Constant v. Pennsylvania Department of Corrections (912 F. Supp. 2d 279, 2012)

MEMORANDUM OPINION

CYNTHIA REED EDDY, United States Magistrate Judge.

I. INTRODUCTION

For the reasons set forth below, Edward Constant’s Petition for Writ of Habeas Corpus will be denied in part and granted in part.

A. Double Jeopardy And Ineffective Assistance Of Counsel

Federal habeas relief is not warranted on petitioner’s claim that trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for waiving a Double Jeopardy challenge to his retrial. After a guilty verdict but before sentencing, trial counsel successfully moved for a new trial based upon after discovered evidence that the tipstaff had improper and prejudicial communications with the jury during its deliberations. Petitioner now asserts that the tipstaffs conduct amounted to “quasi-judicial misconduct” serious enough to invoke the protections of the Double Jeopardy Clause and to bar retrial, and that effective counsel would have moved to dismiss the charges, rather than for a new trial.

The Court of Common Pleas of Allegheny County found counsel was not ineffective because'a new trial, not dismissal of charges, was the appropriate remedy for the tipstaffs improper communication with the jury, and the Superior Court of Pennsylvania affirmed. The decision of the state courts was neither contrary to, nor did it involve an unreasonable application of, clearly established federal law, and was based upon a reasonable determination of the facts in light of the evidence presented in the state court proceedings. The Petition for Writ of Habeas Corpus will therefore be denied on this ground.

B. Right to a Public Trial — Jury Selection

Petitioner also claims that the trial Court’s closure of voir dire to his wife and the general public violated his Sixth Amendment right to a public trial. Jury selection is an integral and critical component of any criminal proceeding which must, presumptively, be open to the public and the press; while the Sixth Amendment right to public trial is not absolute and inflexible, closure is and should be the rare exception, and may not be ordered absent careful balancing of competing interests, consideration of alternatives to closure, and articulation of findings. See Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 724, 175 L.Ed.2d 675 (2010).

The Court of Common Pleas prohibited petitioner’s wife and the general public from attending his jury selection, although “the media” were permitted to attend, and the Superior Court endorsed the prohibition. Neither the trial Court nor Superior Court identified an overriding interest or a substantial reason that would suffice to justify their categorical exclusion of a spouse and the general public from jury selection, and their stated reason for closure is affirmatively contradicted by the state court records.

Because the Courts did not follow the substantive or procedural imperatives prescribed by the United States Supreme Court in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) and Press-Enterprise Co. v. Superior Court of California (“Press-Enterprise I"), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), the closure of voir dire to petitioner’s wife and the public violated petitioner’s Sixth Amendment right to a public trial. The decision of the Pennsylvania courts is contrary to, or an unreasonable application of, clearly established, long standing federal law, and, additionally, is based upon an objectively unreasonable determination of the facts in light of the evidence presented in the state court proceedings. . The Petition for Writ of Habeas Corpus will therefore be granted on this ground.

II. BACKGROUND

A. The. Offenses, Convictions and Sentence

At his second trial, petitioner was tried and convicted on February 2, 2005, by a jury in the Court of Common Pleas of Allegheny County, Pennsylvania, of two (2) counts of Criminal Attempt — Homicide, two (2) counts of Aggravated Assault— Serious Bodily Injury, one (1) count of Aggravated Assauli&wkey;Causing Bodily Injury, and one (1) count of Recklessly Endangering’Another Person. Petitioner was sentenced in the aggregate to a term of imprisonment of not less than 14^ years nor more than 29 years, and a ten year term of probation. The facts underlying the convictions are as follows.

On May 26, 2002, Municipality of, Mt. Lebanon Police Officers Daniel Rieg and Jeffrey Kite responded to a domestic disturbance at the residence of Edward and Susan Constant. When the police officers knocked on the door, petitioner answered; he was visibly angry, belligerent and hostile. Mrs. Constant joined the conversation in the doorway; .she was also angry, and she told the officers to leave.

Before she could shut the door, petitioner reappeared and grabbed .his wife from behind, causing her to fall to the floor. In the ensuing tumult, petitioner Constant left the front hallway, but soon returned with a .44 caliber magnum revolver, pointed the weapon directly at Officer Rieg and pulled the trigger. The bullet struck Officer Rieg in the chest, knocking him back through the doorway onto the front.porch and over the railing into the front yard. Fortunately, Officer Rieg’s protective vest prevented the bullet from entering his body.

Officer Kite scrambled for cover as petitioner fired several more shots and advanced off the porch. Officer Rieg was able to pull his own weapon and fire twelve rounds, one of which struck Constant in his buttocks, causing him to fall to the ground, whereupon police officers subdued and arrested him. Petitioner’s handgun contained six spent cartridges, indicating that it had been fired six times.

B. State Court Proceedings and Decisions

1. Trial Proceedings in the Court of Common Pleas of Allegheny County

a. First trial

Petitioner’s first trial ended with convictions on all charges except Simple Assault against his wife, on which he was acquitted. Following the verdict but prior to sentencing, a juror contacted trial counsel anonymously and informed him that the court’s tipstaff had initiated and engaged in improper communications with the jury during its deliberations.- Interviews with other jurors confirmed that improper communications between the jury and the tip-staff had taken place during deliberations.

Petitioner filed a motion for a new trial and motion for recusal of the presiding judge. After a flurry of motions, briefs and an evidentiary hearing before the Administrative Judge of Criminal Division, the Court agreed that the tipstaff had engaged in improper and prejudicial conversation with the jury, and granted the motion for new trial. The motion to recuse the presiding judge was denied.

