NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH NJUGUNA NJONGE, No. 18-35396
Petitioner-Appellant, D.C. No. 2:17-cv-01035-RSM
v.
MEMORANDUM*
MARGARET GILBERT, Superintendent,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Argued and Submitted May 15, 2019
Seattle, Washington
Before: O'SCANNLAIN, KLEINFELD, and FRIEDLAND, Circuit Judges.
Joseph Njonge appeals the district court’s denial of his petition for a writ of
habeas corpus following his conviction for second-degree murder in Washington
state court. On appeal, Njonge argues that he is entitled to relief because the state
trial court violated his Sixth Amendment right to a public trial. Because the facts
are known to the parties, we repeat them only as necessary to explain our decision.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
I
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
a federal court may not grant habeas relief unless the state court decision “was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States[,] or . . . resulted in a
decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). In
other words, where the state court decision is neither contrary to clearly established
federal law nor an unreasonable determination of the facts, a federal court may not
grant a petition for habeas relief. However, where the state court decision is
contrary to clearly established federal law or an unreasonable determination of the
facts, the constraints of AEDPA do not apply to this court’s review. See Barker v.
Fleming, 423 F.3d 1085, 1095 (9th Cir. 2005). Rather, this court reviews the claim
de novo to determine whether the petitioner is entitled to habeas relief because he
“is in custody in violation of the Constitution.” 28 U.S.C. § 2254(a); see Barker,
423 F.3d at 1095.
II
Here, however, we need not decide whether the decision of the Washington
state court was contrary to clearly established federal law or an unreasonable
determination of the facts. Assuming that we are not bound by the constraints of
2
AEDPA, we nonetheless must conclude on de novo review that the district court’s
denial of the habeas petition was proper because Njonge failed to establish a
constitutional violation.
The Sixth Amendment public trial right does not attach to the proceedings of
one morning session of voir dire where the court addressed only personal hardship
and scheduling commitments of prospective jurors. See United States v. Ivester,
316 F.3d 955, 958–59 (9th Cir. 2003). “[T]he right to a public trial does not
extend to every moment of trial.” Id. at 959; see United States v. Rivera, 682 F.3d
1223, 1229 (9th Cir. 2012). Rather, there are some closures that are “too trivial to
implicate the Sixth Amendment guarantee.” Ivester, 316 F.3d at 960. This
includes closures of “routine jury administrative matters that have no bearing on
[the defendant’s] ultimate guilt or innocence” because such closures do not
implicate the values served by the public trial right. Id. The proceedings at issue
here are such “routine jury administrative matters.” We are not persuaded that one
prospective juror’s unprompted mention of personal concerns with the trial during
such session requires a conclusion otherwise where the trial judge did not address
such concerns during the closed session, but did so at length during the open
afternoon session before excusing such juror with the agreement of both parties.
Because the alleged closure does not implicate Njonge’s public trial right
and Njonge raises no other constitutional violations on appeal, his petition for a
3
writ of habeas corpus was properly denied.
AFFIRMED.
4
FILED
Njonge v. Gilbert, 18-35396
JUL 24 2019
Kleinfeld, Senior Circuit Judge, dissenting MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent.
The trial judge excluded the public, including the defendant’s family and
supporters, from the first morning of voir dire. She had a practical reason for
doing so—the venire filled the courtroom so there was no room for the public. But
the exclusion was clearly contrary to holdings of the United States Supreme Court.
The Court has held that the First Amendment and the Sixth Amendment establish
constitutional rights of the public and the defendant to public trial, including voir
dire. We held in United States v. Ivester that “trivial” exclusions do not amount to
violations of these rights,1 but we held in United States v. Rivera that the exclusion
there was not “trivial.”2 The exclusion in this case was too long and substantial,
and the voir dire too eventful, to be deemed “trivial.” Our decision in Ivester
cannot, consistently with Supreme Court holdings, and with our own holding in
Rivera, be extended to the exclusion in this case.
