[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14913 June 6, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00229-CV-J-20-MMH
JESSIE EARL PURVIS,
Petitioner-Appellant,
versus
JAMES CROSBY, Secretary
Florida Department of Corrections,
ATTORNEY GENERAL OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 6, 2006)
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.
2
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
3
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
4
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
5
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,
6
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 (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 (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.
7
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
adjudicated the claim on the merits.” Having done that, the district court agreed
with the state court that, in light of Strickland, the claim failed because Purvis had
not shown any prejudice from his counsel’s failure to object. For that reason, the
district court concluded that the state court’s decision rejecting the ineffective
assistance claim was not contrary to, and did not involve an unreasonable
8
application of, clearly established federal law and was not based on an
unreasonable determination of the facts in light of the evidence.
Purvis filed a motion in the district court under 28 U.S.C. § 2253(c) asking
for a certificate of appealability (COA) with respect to his claims relating to the
closure of the courtroom. The district court denied that motion, but we ultimately
granted a certificate of appealability on these two issues:
Whether trial counsel was ineffective for failing to object to the
state’s request and the trial court’s order to close the courtroom
during the child victim’s testimony?
If so, whether trial counsel’s ineffective assistance constitutes
sufficient cause and prejudice to excuse appellant’s procedural
default in failing to raise the following claims at trial or on direct
appeal: appellant was denied (1) the right to a public trial by the
closure of the courtroom, and (2) due process because the victim did
not request that the courtroom be closed, and the court did not comply
with the state statute governing closure of the courtroom?
Whichever way we decide the first issue will moot the second one, so we will
begin and end with the first one.
III.
The most efficient way for us to decide the ineffective assistance of counsel
issue presented in this appeal is to assume away three subsidiary issues and get
straight to the prejudice question. We will assume that the closing of the
courtroom during the victim’s testimony was constitutional error under Waller v.
9
Georgia, 467 U.S. 39, 104 S. Ct. 2210 (1994), thereby putting aside any questions
about whether it was proper under the test set out in the Waller decision. We will
also assume that trial counsel’s failure to object to the partial closure of the
courtroom was “outside the wide range of professionally competent assistance,”
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (1984), thereby putting aside any
questions about the performance prong of the ineffective assistance of counsel
claim. Finally, we will assume that the state post-conviction court’s phrasing of
the prejudice test as whether there is “a reasonable likelihood” that counsel’s error
“impacted the outcome of the trial,” instead of using the more technically accurate
“a reasonable probability of a different result” standard, see id. at 694, 104 S. Ct.
at 2068, takes the case outside the scope of 28 U.S.C. § 2254(d)(1). This third
assumption puts aside the question of whether we owe any deference to the state
court decision.
Even with those three assumptions, we reach the same result as the state
court. Purvis loses on the ineffective assistance claim because he has not
established that he was prejudiced by his trial counsel’s failure to object to the
closure of the courtroom. To establish prejudice based on a trial counsel’s error:
“The defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
10
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
When we are considering defective performance at the guilt stage, “the question is
whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.” Id. at 695, 104 S. Ct. at
2068–69.
Purvis cannot show that an objection from his counsel would have caused
the factfinder to have a reasonable doubt about his guilt. If counsel had objected
in a timely fashion and had persuaded the trial judge not to partially close the
courtroom, there is no reason to believe that would have changed the victim’s
testimony in a way which would have created a reasonable doubt in the jury’s
mind. The victim could just as well have been a more sympathetic or credible
witness if forced to testify publically. We do not know, and when we do not know
the party with the burden loses, and here that party is Purvis. See Strickland, 466
U.S. at 694, 104 S. Ct. at 2068 (“The defendant must show . . . .”)
Against this logic Purvis argues that an objection by his trial counsel would
have preserved the issue for appeal and led to a reversal of his conviction, which
would have been a different result from the affirmance that occurred. There are
two flaws with this argument. One is its assumption that the trial judge would
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have overruled an objection if one had been made. There is as much reason to
believe that pointing out the error of his ways to the trial judge would have caused
him to mend those ways, thereby depriving Purvis of the issue on appeal. The
second and more fundamental flaw in this argument is that it focuses on the
outcome of the appeal, not of the trial. The Supreme Court in Strickland told us
that when the claimed error of counsel occurred at the guilt stage of a trial (instead
of on appeal) we are to gauge prejudice against the outcome of the trial: whether
there is a reasonable probability of a different result at trial, not on appeal. Id. at
694–95, 104 S. Ct. at 2068–69.
Our decision in Davis v. Crosby, 341 F.3d 1310 (11th Cir. 2003), is not to
the contrary. There trial counsel objected during voir dire to the Batson error that
was being committed but when his objection was rejected, counsel failed to take
the next step of renewing that objection after the conclusion of voir dire; in the
Florida courts that is a necessary step before the issue may be reviewed on appeal.