In granting the motion for a new trial, the Administrative Judge found that, although the tipstaffs comments to the jury were “not emotional or inflammatory in nature” and were not intended to prejudice petitioner, nevertheless her remarks were sufficiently prejudicial to petitioner to warrant a new trial. Prior to retrial, trial counsel filed a motion to dismiss the charges on Double Jeopardy grounds, and a motion to recuse the trial, judge. That judge denied the motion to dismiss but eventually recused himself, and the case was then reassigned to another- judge of the Court of Common Pleas. After an unsuccessful interlocutory appeal to the Superior Court of Pennsylvania from denial of the motion to dismiss, the Court scheduled the retrial.

b. Second trial

Jury selection began on January 21, 2005, and lasted two (2) days. As is the customary practice in the Court of Common Pleas of Allegheny County, jury selection was by individual voir dire conducted by counsel in a common jury selection room, without the presiding judge. See Commonwealth’s Answer to Petition for Writ of Habeas Corpus, (ECF No. 5), at 25.

Trial counsel’s affidavit from state court post-conviction proceedings avers the following: Sometime during the mid-afternoon on the first day of. jury selection, the presiding trial judge entered the anteroom immediately adjacent to the common jury selection room. Upon observing trial counsel speaking to Mrs. Constant, the judge ordered her to leave the jury selection room, stating that neither she nor the general public were permitted to be present, although members of the media could attend. At the end of the first day, trial counsel objected to Mrs. Constant’s exclusion on the record. The Court affirmed its decision to exclude Mrs. Constant, and all members of the general public, from jury selection. No member of the public and ho representative from the media were present on the second day. Petition for Writ of Habeas Corpus (docketed as Motion Under 28 U.S.C. § 2254 To Vacate And Set Aside Sentence By A Person In State Custody, (ECF No. 1) (“Section 2254 Motion”)), Trial Counsel’s Affidavit, Exhibit 6 (ECF No. 1-6) at ¶¶8, 10-11, 14; Jury Voir Dire Transcript, Exhibit 7 (ECF No. 1-7) at 165-172.

Counsel’s affidavit describes the jury selection room as accommodating approximately 200 people, with many chairs and at least two tables, and a row of chairs against the wall to the right of the public doorway. Trial counsel further attests that, other than the prospective jurors, on the first day of jury selection only one local reporter and petitioner’s wife were present and seated in the common jury selection room, and the “remaining chairs were unoccupied.” Trial Counsel’s Affidavit, Exhibit 6 (ECF No. 1-6) at ¶ 6.

The Commonwealth concedes that Mrs. Constant had been excluded from jury selection, and does not dispute trial counsel’s averments. Commonwealth’s Answer to Petition for Writ of Habeas Corpus (ECF No. 5), at 24-27, 29-30. The description of jury selection set forth in the Commonwealth’s Answer is consistent with counsel’s affidavit, as is the transcript from voir dire, including the following exchange:

TRIAL COUNSEL: Earlier I asked — my client’s wife, Mrs. Constant, asked me is it okay to sit in the jury room, and I said the following to her—

THE COURT: ... I am not concerned about that. I understand what you did and why you did it. The bottom line is based on what has been going on. Unless they have specific approval and there is a reason for them to be there, they are not going to be there, and of course the press can come in, but members of the general public are not permitted in jury selection.

TRIAL COUNSEL: Can I get your approval to have the wife sit in there?

THE COURT: No.

TRIAL COUNSEL: I said don’t talk to anybody, just sit there and listen and don’t say a word to anybody.

THE COURT: Then what purpose is there for her being there? What purpose? If she is not going to participate in jury selection, which she isn’t allowed there anyway, what purpose is there for her to be there?

TRIAL COUNSEL: Because she loves her husband and wants to be there.

THE COURT: I understand that.

TRIAL COUNSEL: I want you to know that I told her that it is all right.

THE COURT: Don’t worry about that. And I am not concerned about the fact that you told her that it was all right. Nobody asked me. If they had asked me I would have said no.

TRIAL COUNSEL: I thought it was a public thing.

THE COURT: It is public to the extent that the media is generally allowed to participate, but unless, which we do often as whole individual voir dire in an open courtroom where anyone can walk in, the public aspect of it is pretty much eliminated. We don’t have space. All right. See you tomorrow.

Commonwealth’s Answer to Petition for Writ of Habeas Corpus (ECF No. 5), at 25-26.

The next day, trial counsel “note[d] for the record that Susan Constant is not in the room today because the judge, as he pointed out yesterday, and as we interacted in [the trial court’s] courtroom, didn’t let her in and the media isn’t in here today either, although yesterday there was a reporter in there. So there is nobody here today.” Id. at 26; Section 2254 Motion, Jury Voir Dire Transcript, Exhibit 7 (ECF No. 1-7).

On January 25, 2005, Mr. Constant’s retrial commenced on the same charges as in his initial trial, save for the Simple Assault charge on which he had been acquitted. On February 2, 2005, the jury once again found Mr. Constant guilty of two (2) counts of Attempted Murder, two (2) counts of Aggravated Assault-Serious Bodily Injury, one (1) count of Aggravated Assault-Causing Bodily Injury and one (1) count of Recklessly Endangering Another Person. The trial Court denied Constant’s post trial motion for a new trial. On the issue of exclusion of the public from jury selection, including Mrs. Constant, in violation of petitioner’s right to a public trial, the trial Court stated in its Opinion denying post-trial motions:

[T]he defendant’s claim that he was somehow prejudiced because his wife was barred from appearing at voir dire is without merit. First, the record does not reflect that his wife was not permitted in the courtroom during jury selection. Nor does the record reflect that he ever raised with this Court the issue of his wife’s presence. Accordingly, any claim concerning his wife’s presence in the Courtroom during voir dire is waived. Moreover, the defendant has failed to indicate how he could possibly have been prejudiced if, as he contends, his wife was not permitted in to be present during jury selection. In the absence of any prejudice, the defendant would not be entitled to a new trial on the basis of any error in the selection of the jury.

