Javier Enriquez v. Secretary, Florida Department

Filing

Opinion issued by court as to Appellant Javier Enriquez. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 09/26/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14005
Non-Argument Calendar
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D.C. Docket No. 2:14-cv-00085-SPC-MRM

JAVIER ENRIQUEZ,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
Respondent-Appellee,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondent.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 26, 2016)

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Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Petitioner Javier Enriquez, a Florida prisoner proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas petition. In support of his
claim for habeas relief, Petitioner argues that the Florida trial court erred by sua
sponte closing the courtroom to spectators during his trial without following the
four-part test announced by the Supreme Court in Waller v. Georgia, 467 U.S. 39
(1984). After careful review, we affirm.
I. BACKGROUND
A.

State Criminal Conviction and Post-Conviction Proceedings

In 2008, the State of Florida charged Petitioner in an amended
multiple-count information with five counts of capital sexual battery of a child less
than 12 years of age, in violation of Fla. Stat. § 794.011(2), and two counts of lewd
and lascivious molestation, in violation of Fla. Stat. § 800.04(5)(b). After opening
statements at trial, the trial court asked the attorneys to approach the bench. The
trial court said: “This is a rape case, isn’t it?” The defense attorney responded
affirmatively. The follow exchange then took place:
THE COURT:

Underage child, why have you got all the
witnesses back there?

[Defense attorney]:

Those are attorneys, Judge.

THE COURT:

I know, but they’re not involved in the case.
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[Defense attorney]:

They’re just watching. They were asked to
come down by my office because they’re
taking over my cases when I’m gone.

THE COURT:

She’s taking the cases?

[Prosecutor]:

The first witness we’re calling,
courtroom needs to be cleared.

[Defense attorney]:

There’s been no motion to clear the
courtroom.

THE COURT:

I don’t care about the motion, I care about
the children. If you can show me the statute
that says you can bring everyone from your
office, I’ll be glad to let them stay.

[Defense attorney]:

Okay. But the burden is actually on the
State that they should get a closed
courtroom and not the other way around.

THE COURT:

I have certain obligations myself. You show
me where I should not close it, take a minute
to look at the statute, I’ll be glad to not close
it. Absent that, it’s going to be closed. I’ve
got a burden myself.

[Defense attorney]:

The only statute I’ll be able to find is one
saying the State needs to make a motion to
have it closed.

THE COURT:

We’ve already got [sic] over that. I’m going
to conduct the trial whether you do it or not,
I will protect you if you miss when it comes
to those children.

the

Now—so assume I have the authority to do
it, now am I required to let in anyone you
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want to let in, as long as they work for the
public defender’s office?
[Defense attorney]:

It could be the State Attorney’s Office, it
could be witness management, it could be
anybody.

THE COURT:

You’re not telling me anything, ask them to
leave while these two girls testify.

Because the defense attorney said she would prefer the court ask them to leave, the
trial court stated: “Anyone not directly involved in this case because of the nature
of the case and the requirement at this time will have to step outside of the
courtroom.”
As its first witness, the State called nine-year-old L.O. L.O. identified
Petitioner as her stepfather, and testified that she was watching television on her
mother’s bed, when Petitioner put his first two fingers in her “private under part.”
He also put his mouth on her private part. Afterwards, he gave her a bath. L.O.
further stated that Petitioner would wake her up in the morning, lie down next to
her, and touch her “under part” over her pajamas. After L.O. testified, the State
called her sister N.O. N.O. stated that she was eight years old, and that Petitioner
had done something to her that she did not like, but she was not able to answer any
of the State’s other questions. 1

1

The trial court granted Petitioner’s motion for judgment of acquittal as to the three counts
relating to N.O.
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The jury ultimately found Petitioner guilty of two counts of capital sexual
battery on a child less than 12 years of age and two counts of lewd and lascivious
molestation. The trial court sentenced Petitioner to life imprisonment for each of
the sexual battery charges and 25 years for each of the molestation charges, all to
be served concurrently.
Petitioner filed a direct appeal, arguing in relevant part that the trial court
erred by sua sponte clearing the courtroom of members of the public defender’s
office and others not directly involved in the case, without making any of the
findings required by Waller v. Georgia, 467 U.S. 39 (1984). He further asserted
that the trial court’s exclusion of the attorneys from the public defender’s office
violated Fla. Stat. § 918.16, which prohibits a court from excluding attorneys and
officers of the court from the courtroom. The Florida appellate court per curiam
affirmed Petitioner’s convictions and sentences.
In 2010, Petitioner filed a motion for state post-conviction relief pursuant to
Florida Rule of Criminal Procedure 3.850, raising five issues not relevant to the
present appeal. The trial court denied his motion, and the Florida appellate court
per curiam affirmed.
B.

