Ernest Sutton BELL, Petitioner-Appellant, v. Mack JARVIS; Robert Smith, Respondents-Appellees, 198 F.3d 432

Reversed and remanded by published opinion. SeniorJudge BUTZNER wrote the majority opinion, in which Judge MURNAGHAN joined. Judge TRAXLER wrote a dissenting opinion. OPINION BUTZNER, Senior Circuit Judge: Ernest Sutton Bell appeals the district court’s dismissal of his petition for habeas corpus. Bell challenges his convictions for rape and other sexual offenses on the ground that his appellate counsel failed to argue that the trial court, despite an objection, improperly closed the courtroom.

Because Bell’s appellate counsel was constitutionally ineffective, we reverse and remand the case for conditional issuance of the writ of habeas corpus. I Bell was indicted for raping and otherwise sexually assaulting his step-granddaughter, Wendy Harris, between March 1990 and May 1992. Following a jury trial, Bell was convicted in the Pitt County, North Carolina, Superior Court on January 14, 1994, of eight counts of first-degree rape, four counts of first-degree sexual offense, nineteen counts of second-degree rape, and twenty-seven counts of taking indecent liberties with a minor.

The trial court sentenced Bell to two life terms plus seventy years. Bell frames the issue on appeal before this court as follows: ‘Whether the District Court erred in denying the petition for writ of habeas corpus based on ineffective assistance of appellate counsel, where appellate counsel failed to raise on direct appeal the issue that Petitioner’s right to public trial was violated.” Appellant Br. at 2. Bell raised numerous claims on direct appeal.

Although Bell’s counsel assigned error to the closing of the courtroom, she did not brief the issue before the state intermediate appellate court, the Court of Appeals. Deeming the claim abandoned, the Court of Appeals did not discuss it. The Court of Appeals found no merit in the contentions counsel had briefed on appeal. See State v. Bell, 117 N.C.App. 732, 453 S.E.2d 877 (1995) (table). Bell subsequently filed a motion for appropriate relief in the Pitt County Superi- or Court, in which he contended that his counsel on direct appeal was ineffective for failing to raise the public trial claim.

The Superior Court summarily denied Bell’s motion, State v. Bell, No. 92 CRS 12536 et al. (N.C. Sup.Ct. Pitt County, Nov. 8, 1996), and the North Carolina Court of Appeals rejected Bell’s petition for certio-rari. State v. Bell, No. COAP96-591 (N.C.Ct.App. Dec. 31, 1996). On April 9, 1997, Bell filed the instant petition in the District Court for the Eastern District of North Carolina. The magistrate judge concluded that Bell’s counsel had provided ineffective assistance for failing to present a meritorious public trial claim. The magistrate judge recommended that Bell be granted a new direct state appeal.

The district court rejected the magistrate judge’s recommendation, holding that appellate counsel was not ineffective because the trial court did not err in closing the courtroom, and it granted

summary judgment in favor of the State, dismissing Bell’s habeas petition. Bell v. Jarvis, 7 F.Supp.2d 699 (E.D.N.C.1998). II Bell must exhaust his state court remedies before this court may examine the merits of his claims. See 28 U.S.C.A. § 2254(b)(1) (West Supp.1999). Bell raised his ineffective assistance claim in his petition for state postconviction relief and his subsequently denied petition for certiorari before the North Carolina Court of Appeals.

Recently, the Supreme Court held that the exhaustion doctrine requires that state prisoners “file petitions for discretionary review when that review is part of the ordinary appellate procedure in the State.” O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1733, 144 L.Ed.2d 1 (1999). The Court explained: “The particular question posed by this case is whether a prisoner must seek review in a state court of last resort when that court has discretionary control over its docket.” Id. at 1731.

The Court held that an Illinois state prisoner seeking federal habeas relief had not exhausted his state remedies when he failed to present certain claims, on direct appeal, in a petition for certiorari before the Supreme Court of Illinois. Id. Bell did not petition the North Carolina Supreme Court for discretionary review of the Court of'Appeals’ decision on direct appeal. North Carolina prisoners who are convicted at trial and lose their direct appeal before the Court of Appeals may petition the state Supreme Court for discretionary review. See N.C. Gen.Stat. § 7A-31(a) (1995).

