Petition for Writ of Certiorari — Gigi Jordan, Petitioner v. Amy Lamanna, Superintendent, Bedford Hills Correctional Facility

Supreme Court briefNov 4, 2022

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No. _____

In the Supreme Court of the United States

Gigi Jordan,

Petitioner,

Amy Lamanna,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Norman H. Siegel

Siegel Teitelbaum

& Evans, LLP

260 Madison Avenue

22nd Floor

New York, NY 10016

Earl S. Ward

Emery Celli Brinckerhoff

Abady Ward

& Maazel LLP

600 Fifth Avenue

Rockefeller Ctr., 10th Floor

New York, NY 10020

Michael B. Kimberly

Counsel of Record

Paul W. Hughes

Sarah P. Hogarth

McDermott Will & Emery LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8000

mkimberly@mwe.com

Eugene R. Fidell

Yale Law School

Supreme Court Clinic

127 Wall Street

New Haven, CT 06511

Counsel for Petitioner

QUESTION PRESENTED

Under 28 U.S.C. § 2254(d)(1), a state prisoner is entitled to habeas corpus relief when the last reasoned statecourt decision was either “contrary to” or “involved an

unreasonable application of” this Court’s precedents. A

state prisoner is entitled to relief under to the “unreasonable application” prong of this disjunctive test if “the

state court identifies the correct governing legal rule from

this Court’s cases but unreasonably applies it to the facts

of the particular state prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 407 (2000).

The lower courts are in disarray over the proper implementation of the unreasonable-application standard.

Some have required precisely on-point decisions from this

Court, while others have not. This case squarely implicates the split: The Second Circuit reversed a grant of

habeas relief with respect to a shocking courtroom closure

during a criminal trial, not because the state court’s

application of this Court’s general Sixth Amendment

principles was facially reasonable (it was not), but

because this Court has not previously held that the Public

Trial Clause was violated on identical or nearly identical

facts. Other circuits have eschewed any such requirement

and would have affirmed the district court’s grant of

habeas relief.

***

The question presented is whether a federal habeas

petitioner seeking relief on the basis of a violation of the

Public Trial Clause can demonstrate an “unreasonable

application of clearly established Federal law” within the

meaning of 28 U.S.C. § 2254(d)(1) in the absence of a

Supreme Court precedent involving analytically indistinguishable facts.

RELATED CASES

The proceedings identified below are directly related

to this case in this Court:

Bail proceedings:

• People ex rel. Kuby v. Merritt, 96 A.D.3d 607 (N.Y.

App. Div. 2012); docket no. 110374/11, 7550; judgment entered June 21, 2012; further appeal denied,

976 N.E.2d 252 (N.Y. 2012)

• People ex rel. Kuby v. Agro, 111 A.D.3d 516 (N.Y.

App. Div. 2013); docket no. 11092 101131/13,

621/10; judgment entered November 19, 2013; further appeal denied, 5 N.E.3d 591 (N.Y. 2014)

• Jordan v. Bailey, 985 F. Supp. 2d 431 (S.D.N.Y.

2013); docket no. 13-cv-7651; judgment entered

December 2, 2013

Criminal judgment and direct appeals:

• People v. Jordan (N.Y. S. Ct.), docket no. 621-2010,

judgment entered November 5, 2014

• People v. Jordan, 145 A.D.3d 584 (N.Y. App. Div.

2016); docket no. 2524, 621/10; judgment entered

December 22, 2016; further appeal denied, 84

N.E.3d 974 (N.Y. 2017)

• Jordan v. New York, 138 S. Ct. 481 (2017), docket

no. 17-487; denial of petition for writ of certiorari entered November 27, 2017

Federal habeas proceedings:

• Jordan v. Lamanna, 2020 WL 6647282 (S.D.N.Y.);

docket no. 18-civ-10868; order granting writ of

habeas corpus entered September 25, 2020

• Jordan v. Lamanna, 33 F.4th 144 (2d Cir. 2022);

docket no. 20-3317; judgment entered May 5, 2022

iii

TABLE OF CONTENTS

Question Presented ........................................................i

Related Cases ............................................................... ii

Table of Authorities ..................................................... iv

Introduction .................................................................. 1

Opinions Below .............................................................3

Jurisdiction ...................................................................3

Statutory Provision Involved .........................................3

Statement......................................................................3

A. Legal background .................................................3

B. Factual background .............................................5

C. Procedural background ...................................... 10

Reasons for Granting the Petition ................................ 12

A. The lower courts are divided on the question

presented ........................................................... 13

1. Numerous courts have rejected the

Second Circuit’s approach to the

question presented ........................................ 14

2. The Eighth Circuit has taken an

approach similar to the Second Circuit’s ....... 18

B. The question presented is important, and

this is a suitable vehicle .................................... 20

C. The decision below is wrong ............................. 23

Conclusion ..................................................................27

Appendix A – court of appeals decision ....................... 1a

Appendix B – district court decision.......................... 17a

Appendix C – state court decision ............................. 63a

Appendix D – order denying rehearing....................... 66a

TABLE OF AUTHORITIES

Cases

Apprendi v. New Jersey,

530 U.S. 466 (2000) ............................................. 17

Arizona v. Fulminante,

499 U.S. 279 (1991) ................................................ 4

Barnes v. Joyner,

751 F.3d 229 (2014) ......................................... 17-18

Beck v. Alabama,

447 U.S. 625 (1980) ............................................. 26

Blackston v. Rapelje,

780 F.3d 340 (6th Cir. 2015) ................................. 16

Boone v. Lazaroff,

2021 WL 1560175 (6th Cir. 2021) ......................... 16

Brown v. Davenport,

142 S. Ct. 1510 (2022)...........................................22

Daniel v. Commissioner, Alabama

Department of Corrections,

822 F.3d 1248 (11th Cir. 2016) ............................. 17

Deck v. Jenkins,

814 F.3d 954 (2016) .............................................. 18

Drummond v. Houk,

797 F.3d 400 (2015) ......................................... 15-16

Duncan v. Walker,

533 U.S. 167 (2001) ..............................................23

Ernst & Ernst v. Hochfelder,

425 U.S. 185 (1976) ..............................................23

Garrus v. Secretary of Pennsylvania

Department of Corrections,

694 F.3d 394 (2012) ............................................. 17

Cases—continued

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) ........................................ 21, 22

Hayes v. Burt,

2018 WL 2049403 (6th Cir. 2018) ........................ 16

Judd v. Haley,

250 F.3d 1308 (2001) ...................................... 16, 17

Knowles v. Mirzayance,

556 U.S. 111 (2009) ................................................ 4

Lockyer v. Andrade,

538 U.S. 63 (2003) ................................................24

McCambridge v. Hall,

303 F.3d 24 (2002) ............................................... 15

National Railroad Passenger Corp. v.

