Gary Moore v. James Purkett ( 2001 )


Menu:
  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 01-1712
    ___________
    Gary Moore,                             *
    *
    Appellee,            * Appeal from the United States
    * District Court for the Eastern
    v.                                * District of Missouri.
    *
    James Purkett,                          *
    *
    Appellant.           *
    ___________
    Submitted: November 14, 2001
    Filed: December 26, 2001
    ___________
    Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
    ___________
    FAGG, Circuit Judge.
    Gary Moore was charged with first-degree burglary in 1994. At the
    conclusion of a pretrial suppression hearing held just before jury selection for
    Moore’s trial, the Missouri trial court instructed Moore to “get yourself a legal pad
    or something, because during the trial you’re not going to be allowed to talk at
    counsel table. If you have anything to say to [your attorney], you do that in writing,
    okay?” (Tr. 38.) Moore complied with the trial court’s ban on oral communication
    with his attorney, but before the trial started, Moore’s attorney informed the court
    Moore was “having difficulty communicating by paper because he . . . has a very
    limited ability to write.” (Tr. 159-60.) Moore’s attorney asked the court to allow
    Moore to talk with him “as quietly as possible” while court was in session. Id. at 160.
    The court immediately denied the request without further inquiry, stating, “There’s
    very little that needs to be discussed during a trial,” it being the court’s view that oral
    communication between Moore and his attorney was not necessary for the defense.
    Thus, the court ruled Moore could talk with his attorney during recesses, but while
    court was in session, they could communicate “by paper or not at all.” Id. Moore’s
    attorney objected, stating the court’s ban prevented him from communicating with his
    client and denied Moore’s constitutional rights. Although the court remarked that
    Moore had engaged in ongoing conversations with his attorney during the pretrial
    suppression hearing, the court made no specific findings that Moore would disrupt
    the trial if he were allowed to confer orally with his lawyer in the courtroom. After
    the jury convicted Moore, Moore personally raised the issue of his limited literacy
    during the sentencing hearing, telling the court: “I couldn’t read and write good
    enough to write out what I wanted to say to [my attorney].” (Sent. Tr. 5.) The trial
    court then made clear that its prohibition against Moore’s speaking was rooted in the
    judge’s general practice: “I tell everybody not to talk in court.”
    The Missouri Court of Appeals affirmed Moore’s conviction and fifteen-year
    prison sentence, holding the trial court did not abuse its discretion by prohibiting
    Moore from talking to his attorney while court was in session. Although the court did
    not question Moore’s inability to communicate effectively with his attorney in
    writing, the court reasoned that Moore was never precluded from communicating with
    counsel, only from using certain means of communication. Despite the lack of record
    support, the state appellate court concluded Moore’s “constant talking was distracting
    and disturbing,” and the trial court’s actions were “designed to maintain dignity and
    decorum in the courtroom.” State v. Moore, No. 66997, 66998, slip op. at 4-5 (Mo.
    Ct. App. June 11, 1996). The Missouri Supreme Court declined to review Moore’s
    case. Moore filed a timely federal habeas petition. Based on the magistrate judge’s
    -2-
    thorough report, the district court* granted Moore habeas relief under 
    28 U.S.C. § 2254
    (d)(1), concluding the state trial court’s bar on oral communication between
    Moore and his attorney in the courtroom violated Moore’s Sixth Amendment right
    to the effective assistance of counsel. The State of Missouri appeals. Having
    reviewed the district court’s conclusion de novo, Carter v. Kemna, 
    255 F.3d 589
    , 591
    (8th Cir. 2001), we affirm.
    Because Moore’s habeas petition was filed in 1998, it is governed by 
    28 U.S.C. § 2254
    (d) as amended by the Antiterrorism and Effective Death Penalty Act of 1996
    (AEDPA). Section 2254(d)(1) permits federal courts to grant a writ of habeas corpus
    when a state court’s judgment on the merits “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. § 2254
    (d)(1) (Supp. IV 1999). A
    state court’s decision is contrary to clearly established Federal law “if the state court
    arrives at a conclusion opposite to that reached by [the Supreme] Court on a question
    of law or if the state court decides a case differently than [the Supreme] Court has on
    a set of materially indistinguishable facts.” Williams v. Taylor, 
    529 U.S. 362
    , 413
    (2000). As in Moore’s case, a state court’s decision involves an unreasonable
    application of Supreme Court precedent when the state court “identifies the correct
    governing legal rule from [the Supreme] Court’s cases but unreasonably applies it
    to the facts of the particular state prisoner’s case,” or “either unreasonably extends a
    legal principle from [Supreme Court] precedent to a new context where it should not
    apply or unreasonably refuses to extend that principle to a new context where it
    should apply.” 