Commonwealth’s Answer to Petition for Writ of Habeas Corpus, Appendix, Vol. III, (ECF No. 7-8) at 9 of 29.

2. Superior Court’s Decision on Direct Appeal

The Superior Court of Pennsylvania affirmed the conviction and judgment of sentence. On the Double Jeopardy issue, Superior Court held that “because Constant was granted a new trial on his own Motion, he has waived his claim that the constitutional protection against double jeopardy bars his retrial.” Id. at 816. The Pennsylvania Supreme Court “has allowed no exceptions under this procedural scenario, and we are bound by its holdings.” Id.

With respect to exclusion of Mrs. Constant and the public in general from jury selection, the Superior Court affirmed “albeit on different grounds”: (1) “the trial court permitted the media to attend voir dire proceedings”; (2) “the proceedings were transcribed by a court reporter”; and (3) in light of “the trial court’s assessment of the space limitations, we cannot conclude that Constant was denied his right to a public trial because of the exclusion of a member of the general public, [his wife], from the proceedings. Accordingly, Constant is not entitled to relief on this claim.” Id. at 817 and n. 2.

Additionally, Superior Court explicitly declined to follow the “federal court decisions regarding the attendance of family members at court proceedings” upon which petitioner relied in his Brief for Appellant, which featured controlling United States Supreme Court precedent: Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) and Press-Enterprise Co. v. Superior Court of California (“Press-Enterprise I"), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). Despite Mr. Constant’s proffer . of Waller and Press-Enterprise Co. I as the principal controlling precedent in his Brief for Appellant, Superior Court stated:

Constant directs this Court’s attention to several federal court decisions regarding the attendance of family members at court proceedings. Constant cited no Pennsylvania state court decisions supporting his contention. See Commonwealth v. Giffin, 407 Pa.Super. 15, 595 A.2d 101, 107 (1991) (stating that in the absence of a ruling on a particular question by the United States Supreme Court, the decision of a federal intermediate appellate panel or a federal district court is not binding on Pennsylvania courts). We decline to apply the federal court’s holdings under the circumstances presented in this case.

Constant, 925 A.2d at 817, n. 3.

On June 13, 2007, Mr. Constant filed a Petition for Allowance of Appeal, which was denied by the Supreme Court of Pennsylvania on September 25, 2007. The time to petition the United States Supreme Court for a writ of certiorari expired on December 26, 2007.

3. Post-Conviction Relief Act (“PCRA”) Proceedings and PCRA Court Decision

Mr. Constant filed a timely PCRA Petition raising two claims: trial counsel was ineffective because the effect of filing and-pursuing a motion for a new trial was to waive his claim that the Double Jeopardy Clause bars retrial; and the Pennsylvania trial and Superior Courts violated clearly established federal law which guarantees a defendant’s right to a public trial, including jury selection. Section 2254 Motion, PCRA Petition, Exhibit 8 (ECF No. 1-8).

On January 15, 2010, the PCRA Court filed a Memorandum Opinion and Notice of Intention to Dismiss the PCRA Petition. Section 2254 Motion, Memorandum Opinion and Notice, Exhibit 9 (ECF No. 1-9). According to the Notice, the Court intended to deny PCRA relief on the Double Jeopardy claim because “the underlying claim does not have arguable merit. The charges would not have been dismissed had counsel sought dismissal because retrial was the proper remedy ... [and counsel] was, therefore, not ineffective for failing to seek a dismissal.” Section 2254 Motion, Memorandum Opinion and Notice of Intention to Dismiss, (ECF.No. 1 — 9), at 5-6.

On the right to a public trial issue, the trial court stated- its intention to deny PCRA relief for several reasons: (1) the issue had been previously litigated on direct appeal; (2) Superior Court accepted and relied on “this Court’s factual determination that space was limited”; and (3) the Superior Court accepted the trial Court’s finding that “the defendant was not prejudiced by his wife’s exclusion from a portion of jury selection.” Section 2254 Motion, Memorandum Opinion and Notice of Intention to Dismiss, (ECF No. 1-9), at 6-7 of 8 (emphasis in original).

On January 19, 2010, the Supreme Court of the United States decided Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010), which held that the Sixth Amendment right to a public trial extends to voir dire, and finding that defendant’s Sixth Amendment right to a public trial was violated by the trial court’s exclusion of the lone courtroom observer, his 'uncle, from jury selection because of a generalized lack of space and its desire to prevent family members from “intermingling” with prospective jurors. The Supreme Court of the United States held that the “Supreme Court of Georgia’s affirmance contravened this Court’s clear precedents,” and that the Sixth Amendment right to public trial at voir dire was so “well settled under Press-Enterprise I and Waller ... [that] this Court may proceed by summary disposition.” 558 U.S. at 213, 130 S.Ct. at 723-24 (Per Curiam) (emphasis added). Mr. Constant promptly filed a request to amend his PCRA petition to brief and discuss the Supreme Court’s decision in Presley.

By Order of Court dated February 10, 2010, the PCRA Court denied Mr. Constant’s PCRA Petition for the reasons stated in its Notice of Intention, and on March 24, 2010, denied his Motion to Amend PCRA Petition. In its Order denying the motion to amend, the PCRA Court indicated it had been aware of the Presley case when it made its ruling, but it was without authority to reverse the decision of Superi- or Court that the issue had been finally litigated. Section 2254 Motion, PCRA Court’s Order, Exhibit 13 (ECF No. 1-13).

4. Superior Court Decision Affirming PCRA Court

On appeal to the Pennsylvania Superior Court, the appellate court rejected both issues on their merits. See Section 2254 Motion, Superior Court Memorandum Opinion, Exhibit 14 (ECF No. 1-14). On the Double Jeopardy claim, Superior Court simply stated: “In its Opinion, the PCRA court ably summarized the applicable law and properly concluded that Constant’s final ineffectiveness claim lacks merit.... After review of the parties’ briefs and the certified record, we agree with the sound reasoning of the PCRA court as set forth in its Opinion, and affirm on this basis with regard to this issue.” Section 2254 Motion, Superior Court Memorandum Opinion, Exhibit 14 (ECF No. 1-14), at 10-11.