Boston & Maine Corp.,

503 U.S. 407 (1992) ..............................................23

O’Brien v. Dubois,

145 F.3d 16 (1998) .......................................... 14, 15

In re Oliver,

333 U.S. 257 (1948) .............................................. 27

Panetti v. Quarterman,

551 U.S. 930 (2007) .................... 4, 13-16, 21, 24-26

Presley v. Georgia,

558 U.S. 209 (2010) .............. 5, 12, 18-19, 22, 25-26

Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980) ................................................9

Robertson v. Hanks,

140 F.3d 707 (7th Cir. 1998) ................................ 26

Seabrooks v. Warren,

2022 WL 3723292 (E.D. Mich. 2022) ................... 16

Cases—continued

Smith v. Titus,

141 S. Ct. 982 (2020) ..................... 2, 19, 20, 25, 27

Smith v. Titus,

958 F.3d 687 (2020) ................................. 18, 19, 24

TRW Inc. v. Andrews,

534 U.S. 19 (2001) ................................................23

Varner v. Stovall,

500 F.3d 491 (6th Cir. 2007)................................ 26

Waller v. Georgia,

558 U.S. 39 (1984) ................... 4, 5, 9-19, 22, 25-26

White v. Woodall,

572 U.S. 415 (2014) ...............................4, 13, 24-26

Williams v. Taylor,

529 U.S. 362 (2000) .......................... 3, 4, 13, 23-25

Yarborough v. Alvarado,

541 U.S. 652 (2004) ..........................................4, 24

Other Authorities

28 U.S.C. 1254(1) ......................................................... 3

28 U.S.C. § 2254(d)(1) ..................... 3, 10, 12-15, 23, 25

Conflict, Merriam-Webster ..........................................24

INTRODUCTION

This case arises from a shocking courtroom closure in

the middle of the guilt phase of petitioner Gigi Jordan’s

closely-watched criminal trial. Addressing a courtroom

gallery overflowing with members of the press and public,

the trial judge abruptly declared: “We have to close the

courtroom without any spectators in the audience ***. If

everyone can step out for five minutes, please. Everybody.

*** Let’s have an officer outside, please. Let’s see if we

can close this door. *** Let’s make sure no one enters the

courtroom, please, sergeant. The courtroom is closed to

spectators.” C.A. App. 18-19. Behind the closed courtroom doors, the judge heard repeated defense objections

to the closure, contentious allegations by the prosecutor

of misconduct by Jordan and the defense team, a motion

for corrective jury instructions, and a motion for clarification on a gag order. For his part, the judge made direct inquiries of the defense team, admonished the defendant

(just four days before she was to give testimony in her

own defense) for what he believed were “improper” statements published on a website, and instructed the prosecutor to conduct an investigation.

The New York Appellate Division affirmed the trial

court’s overruling of Jordan’s objections to the closure in

a scant four sentences of analysis that relied on a miscitation to a nearly 50-year-old First Amendment case.

App., infra, 64a-65a. The court reasoned, at bottom, that

Jordan’s public-trial right was not implicated because the

hearing was the equivalent of a mere sidebar or chambers

conference and was harmless. But no fair-minded jurist

could endorse that reasoning—not just because the hearing demonstrably did not take place at sidebar or in chambers, but because the subject matter of the hearing never

could have been addressed in such a format, and the defendant never could have been present for such a proceeding in any event.

The state-court decision thus involved an objectively

unreasonable application of this Court’s public-trial precedents. This Court has issued clear instructions on the

steps required before a courtroom may be closed in a criminal trial, including express factual findings satisfying

strict scrutiny, made on a reviewable record. The state appellate court’s refusal to hold the trial court to those requitements was indefensible. So too was its disregard for

the structural nature of the error, which this Court has

said defies harmless-error review. The district court below was thus right to grant habeas corpus relief.

In reversing nonetheless, the Second Circuit did not

meaningfully defend the Appellate Division’s reasoning,

which is no surprise given that it is objectively indefensible. Instead, the court of appeals concluded that habeas

relief is foreclosed because this Court has not previously

held that the Sixth Amendment bars a trial court from

closing the courtroom for an “ancillary proceeding” in

which evidence of guilt or innocence is not taken into the

trial record. App., infra, 14a. But that reasoning conflicts

squarely with decisions of other courts of appeals, which

have held that a habeas petitioner need not point to a prior

decision of this Court resolving the constitutional issue

on an identical or nearly identical fact pattern before

being entitled to relief.

The Second Circuit’s error strikes at the heart of the

federal habeas scheme. If its approach is allowed to stand,

habeas petitioners like Jordan invariably will be required

to identify prior decisions of this Court that are precisely

on-point factually, calling for something akin to a qualified-immunity analysis and effectively foreclosing relief

for unreasonable applications of general legal principles.

As one Member of this Court recognized in a dissent from

denial of certiorari in a similar (but less extreme) case,

that is not the law. Smith v. Titus, 141 S. Ct. 982 (2020)

(Sotomayor, J.). Further review is therefore warranted.

OPINIONS BELOW

The Second Circuit’s opinion (App., infra, 1a-16a) is

reported at 33 F.4th 144. The opinion of the district court

(App., infra, 17a-62a) is unreported but is reproduced in

the Westlaw database at 2020 WL 5743519.

JURISDICTION

The court of appeals entered its judgment on May 5,

2022. On July 20, 2022, Justice Sotomayor extended the

time for petitioner to file a petition for a writ of certiorari

to and including November 4, 2022. This Court’s jurisdiction rests on 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

Section 2254(d)(1) of Title 28 provides in relevant

part that a federal court shall not grant habeas corpus relief with respect to a prisoner in state custody “unless the

adjudication of the claim *** resulted in a decision that

was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the

Supreme Court of the United States.”

STATEMENT

A. Legal background

1. The Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA) permits federal habeas relief with

respect to claims previously “adjudicated on the merits”

in state-court proceedings when “the adjudication of the

claim *** resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law” according to this Court’s precedents.

