Longan v. Gilbert

          ORDER ADOPTING IN PART AND DECLINING IN PART REPORT AND RECOMMENDATION AND REMANDING FOR FURTHER PROCEEDINGS

          BENJAMIN H. SETTLE United States District Judge

         This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 8), and Petitioner Daniel Raymond Longan's (“Longan”) objections to the R&R (Dkt. 9). Having reviewed the R&R, the parties' pleadings, and the remainder of the record, the Court adopts in part and declines in part the R&R.

         I. BACKGROUND

         On March 20, 2007, Longan was arrested upon the conclusion of a high-speed car chase where multiple shots were fired at police from the fleeing vehicle. Dkt. 7, Ex. 2 at 1-2. Longan was the driver of the vehicle. Id. On July 2, 2008, Longan was convicted on three counts of first degree assault with firearm enhancements and the trial court sentenced Longan to 480 months confinement. Id., Ex. 1.

         Longan appealed his convictions to the Washington Court of Appeals. Id., Exs. 3-5. On August 25, 2009, the Washington Court of Appeals affirmed the convictions. Id., Ex. 2. As one of his assignments of error, Longan claimed that the voir dire of a prospective juror in a private courtroom hallway violated his right to a public trial. Regarding this claim, the Court of Appeals concluded:

Longan argues that the trial court denied him his right to a public trial by questioning a potential juror in the hallway during voir dire. But the trial court did not close the courtroom, as the judge did in Orange. He conducted the questioning of the potential juror in the hallway, which was just as open to the public as was the courtroom. Longan does not show that he was denied his right to a public trial.

Id., Ex. 2 at pp. 6-7.

         Longan moved for reconsideration of this decision, indicating that the record on appeal actually showed that the hallway where the voir dire took place was closed to the public. Id., Ex. 6. However, the Court of Appeals denied reconsideration, indicating that this was an issue more appropriately brought as a personal restraint petition. Id., Ex. 8. On November 30, 2009, Longan petitioned for review by the Washington Supreme Court. Id., Ex. 9. On March 30, 2010, the Washington Supreme Court denied review. Id., Ex. 11. On April 14, 2010, the Washington Court of Appeals issued its mandate. Id., Ex. 12.

         On December 2, 2009, Longan filed a personal restraint petition in the Washington Court of Appeals. Id., Ex. 13-31. On September 29, 2015, after a lengthy stay of the proceedings, the Washington Court of Appeals denied the personal restraint petition. Id., Exs. 28, 32. The Court of Appeals noted that, although prejudice is presumed on direct appeal, collateral review of an alleged public trial violation requires a showing of actual and substantial prejudice. Id., Ex. 32 at p. 6 n.6. Denying the petition, the Court of Appeals concluded that Longan's claim must fail “because Longan cannot show actual and substantial prejudice resulting from the trial procedure.” Id., Ex. 32 at p. 7.

         On October 29, 2015, Longan moved for discretionary review by the Washington Supreme Court. Id., Ex. 33. On June 6, 2016, the Commissioner of the Washington Supreme Court denied review on the same grounds as the Court of Appeals; namely, that Petitioner could not show prejudice resulting from the alleged denial of his right to a public trial. Id., Ex. 34 at pp. 1-3. On July 6, 2016, Longan moved to modify the Commissioner's ruling. Id., Ex. 35. On August 31, 2016, the Washington Supreme Court denied the motion to modify. Id., Ex 36. On September 8, 2016, the Washington Court of Appeals issued a certificate of finality. Id., Ex. 37.

         On December 23, 2016, Longan filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. 1. On February 8, 2017, Respondent Mary Gilbert (the “State”) filed a response. Dkt. 5. On April 4, 2017, Judge Strombom issued the R&R denying the petition. Dkt. 9. On April 17, 2017, Longan objected to the R&R. Dkt. 9. On April 18, 2017, the State responded to the objections. Dkt. 10.

         II. DISCUSSION

         The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed.R.Civ.P. 72(b)(3).

         A. ...