Washington v. BRITTAIN

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

YUSEF WASHINGTON, CIVIL ACTION

Petitioner,

NO. 20-4303-KSM

v.

KATHY BRITTAIN, et al.,

Respondents.

MEMORANDUM

MARSTON, J. November 21, 2022

Petitioner Yusef Washington was convicted of two counts of first-degree murder, two

counts of aggravated assault, one count of conspiracy, and one count of possession of an

instrument of crime following a jury trial in May 2010. He now requests habeas corpus relief

pursuant to 28 U.S.C. § 2254(d). (See Doc. No. 1.) Among other things, Washington argues that

the state court overseeing his criminal trial committed constitutional error when it closed the

courtroom to certain members of the public without considering less drastic alternatives, without

placing the reasons for closure on the record with specificity, and without ensuring that the order

was properly carried out by court staff. (See id. at 11.) On December 10, 2020, the Court

referred the Petition to the Honorable Timothy R. Rice, United States Magistrate Judge, for a

Report and Recommendation (“R&R”). (Doc. No. 4.) Judge Rice held an evidentiary hearing

on this issue on December 1 and December 17, 2021. (Doc. Nos. 37, 41.) And on March 3,

2022, Judge Rice entered an R&R recommending that the Court dismiss Washington’s Petition

with prejudice. (Doc. No. 44.) Washington objects to the R&R in part. (Doc. No. 45.) For the

reasons discussed below, his objections are overruled. The Court finds no error in Judge Rice’s

findings and conclusions and adopts the R&R in its entirety.

BACKGROUND

A. Washington’s Criminal Trial

The R&R succinctly recounts Washington’s underlying criminal conduct and his trial

before the Court of Common Pleas of Philadelphia County:

On the morning of June 7, 2006, a dispute occurred between

members of two groups of young men near a North Philadelphia

street corner (the “Corner”). One group included Washington,

Raheem Jenkins, and Braheem Burke. The other group included

Eric Carter, Charles Carter, Keith McClain, and Niall Saracini.

As the four unarmed men in Eric [Carter]’s group approached

Washington’s group, Jenkins walked towards them while

Washington and Burke remained near the Corner. Eric [Carter]

punched Jenkins, causing him to fall, and gunshots rang out. Eric

[Carter] survived by hiding in a nearby car. McClain was shot in his

left leg as he ran away from the scene. Charles [Carter] was fatally

shot in the head and Saracini was fatally shot in the neck, shoulder,

back, and arm.

Evidence recovered by the police showed that at least three separate

guns had been used. Police obtained a warrant for Washington’s

arrest two days after the murders but he remained a fugitive for

nearly two years until his arrest in North Carolina in April 2008.

Because none of the witnesses, including Eric Carter and McClain,

testified during Washington’s trial that they saw Washington with a

gun, the prosecution introduced their prior police statements and

testimony in which they stated they observed Washington with a gun

and/or shooting at the time of the crime[.]

During a recess on the sixth day of trial, a fight broke out in the

hallway. The trial court recounted the event: “When [the

spectators] exited the hallway evidently a fight broke out in which

sheriffs and police were called. Fists were thrown, people were

apprehended and it was basically an uncontrollable situation in

which everyone was put in danger.” Washington’s grandmother

also had to be hospitalized following the incident. The trial court

explained to Washington: “[B]ecause of the unbelievable

experience outside, [I understand that your grandmother] started to

have chest pains. We called 9-1-1 and my understanding is that

she’s fine. . . . As a precaution they took her to the hospital to make

sure that everything is okay.”

At the joint request of the prosecutor, Gail Fairman, and defense

counsel, Michael Giampietro, the trial court ordered that “everyone

who was involved in this riot in the hallway has been barred from

the courtroom because they have demonstrated that they cannot

follow the rules of this Court and do not seem to understand that this

is a courtroom and that the freedom of the defendant is being tried

before this jury, and for the safety of all parties involved.” The court

did not identify the specific individuals involved in the “riot.”

Testimony concluded when court resumed that afternoon. The

[next] day, the court delivered its final instructions and the attorneys

gave their closing arguments.

(See Doc. No. 44 at 1–3 (alterations in original) (internal citations omitted)); see generally

Commonwealth v. Washington [Trial Court Proceeding], CP-51-cr-8855-2008 (Pa. Ct. Comm.