28 U.S.C. § 2254(d)(1).

The Court has emphasized that the contrary-to and

unreasonable-application prongs of Section 2254(d)(1)

have “independent meaning.” Williams v. Taylor, 529

U.S. 362, 404 (2000). A federal habeas petitioner is entitled to relief under the first prong if either (i) “the state

court arrives at a conclusion opposite to that reached by

this Court on a question of law” or (ii) “[t]he state court

decides a case differently than this Court has on a set of

materially indistinguishable facts.” Id. at 405, 413. In

contrast, she is entitled to relief under the second prong if

“the state court identifies the correct governing legal rule

from this Court’s cases but unreasonably applies it to the

facts of the particular state prisoner’s case.” Id. at 407.

To preserve the independent meaning and operation

of these two distinct grounds for habeas relief, the Court

has said that relief under the unreasonable-application

prong does not require courts “to wait for some nearly

identical factual pattern before a legal rule must be applied,” nor does it “prohibit a federal court from finding

an application of a principle unreasonable when it involves a set of facts different from those of the case in

which the principle was announced.” Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (cleaned up). Rather,

“state courts must reasonably apply the rules ‘squarely

established’ by this Court’s holdings to the facts of each

case,” even when the case involves a “new factual permutation[],” so long as “the necessity to apply the earlier

rule [is] beyond [fair-minded] doubt.” White v. Woodall,

572 U.S. 415, 427 (2014) (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009), and Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

2. The Sixth Amendment to the U.S. Constitution

provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right to a *** public trial.” Violation of the

right is among the small number of “structural defects”

in trial procedures that “defy analysis by ‘harmless-error’

standards” and call for automatic reversal on appeal. Arizona v. Fulminante, 499 U.S. 279, 309 (1991).

Courtroom closures are permissible only when they

are narrowly tailored to serve an overriding governmental

interest. Waller v. Georgia, 558 U.S. 39, 45 (1984). The

Court accordingly has articulated an exacting set of

“standards for courts to apply before excluding the public

from any stage of a criminal trial.” Presley v. Georgia, 558

U.S. 209, 213 (2010) (per curiam) (emphasis added).

First, “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,

[second] the closure must be no broader than necessary to

protect that interest, [third] the trial court must consider

reasonable alternatives to closing the proceeding, and [finally] it must make findings adequate to support the closure.” Waller, 467 U.S. at 48. The findings must be made

in open court, on a reviewable record, prior to the closure

taking place. Presley, 558 U.S. at 213, 215; Waller, 467

U.S. at 45, 48.

The right to a public trial is grounded in the Framers’

understanding that “judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings.” Waller,

467 U.S. at 46 n.4. Given these “salutary effects of public

scrutiny,” the Court has held that the public-trial right extends “beyond the [presentation of] actual proof at trial”

to any stage or proceeding where the “aims and interests”

of the public-trial right are made “pressing.” Id. at 44-47.

The Court has said that it applies, for example, to pretrial

suppression-of-evidence hearings (id. at 48) and jury empanelments (Presley, 558 U.S. at 212 (affirming that “the

right to a public trial in criminal cases extends to the jury

selection phase of trial”)). Beyond that, the Court has affirmed a “strong interest” in the openness of proceedings

that involve allegations of “misconduct” and other contentious matters that implicate the interests of the Public

Trial Clause. Waller, 467 U.S. at 47.

B. Factual background

Jordan was indicted for causing the death of her severely autistic son. App., infra, 3a. Her jury trial “garner[ed] significant media attention.” Ibid.

1. Around half-way through the trial and four days

before Jordan was set to testify in her own defense, the

prosecutor asked the judge for permission to approach the

bench as court convened. A sidebar discussion ensued off

the record. C.A. App. 17-18. Petitioner then entered the

courtroom. The judge noted her presence and began,

“Counsel, what I’d like to do is,” but he was interrupted

by the prosecutor, who hastily interjected: “This doesn’t

count as closed.” C.A. App. 18. The judge continued:

What I’d like to do is, we have to close the courtroom to make a record. We have to close the

courtroom without any spectators in the audience

for about five minutes, about something that has

to be done in private. If everyone can step out for

five minutes, please. Everybody.

*** Let’s have an officer outside, please. Let’s see

if we can close this door. *** Let’s make sure no

one enters the courtroom, please, sergeant. The

courtroom is closed to spectators.

C.A. App. 18-19. All of the spectators in the packed gallery, including many members of the press, were escorted

out to the hallway. C.A. App. 18.

Jordan’s counsel objected strenuously to the closure,

asserting that “before the courtroom can be closed,” the

court must make “specific findings of fact” on the record.

App, infra, 20a. The trial judge overruled the objection.

App., infra, 4a.

During the closed proceeding, the prosecutor handed

to the judge printouts of a number of articles he said had

been posted on a website. App., infra, 21a. The prosecutor

explained that “[i]t was brought to my attention last night

that there is a website page that someone put up called

The Inadmissible Truth. *** In effect, it accuses, among

others, your Honor of subverting justice in this case. ***

[I]t accuses your Honor of refusing to allow information

to come before the jury.” C.A. App. 21-23. The prosecutor

continued by describing the contents of the website, characterizing it “as an act of desperation” on Jordan’s part.

C.A. App. 24.

The trial judge responded, “I never had this happen

before. Go on, what are you seeking?” C.A. App. 24-25;

App., infra, 21a-22a. The prosecutor requested “a new instruction, of course, to the jury to make sure they don’t

look at any media.” C.A. App. 25. Acknowledging that he

was “uncomfortable saying this,” he added that “I’d

[also] like some assurance that nobody on the defense

team” is “in violation of your Honor’s ruling and the ethical standards” by helping with the website. Ibid. The

prosecutor then moved the judge to take the exhibits into

evidence under seal. App., infra, 21a. The judge granted

the motion, later marking the materials as exhibits and

ordering that they and the minutes be filed under seal. See

App., infra, 23a; C.A. App. 22.

Following his initial exchange with the prosecutor,

the trial judge heard argument concerning the propriety of

the closure, again overruling Jordan’s objections without

making specific findings of fact. App., infra, 22a.

From there, the hearing escalated in its inquisitorial

character. See App., infra, 6a. The judge admonished defense counsel and Jordan that it was “improper to say

[the] things” that appeared on the website. C.A. App. 27.

The judge asked defense counsel who was responsible for

the website and warned it was unethical for the defense

team to be involved. C.A. App. 28-30. He made clear his

expectation that whoever was responsible for the website

“is not going to continue.” C.A. App. 34.

During this heated exchange, the judge and defense

counsel discussed the rules of ethics and the standards for

courtroom closures. C.A. App. 27-38. When the judge indicated that he did not want the lawyers discussing the

closed proceeding publicly, defense counsel sought clarification: “[A]re the lawyers prohibited *** prohibited

from speaking to the news media about accurately reporting what took place in this closed courtroom?” C.A. App.

