining that the

Strickland standard applies to ineffective assistance of appellate counsel). 

Assuming that Withers’s public trial claim was viable—as

we must because the record contains no indication that the

closure of the courtroom satisfied constitutional requirements

—appellate counsel’s failure to raise it likely fell below an

objective standard of reasonableness. This conclusion accords

with the First Circuit’s analysis of this issue. See Owens v.

United States, 483 F.3d 48, 63 (1st Cir. 2007) (“Owens’ attorneys’ failure to notice or object to the closure of his trial may

show that their performance fell below ‘an objective standard

of reasonableness.’ ”). Because Withers’s public trial claim is

not palpably incredible or patently frivolous, neither is his

claim that his appellate counsel performed deficiently by failing to raise it on direct review. 

Withers’s claim that there is a “reasonable probability” that

his appellate counsel’s failure to raise this claim prejudiced

him is similarly not palpably incredible or patently frivolous.

Again assuming that his public trial claim was viable, his

counsel’s failure to raise it almost certainly prejudiced him:

UNITED STATES v. WITHERS 12221
Because violation of the public trial right is a structural error,

Withers would have been entitled to automatic reversal of his

conviction and a new trial had he established a violation. See

Waller, 467 U.S. at 49-50; Campbell v. Rice, 408 F.3d 1166,

1171-1172 (9th Cir. 2005) (noting that violation of the right

to a public trial is one of those rare constitutional errors that

requires automatic reversal because it amounts to a structural

defect). 

Thus, Withers made a credible, non-frivolous claim that his

appellate counsel provided ineffective assistance of counsel.4

Withers therefore presented a credible, non-frivolous claim of

cause necessary to overcome any procedural default.

ii. Withers made a credible, non-frivolous claim that

he can show prejudice

Withers has also made a credible, non-frivolous claim of

prejudice—the second requirement for overcoming procedural default. Withers can establish the prejudice necessary to

overcome procedural default if the error of which he complains “infect[ed] his entire trial with error of constitutional

dimensions.” Murray v. Carrier, 477 U.S. 478, 494 (1986).

The alleged closing of Withers’s trial would have infected his

entire trial with such error. Indeed, implicit in the recognition

that trial closures are structural errors is the recognition that

such errors “affect the framework in which the trial pro4The Dissent argues that because Withers’s trial counsel did not contemporaneously object to the closure of the trial, it is not likely that his

public trial claim would have prevailed on appeal, and thus his appellate

counsel was not ineffective for failing to raise it. Dissent Op. at 12230.

This, however, overstates the likely significance of trial counsel’s failure

to object. Even though the failure to object would have required the

appeals court to apply plain error review, it is reasonably likely that the

appeals court would have determined that relief was warranted even under

plain error review. See Puckett v. United States, 129 S. Ct. 1423, 1432

(2009) (recognizing the possibility that structural errors may automatically

satisfy the plain-error requirement that the error affect substantial rights).

12222 UNITED STATES v. WITHERS
ceeds.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991); see

also Campbell, 408 F.3d at 1171-1172. If Withers establishes

a violation of his right to a public trial, that structural error

would likely satisfy the prejudice showing. 

iii. Withers made credible, non-frivolous claims that

he can overcome procedural default

[11] For the reasons stated above, Withers made a credible,

non-frivolous claim of ineffective assistance of counsel,

which could establish the cause showing necessary to overcome procedural default. Likewise, because Withers’s underlying non-frivolous public trial claim alleges structural error,

he can also likely establish prejudice sufficient to overcome

procedural default. Therefore, even if Withers bore the burden

of making a credible, non-frivolous claim that he could overcome procedural default in his motion, he has met that burden. Accordingly, the district court could not have properly

based its summary dismissal on procedural default. 

Because his public trial claim was not palpably incredible

or patently frivolous, and because it was not clear on the face

of his motion that a procedural default barred relief, the district court erred in summarily dismissing this claim without

ordering the government to file a response and without issuing findings of fact and conclusions of law. 

iv. Remand of these issues is appropriate

We cannot resolve this issue without further evidentiary

development, however. Resolution of this procedural default

issue depends on whether Withers’s appellate counsel was

ineffective, which in turn depends on whether Withers’s public trial claim was viable. Because we cannot assess the viability of that claim without knowing for how long the trial

judge closed the courtroom, or whether he complied with the

Press-Enterprise/Waller requirements, we likewise cannot

determine whether appellate counsel was ineffective. Remand

UNITED STATES v. WITHERS 12223
for the district court to develop the underlying facts is therefore appropriate. See Massaro v. United States, 538 U.S. 500,

505 (2003) (“[T]he district court [is] the forum best suited to

developing the facts necessary to determining the adequacy of

representation.”). 

