United States v. Johnson

concurring.

Because I read the COX as encompassing Johnson’s claim that he was denied the right to effective assistance to counsel as a part of his claim that he was denied the right to counsel under the Sixth Amendment, I write separately to explain why the district court’s decision to hold in camera hearings did not directly nor constructively deprive Johnson of his right to effective counsel. See Strickland v. Washington, 466 U.S. 668, 686 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) (“[T]he court has recognized that the right to counsel is the right to the effective assistance of counsel.” (internal citation omitted)). Johnson argues that he was constructively denied effective assistance of counsel because of his defense counsel’s exclusion from the in camera hearings. Johnson claims this prevented his counsel from “participating] fully and fairly” in the fact-finding process and prevented his attorney from effectively litigating his Fourth Amendment claims.

To establish ineffective assistance of counsel, a defendant must show both that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Strickland,…

MEMORANDUM **

Kenneth Johnson appeals the district court’s denial of his motion to vacate his conviction and sentence under 28 U.S.C. § 2255 . We granted a certificate of appealability with respect to whether Johnson was deprived of his Fifth Amendment right to due process and/or his Sixth Amendment right to counsel when the trial court excluded his counsel from two pretrial in camera hearings regarding disclosure of the government’s confidential informants. We have jurisdiction under 28 U.S.C. § 1291 and we affirm. We review de novo a district court’s decision to deny a motion under 28 U.S.C. § 2255 . United States v. Sanchez-Cervantes, 282 F.3d 664, 666 (9th Cir.2002).

*630 The district court’s accommodation of Johnson’s right to a fair trial and the government’s concern for the safety of the confidential informants did not infringe upon Johnson’s Fifth or Sixth Amendment rights. The in camera hearings were not a “critical stage” of the criminal proceedings, so Johnson’s right to counsel was not violated. See, e.g., United States v. Bohn, 890 F.2d 1079, 1082 (9th Cir.1989) (identifying factors to consider). Johnson’s counsel was allowed to submit a list of questions for the…