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Njonge v. Gilbert

United States District Court, W.D. Washington, Seattle

April 11, 2018





         This 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.

         For the reasons stated herein, the Court denies Petitioner's request for habeas relief on Claims 1, 2, and 3.


         Mr. 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.

         Judge 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).

         Prior 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 6.

         Once 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.

         At the 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.

         Mr. 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.

         Mr. 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.

         On 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.


         As an 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.


         A. Standard of Review

         Under 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).

         A state 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)).

         Alternatively, 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)).

         In 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).

         To 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.

         The 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).

         B. Claim 1 - Violation of the Public Trial Right, Exclusion of the Public

         In 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.

         1. Did Petitioner's Failure to Object to the Closure of his Trial at Voir Dire Waive his Right to a Public Trial?

         Under 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 ...

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