Tracy Alan Zornes v. William Bolin

United States Court of Appeals
For the Eighth Circuit
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No. 20-3013
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Tracy Alan Zornes,
lllllllllllllllllllllPetitioner - Appellant,
v.
William Bolin,
lllllllllllllllllllllRespondent - Appellee.
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Appeal from United States District Court
for the District of Minnesota
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Submitted: February 17, 2022
Filed: June 27, 2022
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Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
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COLLOTON, Circuit Judge.
Tracy Zornes is serving a life sentence for murder in Minnesota. He brought
a petition for writ of habeas corpus in the district court, alleging that the state trial
court violated his right to a public trial, and that the decision of the state supreme

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court upholding his conviction was contrary to, or an unreasonable application of,
clearly established federal law. The district court1 denied the petition, and we affirm.
I.
In November 2011, Zornes was convicted of two counts of first-degree murder,
first-degree arson of a dwelling, and theft of a motor vehicle in Minnesota state court.
See Minn. Stat. §§ 609.185(a)(1), 609.561, subdiv. 1, 609.52 subdiv. 2(17). The
Minnesota trial court sentenced him to two consecutive life sentences without the
possibility of parole.
On direct appeal, Zornes challenged the trial court’s decision to exclude two
people from the courtroom during jury voir dire. Zornes’s girlfriend was present in
the courtroom for two days of jury selection. She was included on a joint witness list
prepared by the parties. When counsel alerted the trial court to the girlfriend’s
presence on her second day of attendance, the court ordered her to leave the
courtroom to comply with an order sequestering witnesses. Zornes did not object.
The next day, Zornes informed the court that Robert Stivers, a brother of one
of the murder victims, was present in the courtroom. Stivers was on the State’s
witness list. Zornes explained to the court, however, that the State “may be willing
to remove him from that list and in return we would not be objecting if he wants to
watch from the observation room so we don’t have the jurors in eye contact with
him.” The State then confirmed its desire to remove Stivers from the witness list.
Consistent with Zornes’s proposal, the court declared that Stivers would be allowed
to sit in the observation room during voir dire, but would not be a witness at trial.
1The Honorable Eric C. Tostrud, United States District Judge for the District
of Minnesota.
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Zornes argued on appeal in state court that the trial court’s decision to
sequester the girlfriend and to direct Stivers to watch from an observation room
violated his right to a public trial under the Sixth and Fourteenth Amendments. The
Supreme Court of Minnesota rejected the contentions. State v. Zornes, 831 N.W.2d
609, 618 (Minn. 2013). With respect to the girlfriend, the court concluded that a
potential witness is distinct from the “public” generally, and that the trial court had
broad discretion to exclude a witness from the courtroom. After observing that the
girlfriend played a key role in Zornes’s planned alibi defense, the court explained that
questioning of prospective jurors can be wide ranging and cover details of trial
strategy, so it is conceivable that a witness could tailor her testimony in response to
what she hears during voir dire. Id. at 619-20. The court ultimately held that the
sequestration of the defendant’s girlfriend did not violate Zornes’s constitutional right
to a public trial. The court also ruled that the exclusion of Stivers from the courtroom
during voir dire was “too trivial to implicate Zorne[s]’s Sixth Amendment right to a
public trial,” and found it unnecessary to address whether Zornes invited the alleged
error. Id. at 620-21.
After failing to obtain post-conviction relief in state court, Zornes filed a
petition for writ of habeas corpus in the district court. As relevant here, Zornes
challenged the state court’s disposition of his claim alleging a violation of the right
to a public trial. The district court denied relief. The court reasoned that the state
supreme court’s decision was not contrary to clearly established federal law, because
the Supreme Court has not addressed the constitutionality of partial closures of trial
proceedings. The court also concluded that the state court’s decision was not an
unreasonable application of clearly established federal law, because any alleged error
in the ruling was subject to fairminded disagreement. The district court granted a
certificate of appealability, and we review the district court’s conclusion de novo.
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II.