Federal Habeas Petition

Petitioner subsequently filed the present § 2254 petition in February 2014,
asserting multiple grounds for relief. As relevant to this appeal, Petitioner alleged
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that the trial court violated his constitutional rights by clearing the courtroom prior
to the testimony of the minor victims, without making the necessary findings
pursuant to the Supreme Court’s decision in Waller.
The district court denied Petitioner’s § 2254 petition. In particular, the
district court concluded that the four requirements of Waller justified the closure of
the courtroom during the testimony of the minor victims. Specifically, the district
court concluded that: (1) protecting young victims of sexual abuse was a
compelling state interest; (2) the partial courtroom closure was not broader than
necessary to meet those interests; (3) the partial closure was a reasonable
alternative; and (4) the trial court’s comments about the nature of the case and the
victims’ ages, when read in context, made clear that it supported the partial closure
with adequate findings. But the district court granted Petitioner a certificate of
appealability as to this claim, concluding that reasonable jurists could debate
whether the trial court failed to address the third and fourth prongs of the Waller
four-part test.
II. DISCUSSION
A.

Governing Principles

We review a district court’s denial of a habeas petition under § 2254
de novo. Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1245 (11th Cir.
2014), cert. denied, 135 S. Ct. 1562 (2015). Although we review the district
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court’s factual findings for clear error, we review its rulings on questions of law
and mixed questions of law and fact de novo. Id.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets
forth a standard that makes granting habeas relief difficult on a claim that the state
court has adjudicated on the merits. See White v. Woodall, 572 U.S. __, 134 S. Ct.
1697, 1702 (2014). Under AEDPA, a federal court may only grant habeas relief on
a claim if the state court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
A state court decision is “contrary” to clearly established federal law if the
state court “arrives at a conclusion opposite to that reached by” the Supreme Court
or decides a case differently than the Supreme Court when faced with a case
involving materially indistinguishable facts. Wellington v. Moore, 314 F.3d 1256,
1260 (11th Cir. 2002). Moreover, a state court decision constitutes an
“unreasonable application” of clearly established federal law, where the court
identifies the correct governing principles, but unreasonably applies those
principles to a petitioner’s case. Id. at 1261. “[R]elief is available under
§ 2254(d)(1)’s unreasonable-application clause if, and only if, it is so obvious that

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a clearly established rule applies to a given set of facts that there could be no
‘fairminded disagreement’ on the question[.]” White, 134 S. Ct. at 1706–07.
B.