On the right to a public jury selection procedure, Superior Court stated:

We agree with the PCRA court that since Constant’s allegation of a violation of his right to a public trial was previously litigated, it does not entitle him to relief.... Moreover, Presley is of no avail to Constant, as it was not decided until well after his direct appeal, and the Court in Presley did not announce that any part of its holding should apply retroactively on collateral review. See, e.g., Tyler v. Cain, 533 U.S. 656, 663 [121 S.Ct. 2478, 150 L.Ed.2d 632] (2001) (holding that a new rule of constitutional law is made retroactive to cases on collateral review only if the United States Supreme Court specifically holds it to be retroactively applicable to cases on collateral review).... There is no merit to Constant’s claim that Presley may be applied retroactively because ‘its principles had been firmly established for approximately 20 years at the time of Mr. Constant’s trial.’ Reply Brief for Appellant at 7. Accordingly, Constant’s first issue fails.

Section 2254 Motion, Superior Court Memorandum Opinion, Exhibit 14 (ECF No. 1-14), at 4-5 (additional citations omitted).

Superior Court’s statement that there “is no merit to Constant’s claim that Presley may be applied retroactively” is inaccurate: petitioner never “elaim[ed] that Presley may be applied retroactively,” nor did he suggest in his initial or his reply brief that Presley, announced “a new ijile of constitutional law.” To the contrary, petitioner stated that “issues of retroactivity are inapplicable” because “Presley v. Georgia ... merely reaffirms the right to a public trial, including jury selection,” a right that has been “firmly rooted since at least Press-Enterprise I.” Commonwealth’s Answer to Petition for Writ of Habeas Corpus, Reply Brief of Appellant, Exhibit 74, (ECF No. 10-5) at 9-10 of 40.

5. Petition for Writ of Habeas Corpus

Petitioner now raises the same issues for collateral relief: (1) trial counsel was ineffective for filing and successfully arguing a motion for a new trial, thereby waiving Mr. Constant’s Double Jeopardy claim that his charges should be dismissed; and (2) the Pennsylvania Courts violated clearly established federal law which guarantees a defendant’s right to a public trial, including jury selection.

In its Answer, the Commonwealth first recites the procedural history of these proceedings, and concedes that: (1) the Petition for Writ of Habeas Corpus is timely; (2) petitioner’s claims have not been procedurally defaulted; and (3) his claims have been fully exhausted in state court. Answer to Petition for Writ of Habeas Corpus (ECF No. 5) at 19-23.

Addressing the merits, the Commonwealth argues the right to a public trial at voir dire claim must fail for three reasons: (1) the trial court “did not completely close” jury selection, since members of the media were permitted to attend; (2) a “lack of space prevented the general public, including petitioner’s wife, from attending jury selection”; and (3) a transcript of the voir dire proceedings was made. Id. at 28-30.

Respondents implicitly disagree with Superior Court that considération of Presley poses any sort of retroactivity problem, given that respondents briefed, and attempted to distinguish, the Presley decision on its merits. Id. at 27-28. Indeed, the Commonwealth acknowledges that “the Presley decision rested on a conclusion that Waller v. Georgia, ... where the Court had held that the Sixth Amendment right to a public trial extended beyond the “actual proof at trial,” ..., when read in combination with Press-Enterprise Company ... which found that voir dire must be open to the.public as a matter of First Amendment rights, logically led to the conclusion that there was a Sixth Amendment right to public voir dire.” Id. at 28.

All parties have consented to Magistrate Judge jurisdiction. See Petitioner’s Consent to Jurisdiction by a United States Magistrate Judge [ECF No. 16]; Respondents’ Consent to Jurisdiction by a United States Magistrate Judge [ECF No. 15].

III. STANDARDS GOVERNING FEDERAL HABEAS CORPUS REVIEW UNDER SECTION 2254

1. Exhaustion Requirement

The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. To comply with the exhaustion requirement, a state prisoner first must have “fairly presented” his constitutional and federal law issues to the state courts through direct appeal, collateral review, state habeas proceedings, mandamus proceedings, or -other available procedures for judicial review. See, e.g., Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir.1996); Burkett v. Love, 89 F.3d 135, 137 (3d Cir. 1996). To “fairly present” a claim, a petitioner must present a federal claim’s factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir.1999). Even if a state court refuses to consider the claim, it is still exhausted as long as the state court had the opportunity to address it. Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir.1989). The petitioner has the burden of establishing that exhaustion has been satisfied. Ross v. Petsock, 868 F.2d 639, 643 (3d Cir.1989); O’Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir.1987).

Petitioner presented his claim to the state courts during his trial and PCRA proceedings. Thus, he has complied with the exhaustion requirement and the Court will review his claim.

2. Standard of Review for Exhausted Claims

In describing the role of federal habeas corpus proceedings, the Supreme Court of the United States, in Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), noted:

[I]t must be remembered that direct appeal is the primary avenue for review of a conviction or sentence.... The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996, (AEDPA), which further “modified a federal habeas court’s role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

Amended Section 2254 of the federal habeas corpus statute provides the standard of review for federal court review of state court criminal determinations and provides, in relevant part, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) 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; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.