2. Ineffective Assistance of Trial Counsel Claim

As an independent ground for habeas relief, Withers claims

that his trial counsel was ineffective for failing to object to the

closure of the courtroom during voir dire. Ineffective assistance of trial counsel is grounds for habeas relief, and such a

claim need not be raised on direct appeal to preserve it for

collateral attack. Massaro, 538 U.S. at 504. Thus, it is of no

import that Withers’s appellate counsel did not raise this issue

on direct appeal. 

To establish ineffective assistance of counsel, Withers must

show that his “counsel’s representation fell below an objective standard of reasonableness,” and that there is a “reasonable probability” that the deficient performance prejudiced the

defense. Strickland, 466 U.S. at 687-88, 694. 

a. Withers made a credible, non-frivolous claim that his

trial counsel’s performance fell below an objective

standard of reasonableness

[12] Withers claims that his trial counsel’s failure to object

to the closure of his trial fell below an objective standard of

reasonableness. On the record before us, we conclude that this

claim is not frivolous or incredible, particularly because the

right to a public trial is critical to ensuring a fair trial. See

Waller, 467 U.S. at 46 (explaining that the right to a public

trial helps ensure a fair trial); Herring v. New York, 422 U.S.

853, 856-57 (1975) (explaining that the Sixth Amendment’s

guarantee of the right to a public trial is a fundamental right).

This conclusion is in accord with decisions of the First and

Sixth Circuits. See Johnson v. Sherry, 586 F.3d 439, 446 (6th

12224 UNITED STATES v. WITHERS
Cir. 2009) (holding that “an evidentiary hearing is warranted

to determine if trial counsel’s failure to object to the closure

constitutes deficient performance”); Owens, 483 F.3d at 63

(“Owens’ attorneys’ failure to notice or object to the closure

of his trial may show that their performance fell below ‘an

objective standard of reasonableness.’ ”).

b. Withers made a credible, non-frivolous claim that he

was prejudiced by his trial counsel’s deficient 

performance

[13] Withers claims that he can establish that his trial

counsel’s deficient performance caused him prejudice because

it resulted in a structural error, which gives rise to a presumption of prejudice. The Ninth Circuit has not yet decided

whether a trial counsel’s failure to object to a structural error

is presumptively prejudicial for purposes of the Strickland

ineffective assistance of counsel inquiry. 

We do not decide that question here, however, because the

procedural posture of this case limits our inquiry to whether

such a claim of presumptive prejudice is frivolous.5 It plainly

5The Dissent objects to our decision not to resolve conclusively the

question of whether a petitioner can establish prejudice for ineffective

assistance of counsel purposes by showing that his trial counsel’s deficient

performance caused structural error. Dissent Op. at 12232. Contrary to the

Dissent’s suggestion, we do not believe our restraint wastes judicial

resources in the circumstances here. In light of our disposition of Withers’s public trial claim, we must remand this case to the district court in

any event. On remand, the district court might determine that Withers suffered no violation of his public trial right because the trial judge closed the

courtroom for only a trivial duration, or because he complied with the

Press-Enterprise/Waller requirements. Because the failure to object to a

legitimate courtroom closure would not amount to ineffective assistance

of counsel, fact-finding relevant to the public trial claim could affect

whether Withers has a viable ineffective assistance of trial counsel claim.

Remand is thus expedient. Moreover, this approach is consistent with the

“established part of our constitutional jurisprudence that we do not ordinarily reach out to make novel or unnecessarily broad pronouncements on

constitutional issues when a case can be fully resolved on a narrower

ground.” Greater New Orleans Broad. Ass’n, Inc. v. United States, 527

U.S. 173, 184 (1999). 

UNITED STATES v. WITHERS 12225
is not. At least three circuits have concluded that prejudice

can be presumed where counsel’s deficient performance

results in a structural error. See Johnson, 586 F.3d at 447

(“Because the right to a public trial is a structural guarantee,

if the closure were unjustified or broader than necessary, prejudice would be presumed.”); Owens, 483 F.3d at 64-65 (holding that, because it “is impossible to determine whether a

structural error is prejudicial,” prejudice can be presumed for

purposes of the Strickland analysis where counsel failed to

object to a structural error”); McGurk v. Stenberg, 163 F.3d

470, 475 (8th Cir. 1998) (holding that “when counsel’s deficient performance causes a structural error, we will presume

prejudice under Strickland“); but see Purvis v. Crosby, 451

F.3d 734, 742 (11th Cir. 2006) (requiring a showing of actual

prejudice where counsel failed to object to a courtroom closure); Virgil v. Dretke, 446 F.3d 598, 607 (5th Cir. 2006)