Sixth Amendment Claim

The Sixth Amendment provides that, “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.” U.S. Const., amend. VI.
The right to a public trial applies to state criminal defendants through the
Fourteenth Amendment. In re Oliver, 333 U.S. 257, 272–73 (1948). Because a
violation of the right to a public trial constitutes structural error, a petitioner who
establishes such a violation is entitled to relief. Judd v. Haley, 250 F.3d 1308,
1314–15 (11th Cir. 2001).
Petitioner argues that the trial court violated his Sixth Amendment right to a
public trial because its sua sponte closure of the courtroom was inconsistent with
the Supreme Court’s decision in Waller. In Waller, the Supreme Court considered
whether the closure to the public of a hearing on a motion to suppress violated a
defendant’s Sixth and Fourteenth Amendment right to a public trial. Waller, 467
U.S. at 40–41. The defendants in Waller were charged with racketeering and
gambling, and prior to trial, they moved to suppress the wiretap evidence. Id. at
41. The State moved to close the suppression hearing on the ground that the
wiretap evidence might violate the privacy rights of people other than the
defendants. Id. The trial court granted the motion, and excluded all individuals
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other than the witnesses, court personnel, the parties, and their lawyers, for the
entire duration of the seven-day hearing. Id. at 42. The Supreme Court held that
the closure violated the defendants’ right to a public trial. Id. at 43. The Court
first explained that a trial court must balance the interests weighing in favor of and
against closing the courtroom. See id. at 45. The Court next articulated a four-part
test that must be followed when a court considers closing the courtroom to all
spectators:
[T]he party seeking to close the hearing must advance an overriding
interest that is likely to be prejudiced, the closure must be no broader
than necessary to protect that interest, the trial court must consider
reasonable alternatives to closing the proceeding, and it must make
findings adequate to support the closure.
Id. at 47.
Petitioner’s Waller claim is dependent upon whether the closure of the
courtroom in the present case was a partial or a complete closure. “[W]e have
recognized a distinction between total closures of proceedings, as in Waller, and
situations where the courtroom is only partially closed to spectators.” Judd, 250
F.3d at 1315. For instance, we have distinguished between the complete closure in
Waller, where only the parties, their lawyers, and court personnel were permitted
in the courtroom for the entire duration of the hearing, from a partial closure,
which was limited to one witness’s testimony and the press and family members of
the defendant, witness, and decedent were permitted to remain in the courtroom
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during that testimony. See Douglas v. Wainright, 739 F.2d 531, 532 (11th Cir.
1984). Stated another way, a partial closure occurs when “the public retains some
(though not complete) access to a particular proceeding.” Judd, 250 F.3d at 1315.
But see id. (determining that the total closure of a courtroom for a temporary
period of a trial, such as during the testimony of one witness, constitutes a
complete closure and is subject to the four-part test announced in Waller).
Petitioner has not established that the closure of the courtroom in the present
case was a complete closure. During the discussion regarding the clearing of the
courtroom, the Florida trial court and the parties referenced “the statute.”
Presumably, this reference was to Fla. Stat. § 918.16, which states that:
[I]n the trial of any case, civil or criminal, if any person under the age
of 16 or any person with an intellectual disability as defined in
s. 393.063 is testifying concerning any sex offense, the court shall
clear the courtroom of all persons except parties to the cause and their
immediate families or guardians, attorneys and their secretaries,
officers of the court, jurors, newspaper reporters or broadcasters, court
reporters, and at the request of the victim, victim or witness advocates
designated by the state attorney’s office.
Fla. Stat. § 918.16(1). Thus, the statute pursuant to which the trial court issued its
directive permits a wide group of people to be present, including the parties, their
lawyers and family members, the press, and court reporters. See id. Because the
public retains some access to the trial, it follows that compliance with the statute
creates a partial closure, not a complete closure. See Lena v. State, 901 So. 2d 227,
229 (Fla. Dist. Ct. App. 2005) (stating that § 918.16(1) provides for a partial
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closure of the court room, which allows “certain persons to remain in the
courtroom”); Clements v. State, 742 So. 2d 338, 341–42 (Fla. Dist. Ct. App. 1999)
(explaining that § 918.16 is narrowly tailored to ensure compliance with a
defendant’s right to a public trial, as the press is able to remain and the individuals
excluded are those who have no direct interest in the case).2
Although Petitioner states that the courtroom was cleared of all spectators,
notably he does not assert that the press, family members, or any other individual
allowed to be present by statute was excluded from the courtroom. In fact, the
discussion between the court and counsel suggests that it was only members of the
public defender’s office not involved in the case who were asked to leave.
Specifically, employees of the public defender’s office were present as spectators
for the sole purpose of “watching” the minor child testify. And immediately after
the discussion about these employees, the trial court instructed anyone not directly
involved in the case to leave the courtroom. This suggests that the trial court’s
statement was directed at the public defenders who were not directly involved in
the case.

