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Wilder v. United States

United States Court of Appeals, First Circuit

November 20, 2015

DARREN F. WILDER, Petitioner, Appellant,
UNITED STATES OF AMERICA, Respondent, Appellee

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Michael R. Schneider, with whom Jeffrey G. Harris and Good Schneider Cormier were on brief, for appellant.

Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before Torruella, Lynch, and Kayatta, Circuit Judges. TORRUELLA, Circuit Judge, concurring.


Page 655

LYNCH, Circuit Judge.

Darren Wilder was convicted in March 2006, after a jury trial, of transportation, receipt, and possession of child pornography in violation of 18 U.S.C. § 2252. We affirmed his conviction on direct appeal and noted that the evidence against him was very strong. See United States v. Wilder, 526 F.3d 1, 7-12 (1st Cir. 2008), cert. denied, 555 U.S. 1050, 129 S.Ct. 626, 172 L.Ed.2d 618 (2008).

Wilder now appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2255, in which he claimed, for the first time, that the jury selection process for his trial violated his Fifth Amendment right to be present and his Sixth Amendment right to a public

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trial. Because Wilder cannot overcome his procedural default from not pursuing either claim at trial or on appeal, we affirm the denial of habeas relief.


The facts surrounding Wilder's underlying conviction are set forth in our prior opinion. Wilder, 526 F.3d at 3-5. We summarize only the facts relevant to this appeal.

On December 1, 2009, Wilder filed a motion under 28 U.S.C. § 2255 seeking to vacate his conviction on numerous grounds. On May 14, 2012, Judge O'Toole denied the motion, with the exception of two constitutional claims regarding jury selection that he reserved for an evidentiary hearing. The matter was then reassigned to Judge Casper so that Judge O'Toole could serve as a fact witness concerning the conduct of voir dire. On July 22, 2014, after an evidentiary hearing involving testimony and affidavits from trial participants, including Judge O'Toole, the district court denied both remaining claims.

The district court (Judge Casper) made the following findings of fact. Trial began on March 13, 2006. Wilder and Wilder's girlfriend, parents, stepmother, and mother's friend were present in the courtroom when the jury venire was brought into the courtroom. In open court, the trial judge (Judge O'Toole) explained the nature of the charges against Wilder and then asked the jury venire a series of questions as a group. After all of the potential jurors responded affirmatively to the question of whether he or she was a regular or frequent internet user, the trial judge indicated that " we're going to end up talking to all of you in the back."

The trial judge and counsel for both parties then proceeded to meet with potential jurors one by one in the jury deliberation room behind the courtroom. That room is not open or visible to those in the courtroom. However, those in the courtroom could see potential jurors as they left from and returned to the courtroom. It took the rest of the morning and most of the afternoon to go through the individual voir dire of each juror. In the back room, each individual potential juror was asked follow-up questions to those asked in open court as well as a question about whether child pornography evidence would so emotionally disturb the potential juror as to make him or her incapable of remaining impartial. Counsel exercised for-cause challenges as each juror left the room. The reason for conducting this portion of voir dire in the jury deliberation room, the trial judge attested, was to " support[] the juror's interest in privacy and thus promote[] full and candid answers." While he did not have any recollection specific to this case, this was his general practice in " a small number of cases," including child pornography cases. There was no objection to this procedure from either counsel.

Neither Wilder nor his family was present for that portion of the individual voir dire that took place in the jury deliberation room. Counsel was certainly present. Indeed, Wilder's counsel instructed Wilder and his family to stay in the courtroom in case Wilder was needed. Neither Wilder nor any other person ever made a request to enter and be present in the jury deliberation room.

After the individual questioning was completed, the jury selection proceedings resumed in open court. Defense counsel conferred with Wilder before exercising peremptory challenges. Both the prosecution and defense counsel then exercised peremptory challenges at sidebar. The trial judge then gave some cautionary instructions

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to the jury and excused the jury for the day.

In his petition, Wilder does not assert that the exercise of peremptory challenges at sidebar violated his constitutional rights. He challenges only those portions of ...

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