A federal court’s authority to grant a writ of habeas corpus on behalf of a state
prisoner is governed by the standards set forth in the Antiterrorism and Effective
Death Penalty Act of 1996. A federal court cannot grant a habeas petition with
respect to any claim that was adjudicated on the merits in state court unless the
adjudication “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.” 28 U.S.C. § 2254(d)(1).
A state court decision is “contrary to” clearly established federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law, or if the state court confronts facts that are materially
indistinguishable from relevant Supreme Court precedent yet reaches the opposite
result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A decision involves an
“unreasonable application of” federal law if the state court “correctly identifies the
governing legal standard but either unreasonably applies it to the facts of the
particular case or unreasonably extends or refuses to extend the legal standard to a
new context.” Munt v. Grandlienard, 829 F.3d 610, 614 (8th Cir. 2016); see
Williams, 529 U.S. at 407. To demonstrate an unreasonable application, a prisoner
must show “that a state court’s adjudication was not only wrong, but also objectively
unreasonable, such that ‘fairminded jurists’ could not disagree about the proper
resolution.” Smith v. Titus, 958 F.3d 687, 691 (8th Cir. 2020) (quoting Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)), cert. denied, 141 S. Ct. 982 (2021); see
Williams, 529 U.S. at 409-12. We evaluate the reasonableness of the state court’s
ultimate conclusion, not necessarily the reasoning used to justify the decision.
Dansby v. Hobbs, 766 F.3d 809, 830 (8th Cir. 2014).
Zornes argues that the state court’s decision is contrary to and involved an
unreasonable application of two Supreme Court decisions: Waller v. Georgia, 467
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U.S. 39 (1984), and Presley v. Georgia, 558 U.S. 209 (2010) (per curiam). Waller
considered a trial court’s decision to close a pretrial suppression hearing to the public.
The Court ruled that it was constitutional error to close the hearing, and that to justify
such a closure, “the party seeking to close the hearing must advance an overriding
interest that is likely to be prejudiced, the closure must be no broader than necessary
to protect that interest, the trial court must consider reasonable alternatives to closing
the proceeding, and it must make findings adequate to support the closure.” 467 U.S.
at 48. Presley held that the right to a public trial extends to the voir dire of
prospective jurors, and clarified that the trial court must consider reasonable
alternatives to closure even when they are not proposed by the parties. 558 U.S. at
213-14.
The state supreme court’s decision in this case is not contrary to Waller and
Presley. When evaluating Sixth Amendment claims involving the right to a public
trial, this court and others have distinguished between total closures and partial
closures of criminal proceedings. See Garcia v. Bertsch, 470 F.3d 748, 752-53 (8th
Cir. 2006); United States v. Osborne, 68 F.3d 94, 98-99 & n.12 (5th Cir. 1995)
(collecting cases). Whether a closure is total or partial depends on who is excluded
during the time in question. United States v. Thompson, 713 F.3d 388, 395 (8th Cir.
2013). This court applies the stringent standard announced in Waller to total
closures, but conducts a different analysis for partial closures. Id.
The exclusions of Zornes’s girlfriend and Stivers were both partial closures of
the jury selection proceedings under this rubric; at no point did the trial court bar all
members of the public from the courtroom. Waller and Presley both involved total
closures. Waller, 467 U.S. at 42; Presley, 558 U.S. at 210, 214; see Presley v. State,
674 S.E.2d 909, 910-911 (Ga. 2009). The Supreme Court has never addressed a
“partial closure” of jury selection (or any phase of a trial) in which a potential witness
is sequestered or a relative of a victim is excluded at the suggestion of the defendant.
Where no Supreme Court decision has confronted the specific question presented to
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the state court, the court’s decision cannot be contrary to clearly established federal
law for the purposes of § 2254(d)(1). Woods v. Donald, 575 U.S. 312, 317 (2015)
(per curiam). Accordingly, we conclude that the Minnesota court’s decision is not
contrary to clearly established federal law.