2

In Globe Newspaper Company v. Superior Court for the County of Norfolk, 457 U.S. 596
(1982), the Supreme Court determined that a Massachusetts’s statute that provided for the
mandatory exclusion of members of the press and public during the testimony of a minor victim
at a trial involving a sex offense violated the First Amendment. 457 U.S. at 598, 609. The
Supreme Court noted that other states had similar statutes, including Florida—which provides
for the mandatory exclusion of the public, not the press—but noted that it was not passing on the
constitutionality of those statutes. Id. at 608 n.22.
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Moreover, when given the chance to persuade the court to allow these
spectators to remain, Petitioner did not assert that the trial court was improperly
excluding family members or the press. Instead, when the trial court asked
Petitioner’s attorney if it was supposed to let anyone into the courtroom just
because they happened to work for the public defender’s office, Petitioner’s
attorney stated, “It could be the State Attorney’s Office, it could be witness
management, it could be anybody.” Notably, § 918.16(1) permits certain members
of the public (family members and the press) to remain in the courtroom during the
testimony of a minor victim. See Fla. Stat. § 918.16(1). Because Petitioner only
challenged the trial court’s exclusion of the members of the public defender’s
office, we are left to conclude that the trial court did not bar from the courtroom
those people the statute allowed to be present, and that it therefore complied with
§ 918.16. See Romine v. Head, 253 F.3d 1349, 1357 (11th Cir. 2001) (“A
petitioner has the burden of establishing his right to federal habeas relief and of
proving all facts necessary to show a constitutional violation.”). Therefore, we
conclude that only a partial closure of the courtroom occurred in the present case.
Having now determined that the closure was only a partial one, we next turn
to whether the state court’s decision3 rejecting Petitioner’s claim was contrary to,
3

We interpret the Florida appellate court’s per curiam affirmance without an opinion as a denial
on the merits. See Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348, 1353 (11th Cir. 2012)
(indicating that a per curiam affirmance without an opinion is an adjudication on the merits).
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or an unreasonable application of, clearly established federal law. We conclude
that it was not. Petitioner asserts that the courtroom closure was inconsistent with
Waller because the State did not identify an overriding interest for the closure, the
trial court did not consider reasonable alternatives, and the trial court did not make
adequate findings to support the closure. However, Waller involved the complete
closure of a courtroom, not a partial closure. Waller, 467 U.S. at 42. Thus, Waller
is not on point with the facts of this case, and therefore it would not have been
obvious to the state court habeas count—and likewise not clearly established under
§ 2254(d)(1)—that the trial court was required to conduct the four-part Waller test
before partially closing the courtroom for the testimony of the two minor victims.
See Dombrowski v. Mingo, 543 F.3d 1270, 1276 (11th Cir. 2008) (“‘[W]here no
Supreme Court precedent is on point, we cannot say that the state court’s
conclusion . . . is contrary to clearly established Federal law as determined by the
U.S. Supreme Court.’” (second alteration in original)). 4
Finally, with respect to partial closures, we have stated that a trial court is
not bound by Waller and that the court need only find a substantial reason
justifying the partial closure of the courtroom. See Judd, 250 F.3d at 1315;
4

Other Circuit Courts of Appeal have similarly concluded that Waller did not clearly establish,
for purposes of habeas review, the requirements a trial court must follow when partially closing a
courtroom. See e.g., Drummond v. Houk, 797 F.3d 400, 403–04 (6th Cir. 2015) (determining
that a habeas petitioner was not entitled to relief because it was not clearly established federal
law whether, and how, the Waller four-part test applies to partial closures); Garcia v. Bertsch,
470 F.3d 748, 754 (8th Cir. 2006).
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Douglas, 739 F.2d at 532–33. However, to the extent that Petitioner is arguing that
the trial court had no substantial reason to partially close the courtroom, case law
from our Court does not constitute clearly established federal law for purposes of
federal habeas relief. See Bowles v. Sec’y for Dep’t of Corr., 608 F.3d 1313, 1316
(11th Cir. 2010) (“Nor can anything in a federal court of appeals decision, even a
holding directly on point, clearly establish federal law for § 2254(d)(1)
purposes.”). As such, the Florida appellate court’s rejection of Petitioner’s claim is
not contrary to, or an unreasonable application of, clearly established federal law
as determined by the Supreme Court.
III. CONCLUSION
For the above reasons, the district court’s denial of Petitioner’s habeas
corpus petition is AFFIRMED.

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