28 U.S.C. § 2254(d).

“Clearly established Federal law” should be determined as of the date of the relevant state court decision and is limited to the record that was before the state court that'''adjudicated the claim on the merits. Greene v. Fisher, — U.S. -, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011); Cullen v. Pinholster, 563 U.S. -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). A state-court decision is “contrary to” clearly established federal law if the state court (1) contradicts the governing law set forth in Supreme Court cases or (2) confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Jamison v. Klem, 544 F.3d 266, 274 (3d Cir.2008). The state court judgment must contradict clearly established decisions of the Supreme Court, not merely law articulated by any federal court, Williams, 529 U.S. at 405, 120 S.Ct. 1495, although district and appellate federal court decisions evaluating Supreme Court precedent may amplify such precedent, Hardcastle v. Horn, 368 F.3d 246, 256 n. 3 (3d Cir.2004) (citing Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir.1999)). The state court is not required to cite or even have an awareness of governing Supreme Court precedent “so long as neither the reasoning nor the result of [its] decision .contradicts them.”. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); Jamison, 544 F.3d at 274-75. New state court decisions will be “contrary to” Supreme Court precedent.

The federal habeas court more often must determine whether the state court adjudication was an “unreasonable application” of Supreme Court precedent. A state-court decision “involves an unreasonable application” of clearly established federal law if'the state court (1) identifies the correct governing legal rule from the Supreme Court’s- cases 'but unreasonably applies it to- the facts of the particular case; or (2) unreasonably extends a legal principle from Supreme Court precedent to a new context where'it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Williams, 529 U.S. at 407, 120 S.Ct. 1495. A showing of clear error is not sufficient. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Nor is habeas relief available merely because the state court applied federal law erroneously or incorrectly. Thomas v. Varner, 428 F.3d 491, 497 (3d Cir.2005); Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir.2005). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.-,-, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). Accordingly, “[a]S a condition for obtaining habeas corpus from a federal court, a state prisoner.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 fair-minded disagreement.” Harrington, 131 S.Ct. at 786-87.

The Supreme Court repeatedly has reiterated the deference that the federal courts must accord to state court decisions. Felkner v. Jackson, — U.S.-, 131 S.Ct. 1305, 1307, 179 L.Ed.2d 374 (2011) (“AEDPA imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.”); Harrington, 131 S.Ct. at 786 (“We must use habeas corpus as a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.”); Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (“whether the trial judge was right or wrong is not the pertinent question under AEDPA”); Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (“The question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.”); Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (“it is not enough that a federal habeas court, in its independent review of the legal question, is left with a ‘firm conviction’ that the state court was erroneous.”).

Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in State court where that adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court' proceeding.” 28 U.S.C. § 2254(d)(2). The Supreme Court has clarified that: “a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (dictum).

Moreover, a federal court must accord a presumption of correctness to a state court’s factual findings, which a petitioner can rebut only by clear and convincing evidence. 28 U.S.C. § 2254(e). Where a state court’s factual findings are not made explicit, a federal court’s “duty is to begin with the [state] court’s legal conclusion and reason backward to the factual premises that, as a matter of reason and logic, must have undergirded it.” Campbell v. Vaughn, 209 F.3d 280, 289 (3d Cir.2000). In determining what implicit factual findings a state court made in reaching a conclusion, a federal court must infer that the state court applied federal law correctly. Id. (citing Marshall v. Lonberger, 459 U.S. 422, 433, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983)).

IV. APPLICATION

A. Double Jeopardy And Ineffective Assistance Of Counsel

To recap, petitioner’s first trial ended in a guilty verdict on all but one of multiple charges. After the verdict, trial counsel learned that the then-presiding judge’s tip-staff had improper and prejudicial communications with the jury during its deliberation, and he filed a motion for a new trial. After an evidentiary hearing, the Administrative Judge of the Criminal Division granted the motion for a new trial.

Petitioner now claims that, in finding trial counsel was not ineffective for filing and successfully arguing a motion for a new trial, in lieu of a motion to dismiss all charges based on quasi-judicial misconduct and the Double Jeopardy Clause, the Court of Common Pleas and the Superior Court of Pennsylvania violated clearly established federal law as set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (inquiry required under Sixth Amendment is whether petitioner has demonstrated that (1) “counsel’s performance was deficient” and (2) the “deficient performance prejudiced the defense.”).

Analyzing this claim under Pennsylvania’s ineffective assistance of counsel rubric, see Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), which.is essentially the same analysis as the Strickland analysis, the trial court found that “the underlying claim does not have arguable merit. The charges would not have been dismissed had counsel sought dismissal because retrial was the proper remedy.... Accordingly, had counsel sought a dismissal on double jeopardy grounds rather than seeking a new trial, that request would have been denied. Counsel was, therefore, not ineffective for failing to seek a dismissal.” Section 2254 Motion, Memorandum Opinion and Notice of Intention to Dismiss, (ECF No. 1-9), at 5-6. Superior Court affirmed, adopting the reasoning of the trial court.

Petitioner argues counsel was aware that the tipstaffs conduct “was so egregious that a dismissal on double jeopardy grounds was an appropriate remedy.... Yet, despite knowing this, he failed to file a Motion to Dismiss and instead inexplicably proceeded with his previously filed Motion for a New Trial. Following the evidentiary hearing, [the Court] granted Mr. Constant a new trial because the tipstaff had exerted an impermissible ‘outside influence’ on the jury which prejudiced Mr. Constant.” Section 2254 Motion (ECF No. 1), at ¶ 70. Petitioner maintains that a motion to dismiss pursuant to the Double Jeopardy Clause would have been successful had it not been waived. Section 2254 Motion-(ECF No. 1), at ¶ 72.

Initially, the Court notes that the appropriate and customary remedy for improper jury contact by bailiffs, tipstaffs and third parties during deliberations, when a defendant learns of such contacts sometime after a jury verdict of guilt, is a new trial, not discharge. See Gov’t. of Virgin Islands v. Gereau, 523 F.2d 140, 150 n. 25 (3d Cir.1975) (collecting cases, including Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) (bailiff expressed opinion on case to jurors)). Petitioner offers no authority to support the novel proposition that improper contact with the jury by a staff employee, not acting on behalf of the court, is grounds for dismissal under the Double Jeopardy Clause, ¿specially where the verdict has already been rendered and the defendant finds out about the improper contact at some point down the road.