Bell, however, fully litigated his ineffective assistance claim in state postconviction proceedings. North Carolina provides, by statute, that state prisoners seeking post-conviction relief may petition the Court of Appeals for a writ of certiorari. See § 15A-1422(c)(3) (1997). Decisions of the Court of Appeals concerning postconviction motions are final and may not be reviewed by the North Carolina Supreme Court. See §§ 7A-28(a) (1995), 15A-1422(f) (1997).

Bell has given the North Carolina courts “one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan, 119 S.Ct. at 1732. The exhaustion doctrine is premised on notions of comity and is not jurisdictional. Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The state may concede exhaustion by unconditionally waiving the requirement. Sweezy v. Garrison, 694 F.2d 331 (4th Cir.1982).

The State did so before the district court, expressly conceding: Petitioner has raised the substance of his present claims in the courts of North Carolina as required by 28 U.S.C. 2254(b)(1)(A) (1996). He has thereby exhausted state remedies. J.A. 102-03. Procedural default is not an issue in this case; the state courts did not decide, and the State does not claim, that Bell is procedurally barred from raising the issue that is the subject of this appeal. Ill The Antiterrorism and Effective Death Penalty Act of 1996 establishes the applicable standard of review. See Lindh v.

Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The Act provides that the writ may issue if the adjudication of petitioner’s claim on the merits by state courts “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.A. § 2254(d)(1) (West Supp.1999). If the state court decision is in “square conflict” with a Supreme Court precedent that is controlling as to law and fact, the writ should issue. Green v. French, 143 F.3d 865, 870 (4th Cir.1998).

In the absence of controlling precedent,

section 2254(d)(1) is satisfied “only when the state courts have decided the question by interpreting or applying the relevant precedent in a manner that reasonable jurists would all agree is unreasonable.” Id. IV The First Amendment to the United States Constitution prohibits any law “abridging the freedom of speech, or of the press.” U.S. Const, amend. I. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const, amend. VI.

As Chief Justice Burger explained in an opinion for the Court, “[t]he right to a public trial is a shared right of the accused and the public, the common concern being the assurance of fairness.” Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 7, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enterprise II). The Supreme Court in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), held 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.” Id. at 46, 104 S.Ct. 2210.

When analyzing the propriety of trial closure under either the First or Sixth Amendment, a court is required to conduct the same searching inquiry. See id. at 47-48, 104 S.Ct. 2210 (holding that satisfaction of the Sixth Amendment requires meeting the First Amendment “tests set out in Press-Enterprise [Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (Press-Enterprise I)] and its predecessors”). By guaranteeing that criminal trials shall be open and public, the Constitution affirms an adjudicative tradition originating before the Norman Conquest.

See Press-Enterprise I, 464 U.S. at 505, 104 S.Ct. 819. An open courtroom promotes honest testimony, the appearance of witnesses otherwise unknown, and conscientious performance by all trial participants. See Gannett Co. v. DePasquale, 443 U.S. 368, 383, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

With the knowledge that “every criminal trial is subject to contemporaneous review in the forum of public opinion,” a defendant’s triers are kept “ ‘keenly alive to a sense of responsibility and to the importance of their functions.’ ” In re Oliver, 333 U.S. 257, 270 and n. 25, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (citation omitted). In this manner, a public trial operates “as a safeguard against any attempt to employ our courts as instruments of persecution.” Id. at 270, 68 S.Ct. 499.

Although the public trial guarantee was created for the defendant’s benefit, see Waller, 467 U.S. at 46, 104 S.Ct. 2210, the right also serves a broader purpose: securing public confidence in the criminal justice system generally, and in a trial verdict particularly. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602-06, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (confirming that the public has a First Amendment right of access to a courtroom). A public trial gives citizens information necessary to understand and discuss their justice system. Id. at 604-05, 102 S.Ct. 2613.

Just as importantly, “people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known.” Press-Enterprise I, 464 U.S. at 508, 104 S.Ct. 819.

As this court has recognized, visible standards of fairness benefit the defendant and the public: The right to a public trial is not only to protect the accused but to protect as much the public’s right to know what goes on when men’s lives and liberty are at stake, for a secret trial can result in favor to as well as unjust prosecution of a defendant. Lewis v. Peyton, 352 F.2d 791, 792 (4th Cir.1965). Additionally, an open trial can ameliorate the emotions and reactions engendered by criminal acts. See Press-Enterprise I, 464 U.S. at 508-09, 104 S.Ct. 819.

