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Fomby v. Shane Place

United States District Court, E.D. Michigan, Southern Division

November 18, 2016

TERRANCE FOMBY, Petitioner,
v.
SHANE PLACE, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS

          HON. MARK A. GOLDSMITH United States District Judge.

         Petitioner Terrence Fomby filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 (Dkt. 1), challenging his Wayne County Circuit Court conviction for first-degree murder, Mich. Comp. Laws §750.316; armed robbery, Mich. Comp. Laws § 750.529; carjaking, Mich. Comp. Laws § 750.529a; and commission of a felony with a firearm, Mich. Comp. Laws § 750.227b. Petitioner was sentenced to life imprisonment for the murder conviction and lesser terms for his other offenses.

         The petition raises a single claim: Petitioner's Sixth Amendment right to a public trial was violated when the courtroom doors were locked during opening statements and closing arguments, and Petitioner's trial counsel was ineffective for failing to object to the closure. For the reasons stated below, the Court denies the petition, denies a certificate of appealability, and grants permission to proceed on appeal in forma pauperis.

         I. BACKGROUND

         Petitioner's convictions arise out of the December 1, 2010, shooting death of Brian Stucky at a gas station in Detroit, Michigan. During the jury trial, the gas station attendant identified Petitioner as the shooter, and he identified Petitioner's uncle as his accomplice. Petitioner was arrested about a month after the shooting in St. Paul, Minnesota. He falsely told officers that he had been in St. Paul for eight months.

         Relevant to Petitioner's claim, the record indicates that the trial court ordered the courtroom doors closed and locked prior to opening statements. The court explained:

[L]adies and gentlemen in the audience, were going to go ahead and lock the door right now because we want the jury to hear the parties opening statements of proceedings uninterrupted, okay? So if you want to leave, you're welcome to do so, otherwise, you're here until the conclusion of those statements.

6/13/2011 Trial Tr. at 118-119 (Dkt. 9-8).

         Before closing arguments the trial judge again announced that the courtroom doors would be locked, that anyone who wanted to leave must do so now, and that it was impermissible to stand up during the arguments. 6/14/2011 Trial Tr. at 138 (Dkt. 9-9).

         Petitioner's appellate brief filed in the Michigan Court of Appeals raised what now forms his habeas claim, as well as a sentencing claim not presented in this action. In denying relief with respect to Petitioner's habeas claim, the Michigan Court of Appeals found that the closure of the courtroom was a "partial" one:

It is not absolutely clear from the record whether members of the public were present when the courtroom doors were closed and locked, but the public's presence can be inferred from the fact that the trial judge specifically addressed the "ladies and gentlemen in the audience" and "those of you who are in the courtroom." No one was removed from the courtroom during either the opening statements or closing arguments, and all members of the public who were then present were permitted to stay. The trial judge asked that if anyone needed to leave the courtroom that they do so before the beginning of the opening statements and closing arguments. The trial judge had the courtroom doors closed and locked so the attorneys could present their opening statements and closing arguments without interruption. Thus, the closure was only partial.

People v. Fombv. No. 305602, 2013 WL 1316734, at *2 (Mich. Ct. App. Apr. 2, 2013) (per curiam).

         The Michigan Court of Appeals went on to find that the trial court was only required to state a "substantial" reason for the partial closure, rather than a "compelling" reason required for a full closure. Id. It held that Petitioner's constitutional right to a public trial was not violated because the trial court articulated a substantial reason - allowing the parties to give their opening statements and closing arguments without interruption. Id. at *3. The Court also found that Petitioner was not denied the effective assistance of counsel. It found that counsel's acquiescence to the closure may have been sound strategy because it benefitted both parties to make their arguments without interruption. Id. at *3. The court also found that Petitioner failed to demonstrate prejudice because there was not a reasonably probability that the result of the trial would have been different absent the partial closure. Id. at *4.

         Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, which raised the same claims as in the Michigan Court of Appeals. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed by the Court. People v. Fomby, 846 N.W.2d 389 (Mich. 2014) (table).

         II. ...


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