Not for Publication in West's Federal Reporter 

United States Court of Appeals

For the First Circuit 

No. 13-1291 

DAVID JORDAN, 

Petitioner, Appellant, 

v. 

UNITED STATES OF AMERICA, 

Respondent, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSSETTS 

[Hon. George A. O'Toole, U.S. District Judge] 

Before 

Selya, Circuit Judge, 

Souter,* Associate Justice, 

and Lipez, Circuit Judge. 

David J. Nathanson, with whom Dan Horowitz and Wood & 

Nathanson, LLP were on brief, for appellant. 

Randall E. Kromm, Assistant U.S. Attorney, with whom Carmen 

M. Ortiz, U.S. Attorney, was on brief, for appellee. 

 * Hon. David H. Souter, Associate Justice (Ret.) of the 

Supreme Court of the United States, sitting by designation. 
July 14, 2015 
- 3 - 

SOUTER, Associate Justice. This is our second 

consideration of David Jordan's appeal from the denial of relief 

on federal habeas. The first time, we remanded for a new 

evidentiary hearing, after which the district court again held 

against Jordan. We affirm. 

I. 

Jordan was tried and convicted of federal crimes in a 

joint trial with Anthony Bucci. The defendants later filed 

unsuccessful habeas petitions under 28 U.S.C. § 2255, each 

contending (in principal part) that his Sixth Amendment right to 

a public trial was violated by a partial courtroom closure during 

voir dire proceedings. Although on appeal we agreed with the 

petitioners that "the courtroom closure here likely violated the 

Sixth Amendment," Bucci v. United States, 662 F.3d 18, 26 (1st 

Cir. 2011), we held that each had procedurally defaulted his claim 

by failing to raise it at trial, id. at 27-29 (Bucci); id. at 33-

34 (Jordan). We affirmed the district court's judgment in Bucci's 

case, owing to his failure to show the cause and prejudice 

necessary to overcome the procedural default. Id. at 29-32. As 

to Jordan, we expressed doubt that he could overcome the same 

default, id. at 33-34, but we nevertheless ordered a remand because 

the evidentiary hearing had not addressed his specific allegations 

for excusing his failure to make a timely objection, id. at 34-

35. 
- 4 - 

On remand, the district court held a two-day hearing and 

made the following supportable findings of fact. On the day of 

the voir dire, the courtroom was opened around 9 a.m. and began to 

fill with family relations, members of the public, lawyers, the 

defendants, and courtroom staff. At some point, the principal 

attorneys (including Jordan's counsel) were handed a list of 

prospective jurors, which they promptly began to study. Somewhat 

later, after the jury venire arrived, the clerk realized that the 

courtroom was too small to hold everyone and asked all spectators 

to leave. After someone complained that family members had a right 

to be present, the clerk consulted with the judge, who let Bucci's 

mother and wife and Jordan's wife back into the courtroom. The 

venire then entered, the judge took the bench, and the jury was 

ultimately chosen. 

The district court acknowledged that the evidence was 

ambiguous as to whether Jordan's counsel was actually conscious of 

the partial courtroom closure. Although it was undisputed that 

counsel was in the room at the time, and that the clerk audibly 

announced the partial closure from around the front of the section 

for public seating, Jordan's lawyer testified that he had no 

recollection one way or the other. Nevertheless, the district 

court concluded: 

That does not mean, however, that [Jordan's 

counsel] was unaware of it. On the contrary, 

I find that he was. Given what appears from 
- 5 - 

the evidentiary record to be an undisputed 

sequence of events, it is virtually 

inconceivable that any person present in the 

courtroom, as the lawyers and their clients 

were, would not have observed that at some 

point all the spectators in the gallery got up 

and left together and shortly thereafter the 

venire arrived and filled the gallery but for 

one bench. Even if he did not hear the clerk 

announce the clearing of the courtroom, an 

experienced trial attorney like [Jordan's 

counsel] would have understood that it was not 

just a curious coincidence that all the 

spectators exited at once and that shortly 

afterwards the gallery was filled with the 

venire. 

II. 

As mentioned earlier, for Jordan to overcome the 

procedural default of his Sixth Amendment claim, he must 

demonstrate "cause" excusing the default and "actual prejudice" 

from the underlying error. United States v. Frady, 456 U.S. 152, 

167-68 (1982). Such cause can be either of two sorts: "the factual 

or legal basis for a claim was not reasonably available to counsel" 

due to "some objective factor external to the defense," Murray v. 

