Purvis v. Crosby

Citation451 F.3d 734
Decision Date06 June 2006
Docket NumberNo. 04-14913.,04-14913.
PartiesJessie Earl PURVIS, Petitioner-Appellant, v. James CROSBY, Secretary Florida Department of Corrections, Attorney General of Florida, Respondents-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

William Mallory Kent, Law Office of William Mallory Kent, Jacksonville, FL, for Purvis.

Rebecca Roark Wall, Kellie A. Nielan, Florida Atty. Gen. Office, Daytona Beach, FL, for Respondents-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before CARNES, HULL and PRYOR, Circuit Judges.

CARNES, Circuit Judge:

Jessie Earl Purvis is a convicted child molester seeking to have his conviction set aside under 28 U.S.C. § 2254 because his trial counsel did not object when the state trial court cleared the courtroom of most of the public during the young victim's testimony. The district court, like the state courts, rejected Purvis' claim that his attorney's inaction deprived him of his constitutionally guaranteed right to effective assistance of counsel, and we granted a certificate of appealability on the issue. We address, among other things, the question of whether the structural nature of an error that counsel failed to preserve alters the prejudice requirement for an ineffective assistance of counsel claim.

I.

Before the victim, who was then thirteen years old, took the stand to testify at Purvis' jury trial, the following exchange took place.

Mrs. Christine [Prosecutor]: Judge, at this time I'd like to make a motion to have the courtroom cleared because we'll be presenting the testimony of the minor victim.

The Court: Okay. Are there persons likewise you wish to—

Mrs. Christine: This is her aunt and uncle.

The Court: All right. You have no objection to them remaining?

Mrs. Christine: No.

The Court: Okay.

Mr. Bell [Defense Counsel]: Judge, if her—Judge, we maybe want to—I may have an objection to some of the individuals if I could be heard outside the presence of the jury.

The Court: All right. I was trying to get that done before we brought them back. Please step out for just a moment more.

(Whereupon, the jury retired to the jury room and the further proceedings were had outside the presence of the jury:)

The Bailiff: Jury is in the jury room, Your Honor.

Mr. Bell: Judge, I don't know who—one of the—a couple of these people are her aunt and uncle and I don't have any problem with that. If one is her psychological counselor, we had had [sic] a hearing on the availability of these records and—

Mrs. Christine: It's not.

Mr. Bell: Okay.

Mrs. Christine: It's not.

The Court: Okay.

Mr. Bell: I just didn't want her counselling [sic] her. That's fine, Judge.

The Court: That's fine. All right. Let's call the witness in and let's get the witness sworn.

The record does not reflect how many spectators were in attendance before the courtroom was cleared.

The parties seem to agree that, as the quoted exchange indicates, at least the victim's aunt and uncle were allowed to remain in the courtroom. Purvis alleges that his adult son and his daughter-in-law had attended every court proceeding in the case, and they were in attendance at the time of the court's order to clear the courtroom; he wanted them to stay, but his attorney told him that they had to leave, and they did. According to the State, while the trial record reflects that the prosecutor asked for the courtroom to be closed, the record does not show that the judge ordered any spectator to leave or that any spectators were in fact excluded during the victim's testimony. The State concedes that Purvis' son and daughter-in-law may have been at the trial and speculates that his attorney decided to let them be excluded for strategic reasons. Because of the procedural posture of the case, we take Purvis' allegations to be true. As a result, the facts for our purposes are that during a crucial stage of the trial at least some members of the public were required to leave the courtroom while some others were allowed to stay. We take it as given that the court ordered a partial closure, trial counsel did not object, and his failure to do so was not strategically motivated.

During her testimony the victim, who was eleven years old at the time the events began, described the sexual abuse in the necessary detail. The jury obviously credited her testimony, because it convicted Purvis as charged on all three counts: (1) capital sexual battery on a child under twelve, in violation of Florida Statute § 794.011(2)(a); (2) sexual activity with a child twelve years or older by a person in familial or custodial authority (the victim was the daughter of Purvis' live-in girlfriend at the time), using digital penetration, in violation of § 794.011(8)(b); and (3) sexual activity with a child twelve years or older using penile union with her vagina, in violation of § 794.011(8)(b). Purvis was sentenced to life in prison on one count and twenty years on each of the other two counts. He was also declared a sexual predator.

II.

