         Case: 15-14005   Date Filed: 09/26/2016   Page: 1 of 14


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-14005
                       Non-Argument Calendar
                     ________________________

              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)
              Case: 15-14005     Date Filed: 09/26/2016    Page: 2 of 14


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.

                                           2
       Case: 15-14005   Date Filed: 09/26/2016    Page: 3 of 14




[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,             the
                        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.

                        Now—so assume I have the authority to do
                        it, now am I required to let in anyone you


                                 3
                Case: 15-14005        Date Filed: 09/26/2016       Page: 4 of 14


                                      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.
                                                 4
              Case: 15-14005     Date Filed: 09/26/2016     Page: 5 of 14


      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


                                           5
                  Case: 15-14005   Date Filed: 09/26/2016   Page: 6 of 14


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


                                            6
              Case: 15-14005     Date Filed: 09/26/2016    Page: 7 of 14


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




                                           7
              Case: 15-14005      Date Filed: 09/26/2016    Page: 8 of 14


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


                                            8
              Case: 15-14005     Date Filed: 09/26/2016   Page: 9 of 14


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


                                           9
             Case: 15-14005     Date Filed: 09/26/2016    Page: 10 of 14


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
                                          10
               Case: 15-14005       Date Filed: 09/26/2016       Page: 11 of 14


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.
                                               11
               Case: 15-14005       Date Filed: 09/26/2016       Page: 12 of 14


       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).

                                               12
               Case: 15-14005       Date Filed: 09/26/2016       Page: 13 of 14


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).


                                               13
             Case: 15-14005     Date Filed: 09/26/2016   Page: 14 of 14


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.




                                          14
