Visciotti v. Martel, No. 11-99008 (9th Cir. 2016)
Annotate this CasePetitioner, convicted of, inter alia, first-degree murder and sentenced to death, brought a federal habeas petition, alleging ineffective assistance of counsel (IAC) during the guilt and penalty phases of his trial. The district court granted his habeas petition as to the penalty phase and denied it as to his conviction. The court affirmed. The Supreme Court reversed under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. 2254. Following remand and further proceedings, the district court denied petitioner's remaining claims. Petitioner presents two IAC claims in this appeal. The court concluded that, whether or not these claims have merit, they are foreclosed by the Supreme Court’s decision in Visciotti IV, so the court may not grant habeas relief. Petitioner also contends that the trial judge’s closure of the courtroom for six-and-a-half days during the death qualification portion of voir dire violated this Sixth Amendment right. The court could not conclude that counsel’s failure to object to the closure of the death qualification voir dire constituted deficient performance. Therefore, petitioner failed to demonstrate cause to excuse his default of the public trial claim. Accordingly, the court affirmed the judgment.
Court Description: Habeas Corpus / Death Penalty. The panel affirmed the district court’s denial of habeas relief in a case in which California state prisoner John Visciotti raised (1) a penalty-phase ineffective assistance claim, focused on the allegation that key aggravating evidence was introduced only as a result of counsel’s errors during the penalty proceedings; (2) a new claim that the cumulative effect of counsel’s ineffectiveness during both the guilt and penalty phases of trial ultimately prejudiced the penalty proceedings; and (3) a claim that the trial judge’s closure of the death-qualification voir dire proceedings violated Visciotti’s Sixth Amendment right to a public trial. The panel held that, whether or not the ineffective assistance of counsel claims have merit, they are foreclosed by the Supreme Court’s prior decision in this case, Woodford v. Visciotti, 537 U.S. 19 (2002) (per curiam). Regarding the trial judge’s closure of death-qualification voir dire, to which counsel did not object, the panel held that de novo review continues to apply, post-AEDPA, to a contention that ineffective assistance of trial counsel constitutes cause to excuse a procedural default. The panel concluded that counsel’s failure to object to the closure of death-qualification voir dire did not constitute deficient performance, and that Visciotti therefore cannot demonstrate cause to excuse his default of the public trial right claim. VISCIOTTI V. MARTEL 3 Concurring, Judge Berzon, joined by Judge Pregerson, wrote separately to emphasize that this case illustrates that Supreme Court summary reversals cannot, and do not, reflect the same complete understanding of a case as decisions after plenary review.
The court issued a subsequent related opinion or order on July 6, 2017.
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