In his direct appeal Purvis was represented by different counsel, the Office of the Public Defender for the state judicial circuit where the trial had occurred. He raised four issues on appeal, none of which related to the closure of the courtroom or his trial counsel's performance. The Fifth District Court of Appeal affirmed Purvis' conviction but remanded for correction of the sentencing score sheet to reflect a different number of points for victim injury. Purvis v. State, 783 So.2d 292 (Fla. 5th DCA 2001). The remand apparently did not affect the actual sentence imposed.

Purvis then filed a motion for post-conviction relief in the state trial court pursuant to Florida Rule of Criminal Procedure 3.850. In that motion he asserted nineteen claims, a couple of which are relevant to the issue before us. One of them was that the closure of the courtroom violated his Sixth Amendment right to a public trial. That claim was, the state court concluded, procedurally barred because it could have been raised on direct appeal. In explaining that conclusion the court noted that "[a]lthough a public trial is a fundamental, constitutional right, the State, in the instant case, was seeking to close the trial in a constitutionally valid manner pursuant to [Fla. Stat.] § 987.16," and "[t]o the extent that there was any error during the State's attempt to comply with the statute, it was an error in the trial process itself rather than a structural defect" (internal citations and quotation marks omitted). The court held that "the alleged errors are not fundamental and not cognizable in a 3.850 motion."

Purvis also put forward in the state collateral proceeding the same ineffective assistance claim now before us, contending that he was denied effective assistance of counsel in violation of the Sixth Amendment by his trial counsel's failure to object to the closure of the courtroom during the testimony of the victim. The state trial court denied that claim, which it found "legally insufficient in that it does not set forth specific allegations showing a reasonable likelihood that the alleged exclusion of his son and daughter-in-law during the victim's testimony impacted the outcome of the trial." The mere possibility of prejudice was deemed insufficient to show actual prejudice. Responding to Purvis' contention that the partial closure of the courtroom was structural error, the court cited some Florida appellate court decisions for the proposition that the partial closing of a courtroom may not be fundamental error. See Alvarez v. State, 827 So.2d 269, 274 (Fla. 4th DCA 2002) (citing Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)); see also Hobbs v. State, 820 So.2d 347, 350 n. 3 (Fla. 1st DCA 2002) (citing Evans v. State, 808 So.2d 92, 105 (Fla.2001)). It added that "[e]ven if this were a structural error, not all structural errors are fundamental and thus not all structural errors require a new trial." The court also rejected Purvis' other claims and denied his Rule 3.850 motion for relief.

In his appeal from that denial, Purvis argued that if Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), required him to show that he had been prejudiced by his trial counsel's failure to object to the closure of the courtroom, he had done so. His reasoning was that an objection by counsel would have properly preserved the issue, allowing him to obtain a reversal of his conviction on appeal. In addition, Purvis argued that relief based on denial of the right to a public trial did not require a showing of prejudice because it was a structural error, and structural errors justify reversal even without any showing of prejudice. The failure of his trial counsel to object, he said, "was its own prejudice." The Fifth District Court of Appeal implicitly disagreed, affirming without opinion the denial of post-conviction relief.

Purvis' next step was to file in federal district court a petition for a writ of habeas corpus under 28 U.S.C. § 2254. That petition, as amended, contained thirteen claims, including the claims that the closure of the courtroom had denied him his Sixth Amendment right to a public trial and that his trial counsel's inaction regarding the closure violated his Sixth Amendment right to effective assistance of counsel. The State's response asserted procedural bar.

The district court concluded that the substantive claim was procedurally barred because it had not been raised on direct appeal. It also found that Purvis had not shown cause or prejudice to excuse the procedural default and that the fundamental miscarriage of justice exception was not applicable. As for the ineffective assistance of counsel claim, the district court thought it unclear whether the state trial court in the collateral proceeding had applied a procedural bar, but it gave Purvis "the benefit of the doubt and assume[d] that the trial court...

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  • Henretty v. Jones
    • United States
    • U.S. District Court — Northern District of Florida
    • November 12, 2015
    ...of trial (instead of on appeal), Strickland prejudice is gauged against the outcome of the trial, not on appeal. See Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006) (citing Strickland, 466 U.S. at 694-95). Finally, when a district court considers a habeas petition, the state court's fi......
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  • BEYOND STRICKLAND PREJUDICE: WEAVER, BATSON, AND PROCEDURAL DEFAULT.
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    ...challenge would have prevailed on appeal had trial counsel preserved it, appellant has demonstrated prejudice). But see Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006) (narrowing Davis to apply only where trial counsel raised a Batson challenge but failed to preserve it for appeal, not......

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