Moreover, in this case, the state courts found that, although the tipstaff used poor judgment and made improper communications which required a new trial, she did not act with ill-intentions to provoke a mistrial or coerce the verdict, nor was she acting on behalf of the court. This factual finding was made after an evidentiary hearing and the hearing judge’s determination that the tipstaff was credible, and the federal courts cannot say that the finding was unsupported or was an unreasonable determination in light of the evidence.

The application of the Double Jeopardy bar requires a showing of the prosecutor’s, or in this case, the “quasi-judicial” officer’s, subjective intent to cause a mistrial in order to retry the case. See United States v. Dinzey, 259 Fed.Appx. 509, 510 (3d Cir.2007) (“We have specifically held that when a defendant requests a mistrial, even in response to prosecutorial or judicial error, double jeopardy does not bar retrial, unless the error that prompted it was the result of bad-faith conduct by a judge or prosecutorial misconduct.”) (citing United States v. Pharis, 298 F.3d 228, 243 (3d Cir.2002)). See also United States v. Coleman, 862 F.2d 455, 458 (3d Cir.1988) (Double Jeopardy Clause will not bar retrial absent intent on the part of the prosecutor to subvert its protections); United States v. Gilmore, 454 F.3d 725, 729-30 (7th Cir.2006) (“key question is whether the prosecutor deliberately introduced the error in order to provoke the defendant into moving for a mistrial ... Intent is a critical element to understand when determining if a prosecutor’s actions intentionally triggered the mistrial.”).

It also is firmly established that the Double Jeopardy Clause does not bar retrial of a “defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction.” Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). The “prosecution therefore is free to retry a defendant where the conviction is reversed due to ‘trial error’ such as ‘... prosecutorial misconduct.’” Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

The Court finds the decision of the state courts was neither contrary to, nor an unreasonable application of, clearly established federal law, and was based upon a reasonable interpretation of constitutionally relevant facts. As the state courts held, dismissal is not an appropriate remedy under the Double Jeopardy Clause, and habeas relief is, therefore, not appropriate on this claim.

B. The Right To Public Trial During Jury Selection

1. Waller v. Georgia, 467 U.S. 39, 46 (1984); Press-Enterprise Co. v. Superior Court of California, (Press-Enterprise I), 464 U.S. 501 (1984)

The Sixth Amendment provides that in “all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const, amend. VI.

The right of the accused to public trial ensures that “the public may see [the accused] is fairly dealt with ..., and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.” In re Oliver, 333 U.S. 257, 270, 271 n. 25, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (Black, J.) (quoting 1 Cooley, Constitutional Limitations 647 (8th ed.1927)). The public trial guarantee discourages perjury and ensures that judges, lawyers and witnesses carry out their respective functions responsibly. Waller v. Georgia, 467 U.S. at 46 n. 4, 104 S.Ct. 2210.

“Essentially, the public trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings. A fair trial is the objective, and ‘public trial’ is an institutional safeguard for attaining it.” Estes v. Texas, 381 U.S. 532, 588, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring) (quoting In re Oliver, 333 U.S. at 266-273, 68 S.Ct. 499). See generally State of Washington v. Wise, 176 Wash.2d 1, 288 P.3d 1113 (2012). To that end, trial courts “are obligated to take every reasonable measure to accommodate public attendance at criminal trials.” Presley, 558 U.S. at 215, 130 S.Ct. at 725.

As Justice Black observed in In re Oliver, while state and federal courts may have differed over which groups or categories of spectators could “properly be excluded from a criminal trial,” courts uniformly have held that the accused cannot “be tried, convicted, and sent to jail, when everybody else is denied entrance to the court,” and “all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged.” In re Oliver, at 271-72, 68 S.Ct. 499. “Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial systern.” Gannett Co. v. DePasquale, 443 U.S. 368, 383, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). “The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” United States v. Lnu, 575 F.3d 298, 305 (3d Cir.), cert. denied, 558 U.S. 1061, 130 S.Ct. 771, 175 L.Ed.2d 537 (2009) (quoting Gannett Co., 443 U.S. at 380, 99 S.Ct. 2898).

The guarantee of open public proceedings in criminal trials applies to jury selection and voir dire examination of prospective jurors. Press-Enterprise Co. v. Superior Court of California, (Press-Enterprise I), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (voir dire must be opened to public under First Amendment), relied upon in Presley. Waller and Press-Enterprise I, decided in the same term in 1984, have long stood for the proposition that a defendant is presumptively entitled to the presence of the public at all adjudicative phases of criminal proceedings. See Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir.1997) (“basic right [to a public trial] has a long and distinguished history,” and applies not only to the evidence phase of a criminal trial, “but also to other adversary proceedings, such as a pretrial suppression hearing”) (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (access to trial and pretrial hearings)); Wells v. Hartley, 2011 WL 7111822, *12 (C.D.Cal.2011) (“Sixth Amendment right to a public trial ... extends at least to those pretrial hearings that are an integral part of the trial, such as jury selection and motions to suppress evidence”) (internal quotation marks omitted) (quoting United States v. Waters, 627 F.3d 345, 360 (9th Cir.2010)). See also United States v. Rivera, 682 F.3d 1223, 1236 (9th Cir.2012) (right to public at sentencing hearing).

