Gibbs v. Huss

12 F.4th 544

Phillip Charles GIBBS, Petitioner-Appellant,

v.Erica HUSS, Warden, Respondent-Appellee.

No. 20-1973

United States Court of Appeals, Sixth Circuit.

Argued: July 20, 2021

Decided and Filed: August 30, 2021

ARGUED: Benton C. Martin, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for Appellant. B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Benton C. Martin, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for Appellant. B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

Before: BOGGS, CLAY, and WHITE, Circuit Judges.

BOGGS, Circuit Judge.

Petitioner Phillip Gibbs appeals the district court's denial of his petition for a writ of habeas corpus. He claims that the Michigan trial court violated his public-trial right by barring his family and other members of the public from entering the courtroom during voir dire. On direct appeal, the Michigan Court of Appeals remanded for the trial court to hold an evidentiary hearing on the issue, but the trial court did not hold such a hearing and denied any relief. The Michigan Court of Appeals then held that Mr. Gibbs's claim was defaulted because he did not contemporaneously object to the courtroom closure during voir dire. But Mr. Gibbs alleges that he and his attorney were completely ignorant of the trial court's closure rule and that they had no reason to know that they should have objected to a closure.

If Mr. Gibbs's allegations be true, then he would have had no reason to object. The application of the ordinarily adequate contemporaneous-objection rule would, in such unique circumstances, be an inadequate bar to federal review. Because it is unclear from the record whether Mr. Gibbs was aware of or reasonably should have been aware of the courtroom closure, we remand for the district court to determine these key facts and proceed accordingly.

I. BACKGROUND

A. The Crime

The following facts, drawn from the last reasoned state-court opinion in Mr. Gibbs's case, are "presumed to be correct" unless Mr. Gibbs rebuts them by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

On October 26, 2010, Mr. Gibbs (then aged 16) and his codefendant in state court, Tyrell Henderson, robbed the store Wholesale 4 U in Flint, Michigan. People v. Gibbs , 299 Mich.App. 473, 830 N.W.2d 821, 823 (2013) (per curiam). They had gone to the store together "numerous times that day," trying to pawn some jewelry. Ibid. After learning that the jewelry was worthless, Mr. Henderson bought a video game, but he later returned it, telling one of the store owners that it did not work. Ibid. As the owner tried to troubleshoot the game, Mr. Henderson "struck him in the head with a gun," severing part of his ear. Id. at 823–24. Mr. Henderson ordered the owner to open the store's cash register and safe, and he also took his jewelry, money, and wallet. Ibid.

For his part, Mr. Gibbs was not armed, but he took the opportunity to relieve the other owner of her jewelry, purse, and identification. Id. at 823. He also took an iPod and several laptops from the store. Ibid. And one of the two men took another employee's wallet. Id. at 824.

Police later searched Mr. Gibbs's mother's house. Ibid. There, officers found "a sandwich bag containing jewelry," another bag with "papers and the identifications of the three victims," and "several watches" from Wholesale 4 U. Ibid. Both Mr. Gibbs and Mr. Henderson "admitted their involvement" in separate police interrogations, but Mr. Gibbs claimed that he had "had no idea" that Mr. Henderson was planning to rob the store. Ibid. He also claimed that Mr. Henderson had "ordered him to take the victims’ belongings and other store items" and that he had complied only because he feared the consequences otherwise. Ibid.

B. State Proceedings

Both men took their cases to trial. Id. at 823. They had a joint trial with separate juries. Ibid. Just before jury selection began, the trial judge commented in open court:

All right. We're gonna get—going to get the jury to come upstairs now and so we're going to have an order of sequestration for witnesses only. 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.

But three of Mr. Gibbs's family members supplied sworn affidavits that they "and other members of the public were prevented from entering the courtroom during jury selection in the case" and had to "wait[ ] in the hallway outside the courtroom" until jury selection had ended. The family members eventually left the courthouse "after being told that jury selection would take all day." They were able to enter the courtroom the next day, "but only after the jury had been picked."¹ Mr. Gibbs did not object to the closure of the courtroom during voir dire. He represents that because the court did not inform him that it would bar entry during the voir dire proceedings, he had "no reason to object to closure of the courtroom, and so he did not." He also represents that he did not learn that his family members were excluded from voir dire until after trial.