Carrier, 477 U.S. 478, 488 (1986); or the default was attributable 

to constitutionally ineffective assistance of counsel under 

Strickland v. Washington, 466 U.S. 668 (1984), see Murray, 477 

U.S. at 488-89. Jordan cannot show cause either way.1

The first is foreclosed by the district court's factual 

findings. The judge expressly found that Jordan's counsel was 

 1 We therefore do not address "actual prejudice." 
- 6 - 

aware of the partial courtroom closure, and reasonably should have 

known of it, there being no impediment to awareness external to 

the defense. Thus, the factual basis for the Sixth Amendment claim 

was reasonably available to Jordan's counsel. 

To avoid this conclusion, Jordan challenges the district 

court's findings, but he cannot clear the hurdle of showing clear 

error, necessary to set them aside. See United States v. GarciaHernandez, 659 F.3d 108, 111 (1st Cir. 2011). The courtroom 

closure was not conducted in secret, and it was reasonable for the 

district court to conclude that "any person present in the 

courtroom," especially one with legal experience, would (or 

should) have sensed and observed the exodus and replacement of 

those in the public seating section. While Jordan stresses 

evidence that the clerk stood at the edge of the bar section and 

the front of the public area of the courtroom, and argues that the 

need to study newly supplied background information about the 

venire was distracting, his argument falls short of showing clear 

error in the district court's conclusions. See deBenedictis v. 

Brady-Zell (In re Brady-Zell), 756 F.3d 69, 72 (1st Cir. 2014) 

("[W]here the facts can support two plausible but conflicting 

interpretations of a body of evidence, the factfinder's choice 

between them cannot be clearly erroneous."). This is no less true 

here, where the district court's crucial finding is an inference 

about counsel's awareness on a point that he himself did not recall 
- 7 - 

(either way) at the evidentiary hearing. The deferential nature 

of clear error review means that "when the district court chooses 

to draw a reasonable (though not inevitable) inference from a 

particular combination of facts, that inference is entitled to 

respect." Garcia-Hernandez, 659 F.3d at 111 (internal quotation 

marks omitted).2

The second way Jordan might establish "cause" is 

foreclosed by our prior decision in Bucci. There, Bucci claimed 

cause based on his counsel's ineffective assistance for failing to 

object to the partial courtroom closure, which he was admittedly 

aware of. See Bucci, 662 F.3d at 29-31. We rejected the argument 

because "under the applicable objective standard [for attorney 

performance], competent counsel could have knowingly and 

reasonably declined to raise the constitutional issue in this case 

[of partial closure] because doing so would be a waste of the 

defense's time, energy, and resources." Id. at 31. Specifically, 

"competent defense counsel could have reasonably concluded that 

the presence of Bucci's family members sufficiently mitigated the 

risk of actual prejudice to Bucci to the point that . . . his 

 2 Jordan argues that the government should be estopped from 

arguing that his trial counsel was aware of the courtroom closure, 

because it originally argued that his lawyer should not have known 

of the error. To the contrary, the government's prior position 

was merely an arguendo assumption at that stage of litigation. 

See Bucci, 662 F.3d at 33 ("The government so far has been willing 

to assume that Jordan's counsel was unaware of the closure."). 
- 8 - 

client's interests would be best served by moving the trial along 

and focusing on the immediate task of jury selection." Id. at 31-

32. We see no reason for a different view here with respect to 

Jordan. During the partial closure, Jordan's wife was seated in 

the courtroom and counsel was studying the list of prospective 

jurors; counsel's choice to focus on that important task, in lieu 

of making an objection of arguably minimal value, was objectively 

reasonable for the reasons we gave in Bucci, 662 F.3d at 29-32. 

In attempting to distinguish his case from Bucci's, 

Jordan points to testimony during the evidentiary hearing that his 

lawyer, unlike Bucci's, thought it valuable to have the public 

present. But it is settled law that the ineffectiveness enquiry 

applies an "objective standard of reasonableness," not a 

subjective one, Strickland, 466 U.S. at 688, with the consequence 

that nothing turns on the general views of Jordan's lawyer. While 

Jordan alternatively frames the argument as his counsel's 

objective failure to "implement his own chosen strategy" to include 

all of the public, the testimony Jordan relies on demonstrates 

only that his attorney had a preference for the public's presence, 

not a proper "strategy." Reasonable judgment may forsake a 

preference in order to address a more pressing need, and a lawyer 

who understands that is not constitutionally ineffective. 
- 9 - 

III. 

The judgment of the district court is affirmed.