                     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-