In United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3d Cir.1969), the Court of Appeals for the Third Circuit held that the Pennsylvania relator’s right to a public trial was violated where a pretrial Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing on a motion to suppress a confession was closed to the public, which required the issuance of a writ of habeas corpus. In so holding, the Court of Appeals made the following historical observations:

The right to a public trial is deeply rooted in history. Pennsylvania, where relator’s trial occurred, was the first state to guarantee a public trial in its Constitution, adopted in 1776. But the principle long antedated the first Pennsylvania Constitution. This history is briefly sketched in Commonwealth ex rel. Paylor v. Cavell, 185 Pa.Super. 176, 138 A.2d 246, 248-250, cert. denied 358 U.S. 854, 79 S.Ct. 84, 3 L.Ed.2d 88 (1958). William Penn’s Code of Laws of 1682 in the Frame of Government included a provision that ‘all courts shall be open.... ’ The present Pennsylvania Constitution of 1874 provides in Article I, § 9: ‘In all criminal prosecutions (by indictment or information) the accused hath a right to ... a ... speedy public trial____’

419 F.2d at 605-06 (parallel citations omitted).

If, after applying the proper balancing of interests, the court determines that a defendant’s right to a public trial has been violated, he need not show prejudice to obtain relief. Denial of the right is the sort of “structural error” that intangibly, but palpably, infests the entire proceeding and demands redress. See, e.g., Waller, 467 U.S. at 50 n. 9, 104 S.Ct. 2210 (because of the “great, though intangible, societal loss that flows from closing courthouse doors,” the denial of a right to a public trial is considered a structural error for which prejudice is presumed) (quoting People v. Jones, 47 N.Y.2d 409, 418 N.Y.S.2d 359, 391 N.E.2d 1335, 1340 (1979). “A requirement that prejudice be shown ‘would in most cases deprive [the defendant] of the [public-trial] guarantee, for it would be difficult to envisage a case in which he would have evidence available of specific injury.’ ” Waller, 467 U.S. at 50, n. 9, 104 S.Ct. 2210 (quoting Rundle, 419 F.2d at 608)); Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (defendant’s Sixth Amendment right to a public trial is of such importance that any error affecting it is deemed “structural,” making denial of the right one of the “limited class of cases” where reversal is required without showing prejudice); Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (characterizing denial of Sixth Amendment right to public trial as a “structural” error, citing Waller, 467 U.S. at 39, 104 S.Ct. 2210).

The right to a public trial will “give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller, 467 U.S. at 45, 104 S.Ct. 2210. “But to justify a denial of the public trial right, ‘the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced---' " Lnu, 575 F.3d at 306 (quoting Waller, 467 U.S. at 48, 104 S.Ct. 2210). In Waller, the Supreme Court defined the contours of the criminal defendant’s Sixth Amendment right to a public trial, , and ruled that the tests set out in Press-Enterprise I governed closures of pretrial proceedings (suppression hearing in Waller; jury selection in Press-Enterprise I), stating:

In several recent cases, the Court found that the press and public have a qualified First Amendment right to attend a criminal trial.... We also have extended that right not only to the trial as such but also to the voir dire proceeding in which the jury is selected. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)....

In each of these cases the Court has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care. We stated the applicable rules in Press-Enterprise:

“The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”

Waller, 467 U.S. at 44-45, 104 S.Ct. 2210 (quoting Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. 819).

The Waller-Press-Enterprise I test has both substantive and procedural components. In United States v. Antar, 38 F.3d 1348 (3d Cir.1994), the United States Court of Appeals for the Third Circuit explained that there is a presumptive right of public access to voir dire proceedings, and that:

[the right to public trial] may not be abridged absent the satisfaction of substantive and procedural protections. On the substantive side, a court ordering closure must first establish that the competing interest asserted is not only “compelling,” but also that it outweighs the First Amendment right of access. Second, it must determine -that the limitations imposed are both necessary to and effective in protecting that interest. One part of establishing the necessity of a limitation is a consideration of alternative measures and a showing that the limitation adopted is the least restrictive means of accomplishing the goal.... On the procedural side, these determinations must be covered by specific, individualized findings articulated on the record before closure....

38 F.3d at 1359.

2. Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721 (2010)

The Presley decision, presents a set of circumstances remarkably similar to the instant case. In Presley, the petitioner sought certiorari on the grounds that his Sixth and Fourteenth Amendment right, to a public trial was violated when the Supreme Court of Georgia affirmed the trial court’s exclusion of the public, in particular his uncle, from voir dire. The trial court had excluded the public from jury selection because “there just isn’t space for them to sit in the audience” (even though the uncle was the' lone courtroom observer), and the court did not “want family members in the courtroom to intermingle with the jurors and sit directly behind the jurors where they might overhear some inadvertent comment or conversation.” Presley, 558 U.S. at 211, 130 S.Ct. at 722. The Supreme Court of Georgia agreed that “the trial court certainly had an overriding interest in ensuring that' potential jurors heard no inherently prejudicial remarks from observers during voir dire,” and rejected Presley’s argument that the trial court was required to consider alternatives prior to closing the courtroom. Id. at 558 U.S. 211-13, 130 S.Ct. at 723.

The United States Supreme Court stated that the “Supreme Court of Georgia’s affirmance contravened this Court’s clear precedents.” Id. at 558 U.S. 209, 130 S.Ct. at 722 (emphasis added). In a Per Curiam Opinion, the Supreme Court explained:

The case now before the Court is brought under the Sixth Amendment, for it is the accused who invoked his right to a public trial. An initial question is whether the right to a public trial in criminal cases extends to the jury selection phase of trial, and in particular the voir dire of prospective jurors. In the First Amendment context that question was answered in Press-Enterprise I... . Later in the same Term as Press-Enterprise I, the ... Waller Court relied heavily upon Press-Enterprise I in finding that the Sixth Amendment right to a public trial extends beyond the actual proof at trial. It ruled that the pretrial suppression hearing must be .open to the public because “there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit. First Amendment right of the press and public.” ...

While Press-Enterprise I was heavily relied upon in Waller, the jury selection issue in the former case was resolved under the First, not the Sixth, Amendment. ... In the instant case, the question then arises whether it is so well settled that the Sixth Amendment right extends to jury voir dire that this Court may proceed by summary disposition.

