                            NOT FOR PUBLICATION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


                                            5
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.




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