Longan v Gilbert

Filing 11

ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 9 Objections to Report and Recommendation filed by Daniel Raymond Longan. (TG)

1
2

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

3
4

DANIEL RAYMOND LONGAN,

5
6
7
8

Petitioner,

11
12
13
14

MARGARET GILBERT,
Superintendent of the Stafford Creek
Corrections Center,
Respondent.

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.

15
16
17
18
19
20

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

v.

9
10

CASE NO. C16-6053 BHS

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.

21
22

ORDER - 1

1

Longan appealed his convictions to the Washington Court of Appeals. Id., Exs. 3-

2

5. On August 25, 2009, the Washington Court of Appeals affirmed the convictions. Id.,

3

Ex. 2. As one of his assignments of error, Longan claimed that the voir dire of a

4

prospective juror in a private courtroom hallway violated his right to a public trial.

5

Regarding this claim, the Court of Appeals concluded:

6

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.

7
8
9

Id., Ex. 2 at pp. 6–7.
10
Longan moved for reconsideration of this decision, indicating that the record on
11
appeal actually showed that the hallway where the voir dire took place was closed to the
12
public. Id., Ex. 6. However, the Court of Appeals denied reconsideration, indicating that
13
this was an issue more appropriately brought as a personal restraint petition. Id., Ex. 8.
14
On November 30, 2009, Longan petitioned for review by the Washington Supreme
15
Court. Id., Ex. 9. On March 30, 2010, the Washington Supreme Court denied review. Id.,
16
Ex. 11. On April 14, 2010, the Washington Court of Appeals issued its mandate. Id., Ex.
17
12.
18
On December 2, 2009, Longan filed a personal restraint petition in the Washington
19
Court of Appeals. Id., Ex. 13–31. On September 29, 2015, after a lengthy stay of the
20
proceedings, the Washington Court of Appeals denied the personal restraint petition. Id.,
21
Exs. 28, 32. The Court of Appeals noted that, although prejudice is presumed on direct
22

ORDER - 2

1

appeal, collateral review of an alleged public trial violation requires a showing of actual

2

and substantial prejudice. Id., Ex. 32 at p. 6 n.6. Denying the petition, the Court of

3

Appeals concluded that Longan’s claim must fail “because Longan cannot show actual

4

and substantial prejudice resulting from the trial procedure.” Id., Ex. 32 at p. 7.

5

On October 29, 2015, Longan moved for discretionary review by the Washington

6

Supreme Court. Id., Ex. 33. On June 6, 2016, the Commissioner of the Washington

7

Supreme Court denied review on the same grounds as the Court of Appeals; namely, that

8

Petitioner could not show prejudice resulting from the alleged denial of his right to a

9

public trial. Id., Ex. 34 at pp. 1–3. On July 6, 2016, Longan moved to modify the

10

Commissioner’s ruling. Id., Ex. 35. On August 31, 2016, the Washington Supreme Court

11

denied the motion to modify. Id., Ex 36. On September 8, 2016, the Washington Court of

12

Appeals issued a certificate of finality. Id., Ex. 37.

13

On December 23, 2016, Longan filed his petition for writ of habeas corpus

14

pursuant to 28 U.S.C. § 2254. Dkt. 1. On February 8, 2017, Respondent Mary Gilbert

15

(the “State”) filed a response. Dkt. 5. On April 4, 2017, Judge Strombom issued the R&R

16

denying the petition. Dkt. 9. On April 17, 2017, Longan objected to the R&R. Dkt. 9. On

17

April 18, 2017, the State responded to the objections. Dkt. 10.

18
19

II.

DISCUSSION

The district judge must determine de novo any part of the magistrate judge’s

20

disposition that has been properly objected to. The district judge may accept, reject, or

21

modify the recommended disposition; receive further evidence; or return the matter to the

22

magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

ORDER - 3

1

A.

“Vagueness” of the R&R

2

First, the Court addresses Longan’s argument regarding the supposed vagueness of

3

the R&R. Specifically, Longan complains that Judge Strombom mischaracterized his first

4

ground for relief as an ineffective assistance counsel claim based on counsel’s “failing to

5

raise a public trial.” See Dkt. 9 at 2. Petitioner states: “Apart from the vagueness of what

6

is meant by the R&R’s use of the phrase ‘raise a public trial,’ the fact of the matter is that

7

the R&R’s mischaracterizes Ground One of the Petition.” Dkt. 9 at 2. Aside from the fact

8

that Longan actually misquotes the R&R to create an issue over a trivial spelling error—

9

an error that notably does not actually exist—this argument lacks merit. The R&R

10

actually describes Longan’s first ground for relief as a claim for “ineffective assistance

11

by failing to raise a public trial violation . . . ,” which is exactly what Longan’s claim is.