Pl.).

Two days later, a jury found Washington guilty of two counts of first-degree murder, two

counts of aggravated assault, one count of conspiracy, and one count of possession of an

instrument of crime. Trial Court Proceeding, Trial (Jury) Vol. 1 May 13, 2010 at 1:13, 4:19–

5:18. The trial court sentenced Washington to life in prison without the possibility of parole.

Trial Court Proceeding, Sent’g Vol. 1 Oct. 22, 2010 at 16:1–22.

B. Direct Appeal

Washington appealed his conviction and sentence to the Pennsylvania Superior Court on

three grounds, two of which are relevant here. First, Washington argued that he was “denied a

fair trial . . . because the trial court ordered that the courtroom be cleared thereby violating

[Washington’s] state and federal constitutional rights to a trial open to the public.” Non-

Precedential Decision at 3, Commonwealth v. Washington [Direct Appeal], 62 A.3d 462 (Table)

(Pa. Super. Ct. 2012) (No. 768 EDA 2011) (quoting Appellant’s Brief). The Pennsylvania

Superior Court disagreed, finding Washington waived his right to a public trial by not objecting

at trial to the court’s closure order. Id. at 6 (“Since no objection was raised to the procedure and

since [Washington] not only acquiesced in the [closure], but actively sought the ruling handed

down by the trial court, this averment is waived.”).

Second, Washington argued that he was “deprived of a fair trial because the trial court

denied his request that that jury be charged on self-defense, unreasonable belief voluntary

manslaughter” and failed to instruct on “heat of passion voluntary manslaughter.” Id. at 3.

Washington reasoned that because the opposing group initiated the physical altercation by

punching Jenkins, the evidence at trial “supported both that [Washington] possessed an

unreasonable belief that he needed to act with deadly force in self-defense and that he acted

under provocation.” Id. at 7. The Superior Court again found that Washington waived these

issues, emphasizing that Washington did not object when the trial court refused to give the

imperfect self-defense charge and “never claimed to have acted in the heat of passion.” Id. at 8.

Washington appealed the Superior Court’s ruling, but the Pennsylvania Supreme Court

declined discretionary review. See Commonwealth v. Washington, 69 A.3d 602 (Table) (Pa.

2013) (No. 542 EAL (2012)).

C. Pennsylvania Post Conviction Relief Act (“PCRA”) Petition

Having exhausted his direct appeals, Washington filed a pro se petition for relief under

Pennsylvania’s PCRA. See PCRA Petition, Commonwealth v. Washington [PCRA Challenge],

CP-51-CR-8855-2008, 2019 Phila. Ct. Comm. Pl. LEXIS 130 (Pa. Ct. Comm. Pl. Mar. 25,

2019); see also PCRA Challenge, 2019 Phila. Ct. Comm. Pl. LEXIS 130, at *1. The court

appointed counsel for Washington, and counsel filed an amended PCRA petition and

supplement. See Amended PCRA Petition, PCRA Challenge, 2019 Phila. Ct. Comm. Pl. LEXIS

130; Supplement, PCRA Challenge, 2019 Phila. Ct. Comm. Pl. LEXIS; see also PCRA

Challenge, 2019 Phila. Ct. Comm. Pl. LEXIS 130, at *2. Although the PCRA petition argued

ineffective assistance of trial counsel as to other issues, it did not mention the court closure order,

or the trial court’s failure to instruct the jury on manslaughter. See PCRA Challenge, 2019 Phila.

Ct. Comm. Pl. LEXIS 130, at *8–9. The PCRA court ultimately denied Washington’s request

for relief, finding that each of Washington’s claims lacked merit. See generally PCRA

Challenge, 2019 Phila. Ct. Comm. Pl. LEXIS 130. Washington appealed to the Pennsylvania

Superior Court, which affirmed the lower court’s ruling. See Commonwealth v. Washington, 236

A.3d 1138 (Table), 2020 WL 2096027, at *1 (Pa. Super. Ct. 2020).

The instant § 2254 Petition followed.

