NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CHARLES MOMAH, No. 16-35499
Petitioner-Appellant, D.C. No. 2:15-cv-00536-JCC
v.
MEMORANDUM*
JEFFREY A. UTTECHT, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted June 5, 2017
Seattle, Washington
Before: FERNANDEZ, CALLAHAN, and IKUTA, Circuit Judges.
Dr. Charles Momah, a gynecologist, was convicted in a Washington State
court on several counts of raping several of his patients. Due to the case’s pretrial
publicity, the trial court summoned over 100 prospective jurors, and Momah and
the prosecution sought to individually question some potential jurors. The trial
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
court questioned some potential jurors in chambers with only Momah, counsel, and
a court reporter present. After the Washington appellate courts denied Momah’s
appeal and post-conviction petition, Momah filed a habeas petition in the United
States District Court for the Western District of Washington. The District Court
denied Momah relief, holding that although the closure of voir dire was
constitutional error, the Washington Supreme Court’s denial of relief was not
contrary to, or an unreasonable application of, clearly established Federal law. At
Momah’s request, the District Court certified this issue for appeal. We affirm.1
Momah’s habeas petition is subject to the Antiterrorism and Effective Death
Penalty Act (AEDPA), 28 U.S.C. § 2254. Under 28 U.S.C. § 2254(d), habeas
relief “shall not be granted with respect to any claim that was adjudicated on the
merits in State court” unless the resulting decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” § 2254(d)(2).
1
The facts are familiar to the parties and are restated here only as
necessary to resolve the issues of the appeal.
2
The certified issue asks whether the Washington Supreme Court’s
determination that the temporary closure of the court for voir dire did not violate
Momah’s Sixth Amendment right to a public trial was an unreasonable application
of, or contrary to, clearly established Supreme Court precedent. It was not. The
Washington Supreme Court denied Momah relief on this claim in October 2009.
State v. Momah, 167 Wn. 2d 140 (2009). At that time, no clearly established
Supreme Court precedent had extended the Sixth Amendment right to a public trial
to the voir dire process. Although the Supreme Court had decided Waller v.
Georgia, 467 U.S. 39 (1984), and Press Enter. Co. v. Superior Court, 464 U.S. 501
(1984), neither had held that the Sixth Amendment right to a public trial extended
to the voir dire process.
The Washington Supreme Court expressly rejected Momah’s state public
trial right claim. Citing the guidelines it had drawn from Waller, see State v.
Bone-Club, 128 Wash. 2d 254, 258–59 (1995), it determined that although it was
state constitutional error to have temporarily closed the court for voir dire, Momah
had not demonstrated that he was entitled to relief. The Washington Supreme
Court also implicitly rejected Momah’s Sixth Amendment claim, which is deemed
to be an adjudication on the merits. See Johnson v. Williams, 133 S. Ct. 1088,
1091 (2013).
3
Momah asserts that in January 2010, the Supreme Court decided Presley v.
Georgia, 558 U.S. 209 (2010), and that Presley firmly established that a
defendant’s Sixth Amendment right to a public trial extends to voir dire. But
Presley came too late for Momah as the Supreme Court has held that federal courts
must “focu[s] on what a state court knew and did, and to measure state-court
decisions against this Court’s precedents as of the time the state court renders its
decision.” Greene v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks and citations
omitted). The Supreme Court explained that we are to focus on the reasoned
decision of the court that adjudicated the defendant’s claim on the merits and not
on any subsequent summary decisions. Id. at 39–40. Accordingly, Momah is not
entitled to relief even if the Washington Supreme Court’s March 10, 2010
summary denial of reconsideration were inconsistent with Presley.2
But Momah has not shown that the Washington Supreme Court’s decision is
contrary to Supreme Court precedent, even after Presley. The Washington
Supreme Court could reasonably conclude that under Supreme Court precedent, a
defendant can waive the public trial right guarantee by failing to object to closure
of the voir dire proceeding. See Peretz v. United States, 501 U.S. 923, 936–37
2
We note that the Supreme Court denied Momah’s petition for
certiorari in October 2010. Momah v. Washington, 562 U.S. 837 (2010).
4
(1991) (citing Levine v. United States, 362 U.S. 610, 619 (1960), for the
proposition that the “failure to object to closing of courtroom is waiver of right to
public trial”). Moreover, Waller makes clear that even if closing a trial proceeding
violates the public trial right, a new trial on the merits need not be ordered. 467
U.S. at 49. In Glebe v. Frost, 135 S. Ct. 429, 430–31 (2014), the Supreme Court,
citing its prior opinion in Neder v. United States, 527 U.S. 1 (1999), suggested that
only errors that infect the entire trial process and necessarily render the trial
fundamentally unfair require automatic reversal. The temporary closure in this
case does not meet this standard. Also, in United States v. Rivera, 682 F.3d 1223,
1229 (9th Cir. 2012), we suggested that some exclusions of the public from a
judicial proceeding may be “too trivial a closure to violate the Sixth Amendment.”
Finally, we note that one of the issues at least tangentially before the Supreme
Court in Weaver v. Massachusetts, No. 16-420, concerns the exclusion of
individuals during voir dire because of lack of space. Thus, Momah has not shown
that the Washington Supreme Court’s denial of relief to Momah, based on the
temporary closure of voir dire, was contrary to clearly established Federal law.
As permitted by Ninth Circuit Rule 22-1(e), Momah’s brief included an
argument that he was denied effective assistance of counsel by his trial attorney’s
failure to call certain witnesses and to explore certain defenses. We treat this
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briefing as a motion to expand the certificate of appealability. Ninth Circuit Rule
22-1(e). The standard for the issuance of a certificate is that “jurists of reason
could disagree with the district court’s resolution of his constitutional claims or
that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Momah has not shown that jurists of reason could disagree with the
district court’s determination that the Washington Court of Appeals did not
unreasonably apply Strickland v. Washington, 466 U.S. 668 (1984), or that the
Washington Court of Appeal’s consideration of his ineffective assistance of
counsel claim, In re Momah, 179 Wn. App. 1001 (2014), deserves encouragement.
The request for a further certificate of appealability is denied.
The district court’s denial of relief is AFFIRMED.
6