12

Dkt. 9 at 1. To quote Longan’s own description of his first ground for relief in his

13

petition, his claim is that: “[w]here IAC is asserted under Strickland v. Washington, 466

14

U.S. 668, for counsel’s failure to raise issue of public trial violation, prejudice to the

15

defendant should be presumed and need not be proven.” Dkt. 1 at 6. Therefore, to the

16

extent Longan argues that the R&R is vague or mischaracterizes his petition, those

17

objections are rejected.

18

B.

19

Public Trial Violation
Longan also argues that he was deprived of the right to a public trial due to

20

ineffective assistance of counsel and that the Washington Court of Appeals improperly

21

required him to show actual and substantial prejudice resulting from his counsel’s failure

22

ORDER - 4

1

to inform him of his right to a public trial or to object to a nonpublic voir dire of a

2

prospective juror.

3

In Arizona v. Fulminante, 499 U.S. 279, 307–10 (1991), the Supreme Court

4

differentiated between two categories of constitutional errors in criminal cases: “trial

5

errors” and “structural errors.” Distinguishing between these two types of errors is often

6

critical on review of a conviction for the following reason: While trial errors may be

7

“quantitatively assessed in the context of other evidence presented in order to determine

8

whether its admission was harmless beyond a reasonable doubt,” id. at 308, structural

9

errors “defy analysis by harmless error standards” because they “affect[] the framework

10

within which the trial proceeds” and are not “simply an error in the trial process itself,”

11

id. at 309–310. See also United States v. Cazares, 788 F.3d 956, 970 (9th Cir. 2015), cert.

12

denied, 136 S. Ct. 2484 (2016).

13

The Supreme Court has repeatedly stated that denying a defendant’s right to a

14

public trial constitutes a structural error not subject to harmless error review. See United

15

States v. Gonzalez-Lopez, 548 U.S. 140, 149 (2006) (“[Structural] errors include the

16

denial of counsel, the denial of the right of self-representation, the denial of the right to

17

public trial, and the denial of the right to trial by jury by the giving of a defective

18

reasonable-doubt instruction) (emphasis added and internal citations omitted);

19

Fulminante, 499 U.S. at 310 (“[O]ther cases have added to the category of constitutional

20

errors which are not subject to harmless error the following: unlawful exclusion of

21

members of the defendant’s race from a grand jury, the right to self-representation at trial,

22

and the right to public trial.”) (emphasis added and internal citations omitted). The Ninth

ORDER - 5

1

Circuit has also unequivocally stated that “[t]he denial of the right to public trial has been

2

categorized as a structural defect.” Cazares, 788 F.3d at 970 (citing Gonzalez-Lopez, 548

3

U.S. at 149).

4

The Supreme Court has also recognized that the right to a public trial extends “not

5

only to the trial as such but also to the voir dire proceeding in which the jury is selected.”

6

Waller v. Georgia, 467 U.S. 39, 45 (1984); see also Presley v. Georgia, 558 U.S. 209,

7

209 (2010); Press-Enter. Co. v. Superior Court of California, Riverside Cty., 464 U.S.

8

501, 505 (1984). Although it is clear that some circumstances will warrant closing voir

9

dire to the public during jury selection, the Supreme Court has directed that “in those

10

cases, the particular interest, and threat to that interest, must ‘be articulated [by the trial

11

court] along with findings specific enough that a reviewing court can determine whether

12

the closure order was properly entered.’” Presley, 558 U.S. at 215. Additionally, the

13

Court must consider all reasonable alternatives to closure on the record. Id. at 216. As

14

noted by the Supreme Court in Press-Enterprise, a trial court’s failure to expressly

15

consider alternatives to the closure of voir dire during jury selection will result in

16

constitutional error, regardless of whether there otherwise existed adequate findings to

17

justify closure. 464 U.S. at 511. Accordingly, “[a] district court violates a defendant’s

18

right to a public trial when it totally closes the courtroom to the public, for a non-trivial

19

duration, without first complying with the four requirements established by the Supreme