This therapeutic benefit will be especially important where a defendant stands accused of violent acts. See id. The Sixth Amendment establishes a strong presumption in favor of a public criminal trial. This right, however, is not absolute. See Globe Newspaper Co., 457 U.S. at 606, 102 S.Ct. 2613. “[T]he 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.” Waller, 467 U.S. at 45, 104 S.Ct. 2210.

In Press-Enterprise I, the Court stated that the strong presumption in favor of openness may be overcome “only by an overriding interest based on findings that closure is essential.” 464 U.S. at 510, 104 S.Ct. 819. “Such circumstances will be rare.” Waller, 467 U.S. at 45, 104 S.Ct. 2210.

Before a trial court may close a courtroom, four conditions must be satisfied: (1) the party seeking closure must advance an overriding interest likely to be prejudiced if the courtroom remains open; (2) closure must be no broader than necessary to meet that interest; (3) the trial court must consider reasonable alternatives to closure; and (4) the court must make “findings adequate to support the closure.” Waller, 467 U.S. at 48, 104 S.Ct. 2210. Before Bell’s trial, the prosecution moved that the courtroom be closed during testimony of the minor prosecuting witness.

In its entirety, this discussion ran as follows: Prosecutor: ... And Judge, we have an outstanding motion I forgot to bring up earlier that the State had about closing the courtroom when at least Wendy testifies or all of the children testify at the appropriate time. The Court: Is there any objection to that motion? Counsel for Bell: Yes, sir, we would object to closing the courtroom. We believe that would impact on our client's constitutional right to a public trial. We would oppose it.

The Court: Well— Prosecutor: I would argue that that is contrary to case law in this state. [Apparently the prosecutor was referring to N.C. Gen.Stat. § 15-166 (1983), which permits the trial court to exclude bystanders from sex offense trials.] The Court: The Court is going to allow that motion and we’ll do it in the most discreet way possible so the jury doesn’t even notice it unless someone else calls it to their attention. We can take a short recess, and I can excuse the jury and I can then tell the others — other people in the courtroom that this is testimony of an apparent delicate nature.

I don’t see anything wrong with that. I am going to allow that motion. J.A. at 280-81. The trial court, at the suggestion of the prosecutor, closed the courtroom during the empaneling of the jury, the court’s introductory statements to the jury, the attorneys’ opening statements, and the testimony of the prosecutrix. The trial court permitted family members and friends of the prosecutrix to remain, but other persons were excluded from the courtroom. At one point during the testimony of the prosecutrix, the court admonished the remaining spectators to stop nodding and otherwise encouraging the witness.

The record does not indicate conclusively whether the courtroom was closed during the testimony of the other two minor witnesses. There is no record whether members of the press, if present at trial, were excluded, but the trial court excluded “other people” in the courtroom and its order was broad enough to exclude the press.

The North Carolina Court of Appeals outlined testimony in the case: The sixteen-year-old prosecuting witness, hereinafter referred to as Jane Doe, testified that in March of 1990, while spending the weekend with defendant, who is her step-grandfather, and her grandmother, she awoke to find defendant lying naked on her bed. Defendant rubbed her “butt,” put his finger in her vagina, rubbed her breasts, “french kissed” her, put his penis inside her vagina and rectum, and put his tongue in her vagina. Defendant also put her hand on his penis and told her to rub it back and forth.

Thereafter, whenever she spent the weekend at defendant’s house, approximately once or twice per month, defendant would “put his penis in [her] vagina.” Defendant would also come to her house and engage in sexual intercourse with her after school about two times per week. Jane Doe never told anyone except a friend, Vicki M., about these incidents because defendant threatened “not to love her” if she told. She eventually told her mother and aunt about defendant’s activities with her in late May of 1992.

Vicki M. testified that she spent a Saturday night with Jane Doe at defendant’s house in 1990 and that as the two girls played on the floor with a dog, defendant joined them and touched Vicki’s breasts, vagina and butt. The next day, she asked Jane Doe whether defendant had touched her private parts. Jane Doe told her defendant had touched her and had sex with her. Jane Doe told her all of the details. In May of 1992, Vicki M. spent the night with Jane Doe at the defendant’s residence. During the night, defendant came in and put his hand under her clothes, and touched her breasts, vagina and butt.