D. § 2254 Petition

On September 2, 2020, Washington filed a timely, counseled habeas petition in this

Court. (See Doc. No. 1.) Although his initial Petition asserted seven grounds for relief (see id. at

11–23), the memorandum filed in support of that Petition asserted only two errors: (1) the trial

court’s partial closure order was administered indiscriminately against all members of

Washington’s family, not just those who fought outside the courtroom, violating his right to a

public trial (the “Court Closure Claim”), or in the alternative, trial counsel was ineffective for not

objecting to the closure order (collectively, “Claim 1”); and (2) the denial of a voluntary

manslaughter instruction violated Washington’s right to a fair trial, or in the alternative, trial

counsel was ineffective for not objecting to the court’s jury instructions (“Claim 2”), (see Doc.

No. 9 at 2, 20, 51.) After an evidentiary hearing in early December 2021,1 Judge Rice entered an

1 The Philadelphia District Attorney initially consented to Washington’s request for an

evidentiary hearing. (See Doc. No. 44 at 4 n.2.) The District Attorney later withdrew from the case

because Washington’s former trial counsel now works in the District Attorney’s office. (Id.) The

Pennsylvania Attorney General then entered his appearance and moved to cancel or postpone the hearing,

arguing that the evidentiary hearing was impermissible under 28 U.S.C. § 2254(e)(2) because

Washington’s courtroom closure claim was based on new factual issues that could, and should, have been

developed in state court. (Doc. No. 26 at 5; see also id. at 3–4 (arguing that it could not be bound by the

District Attorney’s agreement to the evidentiary hearing because the District Attorney’s representation

was tainted by a conflict of interest).) See 28 U.S.C. § 2254(e)(2) (“If the applicant has failed to develop

the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on

R&R, recommending dismissal of Washington’s claims with prejudice as procedurally defaulted

and meritless. (Doc. No. 44 at 1.) Washington objects only to the R&R’s conclusion that the

Court Closure Claim is procedurally defaulted. (Doc. No. 45.) The government filed an

opposition brief (Doc. No. 49), and Washington filed a reply brief (Doc. No. 50).

STANDARD OF REVIEW

“In the Eastern District of Pennsylvania, Local Rule 72.1.IV(b) governs a petitioner’s

objections to a magistrate judge’s report and recommendation.” Piasecki v. Ct. of Common

Pleas, No. 14-cv-7004, 2021 WL 1105338, at *3 (E.D. Pa. Mar. 23, 2021). Under that Rule, a

petitioner must “specifically identify the portions of the proposed findings, recommendations, or

report to which objection is made and the basis for such objections.” Id. (quoting Savior v.

Superintendent of Huntingdon SCI, No. 11-cv-5639, 2012 WL 4206566, at *1 (E.D. Pa. Sept. 20,

2012)).

When a party objects to a magistrate judge’s findings, the district court must make “a de

novo determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); United States v. Raddatz,

447 U.S. 667, 673 (1980). “Ultimate adjudicatory power” resides with the district court “after

receiving assistance from and the recommendation of the magistrate.” Raddatz, 447 U.S. at 692.

And after reviewing the magistrate judge’s conclusions, the district court may “accept, reject, or

modify, in whole or in part, the findings or recommendations” and “receive further evidence, or

recommit the matter to the magistrate with instructions.” 28 U.S.C. § 636(b)(1); Raddatz, 447

U.S. at 673–74.

the claim . . . .”). Judge Rice refused to cancel the hearing but agreed to postpone it to accommodate

counsel and witnesses. (Doc. No. 44 at 4 n.2.)

When neither party objects to a magistrate judge’s findings, the district court must

nonetheless review the magistrate judge’s findings before adopting them as its own. EEOC v.

City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (“Even absent objections to the report and

recommendation, a district court should afford some level of review to dispositive legal issues

raised by the report.” (quotation marks omitted)); see also Mathews v. Weber, 423 U.S. 261, 271

(1976) (“[T]he authority and responsibility to make an informed final determination remains

with the [district court] judge.”).