33. The judge responded, “[t]here’s no gag order” and

clarified that “I’m not ruling that the lawyers can’t speak

to the media as long as they abide by the rules that they

are under and which apply to them and every other lawyer.” C.A. App. 33-34.

With respect to the prosecutor’s requests, the trial

court took two actions. First, it ruled that it would instruct the jury not to look at any online media about the

case. C.A. App. 25. Second, the court indicated to defense

counsel that it would “like to find out” whether someone

hired by the defense team was responsible for the publicity “and, if so, who the person is.” C.A. App. 37-38. The

judge noted that the prosecutor “can investigate” the

matter and warned that “[n]o stone will be left unturned.”

C.A. App. 38.

After about fifteen minutes, the judge reopened the

courtroom to spectators. App., infra, 23a. Once the jury

entered and was seated, the judge repeated his instructions that they avoid the media coverage of the case altogether and “not research anything or view anything on

the internet” regarding the case. Ibid. Later in the afternoon, the judge unsealed the minutes of the closed proceeding, stating that “maybe” the decision to hide the

hearing from the public “was an erroneous ruling.” App.,

infra, 24a. He added: “[I]f the record has any error committed by me, it was committed for maybe five, six

hours. *** I don’t think—that it will be detrimental to anyone.” Ibid. But the subject matter of the closed proceeding continued to preoccupy the judge throughout the remainder of the trial; indeed, it was the last thing he mentioned before sentencing Jordan to 18 years’ imprisonment. C.A. App. 84.

2. Jordan later moved to set aside the verdict, arguing that her Sixth Amendment right to a public trial had

been violated when the judge closed the courtroom without making the appropriate findings under Waller. App.,

infra, 25a-26a. The judge denied the motion. Ibid.

Jordan appealed, and the New York Appellate Division affirmed. It discussed and dismissed Jordan’s Sixth

Amendment claim in just four sentences:

Defendant’s Sixth Amendment right to a public

trial was not violated when the court briefly

closed the courtroom during a discussion of a legal matter relating to protecting the jury from exposure to publicity about the case. This was the

equivalent of a sidebar, robing room or chambers

conference. The right to a public trial does not extend to such conferences, and does not restrict

judges “in their ability to conduct conferences in

chambers, inasmuch as such conferences are distinct from trial proceedings.” Moreover, the conference had no impact upon the conduct of the

trial other than having the court repeat its previous instructions about trial publicity and minutes

and exhibits that had been sealed were unsealed

the same day.

App., infra, 64a-65a (quoting Richmond Newspapers, Inc.

v. Virginia, 448 U.S. 555, 598 n.23 (1980) (Brennan, J.,

concurring)). In quoting from Richmond Newspapers, the

court gave an incorrect citation (volume 488 rather than

448 of the U.S. Reports) and failed to acknowledge that it

was quoting from a nonbinding concurrence.1

The New York Court of Appeals and this Court both

denied further review. App., infra, 8a.

The Westlaw database appears to have corrected the mis-citation,

which is accurately reflected in the appendix to this petition and two

other publicly-available reporter services, Justia (perma.cc/J2MT5J59) and Law.com (perma.cc/4EEN-RVDQ).

C. Procedural background

Jordan filed a petition for the writ of habeas corpus

under 28 U.S.C. § 2254(d)(1), challenging her conviction

on the ground that the closure of the courtroom had violated her federal constitutional right to a public trial.

App., infra, 8a.

1. The district court granted the petition. App., infra,

17a-62a. The court acknowledged that Section 2254’s

standard is difficult to meet and requires more than mere

error on the part of the state court. App., infra, 33a-36a.

And the district court found that high bar met: “Here, the

trial court’s closure of the courtroom was deliberate, over

the multiple, strenuous objections of Jordan’s counsel,

and was a closure that the trial court in fact acknowledged

after the fact may well have been erroneous.” App., infra,

60a.

The district court held that it was clearly established

federal law that a trial court may not close a courtroom

during a criminal trial without meeting the four Waller

elements. App., infra, 37a. It reasoned that the Appellate

Division’s decision was an unreasonable application of

that clearly established federal law for three reasons.

First, the court held that the Sixth Amendment public-trial right, and thus the Waller standard, applied to the

proceeding at issue. App., infra, 40a. The court rejected

as unreasonable the Appellate Division’s reasoning that

the courtroom closure was akin to a “sidebar, robing

room, or chambers conference” and thus not clearly

covered by the Sixth Amendment, holding instead that

this Court’s precedent calls for a more careful examination of the type of proceeding at issue. App., infra, 41a42a. After examining the circumstances of the closure,

the events that transpired during the hearing, and this

Court’s instructions concerning closures, the court held

“Jordan was not required to find a Supreme Court holding

that the public trial right applied to the specific type of

Closed Proceeding that occurred during her trial in order

to prevail on her claim.” App., infra, 41a (cleaned up).

Second, the district court found that the Waller standard had not been satisfied. App., infra, 45a. The trial court

made “no inquiry whatsoever” about the strength of the

interest in closing the courtroom. App., infra, 47a. It also

made “no inquiry” into whether the closure was broader

than necessary, “instead ordering a ‘blanket exclusion’ of

the entire gallery.” App., infra, 48a. There was no attempt to consider alternatives to the closure (App., infra,

50a-51a); the trial court not only made no factual findings, but also specifically and expressly refused to make a

public record. App., infra, 51a-53a.

Third, and finally, the district court held that the

closure was not trivial. App., infra, 53a-55a. The court

noted that the closed proceeding was a “substantive

proceeding” and that the “complete emptying of a packed

courtroom and the stationing of a court officer outside the

closed courtroom door” distinguished this case from

others in which only a small subset of individuals were

accidentally excluded from the courtroom for a short

period of time. App., infra, 54a.

2. The Second Circuit reversed. App., infra, 1a-16a.

The court of appeals first held that the closed proceeding

did not qualify for Sixth Amendment protection. App., infra, 12a. On this front, the court began by observing that

“[t]he Supreme Court has, in [only] two cases, extended

[the] public-trial right to specific proceedings beyond the

actual proof at trial,” namely pretrial suppression hearings and jury voir dire. App., infra, 10a (quotation marks

omitted). Because the closed proceeding here was not

such a proceeding and did not “share the historically open

nature of jury selection, nor the functional importance of

suppression hearings,” the court held that there was “no

historical precedent” requiring the hearing to be held

open. App., infra, 12a.