Toni A. testified that she sometimes spent the weekend with Jane Doe, defendant and his wife. While defendant’s wife was away, defendant touched [Toni A’s] vagina, breasts and butt with his hand and penis. Defendant also put his penis and fingers in her vagina. Defendant threatened to hurt her sister if she told. On one occasion, she and Jane Doe were staying at defendant’s house when she heard Jane Doe, who was alone with defendant, cry for help. Toni A. went inside and found Jane Doe crying.

Jane Doe’s mother, Jane Doe’s aunt and a detective testified regarding statements made to them by Jane Doe about the incidents. A pediatrician testified that he examined Jane Doe on 3 June 1992 and observed that her vagina appeared to be wider than usual for a child her age, and that he could not find a hymen. He testified that “if there was a hymen there originally, then in order for it to become as flattened and nonappar-ent as it was it would take repeated stretching and repeated penetration.” Defendant testified and denied molesting Jane Doe.

Defendant’s wife testified that defendant shared a bed with her and that she would know if he got out of bed. State v. Bell, 117 N.C.App. 732, 453 S.E.2d 877 (1995) (table). (Reproduced in J.A. 57-59). Bell argues that none of the four conditions of the test in Waller were met in the present case. We first must consider whether the prosecution advanced an interest justifying the courtroom closure.

Courts cannot close a courtroom for the sole reason that a young victim of a sex crime will testify: A trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives. Globe Newspaper Co., 457 U.S. at 608, 102 S.Ct. 2613 (footnotes omitted). See also Davis v.

Reynolds, 890 F.2d 1105, 1110 (10th Cir.1989) (“Considerations of a victim’s age and the nature of the offense involved support a closure only when they form part of a careful case-by-case analysis of each individual situation.”). In the instant case, the trial court knew before trial that the prosecution intended to elicit testimony from the minor witnesses that might be embarrassing. But the court made no attempt to determine, on a case-by-case basis, the necessity of closing the courtroom during the testimony of the minor witnesses.

The court failed to inquire, for example, about the maturity and understanding of the prosecuting witness or about her willingness to testify. Moreover, the court made no inquiry about the other minor witnesses. Indeed, at trial, the prosecutrix, who was then 16 years old, directly answered the questions put before her, including those of a distressing nature. The trial court knew before trial that one of the minor witnesses was reluctant to discuss a physical examination. But the prosecutor never asked her about this subject at trial.

Because the trial court failed to inquire about the minor witnesses’ ability to testify and failed to make relevant findings, we cannot conclude in this case that the government advanced an interest sufficient to justify closing the courtroom. The second prong of the Waller test requires that the closure be only as broad as necessary to meet the interest at stake. The nonexistence of factual findings renders us unable to determine the importance of the interest at stake. Therefore, we cannot agree with the prosecutor that closure was sufficiently tailored to meet that interest.

For instance, nothing in the record suggests that the trial court had information allowing it to decide whether it was necessary to close the courtroom during the testimony of just one of the minor witnesses or for all three. Nor are we persuaded that the trial court satisfied the third prong, which requires that the trial court consider alternatives to closing the courtroom. Waller, 467 U.S. at 48, 104 S.Ct. 2210. Nothing in the record suggests that the trial court considered any alternatives to closure. The fourth prong requires that the trial court make findings adequate to support closing the courtroom.

Waller, 467 U.S. at 48, 104 S.Ct. 2210. The trial judge indicated that he was closing the courtroom during “testimony of an apparent delicate nature.” J.A. 281. This fact alone is insufficient to warrant closure: “Where ... the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.” Globe Newspaper Co., 457 U.S. at 606-07, 102 S.Ct. 2613 (emphasis supplied).

We conclude that there is a reasonable probability that the trial judge’s statement was insufficient to satisfy the requirements of the Sixth Amendment. The Supreme Court has consistently and clearly required that trial courts make specific, on-the-record findings in support of closure.