Id. at 1312. This Court held that because the failure of counsel was solely in his
role as appellate counsel at trial (those are not the words we used in Davis, but it is
what we meant), the prejudice inquiry should focus on the effect that counsel’s
omission at trial had on the appeal. Id. at 1315–16.
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Our reasoning and the result in Davis arguably were pushing things given
what the Supreme Court said in Strickland about measuring the effect of counsel’s
errors at the guilt stage of a trial against the result of the trial instead of the appeal.
Perhaps mindful of that, we drew our holding in Davis narrowly. We stressed in
Davis that it was a case involving “peculiar circumstances” where the only effect
of trial counsel’s error was on the appeal, and that it was not the usual case where
counsel had failed to bring an issue to the attention of the trial court at all. 341
F.3d at 1315. We carefully limited our holding to situations “when a defendant
raises the unusual claim that trial counsel, while efficacious in raising an issue,
nonetheless failed to preserve it for appeal.” Id. at 1316.
We distinguished in Davis our prior decision in Jackson v. Herring, 42 F.3d
1350, 1361–62 (11th Cir. 1995), where the failure to raise the Batson issue at all
during the trial was held to be a trial stage error with prejudice to be measured
against effect on the reasonable doubt determination. We explained in Davis:
“Unlike the situation in Jackson where defense counsel remained absolutely silent
as [the] prosecutor . . . struck all blacks from the venire, Davis’s trial counsel ably
brought the state’s possibly unconstitutional conduct to the trial court’s attention”
and then failed to preserve the error for appeal. Davis, 341 F.3d at 1315 (internal
marks and citation omitted).
13
The case before us now is on the Jackson side of the Jackson/Davis line,
because trial counsel did not raise at trial, ably or otherwise, a constitutional issue
related to closing the courtroom and then fail to take an additional technical step
required to preserve the issue. This is not the “unusual case” involving the
“peculiar circumstances” where counsel recognized and pressed an issue before
the trial court and then neglected to take some step that is relevant only to the
appellate stage. This is the more typical ineffective assistance of trial counsel case
where the claim is that trial counsel did not raise the issue at all. The broad,
generally applicable rule of measuring prejudice in terms of impact on the result of
the trial instead of on the result of the appeal, which is set out in Strickland and
followed in decisions like Jackson, applies; the razor thin exception recognized in
the Davis case does not.
We turn to one last question, raised by Purvis’ final argument. At least
when the closure is full, an error in removing the public from the courtroom
during a trial is a “structural defect affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself.” See Arizona v.
Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265 (1990). For that reason, the
Supreme Court has held that a defendant who properly preserves the issue at trial
and presents it on direct appeal is not required to establish that he was specifically
14
prejudiced by the closure. Waller, 467 U.S. at 49–50 & n.9, 104 S. Ct. at 2217 &
n.9 (1984).
Here the closure was not complete. It was during the testimony of only a
single witness, albeit the most important witness against the defendant, and at least
two members of the public were allowed to remain in the courtroom. If a partial
closure of the courtroom like this is a structural error or defect—and we are
assuming for this discussion that it is—the question is whether a habeas petitioner
must show prejudice in order to prevail on a claim that his trial counsel was
ineffective for failing to object to the closure. The Waller decision does not
answer this question because it came in a direct appeal presenting the pure closure
issue, not in a collateral attack on the conviction presenting an ineffective
assistance of counsel claim stemming from the failure to object to the closure. It is
one thing to recognize that structural errors and defects obviate any requirement
that prejudice be shown on direct appeal and rule out an application of the
harmless error rule in that context. It is another matter entirely to say that they
vitiate the prejudice requirement for an ineffective assistance claim.
The Supreme Court in Strickland instructed us that in all but three
exceptional circumstances prejudice must be shown before an ineffective
assistance of counsel claim merits relief. Describing two of those circumstances,
15
the Court said that: “In certain Sixth Amendment contexts, prejudice is presumed.