(declining to hold that “a structural error alone is sufficient to

warrant a presumption of prejudice in the ineffective assistance of counsel context”). Indeed, we have strongly suggested the same. See Styers v. Schriro, 547 F.3d 1026, 1030

n.5 (9th Cir. 2008) (noting that “no . . . additional or separate

showing of prejudice would appear necessary” where counsel’s deficiency resulted in a structural error).

c. Withers made a credible, non-frivolous ineffective

assistance of trial counsel claim

In sum, Withers made a credible, non-frivolous claim that

his trial counsel’s performance fell below objective standards

of reasonableness and caused a structural error that gave rise

to a presumption of prejudice. Because Withers made a credible, non-frivolous claim for habeas relief based on ineffective

assistance of trial counsel, the district court erred in summarily dismissing this claim without ordering the government to

file a response and without issuing findings of fact and conclusions of law. 

12226 UNITED STATES v. WITHERS
3. The district court must consider Withers’s nonfrivolous claims for habeas relief

[14] Withers made credible, non-frivolous public trial and

ineffective assistance of trial counsel claims. Accordingly, the

district court erred in failing to order the government to file

an answer to Withers’s habeas motion. See Rule 4(b), Rules

Governing § 2255 Proceedings for the United Stated District

Courts. For that same reason, the district court erred by summarily dismissing Withers’s § 2255 motion without making

findings of fact and conclusions of law. See 28 U.S.C.

§ 2255(b). Therefore, we remand and direct the district court

to: (1) order the government to file an answer to Withers’s

habeas motion, (2) conduct an evidentiary hearing if warranted, and (3) issue findings of fact and conclusions of law

on the non-frivolous claims addressed in this opinion. 

C. Reassignment

We direct the Clerk of the United States District Court for

the Central District of California to reassign this case to a different judge. Reassignment is appropriate in unusual circumstances. See, e.g., D’Lil v. Best Western Encina Lodge &

Suites, 538 F.3d 1031, 1040-41 (9th Cir. 2008). In determining whether there are unusual circumstances, this court considers:

(1) whether the original judge would reasonably be

expected upon remand to have substantial difficulty

in putting out of his or her mind previously

expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2)

whether reassignment is advisable to preserve the

appearance of justice, and (3) whether reassignment

would entail waste and duplication out of proportion

to any gain in preserving the appearance of fairness.

Id. at 1041 (internal citation omitted). 

UNITED STATES v. WITHERS 12227
[15] This is the fourth remand in this case. On each of the

previous three remands, the district judge erroneously dismissed Withers’s § 2255 motion or notice of appeal without

discussion. The issues in Withers’s motion that may state a

claim for relief turn on the manner in which the district judge

conducted voir dire. The government does not oppose reassignment. Given the aggregate weight of these circumstances,

we conclude that unusual circumstances make reassignment

of this case appropriate.

IV.

Withers’s notice of appeal was timely. The allegations in

Withers’s § 2255 motion state credible, non-frivolous public

trial and ineffective assistance of counsel claims upon which

relief could be granted. For these reasons, we remand this

case for appropriate fact finding, responsive briefing, and, if

warranted, an evidentiary hearing. Because of the unusual circumstances in this case, we direct the Clerk of the United

States District Court for the Central District of California to

reassign this case to a different judge. 

REVERSED, REMANDED, AND REASSIGNED.

NOONAN, Circuit Judge, dissenting:

The Supreme Court has long sought to ensure that the criminal trial remains “the main event,” not a “tryout on the road”

for a later habeas proceeding. Coleman v. Thompson, 501

U.S. 722, 747 (1991) (quoting Wainwright v. Sykes, 433 U.S.

72, 90 (1977)). The “main event” in Withers’ case took place

well over a dozen years ago. In the interests of finality and

judicial economy, we can and should decide the remaining

claims that the majority leaves for another day. Assuming

Withers’ appeal to be timely, I would conclude that his

12228 UNITED STATES v. WITHERS
public-trial and ineffective-assistance claims fail as a matter

of law.

I.