The point is well settled under Press-Enterprise I and Waller....

558 U.S. at 212-13, 130 S.Ct. at 723-724 (citations omitted; emphasis added).

The Court reaffirmed that the substantive and procedural components of Waller must be applied “before excluding the public from any stage” of a criminal trial, and reiterated Press-Enterprise Ts admonition that trial courts are “obligated to take every reasonable measure to accommodate public attendance at criminal trials,” and that absent “consideration of alternatives to closure, the trial court could not constitutionally close the voir dire,” even when alternatives are not offered by the parties. Presley, 558 U.S. at 214, 130 S.Ct. at 724-725 (quoting PressEnterprise I, 464 U.S. at 505, 511, 104 S.Ct. 819). The Court also observed that the “conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear not only from this Court’s precedents but also from the premise that ‘[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system.’ ” Presley, 558 U.S. at 214, 130 S.Ct. at 724 (quoting Press-Enterprise I, 464 U.S. at 505, 104 S.Ct. 819).

Finally, Presley observed there are “no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire,” but even in such cases, “the particular interest, and threat to that interest, must ‘be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.’ ” Presley, 558 U.S. at 215, 130 S.Ct. at 725 (quoting Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. 819).

3. Application of Controlling United States Supreme Court Precedent

The'Pennsylvania courts’ decision on the right to public trial at jury selection is contrary to Waller and Press-Enterprise I, substantively and procedurally. Although petitioner briefed and argued Waller and Press-Enterprise I to Superior Court as controlling, “clearly established Federal law,” the state courts disregarded that precedent. Constant, 925 A.2d at 817, n. 3 (“We decline to apply the federal court’s holdings under the circumstances presented in this case.”).

The reasons given by the state courts for denying relief shifted from decision to decision, but, in order of appearance, were as follows: the record did not support Constant’s claim that his wife was barred from the courtroom during voir dire; Constant failed to establish prejudice from exclusion of his wife from jury selection; “the trial court permitted the media to attend voir dire proceedings”; the proceedings were transcribed by a court reporter; “space was limited”; and after filing his PCRA petition, the issue had been “previously litigated” adversely to petitioner. Neither alone nor in combination do these stated reasons support the closure of petitioner’s voir dire to petitioner’s wife and the general public, as discussed below.

a. Structural error — prejudice is presumed

Most trial errors and most constitutional errors are susceptible of harmless error analysis, because the errors “occurred during presentation of the case to the jury” and their effect may “be quantitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt.” . United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). Violation of the right to a public trial is not, however, in that class of errors.

Such a Sixth Amendment violation is in a second class of constitutional error called “structural defects,” which “defy analysis by ‘harmless-error’ standards” because they affect “the framework within which the trial proceeds,” and are not “simply an error in the trial process itself.” Gonzalez-Lopez, 548 U.S. at 148-49, 126 S.Ct. 2557 (collecting structural error cases; quoting Fulminante, 499 U.S. at 309-10, 111 S.Ct. 1246). “Violation of the public-trial guarantee is not subject to harmlessness review because -‘the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance.’ ” Gonzalez-Lopez, 548 U.S. at 149, n. 4, 126 S.Ct. 2557 (quoting Waller, 467 U.S. at 49, n. 9, 104 S.Ct. 2210).

The trial Court stated in its Opinion In Support of Denial of Post-Trial Motions that “the defendant has failed to indicate how he could possibly have been prejudiced if, as he contends, his wife was not permitted in to be present during jury selection. In the absence of any prejudice, the defendant would not be entitled to a new trial on the basis of any error in the selection of the jury.” Commonwealth’s Answer to Petition for Writ of Habeas Corpus, Appendix, Vol. III, (ECF No. 7-8) at 9 of 29. Superior Court “agree[d] with the sound reasoning of the PCRÁ court as set forth in its Opinion, and affirm[ed] on this basis with regard to this issue.” Section 2254 Motion, Superior Court Memorandum Opinion, Exhibit 14 (ECF No. 1-14), at 10-11. The state Courts’ finding (no prejudice) is irrelevant, and their conclusion (no new trial) is incorrect, given that the structural defect in the criminal proceedings-violation of the right to a public trial-obviates petitioner’s need to show prejudice in order to obtain relief. See Waller, 467 U.S. at 50 n. 9, 104 S.Ct. 2210; Johnson, 520 U.S. at 468, 117 S.Ct. 1544; Neder, 527 U.S. at 8, 119 S.Ct. 1827.

b. No overriding or substantial reason justified closure

The only substantive reason articulated by the trial court for closing voir dire to the public was “[w]e don’t have space.” Commonwealth’s Answer to Petition for Writ of Habeas Corpus (ECF No. 5), at 26; Section 2254 Motion, Jury Voir Dire Transcript, Exhibit 7 (ECF No. 1-7). A generalized lack of space will rarely, if ever, suffice to justify any but the most temporary closures, if in fact the room is filled to capacity. See, e.g., Bucci v. United States, 662 F.3d 18, 26 (1st Cir.2011) (“even if the courtroom were completely filled with prospective jurors, it would likely not justify the closure in this case____ Presley made clear that alternative methods of increasing the available public seating, such as splitting the venire, must be adopted if reasonable.”); Owens v. United States, 483 F.3d 48, 62 (1st Cir.2007) (in absence of on-the-record findings, “it is difficult for us to discern whether it was necessary for the entire courtroom to be cleared of spectators to permit the jury pool to enter.... Most justifications for trial closure have involved the need to protect witnesses or maintain courtroom order .... [and not] on the basis of convenience to the court.... Given the strong interest courts have in providing public access. to trials, the district court could have considered whether a larger courtroom was available for jury selection.”). Cf. United States v. Patton, 502 Fed.Appx. 139, 142, 2012 WL 5200568, *3 (3d Cir.2012) (t