                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 26 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DANIEL RAYMOND LONGAN,                          No.    17-35930

                Petitioner-Appellant,           D.C. No. 3:16-cv-06053-BHS

 v.
                                                MEMORANDUM*
MARGARET GILBERT,

                Respondent-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Benjamin H. Settle, District Judge, Presiding

                     Argued and Submitted October 11, 2018
                              Seattle, Washington

Before: PAEZ and BEA, Circuit Judges, and ROYAL,** District Judge.

      Petitioner-Appellant Daniel Longan appeals from the district court’s

judgment denying his petition for writ of habeas corpus. We have jurisdiction




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable C. Ashley Royal, United States District Judge for the
Middle District of Georgia, sitting by designation.
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under 28 U.S.C. §§ 1291 and 2253. We review the district court’s judgment de

novo, Doody v. Ryan, 649 F.3d 986, 1001 (9th Cir. 2011) (en banc), and we affirm.

      The Sixth Amendment of the Constitution states, in relevant part: “In all

criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial . . . .” U.S. Const. amend. VI. To ensure that a defendant’s public trial right is

not violated, a trial court must follow the four-part test articulated in Waller v.

Georgia, 467 U.S. 39 (1984), prior to excluding parties from the courtroom. The

public trial right extends to court closures during “the voir dire of prospective

jurors.” Presley v. Georgia, 558 U.S. 209, 213 (2010) (per curiam).

      Neither Waller nor Presley, however, squarely apply to the situation here. In

Waller, the court closed a seven-day suppression hearing to all but the witnesses,

court personnel, parties, and attorneys. 467 U.S. at 42. In Presley, meanwhile, the

court ordered the defendant’s family to leave the courtroom for the entirety of voir

dire. 558 U.S. at 210. Public trial right cases that have arisen under the First

Amendment have involved similarly extensive closures. See, e.g., Gannett Co. v.

DePasquale, 443 U.S. 368 (1979) (closure for pre-trial proceedings); Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (closure for trial); Press-

Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984) (closure for

all but three days of a six-week voir dire).

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      Here, the closure lasted two minutes. After a juror raised her hand to inform

the court that she had a “health problem” that she could discuss “privately,” the

court then spoke with her in the hallway. With both the prosecutor and defense

counsel present, the court briefly discussed her medical issues and another juror’s

hearing problems. The defendant chose not to be present during the conversation.

He did not object, and later stated on the record that he consented to the hallway

discussion.

      The Supreme Court has never held that such an exclusion without objection

violates the defendant’s Sixth Amendment right to public trial. On this record, the

state court’s decision was not an unreasonable application of clearly established

federal law. 28 U.S.C. § 2254.

      In light of the above disposition, we need not reach the issue of waiver.

      AFFIRMED.




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