Actual or constructive denial of the assistance of counsel altogether is legally
presumed to result in prejudice. So are various kinds of state interference with
counsel’s assistance.” Strickland, 466 U.S. at 692, 104 S. Ct. at 2067 (citing
United States v. Cronic, 466 U.S. 648, 659 & n.25, 104 S. Ct. 2039, 2046–47 &
n.25 (1984)). The Court explained that, “[p]rejudice in these circumstances is so
likely that case-by-case inquiry into prejudice is not worth the cost,” and besides,
denial of the right to counsel and interference with it “involve impairments of the
Sixth Amendment right that are easy to identify and, for that reason and because
the prosecution is directly responsible, easy for the government to prevent.” Id,
104 S. Ct at 2067.
The only other ineffective assistance circumstance in which the prejudice
requirement does not apply full bore, the Court indicated in Strickland, is the one
where counsel is burdened by conflicting interests arising from multiple
representation situations like that involved in Cuyler v. Sullivan, 446 U.S. 335,
100 S. Ct. 1708 (1980). If counsel’s performance is affected because of that type
of conflict of interest, there is “a similar, though more limited, presumption of
prejudice.” Strickland, 466 U.S. at 692, 104 S. Ct. at 2067. The presumption of
prejudice is warranted in the conflict situation because counsel has breached “the
16
duty of loyalty, perhaps the most basic of counsel’s duties.” Id. Moreover,
“[g]iven the obligation of counsel to avoid conflicts of interest and the ability of
trial courts to make early inquiry in certain situations likely to give rise to
conflicts, see, e.g., Fed. Rule Crim. Proc. 44(c), it is reasonable for the criminal
justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of
interest.” Id.
The Supreme Court instructed us in Strickland that aside from those three
exceptions—actual or constructive denial of counsel altogether, certain types of
state interference with counsel’s assistance, and conflicts of interest—prejudice
must be shown:
[A]ctual ineffectiveness claims alleging a deficiency in attorney
performance are subject to a general requirement that the defendant
affirmatively prove prejudice. The government is not responsible for,
and hence not able to prevent, attorney errors that will result in
reversal of a conviction or sentence. Attorney errors come in an
infinite variety and are as likely to be utterly harmless in a particular
case as they are to be prejudicial. They cannot be classified according
to likelihood of causing prejudice. Nor can they be defined with
sufficient precision to inform defense attorneys correctly just what
conduct to avoid. Representation is an art, and an act or omission that
is unprofessional in one case may be sound or even brilliant in
another. Even if a defendant shows that particular errors of counsel
were unreasonable, therefore, the defendant must show that they
actually had an adverse effect on the defense.
17
466 U.S. at 693, 104 S. Ct. at 2067. The Court then defined the requisite adverse
effect or prejudice requirement in these terms: “The defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.
Ct. at 2068.
We cannot hold that attorney error in failing to object to the closing of the
courtroom is so likely to result in prejudice that we will presume it, unless we are
willing to defy the Supreme Court’s specific admonition that when it comes to
deciding ineffective assistance claims: “[Attorney errors] cannot be classified
according to likelihood of causing prejudice.” Strickland, 466 U.S. at 693, 104 S.
Ct. at 2067. We cannot dispense with the prejudice requirement for attorney error
of this type without defying the Supreme Court’s clear holding that except in three
limited circumstances, which are not present here, a defendant must show that any
error his counsel committed “actually had an adverse effect on the defense.” Id.
That means he must prove a reasonable probability of a different result. Id.
Our conclusion that a showing of prejudice is required for an ineffective
assistance claim stemming from the failure to object on Waller grounds is
supported, and probably compelled, by our decision in Hollis v. Davis, 941 F.2d
18
1471 (11th Cir. 1991). That case involved a failure to object to the systematic
exclusion of blacks from grand and petit juries. Id. at 1474. Systematic exclusion
is a structural error. Fulminante, 499 U.S. at 310, 111 S. Ct. at 1265 (recognizing
that systematic exclusion from grand juries on the basis of race is a structural
defect affecting the framework of the trial, which is not subject to the harmless
error rule); Avery v. Georgia, 345 U.S. 559, 561, 73 S. Ct. 891, 892 (1953) (petit
jury). For that reason we recognized in Hollis that if an objection had been made
and then pursued on appeal, a reversal of the conviction would have been in order
even without any showing of prejudice. 941 F.2d at 1476 (“The systematic
exclusion of blacks from the juries would require relief without a showing of
actual prejudice from the errors.”).
Even recognizing that, we still concluded in Hollis that because the error
had not been raised at trial the petitioner was required to show both cause and
actual prejudice in order to overcome the resulting procedural bar. 941 F.2d at
1476, 1483. The cause asserted by the petitioner in that case was ineffective
assistance of counsel. Id. at 1476. We held that in order to establish that the
failure to raise the structural defect was the result of ineffective assistance, “the
inept representation also must have prejudiced the accused’s defense.” Id. at 1478
n.7. Explaining what that meant, we said the petitioner had to show that “there is
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a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 1480 (internal marks omitted).
Our Hollis decision establishes as the law of this circuit that an ineffective
assistance of counsel claim based on the failure to object to a structural error at
trial requires proof of prejudice.