See Press-Enterprise II, 478 U.S. at 13-14, 106 S.Ct. 2735 (“proceedings cannot be closed unless specific, on the record findings are made” demonstrating that closure is essential and narrowly tailored); Waller, 467 U.S. at 45, 48, 104 S.Ct. 2210 (findings must be adequate to support closure, and may not be “broad and general”); Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. 819 (findings must be sufficiently specific for appellate review); Richmond Newspapers, Inc. v.

Vir ginia, 448 U.S. 555, 581, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (“Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.”) (plurality opinion). The Fourth Circuit also has emphasized the necessity of findings that justify closure.

See, e.g., In re South Carolina Press Ass’n, 946 F.2d 1037, 1040-44 (4th Cir.1991) (relying upon Press-Enterprise I); In re Charlotte Observer, 882 F.2d 850, 852-56 (4th Cir.1989) (closure order reversed because of lack of judicial findings); In re Knight Publ’g Co., 743 F.2d 231, 234-35 (4th Cir.1984) (“If the district court believes it necessary to close the courtroom after hearing the objections [to closure], it must state its reasons on the record, supported by specific findings.”).

In Waller, the trial judge closed the courtroom during a suppression hearing after ruling that some evidence was related to alleged offenders not yet on trial. 467 U.S. at 42, 104 S.Ct. 2210. The state’s proffer failed specifically to identify whose privacy rights would be violated, how those rights would be violated, and which portions of taped evidence would infringe other’s rights. Id. at 48, 104 S.Ct. 2210. The Supreme Court held that as a result the trial court’s findings were “broad and general” and failed to satisfy the public trial guarantee of the Sixth Amendment. Id.

We decline to accept the State’s invitation to search the record for facts supporting closure. Some of the concerns cited by the State — the age of the victims, the traumatic nature of the assaults, the distress of testifying — while understandable, are present when any young victim of sexual assault testifies in court. If a reviewing court relied upon these factors, it would, in effect, be adopting a rule permitting closure whenever a young victim of sexual assaults testifies. The Supreme Court has rejected such a rule. See Globe Newspaper Co., 457 U.S. at 607-08, 102 S.Ct. 2613.

We do not hold that such factors are irrelevant to a trial court considering a motion to close the courtroom. But the Sixth Amendment requires that consideration of these concerns be on the record and occur in the context of a case-by-case examination of the competing interests at stake. See Waller, 467 U.S. at 48, 104 S.Ct. 2210; Press-Enterprise II, 478 U.S. at 13-14, 106 S.Ct. 2735; In re Knight Publ’g Co., 743 F.2d at 234-35.

Moreover, we may not rely on after-the-fact concerns particular to the present case, such as the prosecution’s pretrial proffer that a witness was reluctant to discuss her physical examination. Actually, the proffer was not apt because during the trial the prosecutor did not ask the witness to testify about the physical examination. The requirement of specific, on-the-record findings is intended to give appellate courts a basis for determining the propriety of closure. See Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. 819.

This function is nullified if reviewing courts, on ha-beas appeal, must search the record to understand why the trial court closed the courtroom. We do not consider that an affidavit, filed pursuant to 28 U.S.C.A. § 2245 (West 1994), providing findings of fact submitted to the district court by the Pitt County trial judge four years after trial conclusively justifies closure. Posttrial assertions “cannot satisfy the deficiencies in the trial court’s record.” Waller, 467 U.S. at 49 n. 8, 104 S.Ct. 2210. Even if we did consider the affidavit, it would be of little help.

As the magistrate judge found, the trial judge’s affidavit “says little more than he knew the child was young, the attacker was old, and the crimes alleged were heinous.” J.A. 185. The district court paid scant heed to the affidavit. Our holding is consistent with that of other courts of appeals that have considered the issue of closure. See English v. Artuz, 164 F.3d 105, 109 (2d Cir.1998) (the trial court made insufficient findings when it concluded only that closure was warranted by “the totality of the evidence and in particular the sworn testimony of [a] witness.”); Guzman v.

Scully, 80 F.3d 772, 776 (2d Cir.1996) (“conclusory” justifications are insufficient). In Davis v. Reynolds, 890 F.2d 1105 (10th Cir.1989), the defendant was accused of raping a 16-year-old girl. Id. at 1107. Asserting that the victim’s psychological and emotional condition warranted closure, the prosecution moved that the public be excluded from the courtroom during the victim’s testimony. The trial court granted the prosecution’s motion, citing only the girl’s age. Id. at 1108-09.

