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U.S. vs. Withers, No. 05-56795 (8-19-10) (Pregerson with Paez; dissent by Noonan). The 9th vacates and remands the denial of petitioner's 2255 appeal. The 9th also reassigns the case from the district court (Real). The petitioner had a 30-year sentence, imposed more than 12 years ago. However, his attempts at post-conviction review were summarily denied by the district court. On this latest appeal, the 9th finds that the appeal was not untimely because the petitioner's pro se appeal should be construed as a motion to reopen the time to appeal because he found out about the judgment late (the allegations were uncontested). As to the merits of the petition, two were not "patently frivolous." The petitioner alleged that the court violated his right to a public trial because he ordered the courtroom close during voir dire; and second, his appellant counsel was ineffective for failing to raise the issue on the trial appeal. In reviewing the record, the 9th concludes that the district court had not made findings or stated a reason for such closure, and this was structural error. The failure to raise on appeal might be excused by the ineffectiveness of appellant counsel, as claimed by petitioner. The case should be remanded for a determination of the merits and whether there is prejudice and whether there is a procedural bar. Given that this was the fourth appeal, and that the district court acted summarily in the previous matters, the 9th reassigns. In dissent, Noonan argues that enough is enough. Noonan would look at the merits, and find that they do not warrant habeas relief, as trial counsel failed to object and appellant counsel failed to raise the issue. There are strategic and tactical reasons for such decisions. The issue of whether structural error can be found harmless can be decided here.

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