United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING
PERMISSION TO APPEAL IN FORMA PAUPERIS
MARK A. GOLDSMITH United States District
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.
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.
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.
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).
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.
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
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).
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.
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)