Armando Perez v. CHERYL STRANGE, Secretary, Washington Department of Corrections

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO PEREZ,
Petitioner-Appellant,
v.
CHERYL STRANGE, Secretary,
Washington Department of Corrections,
Respondent-Appellee.
No. 21-35203
D.C. No. 2:20-cv-01419-RSL
MEMORANDUM
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted July 7, 2022**
Seattle, Washington
Before: CLIFTON and BUMATAY, Circuit Judges, and SEEBORG,*** District
Judge.
 This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Richard Seeborg, Chief United States District Judge
for the Northern District of California, sitting by designation.
FILED
JUL 11 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Armando Perez petitioned the district court for habeas relief under 28 U.S.C.
§ 2254. A magistrate judge issued a report and recommendation recommending
Perez’s petition be denied because he did not show that the state court decisions
upholding his convictions were contrary to, or were an unreasonable application of,
clearly established federal law. The district court approved and adopted the
magistrate judge’s report and recommendation and denied Perez’s petition. Perez
timely filed a notice of appeal, and this court granted a certificate of appealability on
his claim. We review the district court’s decision de novo, Stephens v. Herrera, 464
F.3d 895, 897 (9th Cir. 2006), and affirm.
Perez was convicted in a jury trial of three counts of child molestation in
2004.1 During jury selection, the judge gave prospective jurors the option to answer
certain questions in private. Fifteen potential jurors were questioned in chambers
with Perez, the prosecution, and defense counsel in attendance. Defense counsel did
not object to this procedure. Two of the privately questioned prospective jurors were
selected to the jury that ultimately convicted Perez. On direct appeal, Perez’s
counsel did not raise a public trial claim. In 2008, after Perez finished serving his
sentence, he filed a post-conviction motion to vacate his convictions, arguing for the
first time that his right to an open and public trial was violated. After many stops
through the Washington State court system, Perez’s petition was denied in 2020.
1 On appeal, one of Perez’s convictions was vacated.

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The state court found that Perez was not entitled to relief because he failed to
demonstrate that he was prejudiced by the courtroom closure. Perez sought federal
habeas review of his convictions, arguing he was denied his right to effective
assistance of appellate counsel because counsel failed to argue on direct appeal that
Perez’s right to a public trial was violated when the trial court privately questioned
some potential jurors in chambers.
We deny Perez’s petition for habeas corpus because the decisions of the state
courts were not contrary to, or did not involve an unreasonable application of, clearly
established federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d).
In Weaver v. Massachusetts, 137 S. Ct. 1899 (2017), the Supreme Court held that
“when a defendant raises a public-trial violation via an ineffective-assistance-of-
counsel claim, . . . the burden is on the defendant to show either a reasonable
probability of a different outcome in his or her case or . . . to show that the particular
public-trial violation was so serious as to render his or her trial fundamentally
unfair.” Id. at 1911. Thus, the Supreme Court explicitly recognized a difference
between public-trial claims on direct appeal, which result in “automatic reversal,”
and public-trial claims on collateral review, which require a showing of prejudice.
Id. at 1910–11.
Perez argues that Weaver only concerned cases involving ineffective
assistance of trial counsel, whereas here he alleges ineffective assistance of

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appellate counsel. Perez contends that because his direct appeal would have been
successful had his appellate counsel not been deficient, he has adequately
demonstrated Strickland prejudice. His argument is unavailing. Under the highly
deferential § 2254(d) standard of review, a petitioner “must show that the state
court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter,
562 U.S. 86, 103 (2011). Fairminded jurists could conclude that the rule set out in
Weaver applies to claims of ineffective assistance of appellate counsel as well as
trial counsel.
Perez’s reliance on Smith v. Robbins, 528 U.S. 259 (2000), does not aid his
case. Smith involved a different issue, whether a new procedure for allowing
appellate counsel to withdraw after counsel found no non-frivolous issue for appeal
satisfied the requirements of Anders v. California, 386 U.S. 738 (1967). See Smith,
528 U.S. at 264. Perez zeroes in on a statement by the Court instructing the petitioner
on remand to attempt to “show a reasonable probability that, but for his counsel’s
unreasonable failure to file a merits brief, he would have prevailed on his appeal.”
Id. at 285 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). This does
not clearly establish a rule that governs every ineffective assistance of appellate
counsel claim, particularly given the more nuanced reasoning the Court applied in

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Weaver, which involved substantially the same facts as this case. As the Court
cautioned, “when a court is evaluating an ineffective-assistance claim, the ultimate
inquiry must concentrate on ‘the fundamental fairness of the proceeding.’” Weaver,
137 S. Ct. at 1911 (quoting Strickland, 466 U.S. at 696).
The Washington Supreme Court reasonably concluded that Perez was not
prejudiced by the courtroom closure. The trial court’s questioning of the prospective
jurors was not conducted in a secret or remote location, and there is a record of the
proceedings. Perez and his counsel were in attendance and participated in the
questioning. The remainder of jury selection and trial was held in open court. In
sum, the Washington Supreme Court’s finding that Perez’s trial was fundamentally
fair, notwithstanding the courtroom closure, was reasonable. See id.
AFFIRMED

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