The next issue is whether the state court decision involved an unreasonable
application of clearly established federal law. As noted, Waller and Presley involved
complete closures of a courtroom to the public, and did not address how a court
should analyze an order excluding a prospective witness or victim’s relative from
attending jury voir dire. Zornes argues that a “partial closure” must satisfy the same
stringent standard for a complete closure discussed in Waller. But this court and
other courts of appeals have concluded that partial closures may be justified by a
“substantial reason” without the “overriding interest” that Waller requires to justify
a complete closure. Thompson, 713 F.3d at 395; United States v. Simmons, 797 F.3d
409, 414 (6th Cir. 2015). The distinction in standards is based on the view that a
partial closure does not implicate the same secrecy and fairness concerns that are
raised by a total closure. Garcia, 470 F.3d at 752-53. A state court reasonably could
take the same analytical approach that has been followed by several federal courts of
appeals.
The first “partial closure” at issue was the exclusion of Zornes’s girlfriend as
a potential witness under the trial court’s sequestration order. This court has held that
the right to a public trial does not prohibit the sequestration of witnesses from the
evidentiary portion of a trial. We relied on the fact that sequestration lessens the
danger that a witness will tailor her testimony to that of earlier witnesses, and aids in
detecting testimony that is less than candid. United States v. Ricker, 983 F.3d 987,
994-95 (8th Cir. 2020); see United States v. Blanche, 149 F.3d 763, 769-70 (8th Cir.
1998). The Minnesota court concluded that the same rationale justified sequestration
of a witness during voir dire, because it is possible that a witness could tailor her
testimony in response to what she hears from attorneys and prospective jurors during
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jury selection. Zornes complains that the state court’s rationale would have allowed
the exclusion of 184 potential witnesses, but no other potential witness sought to
attend voir dire, so the state court had no occasion to address whether the witness list
should have been narrowed or the sequestration order relaxed as to others.
This court has not considered sequestration during jury selection on a direct
appeal, and the parties have not identified any other appellate decision on point.
While appellate decisions regarding jury voir dire often say that counsel should not
use the process to discern a prospective juror’s opinion of the evidence, it is apparent
that attorneys sometimes do provide a preview of evidence during that phase of trial.
E.g., Osgood v. State, No. CR-13-1416, 2020 WL 2820637, at *13 (Ala. Crim. App.
May 29, 2020); State v. Nichols, No. CA-CR 16-0070, 2017 WL 3431476, at *2
(Ariz. Ct. App. Aug. 10, 2017); In re Commitment of Perez, No. 09-12-00132-CV,
2013 WL 772842, at *7 (Tex. App. Jan. 29, 2013); People v. Ochoa, 28 P.3d 78, 93-
94 (Cal. 2001). A discussion by counsel of what the evidence is likely to show raises
the potential for tailoring of testimony by a prospective witness. As the Minnesota
court observed, counsel’s line of questioning during voir dire also may reveal trial
strategy that could be accommodated later by a willing witness.
In the absence of any decision of the Supreme Court on the subject, we agree
with the district court that fairminded jurists could take the view that the substantial
reasons justifying witness sequestration during the evidentiary phase of a trial extend
to jury voir dire. And just as our decisions have not required a trial court to fine-tune
sequestration during the evidentiary phase according to the risk of tailoring posed by
the testimony of each particular witness, we cannot say it was unreasonable for the
state court to treat jury voir dire as an undifferentiated whole for purposes of
sequestration of a key alibi witness. Therefore, the state court’s denial of the claim
based on sequestration of Zornes’s girlfriend did not involve an unreasonable
application of clearly established federal law.
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The second “partial closure” was the trial court’s direction that Stivers, the
victim’s brother, watch jury voir dire from an observation room. The court
recognized that Stivers would not be a witness, so he was not subject to the
sequestration order. Zornes argues that the state supreme court’s decision to allow
the exclusion of Stivers from the courtroom was an unreasonable application of
Waller and Presley.
The Minnesota court concluded that excluding Stivers from voir dire was “too
trivial” to implicate the Sixth Amendment. In reaching that conclusion, the court
considered that the courtroom was never cleared of all spectators, the trial remained
open to the general public and the press, there was no period of the trial in which
members of the public were absent during the trial, and at no time was the defendant,
his family, his friends, or any witness improperly excluded. Zornes, 831 N.W.2d at
620-21 (citing State v. Lindsey, 632 N.W.2d 652, 660-61 (Minn. 2001)).