The Tenth Circuit held that Davis’ right to an open trial was violated because the trial court failed to inquire into the factual basis for the government’s assertions and because the court failed to make factual findings in support of closure. Id. at 1110. The Tenth Circuit went on to note that without specific findings except the victim’s age, the trial court’s order was “essentially equivalent to the blanket legislative closure rejected in Globe Newspaper.” Id. at 1111.

The State argues that the Fifth and Eighth Circuits have found no Sixth Amendment violation where trial courts have closed courtrooms without detailed findings. See United States v. Osborne, 68 F.3d 94, 99 (5th Cir.1995); United States v. Farmer, 32 F.3d 369, 371 (8th Cir.1994). In Osborne, the court upheld the closure on the facts presented, which included specific supporting details offered by the prosecutor at the time of the motion. 68 F.3d at 99. Nevertheless, the Fifth Circuit admonished courts to “take care to develop a record of the issues, and make detailed factual findings.” Id.

In another case, the Eighth Circuit upheld a closure on facts that it had gleaned from the record. Farmer, 32 F.3d at 371. Because the Supreme Court and this court have mandated that trial courts make specific, on-the-record findings in support of closure, we decline to follow this holding. In Osborne, the Fifth Circuit also adopted a standard allowing a “partial closure” of trial proceedings upon a showing that there was a “ ‘substantial reason’ for the closure.” 68 F.3d at 98-99 (citing other courts that have adopted the same standard).

The Supreme Court, however, has never contemplated a less rigorous constitutional requirement for trial closures, and neither has the Fourth Circuit. We therefore adhere to the standard articulated by the Court in Waller. Moreover, the trial judge never articulated the basis of even a substantial reason for closure other than “testimony of an apparent delicate nature.” J.A. 281. V In Waller, the Court explained that a “defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee.” 467 U.S. at 49, 104 S.Ct. 2210.

Relying on courts of appeal and state opinions, the Court emphasized that prejudice “must necessarily be implied.” 467 U.S. at 49 n. 9, 104 S.Ct. 2210 (citations and internal quotation marks omitted). Waller is among the few cases designated as an example of structural error. See Johnson v. United States, 520 U.S. 461, 469, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing Waller). A structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” 520 U.S. at 468, 117 S.Ct. 1544 (internal quotation marks and citation omitted).

In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), the Court again recognized that denial of the right to a public trial as depicted in Waller was a structural error and held that “[e]rrors of this type are so intrinsically harmful as to require automatic reversal (i.e., ‘affect substantial rights’) without regard to their effect on the outcome.” Such errors “defy analysis by harmless error standards.” Id. at 1833 (citation and internal quotations omitted). VI Claims of ineffective assistance of counsel are mixed questions of law and fact, Strickland v.

Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reviewable de novo. Becton v. Barnett, 920 F.2d 1190, 1192 (4th Cir.1990). “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. An ineffective assistance claim has two components: counsel’s performance must have been deficient, and the defendant must have been prejudiced by counsel’s conduct. Id. at 687, 104 S.Ct. 2052.

The right to effective assistance of counsel extends to criminal defendants on their first appeal of right, and the same standards apply to counsel at trial and on appeal. See Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). In order to establish that counsel’s performance was deficient, the defendant “must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

In order to make a fair assessment of attorney performance, a reviewing court must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from the counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052. Under the Strickland standard, therefore, counsel’s competence is presumed, and “the defendant must rebut this presumption by proving that his attorney’s representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Kimmelman v.

Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). The particular error alleged by Bell is that his counsel failed to pursue his Sixth Amendment public trial claim on direct appeal. In making such decisions, appellate counsel need not raise every col-orable claim but may, instead, select the most promising issues for appeal. Jones v. Barnes, 463 U.S. 745, 752, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

Nevertheless, when counsel fails to brief “significant and obvious” issues on appeal for no apparent reason, “while pursuing issues that were clearly and significantly weaker,” the competence of counsel is called into question. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994); accord Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1986). In Matire v.

Wainwright, 811 F.2d 1430, 1438-39 (11th Cir.1987), for example, the Eleventh Circuit found ineffective assistance of counsel when appellate counsel ignored “a substantial, meritorious Fifth Amendment issue” that was “obvious on the record” and on which trial counsel had expressly objected. Id. at 1438. Similarly, Bell’s appellate counsel omitted to brief a significant meritorious issue that was obvious on the record and instead pursued issues that the appellate court found lacked merit. Cf. Gray, 800 F.2d at 646.