20

Court’s Press–Enterprise and Waller decisions.” United States v. Withers, 638 F.3d 1055,

21

1063 (9th Cir. 2011). In such circumstances, failure to engage in the necessary analysis

22

will result in automatic reversal and a new trial, regardless of whether “the trial court had

ORDER - 6

1

an overriding interest in closing voir dire.” Presley, 558 U.S. at 216; see also Withers,

2

638 F.3d at 1065.

3

Most applicable to the Court’s analysis here is the rule that, “[b]ecause [public

4

trial right] violations are structural errors, they warrant habeas relief without a showing

5

of specific prejudice.” Withers, 638 F.3d at 1063 (emphasis added). Longan has

6

successfully shown that a portion of the voir dire of a potential juror was closed to the

7

public. Dkt. 7, Ex. X, Appx. 3 at pp. 107–10. Moreover, the record shows that this

8

hallway proceeding developed into a discussion that resulted in the striking of a

9

completely different potential juror. Id. As such, it would seem incumbent upon the trial

10

court to articulate specific findings supporting the closure and to consider all reasonable

11

alternatives.

12

Additionally, the Court notes that the framing of Petitioner’s public trial violation

13

argument as a claim for ineffective assistance of trial counsel does not detract from the

14

clearly and repeatedly articulated underlying claim that Petitioner was deprived of his

15

right to a public trial. Moreover, “assuming that [a] public trial claim was viable, [the]

16

counsel’s failure to raise it almost certainly prejudiced [Petitioner]: Because violation of

17

the public trial right is a structural error, [Petitioner] would have been entitled to

18

automatic reversal of his conviction and a new trial had he established a violation.”

19

Withers, 638 F.3d at 1065 (citing Waller, 467 U.S. at 49–50; Campbell v. Rice, 408 F.3d

20

1166, 1171–72 (9th Cir. 2005)). Accordingly, the Court is left to conclude that violations

21

of the right to a public trial, whether or not they are couched in a claim for ineffective

22

assistance of counsel, all lead to the same well-established principle: Structural defects,

ORDER - 7

1

such as the violation of the right to a public trial, defy analysis by harmless-error

2

standards.

3

When the Washington trial court closed a portion of a prospective juror’s voir dire

4

to the public, it failed to conduct any analysis justifying such a decision. Additionally,

5

when the Washington Court of Appeals and Washington Supreme Court denied Longan’s

6

personal restraint petition as it pertained to his allegations of a public trial violation, they

7

did so under an analysis requiring that Longan show actual and substantial prejudice.

8

Dkt. 7, Ex. 3 at pp. 6–7; id., Ex. 34 at p. 2. The Washington courts’ analysis was in error

9

because they applied a standard requiring actual and substantial prejudice when clearly

10

established Supreme Court precedent says that public trial violations are structural

11

defects. Cummings v. Martel, 796 F.3d 1135, 1153 (9th Cir. 2015), opinion amended on

12

denial of reh’g, 822 F.3d 1010 (9th Cir. 2016), and cert. denied sub nom. Cummings v.

13

Davis, 137 S. Ct. 628, 196 L. Ed. 2d 533 (2017) (quoting Frantz v. Hazey, 533 F.3d 724,

14

734 (9th Cir. 2008) (en banc)) (“[A] state court’s ‘use of the wrong legal rule or

15

framework . . . constitute[s] error under the ‘contrary to’ prong of § 2254(d)(1).”); see

16

also Norris v. Morgan, 622 F.3d 1276, 1288 (9th Cir. 2010); Price v. Vincent, 538 U.S.

17

634, 640 (2003).

18

The R&R similarly based its conclusion on a theory that counsel’s failure to object

19

to the nonpublic voir dire was not prejudicial. Dkt. 8 at 9. To the extent the R&R relied

20

on Ninth Circuit and Supreme Court authority to conclude that no constitutional violation

21

occurred in this case, the cases cited in the R&R deal with a defendant’s rights under the

22

confrontation clause rather than Longan’s asserted right to a public trial—a subtle but

ORDER - 8

1

important distinction. See id. at 14–15 (collecting cases). Moreover, the record is clear

2

that a closure did occur, although there remains outstanding the issues of whether that

3

closure was “trivial” or the right to a public trial was waived. See infra. Accordingly, the

4

Court declines to adopt the R&R to the extent it dismisses Longan’s allegations of a

5

public trial violation based on a conclusion that there was no closure of the proceedings

6

and that the Washington courts properly applied the Strickland prejudice standard. See

7

Dkt. 8 at 8–9.