    Id. at 407
    . When making the unreasonable application inquiry, we ask
    whether the state court’s application of or refusal to extend principles was objectively
    unreasonable. 
    Id. at 409
    .
    *
    The Honorable E. Richard Webber, United States District Judge for the
    Eastern District of Missouri.
    -3-
    As a part of the right to effective assistance of counsel, the Sixth Amendment
    guarantees a defendant the right to confer with counsel in the courtroom about the
    broad array of unfolding matters, often requiring immediate responses, that are
    relevant to the defendant’s stake in his defense and the outcome of his trial. Geders
    v. United States, 
    425 U.S. 80
    , 88 (1976); United States v. Miguel, 
    111 F.3d 666
    , 672
    (9th Cir. 1997). Except when the defendant is testifying, or during brief recesses in
    that testimony, the defendant enjoys an absolute “right to unrestricted access to his
    lawyer for advice on a variety of trial-related matters.” Perry v. Leeke, 
    488 U.S. 272
    ,
    284 (1989). The defendant’s ability to communicate with counsel in court remains
    “one of the defendant’s primary advantages of being present at the trial.” Illinois v.
    Allen, 
    397 U.S. 337
    , 344 (1970). A defendant may lose his Sixth Amendment right
    if, after being warned by the judge of the consequences, the defendant repeats
    disruptive behavior. 
    Id. at 343
    . Nevertheless, “courts must indulge every reasonable
    presumption against the loss of constitutional rights.” 
    Id.
    In our view, the state trial court ran afoul of these principles in prohibiting
    Moore from talking quietly with his attorney in the courtroom during the trial.
    Because of Moore’s uncontroverted limited writing skills, the trial court’s ban on
    Moore speaking quietly with his attorney effectively prevented Moore from
    communicating with his attorney at all while court was in session. The record does
    not show that Moore’s conversations with his attorney would disrupt court
    proceedings, or that the trial court ever warned Moore about being disruptive or gave
    him an opportunity to correct disruptive behavior before banning him from talking
    altogether. Instead, the record shows the trial court simply thought defendants had
    little reason to talk with their attorneys in the courtroom, and maintained a general
    practice of not allowing it.
    Likewise, in the circumstances of this case, the Missouri Court of Appeals
    decision upholding the trial court’s bar on oral communications between Moore and
    his attorney during court was an unreasonable application of Supreme Court
    -4-
    precedent warranting habeas relief under § 2254(d)(1). Specifically, the Missouri
    Court of Appeals’ failure to apply the precedents’ principles to Moore’s situation is
    objectively unreasonable. In upholding the trial court’s ban, the Missouri Court of
    Appeals distinguished the Supreme Court’s decision in Geders, which held the Sixth
    Amendment was violated by a trial court’s order that a testifying defendant not confer
    with his attorney during an overnight recess between the defendant’s direct and cross-
    examination, 
    425 U.S. at 91
    , because the defendant would be likely to confer on
    “matters that the defendant does have a constitutional right to discuss with his
    lawyer,” Perry, 
    488 U.S. at 284
    . In the Missouri Court of Appeals’ view, Moore’s
    case did not involve a complete denial of access to counsel like Geders because
    Moore was permitted to communicate with counsel in writing. This view ignores the
    uncontested fact that Moore could not write well enough to do so, however. The
    Missouri Court of Appeals also thought the trial court had discretion to prohibit
    Moore’s talking because of his ongoing conversations with counsel during the pretrial
    hearing, but the record is inadequate to support this prohibition under Allen. Even
    assuming the Court of Appeals’ finding that Moore’s talking “was distracting and
    disturbing” is correct, see 
    28 U.S.C. § 2254
    (e)(1), there is no basis for a finding
    Moore’s behavior constituted a waiver of his Sixth Amendment rights, particularly
    when the trial court did not warn Moore and give him an opportunity to conform
    before imposing the ban on oral communication. See Allen, 
    397 U.S. at 343
    .
    Because Moore was actually or constructively denied the assistance of counsel
    altogether during trial court proceedings, the denial is reversible without a showing
    of prejudice. Perry, 
    488 U.S. at 280
    .
    We thus affirm the district court’s order granting Moore’s habeas petition. If
    Missouri does not retry Moore within a reasonable time, the State must set him free.
    See Foster v. Lockhart, 
    9 F.3d 722
    , 727 (8th Cir. 1993).
    -5-
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -6-