CONSIDERED ON BRIEFS ON JANUARY 11, 2016
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT CUSTER COUNTY, SOUTH DAKOTA THE HONORABLE THOMAS L. TRIMBLE Retired Judge
PAUL EISENBRAUN, Grey and Eisenbraun Law., MARTY J. JACKLEY, Attorney General., Attorneys for applicant and appellant
PAUL S. SWEDLUND, Assistant Attorney General, Attorneys for respondent and appellee.
[¶1.] We issued a certificate of probable cause to review whether the circuit court improperly dismissed James Riley's application for a writ of habeas corpus without an evidentiary hearing. We affirm.
Facts and Procedural History
[¶2.] Riley was convicted of possession of child pornography. The conviction was affirmed on direct appeal. State v. Riley, 2013 S.D. 95, 841 N.W.2d 431. In November 2014, Riley submitted a pro se application for a writ of habeas corpus. He claimed that his jury trial was impermissibly closed to the public in violation of the Sixth Amendment, and that his counsel's failure to object to the closure violated his right to effective assistance of counsel.
[¶3.] The habeas court reviewed Riley's application together with a portion of the jury trial transcript. The transcript confirmed that during trial, the State moved to close the courtroom before it played a video that contained images of child pornography. However, the habeas court noted that the transcript also indicated the trial court declined to rule on the motion because no member of the public was present. The trial court permitted the only non-trial participant (a person associated with Riley's defense) to remain. The following is an excerpt of the exchange:
[State]: Your Honor, I would, at this time, move to publish this to the jury. I would make a motion to close the courtroom for viewing.
The Court: I think we only have people present who are officers or staff and an expert, right? I think we're good to go.
[State]: Your Honor, I would note that there's one gentleman in the courtroom not associated with law enforcement or the experts.
The Court: Is that a member of you folks' team?
[Defense]: Yes, Your Honor. He's somebody associated with Jim and we just as soon he stick around if ...