DISCUSSION

Washington argues that Judge Rice erred when he found Washington’s Court Closure

Claim procedurally defaulted. (See Doc. No. 45 at 1 (“The magistrate judge erred in failing to

address the merits of the underlying constitutional claim that the trial court’s closure order was

overbroad, failed to consider less drastic alternatives, and was unsupported by adequate

justification articulated in the record.”); see also Doc. No. 50.) Washington does not, however,

object to Judge Rice’s recommendations as to counsel’s effectiveness in connection with that

claim. (See Doc. No. 45 at 1 (“Although we do not agree with the magistrate judge’s findings of

fact and analysis respecting the claim that trial counsel was ineffective in failing to object to the

courtroom closure order, we do not object to it here.”).) Nor does Washington object to Judge

Rice’s recommendations as to Claim 2. (See Doc. No. 45 at 8 (“We also do not object to the

Report’s analysis of the claim respecting the failure to request an instruction on voluntary

manslaughter.”).) Because Washington does not object to Judge Rice’s findings on ineffective

assistance of counsel in Claim 1 or any of his conclusions as to Claim 2, the Court adopts those

findings as its own, and Washington’s Petition is denied to the extent it rests on those grounds.2

2 The Court has considered Judge Rice’s factual and legal conclusions on these issues and finds

them to be well-reasoned and supported by the record. See Henderson v. Carlson, 812 F.2d 874, 878 (3d

That leaves Judge Rice’s conclusion that Washington’s Court Closure Claim is

procedurally defaulted. On that issue, Judge Rice began by comparing the claim that

Washington makes before this Court to the claim that Washington raised on direct appeal of his

conviction and sentence. (Doc. No. 44 at 5 (“Washington raised a similar claim on appeal,

arguing that the trial court violated his right to a public trial by barring his family members from

the courtroom without considering other alternatives.” (internal citation omitted)).) A review of

those two claims shows that they are nearly identical. In both instances, Washington argued that

members of his family, who were not involved in the fight outside of the courtroom, were

improperly excluded from the courtroom after the fight. (Doc. No. 9 at 22 (“[A]ll those affiliated

with Washington, including those who had never left the courtroom and were nowhere near the

fight, had been barred from attending court.”)); Pet’rs Br. at 11, Direct Appeal, 62 A.3d 462

(Table) (describing the order as “barring members of [Washington]’s family from the court

room” and “barring everyone”). In both proceedings, he also argued that the trial court failed to

consider reasonable alternatives, (Doc No. 9 at 27 (“[T]he trial court failed to consider

reasonable alternatives less drastic than a complete closure and it certainly failed to articulate

specific reasons to adequately justify the complete closure.”)); Pet’rs Br. at 12, Direct Appeal, 62

A.3d 462 (Table) (“The fact that the trial court apparently failed to consider alternatives itself

constitutes error of constitutional dimension.”), and that the trial judge failed to place his reasons

for closure on the record, (Doc No. 9 at 35 (“[T]he trial court here also utterly failed to state any

reasons on the record why the innocent members of the public also had to be barred from the

Cir. 1987) (“[I]t must be assumed that the normal practice of the district judge is to give some reasoned

consideration to the magistrate’s report before adopting it as the decision of the court.”); see also, e.g.,

Alexander v. Monroe County, No. 13-cv-1758, 2016 WL 7104313, at *2 (M.D. Pa. Dec. 6, 2016)

(adopting portion of R&R that was not objected to before reviewing objected portions de novo).

courtroom.”)); Pet’rs Br. at 11, Direct Appeal, 62 A.3d 462 (Table) (“The record is totally

lacking in justification for the order barring members of Appellant’s family from the

courtroom.”).3

Judge Rice then turned to the Superior Court’s ruling on the court closure. (Doc. No. 44

at 6.) On direct appeal, the Superior Court found that Washington had waived his right to

challenge the trial court’s closure order because he failed to contemporaneously object to the

“procedure” used to close the courtroom. Non-Precedential Decision at 6, Direct Appeal, 62

A.3d 462 (Table). That ruling was based on Pennsylvania Rule of Appellate Procedure 302(a),

3 That said, Washington’s argument appears to have changed slightly since his direct appeal. On

direct appeal, Washington took issue with the trial judge’s order as given, arguing that the judge wrongly

“barred spectators” from the courtroom. Pet’rs Br. at 9, Direct Appeal, 62 A.3d 462 (Table). By contrast,

here, Washington challenges the order as administered by the court staff, arguing that staff members

wrongly applied the judge’s order to exclude spectators who were not involved in the fight. (See, e.g.,

Doc. No. 9 at 26 (“[T]he trial court’s closure order, as administered . . . .” (emphasis added)); id. (“[T]he

court staff transformed the trial court’s limited closure order barring only the participants in the fight into

a complete closure order barring every one of Washington’s supporters, including those not involved in

the fight . . . .” (emphasis added)); id. at 27 (“[T]his is first a stand-alone claim alleging that the excessive,

overly broad manner in which the partial closure order was carried out violated Washington’s Sixth

Amendment right to a public trial.” (emphasis added)); id. at 31 (“The manner in which the court’s order

was administered was error.” (emphasis added)); id. at 32 (“Because court staff erroneously removed all

of Washington’s friends and family on May 11, 2010 . . . .” (emphasis added)).)