8
9

Although Longan has established that the trial court denied public access to a
portion of a prospective juror’s voir dire and the striking of another potential juror

10

without performing any prerequisite analysis, two issues remain outstanding. First, no

11

one has addressed whether the trial court’s closure of voir dire was “for a non-trivial

12

duration.” Withers, 638 F.3d at 1063. This issue should be addressed by reviewing

13

whether the trial court’s closure of voir dire infringed upon the values behind the right to

14

a public trial, including: (1) ensuring a fair trial, (2) reminding the prosecutor and judge

15

of their responsibility to the accused and the importance of their functions, (3)

16

encouraging witnesses to come forward, and (4) discouraging perjury. See United States

17

v. Dharni, 738 F.3d 1186, reh’g granted and opinion vacated, 757 F.3d 1002 (9th Cir.

18

2014) (quoting United States v. Ivester, 316 F.3d 955, 960 (9th Cir. 2003)). Second, it

19

remains unclear whether Petitioner waived his right to a public trial. See Cazares, 788

20

F.3d at 971 (citing Levine v. United States, 362 U.S. 610, 619 (1960)) (“The right to a

21

public trial can . . . be waived.”). In Cazares, the Ninth Circuit found that when a

22

defendant waived objections to the voir dire of prospective jurors outside of his presence,

ORDER - 9

1

these facts “support[ed] finding a valid waiver of the right to be present at voir dire and a

2

valid waiver of the right to a public trial.” Id. at 971 (emphasis added). This analysis

3

from Cazares seems directly applicable to the case at hand, where the record presently

4

shows that Longan expressly waived his right to be present during the nonpublic voir

5

dire. The parties have not briefed these issues and the Court finds it would be imprudent

6

to decide the case on either of these bases without requesting the parties’ input.

7

Moreover, review of these issues need not be limited to the current record regarding the

8

closure and the surrounding circumstances, as the Court may conduct an evidentiary

9

hearing—if warranted—and Longan’s attorney-client privilege may be waived in order to

10

better ascertain the extent of the closure or the extent to which Petitioner waived his

11

rights.

12

C.

13

Right to Testify
The Court next considers Longan’s objection that the R&R improperly disposes of

14

his claim that ineffective assistance of counsel deprived him of an opportunity to testify

15

in his own defense. The Court summarily rejects this argument. The state courts and the

16

R&R properly assessed this claim under the Strickland standard and found that, had

17

Longan testified, it would not have changed the result of his trial. See Dkt. 8 at 10–12.

18

Indeed, Longan’s proposed testimony offered little (if any) exculpatory information and

19

the evidence that the State could bring in as a result of Longan testifying would have

20

made the prosecution’s case significantly more damning when added to the evidence that

21

was on the record when the defense rested. See id. The Court also notes that whether or

22

not an evidentiary hearing was held regarding counsel’s refusal to let Longan testify

ORDER - 10

1

despite alleged private communications wherein Longan expressed his desire to do so is

2

important to the issue of the reasonableness of counsel’s conduct, but it is irrelevant to

3

the analysis of prejudice. Therefore, because it was reasonable for the Washington

4

Supreme Court to conclude that Plaintiff failed to show prejudice resulting from his

5

counsel’s conduct, the Court adopts the R&R on this issue.

6

III.

7

CONCLUSION AND ORDER

Remaining before the Court are the issues of (1) whether Longan waived his right

8

to public trail as it pertains to the nonpublic voir dire of a prospective juror and the

9

striking of an additional prospective juror, and (2) whether that nonpublic voir dire was a

10

trivial closure. On remand, the Honorable Theresa L. Fricke, United States Magistrate

11

Judge, 1 may request additional briefing on these issues, including whether an evidentiary

12

hearing is needed. Therefore, the Court having considered the R&R, Longan’s objections,

13

and the remaining record, does hereby find and order as follows:

14
15

(1)
above; and

16
17

The R&R is ADOPTED in part and DECLINED in part as described

(2)

The case is REMANDED to Theresa L. Fricke, United States Magistrate

Judge, for further proceedings consistent with this order.

18

Dated this 7th day of June, 2017.

19
20

A

BENJAMIN H. SETTLE
United States District Judge

21
22

1

Judge Strombom has retired since the R&R was issued on April 4, 2017.

ORDER - 11