Zornes contends that the state court’s “triviality” rule is an unreasonable
application of Waller and Presley. He maintains that a conclusion of triviality cannot
be reconciled with Waller’s demand that the court must identify an overriding interest
for closure and consider reasonable alternatives. Waller, 467 U.S. at 48.
The Minnesota court’s decision to apply a “triviality” standard, however, is not
the outlier that Zornes suggests. The Second Circuit in Peterson v. Williams, 85 F.3d
39 (2d Cir. 1996), ruled that an unjustified temporary closure in that case was “too
trivial to amount to a violation” of the right to a public trial. Id. at 42. Judge
Calabresi’s opinion for the court explained that a triviality standard looks to “whether
the actions of the court and the effect that they had on the conduct of the trial
deprived the defendant . . . of the protections conferred by the Sixth Amendment.”
Id. Where “the values furthered by the public trial guarantee” were not jeopardized
when the trial court briefly neglected to reopen the courtroom after an undercover
officer finished testifying, the court held that the defendant’s rights were not
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infringed. Id. at 43-44. Several courts have adopted the Peterson approach, e.g.,
United States v. Perry, 479 F.3d 885, 890 (D.C. Cir. 2007); Braun v. Powell, 227 F.3d
908, 918-20 (7th Cir. 2000), and have continued to apply it after Presley. See United
States v. Lewis, No. 19-6148, 2022 WL 216571, at *7-8 (6th Cir. Jan. 25, 2022)
(deputy marshal for twenty minutes excluded two spectators who were speaking
loudly); United States v. Anderson, 881 F.3d 568, 573 (7th Cir. 2018) (trial continued
after courthouse was locked for the night at 5:00 p.m.); United States v. Patton, 502
F. App’x 139, 141-42 (3d Cir. 2012) (members of defendants’ families allegedly
denied entry during jury selection because courtroom was filled to capacity); United
States v. Greene, 431 F. App’x 191, 195-97 (3d Cir. 2011) (court security officer
excluded defendant’s brother from voir dire for want of seating space); Kelly v. State,
6 A.3d 396, 408-11 (Md. 2010) (exclusion of defendant’s family for two to three
hours during voir dire due to insufficient space in courtroom).
Whether or not the Supreme Court ultimately would endorse this line of
authority tracing back to the Second Circuit’s decision in Peterson, we believe that
fairminded jurists could conclude that it is not inconsistent with Waller and Presley.
Those cases involved total closures of the courtroom for entire phases of a criminal
trial. But as Peterson discussed, even absolute words derive their meaning from
context, 85 F.3d at 40, and the Supreme Court has not addressed whether a closure
temporarily impacting but one potential spectator infringes on a defendant’s right to
a “public trial.” Accepting, therefore, that a “triviality standard” is not an
unreasonable application of clearly established federal law, we cannot say that the
state court’s employment of that standard created an unreasonable application here.
The victim’s relative, Stivers, was able to observe jury selection from an observation
area, and Zornes does not explain how that remote viewing by one spectator
undermined the values furthered by the constitutional guarantee of a public trial. See
id. at 43.
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Finally, even if the state supreme court’s approval of the exclusion of Stivers
during voir dire did amount to an unreasonable application of Waller and Presley, we
would nonetheless affirm the dismissal of Zornes’s petition on an alternative ground.
A defendant may waive his right to a public trial by consenting to the closure of a
proceeding. Addai v. Schmalenberger, 776 F.3d 528, 533-34 (8th Cir. 2015). Zornes
not only consented to excluding the victim’s brother from the courtroom during voir
dire, but affirmatively requested that procedure so that prospective jurors would not
have “eye contact with him.” Under any standard of review, Zornes waived his
present claim that the exclusion of Stivers from the courtroom during jury selection
violated the right to a public trial.
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The judgment of the district court is affirmed.
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