We characterized the closure in Ivester as “administrative” and “very brief in
1
316 F.3d 955, 960 (9th Cir. 2003).
2
682 F.3d 1223, 1232 (9th Cir. 2012).
duration,” citing Peterson v. Williams3 for the proposition that a “closure of twenty
minutes was too trivial.”4 By contrast, we held in Rivera that exclusion of family
members from a thirty-five minute sentencing was not “trivial,” because the
presence of the public, especially of family and friends, “reminds the participants,
especially the judge, that the consequences of their actions extend to the broader
community.”5
To be permissible at all, our “trivial” exception to the constitutional right to
public trial must be carefully and narrowly confined. As the Court noted in In re
Oliver, the constitutional right to “public” trial has ancient roots in our common
law heritage, on account of the excesses of the Court of Star Chamber, the Spanish
inquisition, and the French lettre de cachet.6 Press-Enterprise Co. v. Superior
Court7 and Presley v. Georgia,8 hold that the right to public trial applies to voir
3
85 F.3d 39, 43 (2d Cir. 1996).
4
Ivester, 316 F.3d at 960.
5
682 F.3d at 1230, 1232.
6
333 U.S. 257, 266-69 (1948).
7
464 U.S. 501, 510 (1984).
8
558 U.S. 209, 213 (2010) (per curiam).
Page 2 of 5
dire. Presley also holds that the trial court cannot excuse the public without
considering reasonable alternatives and making sufficient findings supporting
closure. The Supreme Court went so far as to provide practical advice in Presley
for addressing the common circumstance of insufficient room in the courtroom for
venire and spectators: “reserving one or more rows for the public; dividing the jury
venire panel to reduce courtroom congestion; or instructing prospective jurors not
to engage or interact with audience members.”9
The trial judge in the case before us did not provide any reason for excluding
the public from the first morning of voir dire beyond shortage of space in the
courtroom. She did not explain, nor so far as the record indicates, consider,
reserving a row or two for the public or dividing the venire so that space could be
left for the public, with an admonition to jurors not to interact with the spectators.
During the morning of the voir dire at which the public, including Njonge’s
family and friends, were excluded, quite a few jurors—the judge said that she had
“never quite [had] this many hardships for [such a] medium length case”—gave
reasons why they should be excused. Of course, the granting and denial of excuses
9
558 U.S. at 215.
Page 3 of 5
can easily be seen by suspicious defendants and their families as a means of
biasing a jury. Njonge says in his affidavit that he wanted his family and friends
there to show the jurors that he had community support.
Like many voir dires, this one also had a surprise. Asked about general
hardship, juror no. 7 said: “It is personal for me. It goes deeper than just work. 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.”
A juror saying something that might bias the whole panel when the judge
elicits their reasons for wanting to be excused is a common phenomenon. Just
because the judge and the lawyers expect a “trivial” recitation of “routine jury
administrative matters” does not mean they will get that. What they got instead,
not very surprisingly, was an expression that might be taken to invite jury
prejudice against the Kenyan defendant.
Trial lawyers know that they cannot count on much that occurs before the
jurors to be “trivial” and without potential effect on the outcome, and the
Page 4 of 5
credibility afforded to remarks by fellow jurors can give such comments outsized
importance. Njonge’s wish to show the jury by their presence that his family and
community supported him might have been a good strategy or a bad one—but it
was his decision. And juror no. 7’s remark was not necessarily trivial. “First
impressions are made” during jury selection and a “juror’s feelings about drugs,
aliens, mules, guns, or gangs, are all volatile issues” requiring inquiry.10 The
prospective juror’s remark about “persecution and the suppression of women and
this whole situation” might (or might not) poison the jury. The portion of voir dire
during which it occurred cannot be characterized as so “trivial” that the right to
public trial did not attach, even though the court might have expected the entire
morning to be of no significance to conviction or acquittal. That was a gamble the
trial court lost.
For these reasons, I am unable to join the majority disposition.
10
Federal Defenders of San Diego, Inc., Defending a Federal Criminal Case
§ 8.00, at 8-311, 8-317 (1992).
Page 5 of 5