The majority avoids resolving Withers’ claims through a

mischievous misreading of our precedents interpreting Rule 4

of the Rules Governing § 2255 Cases. Relying on United

States v. Schaflander, the majority holds that the dismissal of

Withers’ petition was error because his legal arguments were

not “palpably incredible or patently frivolous.” 743 F.2d 714,

717 (9th Cir. 1984) (per curiam). But this language from

Schaflander referred to the factual allegations contained in a

habeas petition, not the legal claims asserted in reliance on

those facts. See id.; see also, e.g., United States v. Hearst, 638

F.2d 1190, 1194 (9th Cir. 1980) (“[I]n certain cases the factual allegations are so palpably incredible, so patently frivolous or false, that it is clear the movant is not entitled to relief

or even to a hearing.” (emphasis added) (citations and internal

quotation marks omitted)).

While we accept Withers’ factual allegations unless they

are “palpably incredible or patently frivolous,” we must still

decide whether these facts—together with the record of prior

proceedings—entitle him to relief as a matter of law. This

analysis is essentially identical to that conducted under Rule

12(b)(6) of the Federal Rules of Civil Procedure. See Schaflander, 743 F.2d at 717 (“The standard essentially is whether

the movant has made specific factual allegations that, if true,

state a claim on which relief could be granted.”). Under that

familiar standard, dismissal is not “confine[d] . . . to claims

of law which are obviously insupportable.” Neitzke v. Williams, 490 U.S. 319, 326 (1989). “On the contrary, . . . a claim

must be dismissed[ ] without regard to whether it is based on

an outlandish legal theory or on a close but ultimately

unavailing one.” Id.

UNITED STATES v. WITHERS 12229
II.

In Presley v. Georgia, the Supreme Court recently confirmed what many courts had presumed—the Sixth Amendment’s guarantee of a public trial extends to the voir dire of

prospective jurors. 130 S. Ct. 721, 723-24 (2010) (per

curiam). This right, however, is not self-executing: “the Sixth

Amendment right to a trial that is public[ ] provide[s] benefits

to the entire society more important than many structural

guarantees; but if the litigant does not assert [it] in a timely

fashion, he is foreclosed.” Freytag v. Comm’r, 501 U.S. 868,

896 (1991) (Scalia, J., concurring) (internal quotation marks

omitted); see Peretz v. United States, 501 U.S. 923, 936

(1991); see also Waller v. Georgia, 467 U.S. 39, 42 n.2

(1984). As the Supreme Court explained in Levine v. United

States:

Due regard generally for the public nature of the

judicial process does not require disregard of the

solid demands of the fair administration of justice in

favor of a party who, at the appropriate time and acting under advice of counsel, saw no disregard of a

right, but raises an abstract claim only as an afterthought on appeal.

362 U.S. 610, 619-20 (1960).

In the case before us, no objection was raised to the district

judge’s order that spectators vacate the courtroom during the

voir dire of prospective jurors. Cf. Presley, 130 S. Ct. at 722.

Nor did Withers, assisted by new counsel, attempt to raise the

issue on direct appeal. Cf. id. at 722-23. Withers’ public-trial

claim was doubly defaulted. It fails as a matter of law.

The majority suggests that Withers may overcome the failure to raise this claim on direct appeal by attributing the

default to the deficient performance of appellate counsel.1 But

1As a threshold matter, the majority submits that Withers’ default must

first be asserted in the district court, but this suggestion is belied by the

12230 UNITED STATES v. WITHERS
constitutionally effective appellate counsel “need not (and

should not) raise every nonfrivolous claim”; “only when

ignored issues are clearly stronger than those presented, will

the presumption of effective assistance of counsel be overcome.” Smith v. Robbins, 528 U.S. 259, 288 (2000). Withers’

appellate counsel cannot be deemed ineffective for failing to

raise a claim that—if not altogether forfeited under longstanding Supreme Court precedent—would also fail to satisfy the

prerequisites of plain-error review. See Puckett v. United

States, 129 S. Ct. 1423, 1429 (2009); Johnson v. United

States, 520 U.S. 461, 468-70 (1997). “No procedural principle

is more familiar . . . than that a constitutional right may be

forfeited in criminal as well as civil cases by the failure to

make timely assertion of the right before a tribunal having

jurisdiction to determine it.” Yakus v. United States, 321 U.S.

414, 444 (1944). Withers’ appellate counsel was not ineffective for prosecuting his appeal in a manner consistent with

this familiar principle.2

well-established rule that we may raise procedural bars sua sponte in a

habeas case. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998);

see also Webster v. Woodford, 369 F.3d 1062, 1067 (9th Cir. 2004) (finding that “judicial economy is served by addressing the Teague argument

[on] appeal,” even though it had not been raised in the district court). Of

course, we need not raise Withers’ procedural default sua sponte; the government asserted the defense when it first had the opportunity to do so in

its answering brief, and Withers addressed the argument in his reply brief.