What we concluded in Hollis is entirely in line with Francis v. Henderson,
425 U.S. 536, 542, 96 S. Ct. 1708, 1711 (1976), which held that a showing of
actual prejudice is necessary to overcome a procedural bar arising from the failure
to object to what was a structural error at trial. The error raised in the Francis
case, which involved a 28 U.S.C. § 2254 attack on a state court conviction, was
the unconstitutional systematic exclusion of blacks from the grand jury which, as
we have already noted, is a structural error. Id. at 538, 96 S. Ct. at 1709. The
petitioner argued that he should not be required to prove actual prejudice, but the
Supreme Court unequivocally rejected that argument: “In a collateral attack upon
a conviction that rule [of Davis v. United States, 411 U.S. 245, 93 S. Ct. 1577
(1973)] requires, contrary to the petitioner’s assertion, not only a showing of
‘cause’ for the defendant’s failure to challenge the composition of the grand jury
before trial, but also a showing of actual prejudice.” Francis, 425 U.S. at 542, 96
S. Ct. at 1711. In a footnote attached to that statement of its holding, the Supreme
20
Court quoted with approval this statement from its Davis decision: “The
presumption of prejudice which supports the existence of the right is not
inconsistent with a holding that actual prejudice must be shown in order to obtain
relief from a statutorily provided waiver for failure to assert it in a timely manner.”
Id. at 542 n.6, 96 S. Ct. at 1711 n.6 (citing Davis, 411 U.S. at 245, 93 S. Ct. at
1584).
The Davis case involved a 28 U.S.C. § 2255 collateral attack on a federal
conviction based on a claim that blacks had been systematically excluded from the
grand jury. 411 U.S. at 235, 93 S. Ct. at 1579. The Supreme Court held that the
claim of error was procedurally barred because the claim had not been raised
before trial as required by Fed. R. Crim. P. 12(b)(2). Id. at 245, 93 S. Ct. at 1584.
It also held that a showing of actual prejudice—which the petitioner could not
make—was necessary to lift the procedural bar, even though prejudice would have
been presumed if the error had been raised in a timely fashion at trial and on direct
appeal. Id. at 244–45, 93 S. Ct. at 1584. The Court explicitly acknowledged that
“prejudice is presumed in cases where there is an allegation of racial
discrimination in grand jury composition;” however, it still held that prejudice
could not be presumed in order to relieve a petitioner of the procedural bar arising
from his failure to timely raise the claim. Id. at 244, 93 S. Ct. at 1584.
21
The result and reasoning of these Supreme Court decisions reinforce the
holding of our own Hollis decision that prejudice may not be presumed but must
be shown in order to establish ineffective assistance of counsel based on the
failure to raise a claim of structural error at trial. For the same reasons that
prejudice cannot be presumed in order to satisfy the prejudice requirement when
an objection to structural error was not made at trial, it cannot be presumed to
satisfy the prejudice component of an ineffective assistance claim arising from the
same failure to preserve the structural error. Otherwise, the Supreme Court’s
holdings in the Francis and Davis decisions would be pointless. Any defendant
who could not make the prejudice showing necessary to have a defaulted claim of
structural error considered could bypass that requirement by merely dressing that
claim in ineffective assistance garb and asserting that prejudice must be presumed.
We are not inclined to believe that the Supreme Court’s decisions in Davis and
Francis are pointless.
Finally, it is important to remember that virtually all ineffective assistance
claims are litigated at the collateral attack stage, after the conviction and sentence
have been upheld on direct review. “When the process of direct review . . . comes
to an end, a presumption of finality and legality attaches to the conviction and
sentence.” Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S. Ct. 1710, 1719
22
(1993) (quoting Barefoot v. Estelle, 463 U.S. 880, 887, 103 S. Ct. 3383, 3392
(1983)); cf. Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 1575 (1982)
(“Federal habeas challenges to state convictions . . . entail greater finality
problems and special comity concerns” than direct appeals); Barefoot, 463 U.S. at
887, 103 S. Ct. at 3392 (1983) (“Federal courts are not forums in which to
relitigate state trials.”). As the Supreme Court has emphasized, “[t]he principle
that collateral review is different from direct review resounds throughout our
habeas jurisprudence.” Brecht, 507 U.S. at 633, 113 S. Ct. at 1719. To hold that
the presumption of prejudice applies not only when properly preserved structural
errors are raised on appeal but also when related ineffective assistance claims are
raised in a collateral proceeding would diminish the difference between direct and
collateral review. It would undermine the important finality and comity interests
that are entitled to respect in a § 2254 proceeding, like this one. That we decline
to do.
For all of these reasons, we hold that in order to prevail on his ineffective
assistance claim stemming from the failure of his trial counsel to raise an objection
to the closing of the courtroom, Purvis must show a reasonable probability of a
different result in the trial if counsel had objected. Because he has not done that,
his claim was properly denied.
AFFIRMED.
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