The Commonwealth highlighted this distinction in its arguments before Judge Rice, asserting that

Washington should (and could) file a second PCRA petition “based on the new facts” contained in the

declarations supporting the instant petition. (Doc. No. 44 at 7 n.5.) Judge Rice disagreed, finding that

Washington was barred from filing a new PCRA petition because he could have discovered the

purportedly “new” facts with the exercise of reasonable diligence. (Id.) We agree with this finding and

with Judge Rice’s ultimate conclusion that any new arguments about court closure are procedurally

defaulted because Washington failed to raise them during his direct appeal or in his PCRA petition and

could not do so now. See 42 Pa. Stat. & Cons. Stat. § 9545(b) (barring state collateral review under

PCRA when brought more than a year after final judgment); Marcy v. Warden, SCI Graterford, No. 3:17-

cv-00411, 2020 WL 1904466, at *5 (M.D. Pa. Apr. 17, 2020) (“The PCRA’s time bar is an ‘adequate’

state law ground to support the Superior Court’s judgment in this case, because the timing requirements

for filing a PCRA petition are firmly established and regularly followed as they are jurisdictional in

nature.” (quotation marks omitted)). Thus, to the extent Washington raises a new claim that targets the

court staff’s implementation of the closure order, that challenge is procedurally defaulted. See Coleman

v. Thompson, 501 U.S. 722, 735 n.1 (1991) (explaining that a claim is procedurally defaulted “if the

petitioner failed to exhaust state remedies and the court to which the petitioner would be required to

present his claims in order to meet the exhaustion requirement would now find the claims procedurally

barred”).

which dictates that “[i]ssues not raised in the trial court are waived and cannot be raised for the

first time on appeal.” Pa. R. App. P. 302(a). Judge Rice found Rule 302(a) to be an independent

and adequate state rule supporting the Superior Court’s holding, and as such, held that

Washington’s court closure claim is procedurally defaulted. (Doc. No. 44 at 6.)

Washington objects to this holding, arguing that “the independent-and-adequate-state-

ground doctrine is triggered only if there is a default,” and that “[h]ere, there was no default.”

(Doc. No. 45 at 4.) Washington also argues that because the claim was dismissed on procedural

grounds, it was not adjudicated on the merits in the Pennsylvania courts, and thus, Judge Rice

should have reviewed the Court Closure Claim de novo.4 (Id. at 5.) In the alternative,

Washington argues that Rule 302(a), which requires an objection to preserve an issue for appeal,

is contrary to Supreme Court precedent on the right to a public trial and therefore, inadequate to

support the Superior Court’s ruling. (See id. at 4.)

The Court addresses each of Washington’s arguments in turn.

A. Procedural Default

First, Washington argues that Judge Rice erred when he considered “the independent-

and-adequate-state-ground doctrine” because that doctrine “is triggered only if there is a

default.” (Id. at 4.) This is incorrect. The Supreme Court has long recognized that a federal

court reviewing a state court judgment is precluded from considering an issue of federal law

when the state court’s ruling on that issue rests on an independent and adequate state law ground.