At trial, Mr. Gibbs argued the affirmative defense of duress, taking the stand to testify. Gibbs , 830 N.W.2d at 824. Mr. Gibbs's jury convicted him of two counts of armed robbery, one count of unarmed robbery, and one count of conspiracy to commit armed robbery. Id. at 823. He was sentenced to 17 ½ years to 30 years of imprisonment. Ibid.²

Mr. Gibbs moved for and received a remand from the state court of appeals to the trial court to, among other things, "develop his argument that he was denied the right to a public trial." Id. at 824. In particular, he argued that the trial court's closure of the courtroom, excluding his family from viewing jury selection, violated that right. Ibid. On remand, the trial court stated that "its procedure is that, after jury selection begins, it does not allow people to enter or leave the courtroom," and anyone who had entered after jury selection began would have had to leave. Ibid.

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.

The trial court neither held an evidentiary hearing nor granted relief.

The court of appeals affirmed. Gibbs , 830 N.W.2d at 824. It held that, because Mr. Gibbs had not objected contemporaneously to the closure of the courtroom, he had forfeited that claim. Ibid. The court applied Michigan's plain-error review standard under People v. Vaughn , 491 Mich. 642, 821 N.W.2d 288, 297 (2012).³ Gibbs , 830 N.W.2d at 824.

It first held that the trial court did not err, determining that the trial court's statement accurately expressed that spectators were welcome to enter before jury selection began—it was coming and going during jury selection that the trial court had prohibited. Gibbs , 830 N.W.2d at 825. Given that the trial court found it " ‘too confusing’ to allow individuals to come and go during jury selection," the trial court's reason for "partially closing" the courtroom during voir dire was a "substantial reason for the closure" under People v. Russell , 297 Mich.App. 707, 825 N.W.2d 623, 631 (2012). Gibbs , 830 N.W.2d at 825.

The state court of appeals further held that, even had there been error, Mr. Gibbs would not be entitled to relief under the plain-error doctrine. Ibid. In Vaughn , also a case about the public-trial right, the Michigan Supreme Court held that the first two elements of plain error—error that is clear or obvious—were satisfied by the trial court's closure of the courtroom during voir dire, and it had also observed that its precedents suggested that "a plain structural error" affects a defendant's substantial rights, satisfying the third plain-error element. Vaughn , 821 N.W.2d at 304. But the Vaughn court held that the closure had not "seriously affected the fairness, integrity, or public reputation of judicial proceedings." Id. at 305 (quoting People v. Carines , 460 Mich. 750, 597 N.W.2d 130, 143 (1999) ). It reasoned that "the presence of the venire lessens the extent to which [the court's] closure implicates the defendant's public trial right because the venire , derived from and representative of the public, guarantees that the voir dire proceedings will be subject to a substantial degree of continued public review." Ibid. (alteration in original) (quoting United States v. Gupta , 650 F.3d 863, 870–71 (2d Cir. 2011), vacated and superseded by 699 F.3d 682 (2d Cir. 2012) ). Moreover, the closure in Vaughn had been "limited to a vigorous voir dire process that ultimately yielded a jury that satisfied both parties." Ibid.

In Mr. Gibbs's case, similar to Vaughn , "both parties engaged in vigorous voir dire," "there were no objections to either party's peremptory challenges," "each side expressed satisfaction with the jury," and "the venire itself was present," lessening "the extent to which the closure implicated the defendant's right and guarantee[ing] that the proceedings were subject to a substantial degree of public review." Gibbs , 830 N.W.2d at 825. Thus, under Vaughn , any error neither "resulted in the conviction of an actually innocent defendant" nor "seriously affected the fairness, integrity, or public reputation of judicial proceedings." Id. at 824–25 (quoting Vaughn , 821 N.W.2d at 297 ).

Mr. Gibbs applied for leave to appeal to the Michigan Supreme Court on the public-trial ground, a Miranda ground, and a sentencing ground. That court denied his application in an order stating that it was "not persuaded that the questions presented should be reviewed." People v. Gibbs , 495 Mich. 889, 838 N.W.2d 875, 875 (2013) (mem.). Although the order did cite a case relevant to the sentencing issue Mr. Gibbs had raised, it did not discuss the merits of the public-trial issue. Ibid.

C. Federal Proceedings

In 2014, Mr. Gibbs filed his first § 2254 petition in...