While acknowledging that the district court had

found various aspects of the closed proceeding to be significant enough to require public observation (App., infra,

13a-14a), the court rejected the district court’s conclusion that the Sixth Amendment applied: “Ultimately, any

argument that applies Waller and Presley to the Closed

Proceeding would require extending Supreme Court precedent to this sort of wholly ancillary proceeding.” App.,

infra, 14a. Thus, the court of appeals held, habeas relief

predicated on a courtroom closure is unavailable unless

and until this Court has held that the right attaches to the

precise kind of hearing at issue. Ibid.

REASONS FOR GRANTING THE PETITION

This case readily meets each traditional requirement

for certiorari review.

First, the decision below conflicts with authoritative

decisions of several other courts of appeals, which have

held that a habeas petitioner need not point to a prior decision of this Court resolving the constitutional questions

on an identical or nearly-identical fact pattern.

Second, the question is undeniably important and is

cleanly presented. Federal habeas petitions under Section

2254(d)(1) are among the most frequently litigated requests for relief in the federal judicial system, and the

question presented here (whether petitioners must show

that this Court has previously found a constitutional violation on identical or nearly-identical facts) goes to the

heart of how federal habeas review works. Beyond that,

violations of the public-trial right are rarely as clear-cut

as the one at issue here, and the state courts’ reasoning is

rarely as indefensible as the Appellate Division’s was in

this case. Thus, the district court, applying the correct

standard under 2254, granted relief. The Second Circuit

reversed only because it applied the wrong standard.

Finally, the decision below is manifestly wrong. Section 2254(d)(1) authorizes habeas relief when the lastreasoned state-court decision is either “contrary to” or

“an unreasonable application of” this Court’s precedents.

If a petitioner had to identify a factually identical decision

of this Court to show an unreasonable application within

the meaning of 2254(d)(1), the two prongs would collapse

into one, and a crucially important backstop against constitutional transgressions in state-court criminal trials

would be eliminated. That is not what Congress intended

when it guaranteed relief for “unreasonable applications”

of this Court’s precedents. Further review is in order.

A. The lower courts are divided on the question

presented

The lower courts are in disarray on the question presented, and more generally on the proper implementation

of Section 2254’s “unreasonable application” standard

in cases involving novel facts. Although this Court has

said that relief under the unreasonable-application prong

does not require courts “to wait for some nearly identical

factual pattern” (Panetti v. Quarterman, 551 U.S. 930,

953 (2007)), some courts of appeals have in practice

imposed an “identical case” requirement as a precondition to granting habeas relief under the unreasonable-application test. This confusion is perhaps understandable,

given that this Court itself has described the unreasonable-application test as “not always clear” (White, 572

U.S. at 427) because unreasonableness is “difficult to

define” (Williams, 529 U.S. at 410).

No matter the underlying cause, the lower courts are

applying this Court’s Section 2254 cases in incompatible

ways, resulting in disparate outcomes in analytically

similar circumstances. This case proves the point: There

is no question that the outcome here would have been

different in the First, Sixth, and Eleventh Circuits, any

one of which would have held that Waller can be applied

in an objectively unreasonable manner even when the

hearing is not a suppression hearing, jury voir dire, or

witness testimony. There is every reason to believe that

the Third, Fourth, and Ninth Circuits would agree, given

their adherence to Panetti in related circumstances. In

diametric contrast, the Eighth Circuit would have reached

the same result as the Second Circuit below, holding that

habeas relief predicated on a Waller violation requires a

decision of this Court confronting analytically identical

facts. This Court’s guidance is needed to restore national

uniformity on the question presented.

1. Numerous courts have rejected the Second

Circuit’s approach to the question presented

a. Many courts of appeals have held that habeas petitioners need not point habeas courts to a factually identical precedent before obtaining relief.

First Circuit. The First Circuit was the first to weigh

in on the question presented. In O’Brien v. Dubois, 145

F.3d 16 (1998), that court explained that “[a] petitioner

need not point a habeas court to a factually identical

precedent” to obtain relief on unreasonable-application

grounds, and that “[o]ftentimes, Supreme Court holdings

are ‘general’ in the sense that they erect a framework

specifically intended for application to variant factual

situations.” Id. at 25. The court then noted that “[e]xamples of these types of rules are easily located,” citing

Waller as its first example. Id. at 25 n.6. According to the

First Circuit, Waller “develop[ed a] test applicable to

claimed violations of [the] right to [a] public trial” that is

applied on habeas review to “variant factual situations,”

without need for “a factually identical precedent.” Id. at

25 & n.6. That is the opposite of the conclusion reached

by the Second Circuit below.

Although the en banc First Circuit subsequently overruled certain elements of O’Brien’s unreasonable-application analysis, it did so only because it concluded that

O’Brien had offered too “stringent [an] interpretation of

§ 2254.” McCambridge v. Hall, 303 F.3d 24, 37 (2002).

The court explained that, to “grant the writ [when] the

state court *** decides a case differently than th[e Supreme] Court has on a set of materially indistinguishable

facts” is to grant relief “[u]nder the ‘contrary to’ clause.”

Id. at 36. That is, Section 2254’s “contrary to” prong and

“unreasonable application” prong operate independently.

And what distinguishes them is exactly what the Second

Circuit’s opinion below elided: the first prong requires an

identical or nearly identical precedent of this Court,

whereas the second does not.

The Sixth and Eleventh Circuits have since put this

reasoning in action:

Sixth Circuit. In Drummond v. Houk, 797 F.3d 400

(2015), the Sixth Circuit considered the availability of

habeas relief for partial courtroom closures, in which

some individuals are excluded, but not all. The court

noted that “Waller concerned a full, rather than partial,

closure of the courtroom to the public.” Id. at 402. But

relying on Section 2254(d)(1)’s unreasonable-application

test, it recognized that Waller “stat[ed] a general rule that

applies to any type of courtroom closure, to wit: a trial

court must balance the interests for and against closure.”

Ibid. (emphasis added). This general principle controlled,

according to the Sixth Circuit, notwithstanding that “the

factual context” of the case was “meaningfully different”

from the facts in Waller. Id. at 402, 404. To be sure, the

court held that, in light of those differences, the state

court was not objectively unreasonable for failing to follow “Waller’s more specific rules” for complete closures.

Id. at 404. But the court held that a state court must,

pursuant to Waller, at least provide “serious reasons for

the closure and tailor[] its scope in rough proportion to

them,” even when faced with “meaningfully different”

facts from those presented in Waller itself. And the court

reversed the grant of relief in that case only because it

concluded that the state court had adequately done so.

