NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARMANDO PEREZ, 

Petitioner-Appellant, 

 v. 

CHERYL STRANGE, Secretary, 

Washington Department of Corrections,

Respondent-Appellee.

No. 21-35203

D.C. No. 2:20-cv-01419-RSL 

MEMORANDUM

Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, District Judge, Presiding

Submitted July 7, 2022**

Seattle, Washington

Before: CLIFTON and BUMATAY, Circuit Judges, and SEEBORG,*** District 

Judge.

 This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2). 

*** The Honorable Richard Seeborg, Chief United States District Judge 

for the Northern District of California, sitting by designation.

FILED

JUL 11 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

Armando Perez petitioned the district court for habeas relief under 28 U.S.C. 

§ 2254. A magistrate judge issued a report and recommendation recommending 

Perez’s petition be denied because he did not show that the state court decisions 

upholding his convictions were contrary to, or were an unreasonable application of, 

clearly established federal law. The district court approved and adopted the 

magistrate judge’s report and recommendation and denied Perez’s petition. Perez 

timely filed a notice of appeal, and this court granted a certificate of appealability on 

his claim. We review the district court’s decision de novo, Stephens v. Herrera, 464 

F.3d 895, 897 (9th Cir. 2006), and affirm.

Perez was convicted in a jury trial of three counts of child molestation in 

2004.1 During jury selection, the judge gave prospective jurors the option to answer 

certain questions in private. Fifteen potential jurors were questioned in chambers 

with Perez, the prosecution, and defense counsel in attendance. Defense counsel did 

not object to this procedure. Two of the privately questioned prospective jurors were 

selected to the jury that ultimately convicted Perez. On direct appeal, Perez’s 

counsel did not raise a public trial claim. In 2008, after Perez finished serving his 

sentence, he filed a post-conviction motion to vacate his convictions, arguing for the 

first time that his right to an open and public trial was violated. After many stops 

through the Washington State court system, Perez’s petition was denied in 2020. 

1 On appeal, one of Perez’s convictions was vacated. 
3

The state court found that Perez was not entitled to relief because he failed to 

demonstrate that he was prejudiced by the courtroom closure. Perez sought federal 

habeas review of his convictions, arguing he was denied his right to effective 

assistance of appellate counsel because counsel failed to argue on direct appeal that 

Perez’s right to a public trial was violated when the trial court privately questioned 

some potential jurors in chambers. 

We deny Perez’s petition for habeas corpus because the decisions of the state 

courts were not contrary to, or did not involve an unreasonable application of, clearly 

established federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d). 

In Weaver v. Massachusetts, 137 S. Ct. 1899 (2017), the Supreme Court held that 

“when a defendant raises a public-trial violation via an ineffective-assistance-ofcounsel claim, . . . the burden is on the defendant to show either a reasonable 

probability of a different outcome in his or her case or . . . to show that the particular 

public-trial violation was so serious as to render his or her trial fundamentally 

unfair.” Id. at 1911. Thus, the Supreme Court explicitly recognized a difference 

between public-trial claims on direct appeal, which result in “automatic reversal,” 

and public-trial claims on collateral review, which require a showing of prejudice. 

Id. at 1910–11.

Perez argues that Weaver only concerned cases involving ineffective 

assistance of trial counsel, whereas here he alleges ineffective assistance of 
4

appellate counsel. Perez contends that because his direct appeal would have been 

successful had his appellate counsel not been deficient, he has adequately 

demonstrated Strickland prejudice. His argument is unavailing. Under the highly 

deferential § 2254(d) standard of review, a petitioner “must show that the state 

court’s ruling on the claim being presented in federal court was so lacking in 

justification that there was an error well understood and comprehended in existing 

law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 

562 U.S. 86, 103 (2011). Fairminded jurists could conclude that the rule set out in 

Weaver applies to claims of ineffective assistance of appellate counsel as well as 

trial counsel. 

Perez’s reliance on Smith v. Robbins, 528 U.S. 259 (2000), does not aid his 

case. Smith involved a different issue, whether a new procedure for allowing 

appellate counsel to withdraw after counsel found no non-frivolous issue for appeal 

satisfied the requirements of Anders v. California, 386 U.S. 738 (1967). See Smith, 

528 U.S. at 264. Perez zeroes in on a statement by the Court instructing the petitioner 

on remand to attempt to “show a reasonable probability that, but for his counsel’s 

unreasonable failure to file a merits brief, he would have prevailed on his appeal.” 

Id. at 285 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). This does 

not clearly establish a rule that governs every ineffective assistance of appellate 

counsel claim, particularly given the more nuanced reasoning the Court applied in
5

Weaver, which involved substantially the same facts as this case. As the Court 

cautioned, “when a court is evaluating an ineffective-assistance claim, the ultimate 

inquiry must concentrate on ‘the fundamental fairness of the proceeding.’” Weaver, 

137 S. Ct. at 1911 (quoting Strickland, 466 U.S. at 696).

The Washington Supreme Court reasonably concluded that Perez was not 

prejudiced by the courtroom closure. The trial court’s questioning of the prospective 

jurors was not conducted in a secret or remote location, and there is a record of the 

proceedings. Perez and his counsel were in attendance and participated in the 

questioning. The remainder of jury selection and trial was held in open court. In 

sum, the Washington Supreme Court’s finding that Perez’s trial was fundamentally 

fair, notwithstanding the courtroom closure, was reasonable. See id.

AFFIRMED