United States District Court, W.D. Washington, Seattle
ORDER DENYING PLAINTIFF'S PETITION FOR WRIT OF
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on a petition for habeas relief
and a Report and Recommendation prepared in response to that
petition. Dkts. #4 and #19. Petitioner, Joseph Njuguna
Njonge, argues that King County Superior Court Judge Laura
Middaugh violated his right to a public trial by closing a
portion of voir dire to the public. Specifically,
that Judge Middaugh excluded Petitioner's family,
friends, and supporters from the courtroom without conducting
the on record analysis required to permit a closure.
Petitioner also argues that the failure of his attorney to
object to the closure at trial amounted to ineffective
assistance of counsel. Magistrate Judge Tsuchida completed a
Report and Recommendation regarding Petitioner's first
independent public trial right claim, and, without reaching
the merits of other claims, recommended that Petitioner's
conviction be vacated and a new trial be granted.
reasons stated herein, the Court denies Petitioner's
request for habeas relief on Claims 1, 2, and 3.
Njonge was charged with the first degree murder of Jane
Britt. Dkt. #4-2 at 4. During a pretrial suppression hearing,
on June 2, 2009, after being asked whether members of
Petitioner's family would be able to attend voir
dire, Judge Middaugh responded:
[W]e are in very cramped quarters for jury selection, and I
think about the only place for visitors to sit is going to be
the little anteroom out there, and I will tell you, with what
we are going to do about trying to get enough just to do this
in one meeting.
Dkt. #4-3 at 17.
Middaugh went on to explain how she intended to conduct
voir dire in accordance with her concerns about
seating. Id. She stated that after completing jury
biographies and questionnaires, the entire panel would be
called to the courtroom, noting “[w]e have received
permission to get more than the standard 50. I think we are
getting 65.” Dkt. #4-2 at 5. The maximum occupancy of
the courtroom at that time was 49 persons. Id. at
132. Judge Middaugh ordered that the first two benches in the
courtroom were to remain clear for the duration of jury
selection. Id. at 19. Then, addressing members of
the public present, she stated:
Just let me say for the people who are observing. You are
certainly welcome to observe. Tomorrow when we have the jury
selection, there will not be room for all of you. What we are
going to do to allow people to observe is check with the fire
marshal […] and make sure that we can keep those first
swinging doors open. And if we can do that, then we will
allow some people to observe if they wish to do so during the
jury selection by sitting in that kind of entry hall, if we
can do that…We may be able to have chairs out there;
we may not. We may be able to have the doors open without
chairs. We are going to find that out. The chance of all
you being able to be here and observe are slim to none during
the jury selection process.
Id. at 5 (emphasis added).
to jury selection the following day, the fire marshal
declined the court's request to have the doors remain
open. Id. at 6. On the morning of June 3, 2009,
members of the public including Ann Njonge, Petitioner's
sister, and Evelyn Thuo, a family friend, arrived to view the
jury selection process. Dkts. #4-2 at 135-37 and #4-3 at 2.
Potential jurors were brought up shortly after 9:00 a.m.,
ushered into the courtroom, and the doors were then closed.
Id. Both Ms. Njonge and Ms. Thuo confirmed that they
were unable to observe jury selection from the entry hall,
and that no members of the public were allowed into the
courtroom until after the noon recess. Id. In his
own affidavit, Mr. Njonge stated that during the jury
selection process that morning “the only people in the
courtroom were the Judge, the bailiff, the court clerk, the
stenographer, my lawyer, the prosecutor and a detective, the
courtroom doors were closed after the jurors were brought in,
and no observers were allowed in….” Dkt. #4-3 at
the venire had entered, Judge Middaugh welcomed the
jurors, explained the importance of jury duty and the jury
selection process, and swore in the potential jurors.
Id. at 17-18. Judge Middaugh then proceeded to
discuss the charge against Mr. Njonge and the State's
burden of proof. Dkt. #4-2 at 38-39. Six jurors had indicated
on their questionnaire that they would not be able to remain
impartial, and thirty-four indicated potential hardship
concerns. Dkts. #4-2 at 38 and #4-3 at 20. The Judge then
questioned the jurors who had asked to be excused for
hardship reasons. Dkt. #4-2 at 38. One juror stated to the
court “I lived in Indonesia for a couple of years and
that society in dealing with persecution and the suppression
of women and this whole situation, this whole case is going
to be very disturbing for me.” Id. at 39.
Around 12:00 p.m., the court excused the venire for
lunch. Id. Judge Middaugh remained on the bench,
discussing potential hardship excusals with the attorneys.
Dkt. #4-3 at 20. Seventeen potential jurors were excused for
hardship reasons. Id. at 14.
beginning of the afternoon session, the prosecuting attorney
informed the court that some non-witness members of the
public had “stuck around this morning, hoping there
might be some seats later, and your bailiff informed them at
lunch since some people were excused there were some.”
Dkt. #4-2 at 20. The prosecutor suggested moving a potential
juror to another seat to accommodate members of the public.
Id. Judge Middaugh approved, commenting “[w]e
checked with the fire department. They wouldn't let us
leave the doors open for visitors to come in. Let's move
No. 30 over next to 34, and then we can have visitors sitting
in the second row there.” Id. Jury selection
then continued as the parties began questioning jurors.
Id. Importantly, no party objected to the trial
court's treatment of voir dire. Id.
Njonge was convicted of second degree murder at the
conclusion of his trial. Id. at 6. Mr. Njonge
appealed to the Washington State Court of Appeals, alleging
for the first time that his right to a public trial had been
violated when Judge Middaugh closed the court during voir
dire. Id. The State Court of Appeals agreed
with Mr. Njonge and remanded for a new trial. Id. at
16. The State appealed, and the Washington State Supreme
Court reversed after concluding that the record did not
provide adequate evidence that members of the public had been
“totally excluded from the juror excusals.”
