United States District Court, W.D. Washington
ORDER ADOPTING IN PART AND DECLINING IN PART REPORT
AND RECOMMENDATION AND REMANDING FOR FURTHER
BENJAMIN H. SETTLE United States District Judge
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
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.
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.
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.,
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.
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.
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.
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.