See Coleman, 501 U.S. at 729 (“This Court will not review a question of federal law decided by

4 Washington argues that in reviewing the claim de novo, Judge Rice should have considered the

trial court’s failure (1) to limit the partial closure to those involved in the altercation outside the

courtroom, (2) consider less drastic alternatives, and (3) place the Court’s rationale for choosing a partial

closure over other reasonable alternatives on the record. (Id. at 1–2.)

a state court if the decision of that court rests on a state law ground that is independent of the

federal question and adequate to support the judgment.”); Harris v. Reed, 489 U.S. 255, 260

(1989) (“This Court long has held that it will not consider an issue of federal law on direct

review from a judgment of a state court if that judgment rests on a state-law ground that is both

‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the court’s

decision.”); Michigan v. Long, 463 U.S. 1032, 1040–41 (1983) (“Respect for the independence

of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones

of this Court’s refusal to decide cases where there is an adequate and independent state

ground . . . . If the state court decision indicates clearly and expressly that it is alternatively

based on bona fide separate, adequate, and independent grounds, we, of course, will not

undertake to review the decision.”); Wainwright v. Sykes, 433 U.S. 72, 81 (1977) (“As to the role

of adequate and independent state grounds, it is a well-established principle of federalism that a

state decision resting on an adequate foundation of state substantive law is immune from review

in the federal courts The application of this principle in the context of a federal habeas

proceeding has therefore excluded from consideration any questions of state substantive law, and

thus effectively barred federal habeas review where questions of that sort are either the only ones

raised by a petitioner or are themselves dispositive of his case.”).

This doctrine applies not only to state court judgments based on a state’s substantive

laws, but also to judgments that rest on an application of state procedural rules. See Coleman,

501 U.S. at 729 (explaining that “the doctrine applies to bar federal habeas [review] when a state

court declined to address a prisoner’s federal claims because the prisoner had failed to meet a

state procedural requirement”); Harris, 489 U.S. at 260–61 (“Although this doctrine originated

in the context of state-court judgments for which the alternative state and federal grounds were

both ‘substantive’ in nature, the doctrine has been applied routinely to state decisions forfeiting

federal claims for violation of state procedural rules.”). In other words, if an independent and

adequate state procedural rule prevented the state court from reaching the merits of the federal

claim, the claim is “procedurally defaulted,” and the federal court is barred from considering the

merits of the underlying federal issue in a collateral attack. See Wainwright, 433 U.S. at 86–87

(“We therefore conclude that Florida procedure did, consistently with the United States

Constitution, require that respondents’ confession be challenged at trial or not at all, and thus his

failure to timely object to its admission amounted to an independent and adequate state

procedural ground which would have prevented direct review here.”); King v. Superintendent

Coal Twp. SCI, No. 20-1197, 2021 WL 3781725, at *3 (3d Cir. Aug. 26, 2021) (“[A] federal

claim that a state court rejected based on an adequate and independent state procedural rule” is

known “as a procedural default,” and “the procedurally defaulted claim is ordinarily barred as a

matter of comity and federalism.” (quotation marks and citations omitted)); cf. Coleman, 501

U.S. at 732 (“In the absence of the [procedural] independent and adequate state ground doctrine .

. . habeas petitioners would be able to avoid the exhaustion requirement by defaulting their

federal claims in state court.”).

Accordingly, Judge Rice correctly considered whether the Superior Court’s ruling rested

on an independent and adequate state procedural rule—Rule 302(a)—that forecloses federal

review of the merits of Washington’s court closure claim.

B. Adequacy of Rule 302(a)

Next, Washington argues that Rule 302(a) is not an independent and adequate state rule.

“The procedural default doctrine has three relevant components.” King, 2021 WL

3781725, at *3. The doctrine applies to “(i) a state procedural ruling that is (ii) independent of a

federal law ruling and (iii) adequate to support the state-court decision.” Id. A petitioner may

challenge the adequacy of a state procedural rule on the grounds that it is unconstitutional as

applied to him. See Klobuchir v. Commonwealth, 639 F.2d 966, 974 n.13 (3d Cir. 1981) (“To

constitute an adequate and independent state ground, the [state court’s] interpretation of the rules

of practice . . . had to be constitutionally sound and have a fair and substantial basis in state

law.”); Phillips v. Ferguson, 182 F.3d 769, 772 (10th Cir. 1999) (“[I]f the state asserts its post-

conviction procedural rules as an independent and adequate state procedural bar, the federal

courts are required to consider the adequacy of the state’s post-conviction procedural remedy.