Ibid. No such requirement was imposed here.

The Sixth Circuit and district courts within that circuit have continued to hold state courts to the rule announced in Drummond, upholding convictions only when

the state courts have demonstrably complied with Waller.

See, e.g., Boone v. Lazaroff, 2021 WL 1560175, at *2 (6th

Cir. 2021); Hayes v. Burt, 2018 WL 2049403, at *2 (6th

Cir. 2018); Seabrooks v. Warren, 2022 WL 3723292, at

*10 (E.D. Mich. 2022). That reasoning is the opposite of

the Second Circuit’s rationale for reversal in this case:

that the trial court did not need to comply with Waller in

any respect because this Court has not previously applied

Waller in a comparable factual context. 2

Eleventh Circuit. The Eleventh Circuit likewise has

required compliance with Waller on Section 2254 habeas

review of courtroom closures involving novel facts.

For example, in Judd v. Haley, 250 F.3d 1308 (2001),

the court addressed a “total clearing of a courtroom during [only] a portion of a criminal trial,” namely during the

testimony of a single, underage witness. Id. at 1315. The

court recognized “little precedent” addressing the precise

factual context at issue, involving only a brief closure for

a limited purpose. Ibid. Nonetheless, in light of “the

values that the Constitution’s public trial guarantee seeks

to protect,” including “permitting the public to see that a

defendant is dealt with fairly,” the court held on habeas

The Sixth Circuit has applied this understanding of Panetti in other

contexts as well. In Blackston v. Rapelje, 780 F.3d 340 (6th Cir.

2015), for example, the court expressly rejected the state’s argument

that the novelty of the factual circumstances placed the case “outside

the realm of clearly established law,” explaining that “‘even a general standard may be applied in an unreasonable manner’” in the absence of a “‘nearly identical factual pattern’” in this Court’s precedents. Id. at 348-350 (quoting Panetti, 551 U.S. at 953).

review that the temporary closure “must be *** subjected

to the four-pronged test established in Waller.” Id. at

1315-1316. Because the state trial court had not engaged

in a Waller analysis on a reviewable factual record, the

Eleventh Circuit reversed the denial of habeas relief on

unreasonable-application grounds. Id. at 1318-1320. 3

b. At least three other courts of appeals have taken

approaches aligned with the First, Sixth, and Eleventh

Circuits in the context of different legal claims, creating

substantial tension with the Second Circuit’s approach to

Jordan’s public-trial claim in this case.

• Third Circuit. In Garrus v. Secretary of Pennsylvania

Department of Corrections, 694 F.3d 394 (2012), the

en banc Third Circuit granted a habeas claim arising

under Apprendi v. New Jersey, 530 U.S. 466 (2000).

The court explained that “[t]he AEDPA standard is

not so ‘myopic’ nor ‘constrained’ that it requires the

full scope of all clearly established laws to be precisely defined” on identical facts. 694 F.3d at 404405. It thus rejected the state’s argument that this

Court had not ruled on the precise factual issue at

hand.

• Fourth Circuit. In Barnes v. Joyner, 751 F.3d 229

(2014), the Fourth Circuit granted habeas relief in a

case involving an unauthorized outside communication with a juror. The court reasoned that “[t]here is

no requirement under AEDPA that a habeas petitioner present facts identical to those previously considered by the Supreme Court to be entitled to relief.”

Id. at 246. On the contrary, a “clearly established legal principle can apply to myriad factual circum2F

Like the Sixth Circuit, the Eleventh Circuit has utilized this general approach in other contexts. See, e.g., Daniel v. Commissioner,

Alabama Department of Corrections, 822 F.3d 1248, 1258-1282

(11th Cir. 2016) (ineffective assistance of counsel).

stances involving third party communications with

jurors.” Ibid.

• Ninth Circuit. In Deck v. Jenkins, 814 F.3d 954

(2016), the Ninth Circuit addressed this Court’s

“precedent that a prosecutor’s misleading arguments

to the jury may rise to the level of a federal constitutional violation.” Id. at 977-978 (cleaned up). Granting relief, the court stressed that although the operative legal principal was “a very general one, *** even

a general standard may be applied in an unreasonable

manner,” and a “federal court may find an application of a principle unreasonable when it involves a

[novel] set of facts.” Id. at 978 (cleaned up).

These circuits’ approach with respect to other kinds of

constitutional claims indicates that each almost certainly

would have applied the general yet clearly established

legal principles announced in Waller and Presley as a

basis to affirm the district court’s grant of habeas relief.

The Second Circuit below reversed because it took a diametrically different approach to the question presented,

ruling that relief was unavailable simply because this

Court has not previously addressed a closure claim with

respect to an “ancillary proceeding” like the one that took

place here. App., infra, 14a.

2. The Eighth Circuit has taken an approach

similar to the Second Circuit’s

The Eighth Circuit stands alone in taking an approach

similar to the Second Circuit’s on the question presented.

In Smith v. Titus, 958 F.3d 687 (2020), that court affirmed the denial of habeas relief in a case involving a full

courtroom closure for a hearing “that was administrative

in nature.” Id. at 690. Behind closed courtroom doors, the

judge announced his decision on an evidentiary motion

and set the parameters for a witness’s testimony. Ibid.

The defendant sought but was denied relief on direct

appeal and thereafter sought federal habeas relief, which

the district court denied. In affirming that decision, the

Eighth Circuit reasoned that this Court’s precedents have

not addressed a public-trial claim in the specific context

of ancillary “administrative proceedings,” which the

state courts had likened to “private bench conferences or

conferences in chambers.” Smith, 958 F.3d at 692 (quotation marks omitted). In the Eighth Circuit’s view, like

the Second Circuit’s below, “fairminded jurists could disagree” as to whether Waller and Presley “cover the episode in this case and similar proceedings.” 958 F.3d at

692-693.

It bears emphasis that the petitioner in Smith sought

this Court’s review, and Justice Sotomayor filed an opinion dissenting from denial. See 141 S. Ct. 982 (2021)

(Mem.). “Waller and Presley,” she would have held,

“straightforwardly govern the courtroom closure at issue” in that case, just as they do any closure in which a

state trial judge “remove[s] all members of the public and

media from the courtroom” at any point during a criminal

trial. Id. at 985. “The Eighth Circuit’s cramped view of

precedent is untenable,” Justice Sotomayor would have

held, because it means that a state court “run[s] afoul of

any clearly established federal law” only when it closes

the courtroom “during jury selection” or “suppression

hearings,” which is an “absurd[]” notion. Id. at 987-988.