2The majority appears to rely on Waller and Campbell v. Rice, 408 F.3d

1166 (9th Cir. 2005), to suggest that an unpreserved structural error would

garner “automatic reversal” on direct appeal. In Waller, however, the

Supreme Court only addressed a preserved public-trial claim and

expressly indicated that defendants who fail to object may automatically

forfeit their right to a public trial. See 467 U.S. at 42 n.2. In turn, the dictum referenced in Campbell did not distinguish between preserved and

unpreserved errors. See 408 F.3d at 1171-72. 

Refusing to find Withers’ claim forfeited, the majority belatedly concedes that Withers’ unpreserved claim would at least be subject to plainerror review. The majority clings to the “possibility” that “structural errors

may automatically satisfy the [third] plain-error requirement that the error

UNITED STATES v. WITHERS 12231
III.

Withers’ remaining claim asserts that his trial counsel was

constitutionally ineffective for failing to object to the courtroom closure during the voir dire of prospective jurors. “An

error by counsel,” however, “does not warrant setting aside

the judgment of a criminal proceeding if the error had no

effect on the judgment.” Strickland v. Washington, 466 U.S.

668, 691 (1984). There must be a reasonable probability that,

“but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694 (emphasis

added). Withers does not attempt to suggest that the absence

of spectators during his jury voir dire undermined the factual

determination of his guilt. Instead, he claims that Strickland

prejudice must be presumed whenever counsel fails to object

to a “structural” error.

The Supreme Court has carefully identified three situations

in which Strickland prejudice can be presumed. Bell v. Cone,

535 U.S. 685, 695 (2002). The first is the “complete denial of

counsel.” Id. The second occurs where “counsel entirely fails

to subject the prosecution’s case to meaningful adversarial

testing.” Id. And the third is found where “counsel is called

upon to render assistance under circumstances where competent counsel very likely could not.” Id. In these situations,

“prejudice is so likely that case-by-case inquiry into prejudice

affect substantial rights.” Even accepting this “possibility,” Withers could

not demonstrate—as he must under plain-error review—that the claimed

error “seriously affect[ed] the fairness, integrity or public reputation of

judicial proceedings.” Johnson, 520 U.S. at 470. Rather, “it would be the

reversal of a conviction such as this which would have that effect.” Id.

Withers was convicted of 11 counts of narcotics trafficking and money

laundering after an 18-day jury trial, ultimately receiving a sentence of 30

years in federal prison. Reversing Withers’ conviction due to an error that

had no effect whatsoever on the factual determination of his guilt would

“encourage[ ] litigants to abuse the judicial process and bestir[ ] the public

to ridicule it.” Id. (quoting Chief Justice Roger J. Traynor, The Riddle of

Harmless Error 50 (1970)). 

12232 UNITED STATES v. WITHERS
is not worth the cost.” Strickland, 466 U.S. at 692 (emphasis

added). Noticeably absent from these enumerated circumstances is counsel’s failure to object to a “structural” error.

The reason for this absence is clear: “Per se rules should

not be applied . . . in situations where the generalization is

incorrect as an empirical matter.” Coleman, 501 U.S. at 737.

There is no reason to believe that every failure to object to a

“structural” error—such as a courtroom closure during the

voir dire of prospective jurors—is an instance of ineffective

assistance of counsel that requires setting aside the judgment.

The Strickland Court recognized that “an act or omission that

is unprofessional in one case may be sound or even brilliant

in another,” 466 U.S. at 693, and as numerous authorities

attest, the closure of a courtroom in many instances may be

in a defendant’s best interests. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 559-60 (1980); Gannett

Co., Inc. v. DePasquale, 443 U.S. 368, 375 (1979); see also

Freytag, 501 U.S. at 896 (Scalia, J., concurring).

No presumption of Strickland prejudice is warranted here.

The failure to object to a courtroom closure during the voir

dire of prospective jurors is not remotely akin to the “actual

or constructive denial of the assistance of counsel altogether.”

Strickland, 466 U.S. at 683. Nor is there any suggestion that

the alleged error “so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having

produced a just result.” Id. at 686. Withers’ ineffectiveassistance claim fails as a matter of law.

IV.

The interests of finality and judicial economy call for

resolving Withers’ remaining claims on the merits. I would

answer this call and affirm the denial of his habeas petition.

UNITED STATES v. WITHERS 12233