And, if it is determined that the state post-conviction procedure is unconstitutional, then such

procedures would not, in most instances, be regarded as an adequate state procedural bar to

habeas consideration of the underlying conviction.”); see also Albrecht v. Horn, 485 F.3d 103,

115–16 (3d Cir. 2007) (holding that the procedural default doctrine did not apply because the

state procedural rule was not “independent and adequate” as applied to the petitioner); King,

2021 WL 3781725, at *3 (considering the petitioner’s argument that although “Rule 302(a) is—

in general—an adequate procedural rule, as it is firmly established and regularly followed in

Pennsylvania,” its application in his case was nevertheless “exorbitant and therefore

inadequate”).

That is the contention that Washington makes here. He argues that Rule 302(a) was

unconstitutionally applied in his direct appeal because no objection is required to maintain a

claim for violation of the right to a public trial. (Doc. No. 45 at 4.) In other words, he argues

that he could not, as a matter of federal constitutional law, have waived his right to a public trial

by failing to object during trial. For this argument, Washington relies on three Supreme Court

cases that hold a trial court must consider less drastic alternatives before closing certain

proceedings to the public. See generally Waller v. Georgia, 467 U.S. 39 (1984); Press-

Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); Presley v. Georgia, 558 U.S. 209 (2010).

(See Doc. No. 45 at 2–5.) Washington reasons that:

If the Supreme Court requires trial courts to consider less drastic

alternatives to closure even when the parties agree that closure is

appropriate, a fortiori defense counsel’s failure to object does not

foreclose appellate review of the claim that the trial court erred in

failing to consider less drastic alternatives. The state court’s finding

that this claim was waived is not, as the magistrate judge found, an

independent and adequate state procedural rule. It is, instead,

application of a state rule that directly contradicts Supreme Court

precedent.

(Id. at 4.) Washington’s reading of these three cases sweeps too broadly.

In the first case, Press-Enterprise, a third party moved for jury voir dire to be open to the

public and the press. 464 U.S. at 503. The government and the defendant opposed the motion.

Id. The trial court agreed with the parties and allowed the public to attend only the “general voir

dire” and not the “individual voir dire” of each prospective juror. Id. On appeal, the United

States Supreme Court discussed the history of the right to a public trial and emphasized its

importance: “Openness . . . enhances both the basic fairness of the criminal trial and the

appearance of fairness so essential to public confidence in the system.” Id. at 508. The Court

then found that the trial court’s order, which closed six weeks of voir dire proceedings, violated

the public’s right to access trials because the judge failed to consider alternatives to complete

closure or to articulate its reasons for closure with specificity. Id. at 513; see also id. at 516

(Stevens, J., concurring) (“The constitutional protection of the right of access that the Court

upholds today is found in the First Amendment . . . .”).

Waller built on the rule articulated in Press Enterprise, holding that the trial court

violated the defendants’ Sixth Amendment rights to a public trial when it closed a suppression

hearing over the defendants’ objections and without considering alternatives. 467 U.S. at 47 (“In

sum, we hold that under the Sixth Amendment any closure for a suppression hearing over the

objections of the accused must meet the tests set out in Press-Enterprise and its predecessors.”).

Last, Presley, like Press-Enterprise, involved a trial court order closing jury voir dire.

558 U.S. at 209–10. Defense counsel objected to the order, but the court overruled the objection,

finding that there was not room in the courtroom for the 42 prospective jurors and members of

the public (including the defendant’s uncle). Id. at 210. The state appellate courts affirmed the

ruling, rejecting the defendant’s argument that the trial court should have sua sponte considered

alternatives, such as altering the prospective jurors’ seating arrangements to allow room for

members of the public. Id. at 211. The Supreme Court disagreed, explaining that under its

precedent “trial courts are required to consider alternatives to closure even when they are not

offered by the parties” because “[t]he public has a right to be present whether or not any party

has asserted the right.” Id. at 214.

As this brief discussion shows, Press-Enterprise, Waller, and Presley did not involve

habeas petitions, discuss exhaustion, or explain the limits of the procedural default doctrine.