At bottom, she concluded, “[w]hen this Court announces

a legal principle and applies it to a particular factual situation, it is the legal principle itself, not the factual outcome, that becomes clearly established federal law.” Id.

at 987. She therefore would have granted the petition for

a writ of certiorari in Smith and summarily reversed with

instructions to grant relief. Id. at 989.

Those same concerns and criticisms are more pressing in this case. Here, unlike in Smith, the hearing cannot

be brushed aside as merely an administrative announcement of an evidentiary ruling. “[T]he proceedings involved accusations of wrongdoing by Jordan and her

counsel,” and the trial court “received the [internet

postings], which, although not *** presented to the jury,

[were] marked as exhibits and read *** into the trial

record.” App., infra, 43a. In addition, “[t]he parties made

legal arguments about the propriety of the courtroom

closure, the accusations against Jordan and her counsel,

and the language of the instructions to the jury that were

to follow.” Ibid. “And, although Jordan did not speak

during the Closed Proceeding, she was present and

observed the colloquy, which occurred days before she

testified as a witness in her own defense.” App., infra,

43a-44a. Moreover, the closure took place in the middle

of the parties’ cases-in-chief, during the guilt phase of the

trial, when the public-trial interest is at its zenith.

Whatever reasons the other Members of this Court

may have had to hesitate granting review in Smith, those

reasons should be dispelled here.

B. The question presented is important, and this is a

suitable vehicle

1. Review is furthermore warranted because the

question presented is extraordinarily important. To begin

with, the question presented is frequently recurring. Postconviction habeas corpus cases are a fixture of the federal

docket. Thousands of criminal defendants seek federal

habeas relief every year. In 2021 alone, 11,334 prisoners

in state custody sought noncapital postconviction relief

under Section 2254. See U.S. District Courts-Civil Cases

Commenced, by Nature of Suit and District, During the 12Month Period Ending December 31, 2021, U.S. Courts

(Dec. 31, 2021). The numbers were even higher in pre-

vious years—there were 12,991 petitions in 2020; 14,186

in 2019; and 14,271 in 2018. 4

Whether federal courts can grant habeas relief in the

absence of a Supreme Court decision with materially indistinguishable facts will determine the fate of untold

numbers of these petitions. One indication is the sheer

frequency with which Panetti itself is cited—a simple

Westlaw search indicates that nearly 3,000 federal-court

decisions have relied upon its holding since it was decided

in 2007. And even if the question presented drives the

outcome in only a small proportion of those cases, there is

no doubting that many, many cases will be impacted by

the question presented.

The question presented is also crucial because federal

habeas corpus relief has a unique place in our constitutional history as a safeguard of liberty. It is “the only

common-law writ *** explicitly mentioned” in the

Constitution.” Hamdi v. Rumsfeld, 542 U.S. 507, 558

(2004) (Scalia, J., dissenting). Exalted as the Great Writ,

it lies at the core of our traditional notions of liberty and

the rule of law. The Framers viewed habeas corpus as a

crucial bulwark against unconstitutional detention and

hence against the abuse of power. In fact, “Hamilton

lauded ‘the establishment of the writ of habeas corpus’

*** as a means to protect against ‘the practice of arbitrary

imprisonments.’” Ibid. (citing The Federalist No. 84, at

444 (Alexander Hamilton)).

See U.S. District Courts-Civil Cases Commenced, by Nature of Suit

and District, During the 12-Month Period Ending December 31, 2020,

U.S. Courts (Dec. 31, 2020); U.S. District Courts-Civil Cases Commenced, by Nature of Suit and District, During the 12-Month Period

Ending December 31, 2019, U.S. Courts (Dec. 31, 2019); U.S. District

Courts-Civil Cases Commenced, by Nature of Suit and District, During

the 12-Month Period Ending December 31, 2018, U.S. Courts (Dec.

31, 2018).

This view of habeas has deep roots in the English

common-law tradition, where it developed as a mechanism to “compel the crown to explain its actions *** [and]

ensure adequate process” in the face of summary and indefinite imprisonment by the King. Brown v. Davenport,

142 S. Ct. 1510, 1520 (2022). Thus, the writ of habeas

corpus entered our Constitution as “no less than ‘the instrument by which due process could be insisted upon.’”

Ibid. (citing Hamdi, 542 U.S. at 555 (Scalia, J., dissenting)). The Framers conceived of habeas relief as an essential tool for securing release from illegal custody and for

checking governmental excesses. But it will remain so

only if the lower courts do not overly constrain its application, as the Second Circuit did here.

2. This case presents an unvarnished opportunity for

addressing the question presented. For starters, there is

no question regarding the preservation of constitutional

claims and no procedural hurdles to reaching the question

presented.

What’s more, the district court granted relief because

it expressly resolved the question presented in Jordan’s

favor: “Jordan was not required to find a Supreme Court

opinion holding that the public trial right applied to the

specific type of Closed Proceeding that occurred during

her trial in order to prevail on [her] claim.” App., infra,

41a (quotation marks omitted). For its part, the Second

Circuit reversed only because it saw the question presented differently: “Neither Waller nor Presley clearly

establishes whether the Sixth Amendment extends to the

Closed Proceeding” (App., infra, 12a), and “it was not

unreasonable for the Appellate Division to deny Jordan’s

claim” given the absence of Supreme Court precedent

addressing “this sort of wholly ancillary proceeding.”

App., infra, 14a-15a. Thus, the two courts’ disparate

resolutions of the question presented manifestly drove

the different outcomes.

C. The decision below is wrong

The clean presentation of a question of substantial

practical importance dividing the lower courts is more

than sufficient to support a grant of certiorari. But this

Court’s review is all the more warranted because the decision below is troublingly wrong.

Reduced to its essence, the question here is whether

a state court decision can have “involved an unreasonable

application [of] clearly established Federal law, as determined by the Supreme Court of the United States” within

the meaning of 28 U.S.C. § 2254(d)(1) in the absence of a

materially indistinguishable precedent of this Court. The

Second Circuit answered that question with a no. But that

is assuredly wrong.

a. As in “every case involving construction of a

statute, the starting point is the language itself.” Ernst &

Ernst v. Hochfelder, 425 U.S. 185, 197 (1976) (cleaned

up). And construing the text, the Court must look to “the

structure and language of the statute as a whole”

(National Railroad Passenger Corp. v. Boston & Maine

Corp., 503 U.S. 407, 417 (1992)), being sure to adopt a

reading that, “upon the whole,” ensures that “no clause,

sentence, or word shall be superfluous, void, or insignificant” (TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)

(quoting Duncan v. Walker, 533 U.S. 167, 174 (2001))).