At the time of Bell’s appellate counsel’s conduct in late 1994 and early 1995, the mandate of the Supreme Court that trial courts make specific, on-the-record findings before closing a courtroom was well established. See, e.g., Press-Enterprise II, 478 U.S. at 13, 106 S.Ct. 2735 (1986); Waller, 467 U.S. at 48, 104 S.Ct. 2210 (1984); Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. 819 (1984). In addition, during the pendency of Bell’s appeal, the North Carolina Court of Appeals relied upon Waller to reverse a rape and kidnaping conviction. State v. Jenkins, 115 N.C.App. 520, 525-26, 445 S.E.2d 622, 625 (1994).

As in the instant case, the trial court in Jenkins had failed to make findings of fact supporting closure during the testimony of the prosecuting witness. Id. The Court of Appeals decided Jenkins in June 1994, five months after Bell was convicted and seven months before argument in his direct appeal. Bell’s appellate counsel certainly would have been able to rely on Jenkins, even if it was handed down after she filed the appellate brief. See N.C. R.App. P. 27, 37 (allowing parties to file motions at any time before the case is called for oral argument).

As in Matire, the Sixth Amendment claim here was obvious on the record, which shows that trial counsel explicitly objected to the closure on the grounds that it would “impact” on his “client’s constitutional right to a public trial.” J.A. 280-81. In view of the controlling Supreme Court and North Carolina precedent and the paucity of findings of fact made by the trial court, it was unreasonable of counsel to fail to argue the public trial claim on appeal.

The preliminary presumption that counsel was competent has been rebutted, and there is no evidence that counsel’s failure to pursue the claim was sound strategy. The record provides no strategic explanation for appellate counsel’s decision to drop the public trial claim. Bell’s appellate counsel did not testify, nor did she supply an affidavit, that she made a tactical decision not to brief the public trial claim. Precedent bars us from “conjur[ing] up tactical decisions an attorney could have made, but plainly did not....

Tolerance of tactical miscalculations is one thing; fabrication of tactical excuses is quite another.” Griffin v. Warden, 970 F.2d 1355, 1358-59 (4th Cir.1992). We hold that Bell’s appellate counsel provided assistance that fell outside “ ‘the range of competence demanded of attorneys in criminal cases.’ ” Strickland, 466 U.S. at 687, 104 S.Ct. 2052 (citation omitted). The second component of an ineffective assistance claim is prejudice. Bell must prove that his counsel’s unprofessional errors resulted in an unfair or unreliable proceeding. Lockhart v.

Fretwell, 506 U.S. 364, 368-72, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Application of controlling precedent establishes that Bell’s right to a public trial was violated. See swpra

Section IV. On direct appeal, Bell’s counsel could have shown, but did not, that the violation of his Sixth Amendment right to a public trial was not amenable to harmless error analysis and instead required automatic reversal. See Neder, 119 S.Ct. at 1833; Waller, 467 U.S. at 49, 104 S.Ct. 2210. Omission of the public trial claim from the appellate brief thereby rendered the proceeding unreliable. For this reason, we hold that Bell was prejudiced by appellate counsel’s failure to pursue the public trial claim. VII We turn finally to the question of the appropriate remedy.

Congress has directed federal courts to dispose of habeas petitions “as law and justice require.” 28 U.S.C.A. § 2243 (West 1994). This provision grants courts wide latitude in affording habeas relief. See, e.g., Carafas v. LaVallee, 391 U.S. 234, 239, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) (“[The habeas statute’s] mandate is broad with respect to the relief that may be granted.”). The Supreme Court has directed that the remedy should be appropriate to the Sixth Amendment violation. See Waller, 467 U.S. at 50, 104 S.Ct. 2210.

The Court has also counseled that in the habeas context, state courts should be given an opportunity to remedy errors that occurred at the state level. See, e.g., Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). We direct that the writ should issue and Bell be released, unless North Carolina elects to afford him within 180 days a new appeal or a new trial. Accord Mayo, 13 F.3d at 537. REVERSED AND REMANDED