Accordingly, they offer limited assistance in deciding the procedural default question before the

Court. The Court is particularly unwilling to read these three cases as broadly disallowing the

waiver doctrine’s application to public trial violations, given Supreme Court and Third Circuit

precedent holding that a defendant can waive his constitutional right to a public trial. See United

States v. Sorrentino, 175 F.2d 721, 723 (3d Cir. 1949) (“We think that the same considerations

apply to the right to a public trial and that a defendant may waive that privilege also.”); United

States v. Kobli, 172 F.2d 919, 921 n.2 (3d Cir. 1949) (“It would appear that these three

defendants by thus consenting to the trial judge’s order waived their right to the public trial

which the Sixth Amendment guarantees, since it is well settled that the right is one which can be

waived.”); see also Singer v. United States, 380 U.S. 24, 35 (1965) (citing Kobli for the

proposition that “a defendant can, under some circumstances, waive his constitutional right to a

public trial”); Levine v. United States, 362 U.S. 610, 619–20 (1960) (declining to consider a

challenge to the trial court’s closure order raised by a party “who, at the appropriate time and

acting under advice of counsel, saw no disregard of a right, but raises an abstract claim only as

an afterthought on appeal”); cf. Waller, 467 U.S. at 42 n.2 (noting that one of the defendants had

not objected to closure of the suppression hearing and leaving to the state court to “determine on

remand whether [that defendant was] procedurally barred from seeking relief as a matter of state

law”).

The Third Circuit recently confirmed the applicability of the waiver doctrine in the

context of a public trial violation. See United States v. Williams, 974 F.3d 320, at 337–40 (3d

Cir. 2020). Williams involved a federal criminal trial of twelve defendants for drug charges.

Before jury voir dire, the district court, citing “courtroom capacity limitations,” sua sponte

issued an order barring the public from jury selection absent prior express authorization of the

court. Id. at 337. After trial, ten of the defendants appealed their convictions, arguing that the

closure order violated their Sixth Amendment right to a public trial. Id. at 340. The Third

Circuit found that the district court’s “closure of the courtroom undoubtedly violated the

Defendants’ Sixth Amendment right to a public trial,” and had the issue been preserved below,

the defendants would have been “entitled to ‘automatic reversal.’” Id. (quoting Neder v. United

States, 527 U.S. 1, 7 (1999)); see also Weaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017)

(“[I]n the case of a structural error,” such as violation of the defendant’s right to a public trial,

“where there is an objection at trial and the issue is raised on direct appeal, the defendant

generally is entitled to ‘automatic reversal’ regardless of the error’s actual effect on the

outcome.” (quotation marks omitted)).

Nevertheless, the appellate court refused to correct the error, noting that no party objected

to closure at the time the order was entered—a necessary step to preserve the issue on appeal.

Williams, 974 F.3d at 337 (explaining that a party preserves an issue on appeal “only if he timely

object[s] to the error, thus giving the district court the opportunity to rectify or at least respond

to, the purported problem”); see also Fed. R. Crim. P. 51(b) (“A party may preserve a claim of

error by informing the court—when the court ruling or order is made or sought—of the action

the party wishes the court to take, or the party’s objection to the court’s action and the grounds

for the objection.”). Thus, the appellate court would exercise its discretion to vacate the

convictions and order a new trial only if the lower court’s closure order amounted to “plain

error” and the defendants could show that “the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Williams, 974 F.3d at 340 (“A federal appellate

court’s authority to remedy an unpreserved error ‘is strictly circumscribed.’” (quoting Puckett v.

United States, 556 U.S. 129, 134 (2009))). Because the court could not “say that the District

Court’s closure of jury selection to the public ‘seriously affect[ed] the fairness, integrity, or

public reputation of judicial proceedings,’” the court declined to set aside the defendants’

convictions. Id. at 348 (quoting Olano, 507 U.S. at 736)).

Given the holdings in these cases, the Court rejects Washington’s argument that Rule

302(a) is at odds with Supreme Court precedent and unconstitutional when applied in the context

of a public trial violation. To the contrary, Rule 302(a) constitutes an independent and adequate

state ground to support the Superior Court’s ruling on direct appeal. See, e.g., Norton v.

Coleman, Civil Action No. 09-1751, 2009 WL 5652570, at *4 (E.D. Pa. Nov. 25, 2009)

(“[J]udges in this district have found that Pa. R.A.P. 302 constitutes an independent and adequate

state ground on which a state court bases its decision.”) (collecting cases). Accordingly, Judge

Rice correctly found Washington’s court closure claim procedurally defaulted.

CONCLUSION

Washington’s objections are overruled. Judge Rice’s R&R is adopted in its entirety, and

Washington’s Petition is denied.

An appropriate order follows.