Longan v Gilbert

Filing 20

ORDER granting in part and denying in part Petitioner's 17 Motion for Clarification of the Judge's Orders issued on 6/21 and 6/22/17, signed by Magistrate Judge Theresa L Fricke.(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DANIEL RAYMOND LONGAN,
Case No. C16-6053 BHS

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Petitioner,
v.
MARGARET GILBERT, Superintendent of the
Stafford Creek Corrections Center,

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ORDER GRANTING IN PART, AND
DENYING IN PART, PETITIONER’S
REQUEST FOR CLARIFICATION

Respondent.

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This matter comes before the Court for proceedings pursuant to an order from the
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Honorable Benjamin H. Settle, regarding a claim raised in Daniel Raymond Longan’s Petition
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for Habeas Corpus. Dkt. 11. Having carefully considered Dkt. 11, the Order Adopting in Part and
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Declining in Part Report and Recommendation and Remanding for Further Proceedings, and the
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balance of the record, the Court finds that it is appropriate to grant part of the Petitioner’s request
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for clarification (Dkt. 17) concerning the Court’s order for briefing and oral argument on the
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issues of:
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whether the Petitioner waived his right to public trial as it pertains to the nonpublic

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voir dire of a prospective juror and the striking of an additional prospective juror,
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•

whether nonpublic voir dire was a trivial closure, and

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whether an evidentiary hearing is warranted.

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The petitioner asks whether the issue of public trial denial, separated from the issue of
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ineffective assistance of counsel, should be briefed by the parties. The answer to this question is
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ORDER GRANTING IN PART, AND DENYING IN PART,
PETITIONER’S REQUEST FOR CLARIFICATION - 1

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yes. The Court’s Order (Dkt. 11) referred the case to the undersigned so that briefing may be

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considered as to both aspects of the petitioner’s allegations concerning non-public voir dire:

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whether the Washington trial and appellate courts properly evaluated petitioner’s factual and

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legal allegations concerning the underlying right to a public trial and the right to effective

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assistance of counsel. As the Court’s June 7, 2017 Order (Dkt. 11 at 7-8) explains: “Accordingly,

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the Court is left to conclude that violations of the right to a public trial, whether or not they are

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couched in a claim for ineffective assistance of counsel, all lead to the same well-established

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principle: Structural defects, such as the violation of the right to a public trial, defy analysis by

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harmless-error standards.” Likewise, the Court’s Order (Dkt. 11 at 9) observes that: “[T]he

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

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that closure was ‘trivial’ or the right to a public trial was waived. . . . Accordingly, the Court

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

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

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Washington courts properly applied the Strickland prejudice standard.”

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This Court has not made assumptions or reached a conclusion regarding whether the

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recent precedent from the United States Supreme Court in Weaver v. Massachusetts, __ U.S. __,

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2017 WL 2674153 (2017) does or does not apply to this situation. The Court trusts that the

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parties will address Weaver in their briefs.

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The Court declines to revisit the Report and Recommendation (Dkt. 8) in this case. The

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petitioner’s Request for Clarification (Dkt. 17) is asking the undersigned to restate or provide

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additional interpretation of the Report and Recommendation dated April 4, 2017, and that

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portion of the Request for Clarification is denied.

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ORDER GRANTING IN PART, AND DENYING IN PART,
PETITIONER’S REQUEST FOR CLARIFICATION - 2

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Dated this 29th day of June, 2017.

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A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER GRANTING IN PART, AND DENYING IN PART,
PETITIONER’S REQUEST FOR CLARIFICATION - 3