Id. at 18-19 and 23.
Njonge then initiated personal restraint proceedings, and
provided new evidence supporting his assertion that the
courtroom doors were closed and members of the public were
totally excluded for the duration of the morning jury
selection process. Dkts. #4-2 at 113, 118-19, and 134-37 and
#4-3 at 2-3. The Washington State Court of Appeals denied his
personal restraint petition, finding that the right to a
public trial did not include hardship excusals, and that Mr.
Njonge had not made a required showing of prejudice. Dkt.
#4-3 at 21-23.
review, the Washington State Supreme Court acknowledged that
Mr. Njonge's new evidence created “an important
distinction in light of this court's determination on
direct appeal that the record on appeal did not show that the
courtroom was closed in violation of the right to a public
trial.” Id. at 47-48. After consideration of
the new evidence, the State Supreme Court reasoned that
hardship excusals were distinct from “substantive jury
voir dire, ” and that it was questionable whether a
lack of public access during that portion implicated Mr.
Njonge's public trial right. Id. at 48. Even
assuming the hardship excusals did implicate Mr. Njonge's
public trial right, the Washington State Supreme Court denied
his petition, concluding that he had not presented a basis
for relief by failing to establish that he was prejudiced by
any closure. Id. at 48-50.
initial matter, this Court agrees with the Magistrate
Judge's findings regarding Petitioner's request for
an evidentiary hearing. See Dkt. #19 at 10.
Petitioner has alleged facts with respect to the closure of
his trial, which if proven, may entitle him to relief.
However, Petitioner has not established that the hearings he
previously received in state court were neither full nor
fair. Thus, the Court finds that holding an evidentiary
hearing in this matter is not necessary at this time.
Standard of Review
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), a federal court is unable to grant relief on an
application for a writ of habeas corpus with respect to any
claim that was adjudicated on the merits unless the
adjudication of the claim resulted in a decision that was (1)
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) based on an unreasonable
determination of the facts in light of the evidence presented
in state court proceedings .” 28 U.S.C. § 2254(d).
court's decision is “contrary to” federal law
when the court either (1) failed to apply the correct
controlling authority, or (2) having applied the correct
controlling authority, did so in a case involving facts
“materially indistinguishable” from those in a
controlling case, but nonetheless reached a different result.
See Shackleford v. Hubbard, 234 F.3d 1072, 1077 (9th
Cir. 2000), cert. denied, 534 U.S. 944, 122 S.Ct.
324, 151 L.Ed.2d 242 (2001) (quoting Williams v.
Taylor, 529 U.S. 362, 404-406, 120 S.Ct. 1495, 146
L.Ed.2d 389 (2000)).
a state court decision is an unreasonable application of
federal law when it is “objectively
unreasonable.” See Williams, 529 U.S. at
408-09. “As a condition for obtaining habeas corpus
from a federal court, a state prisoner must show that the
state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
White v. Woodall, 134 S.Ct. 1697, 1702, 188 L.Ed.2d
698 (2014) (quoting Harrington v. Richter, 562 U.S.
86, 101-103, 131 S.Ct. 770, 786-787, 178 L.Ed.2d 624 (2011)).
evaluating whether a state court decision was based upon an
unreasonable determination of facts in light of the evidence,
it is presumed that the state court factual findings are
correct. 28 U.S.C. § 2254(e)(1). A federal court is
unable to overturn state court findings of fact unless it has
“clear and convincing evidence” that those
findings are “objectively unreasonable.” See
Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct.
1029, 1041, 154 L.Ed.2d 931 (2003).
determine whether the State court decision was contrary to,
or involved an unreasonable application of, federal law, or
involved an unreasonable determination of facts, this Court
must base its judgment on the State court's last reasoned
decision addressing the merits of the claims raised in the
habeas petition. Avila v. Galaza, 297 F.3d 911, 918
(9th Cir. 2002) (referencing Ylst v. Nunnemaker, 501
U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991));
see also Shackleford, 234 F.3d at 1079.
last reasoned state court decisions in this case are the
Washington State Supreme Court's en banc denial of
Petitioner's direct appeal, and its denial of
discretionary review of Petitioner's personal restraint
petition. Dkts. #4-2 at 19-28, #4-3 at 46-50 and #19 at 9. By
identifying and discussing the merits of Petitioner's
claims, these orders qualify as “reasoned decisions,
” and will serve as the basis of this Court's
evaluation of the instant matter. 28 U.S.C. §
2254(d)(1); Lambert v. Blodgett, 393 F.3d 943, 969
(9th Cir. 2004).
Claim 1 - Violation of the Public Trial
Right, Exclusion of the Public
Claim 1, Petitioner asserts that his right to a public trial
was violated when the trial court closed a portion of
voir dire to his family and friends. Dkt. #4-1 at 3.
Petitioner's trial counsel did not object to the closure
at trial, and the claim was brought first on direct appeal.
Dkt. #4-2 at 4-6.
Did Petitioner's Failure to Object to the Closure of his
Trial at Voir Dire Waive his Right to a Public Trial?
federal law, a defendant in a federal criminal trial may be
found to have waived his or her right to a public trial by
failing to object to the closure of voir dire
proceedings. Peretz v. United States, 501 U.S. 923,
936, 111 S.Ct. 2661, 2669, 115 L.Ed.2d 808 (1991). However,
in evaluating Petitioner's claim, this Court must rely on
the last reasoned decision on the merits, which was made
under Washington State law, not federal law.
Lambert, 393 F.3d at 969. The Washington State
Supreme Court rejected Respondent's claim that
Petitioner's failure to object amounted to a waiver,
citing well-settled Washington State law ...