As the Court recognized in Williams, the language at

issue here defines “two categories of cases in which a

state prisoner may obtain federal habeas relief.” 529 U.S.

at 404. In the first category are cases where the statecourt decision is “contrary to *** clearly established Federal law.” Ibid. In the second category are those cases in

which the state court decision “involve[s] an unreasonable application” of such law. Ibid.

Congress having adopted these two categories in the

disjunctive, each must be given “independent meaning”

and effect. Williams, 529 U.S. at 407. To that end, the

Court has held that a state-court decision is “contrary to”

this Court’s precedents when it “decides a case differently than this Court has on a set of materially indistinguishable facts.” Id. at 413 (emphasis added). That requirement makes sense—to “conflict” means to be “contradictory” to. Conflict, Merriam-Webster, perma.cc/C3QW-7QM3. That kind of hard clash between two cases

is possible only if they implicate both a common legal

question and also an analytically identical set of facts.

In contrast, a petitioner is entitled to relief under the

second prong if “the state court identifies the correct governing legal rule from this Court’s cases but unreasonably

applies it to the facts of the particular state prisoner’s

case.” Williams, 529 U.S. at 407. Again, this Court has

said that a state court must “apply the rules ‘squarely

established’ by this Court’s holdings” even when the case

involves “new factual permutations” not previously

addressed by this Court. White, 572 U.S. at 427 (quoting

Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

That is to say, “even a general standard may be applied in

an unreasonable manner” notwithstanding the presence

of “facts ‘different from those of the case in which the

principle was announced.’” Panetti, 551 U.S. at 953

(quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).

According to the Second (and Eighth) Circuit’s contrary position, however, a state court cannot unreasonably apply this Court’s Sixth Amendment precedents

unless and until this Court itself has expressly applied

those precedents to “the sort of nonpublic proceeding at

issue here.” App. infra, 14a (quoting Smith, 958 F.3d at

692). But that is just to say that there can be no unreasonable application this Court’s Sixth Amendment precedents unless and until this Court applies them in a case

with “materially indistinguishable facts.” Williams, 529

U.S. at 413. The lower court’s position thus “would

collapse [Section 2254(d)(1)’s] disjunctive list into the

same test.” Smith, 141 S. Ct. at 988 (Sotomayor, J., dissenting from denial of certiorari). It would, in other

words, “sap[] the ‘unreasonable application’ clause of

any meaning,” and foreclose a crucial avenue of relief in

violation of this Court’s precedent and congressional

intent. Williams, 529 U.S. at 407.

b. The lower court defended its approach reasoning

that “[t]he Supreme Court has, in [only] two cases,

extended [the] public-trial right to specific proceedings

beyond the actual proof at trial,” and thus that, to apply

“Waller and Presley to the Closed Proceeding would

require extending Supreme Court precedent to this sort of

wholly ancillary proceeding.” App., infra, 10a, 14a (quotation marks omitted, emphasis added). Because Section

2254(d)(1) “does not require state courts to extend [this

Court’s] precedent or license federal courts to treat the

failure to do so as” a ground for granting habeas relief,

(White, 572 U.S. at 426), the Second Circuit concluded

that the state court’s failure to extend Waller and Presley

could not support the district court’s judgment.

As an initial matter, that reasoning leads to a facially

absurd result: “so long as the courtroom remained open

during” witness testimony, along with “jury selection (as

required by Presley) and any suppression hearings (as

required by Waller), the state court would not have run

afoul of any clearly established federal law.” Smith, 141

S. Ct. at 988 (Sotomayor, J., dissenting from denial of

certiorari). That would reduce successful habeas cases in

courtroom closure cases almost to a null set—a judge

could close the courtroom for a huge variety of hearings

with the defendant present, without fear that a later

federal habeas court would call him on it.

But more fundamentally, the Second Circuit misunderstood this Court’s meaning in White. When White said

that state courts cannot be faulted on habeas review for

failing to “extend” this Court’s precedents, it meant that

state courts are not required to extend this Court’s holdings in some legally novel way.5 White did not say (and

could not have meant) that state courts are not required

to apply a settled legal principle to a case that squarely

implicates that principle, albeit on “facts different from

those of the case in which the principle was announced.”

Panetti, 551 U.S. at 953.

This case did not require the New York Appellate

Division to extend Waller’s general legal principles in

some novel legal context, as the Second Circuit suggested. On the contrary, the state court here was asked

simply to apply clearly established federal law in the

precise circumstance for which that law was developed:

a criminal case involving a complete courtroom closure

in the middle of the defendant’s case-in-chief. Waller and

Presley clearly establish the ground rules for the expulsion of the public from a courtroom gallery in the midst of

For example, this Court held in Beck v. Alabama, 447 U.S. 625

(1980), that a capital-murder defendant has an Eighth Amendment

right to have the jury instructed on a lesser-included offense in certain situations. But the Court has never said that the Due Process

Clause similarly requires a lesser-included-offense instruction in a

non-capital case. Thus, a state court does not commit an objectively

unreasonable error by failing “to extend the rule of Beck to noncapital

cases” under the Due Process Clause. Robertson v. Hanks, 140 F.3d

707, 710 (7th Cir. 1998) (collecting cases).

Similarly, this Court has established in a long line of cases “the

general proposition that the Establishment Clause mandates government neutrality in religious practice.” Varner v. Stovall, 500 F.3d

491, 498 (6th Cir. 2007). But the Court has never applied that proposition in a criminal case to determine the scope of any testimonial

privileges. Thus, a state court does not commit an objectively unreasonable error by “declining to extend” the general principle favoring

neutrality in religious practice to invalidate “the clergy-penitent privilege” in a criminal case. Id. at 499.

a criminal trial like this—ground rules that the state trial

court plainly did not follow.

“To the Framers, secret trials ‘obviously symbolized

a menace to liberty,’ and the public-trial right provided a

necessary ‘safeguard against any attempt to employ our

courts as instruments of persecution.’” Smith, 141 S. Ct.

at 984 (quoting In re Oliver, 333 U.S. 257, 269-270

(1948)). The rules forbidding the closure in this case were

clearly established as a matter of this Court’s precedents

at the time that the state court acted. The district court

was therefore right to grant relief, and the court of appeals

was wrong to reverse.

CONCLUSION

The Court should grant the petition.

Respectfully submitted.