FILED
NOT FOR PUBLICATION JUN 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGER A. LIBBY, No. 11-16547
Petitioner - Appellant, D.C. No. 3:04-cv-00038-LRH-
RAM
v.
DWIGHT NEVEN, Warden, High Desert MEMORANDUM*
State Prison; CATHERINE CORTEZ
MASTO, Attorney General of the State of
Nevada,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted June 10, 2014
San Francisco, California
Before: SCHROEDER, GRABER, and BYBEE, Circuit Judges.
Roger Libby, a Nevada state prisoner, appeals the district court’s order
denying his petition for a writ of habeas corpus. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. §§ 1291 and 2253. We review de novo the district court’s order denying
the petition. Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010). We affirm.
A. Claim One
The Nevada Supreme Court concluded that the state did not purposefully
discriminate against female prospective jurors when exercising its peremptory
challenges. Libby v. State, 975 P.2d 833, 839 (Nev. 1999) (en banc) (per curiam).
The court relied on the gender-neutral explanations proffered by the state’s
attorney after determining that the J.E.B. hearing was not meaningless. Id. at
836–37. The decision to hold a hearing almost eight years after jury selection in
order to reconstruct the state’s reasons for using its peremptory challenges was not
contrary to clearly established federal law. See Crittenden v. Ayers, 624 F.3d 943,
957–58 (9th Cir. 2010). And the state court’s reliance on the testimony elicited at
the hearing was not contrary to clearly established federal law, even though the
state’s attorney used written materials to refresh his recollection. See Turner v.
Marshall, 121 F.3d 1248, 1251 (9th Cir. 1997), overruled on other grounds by
Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999) (en banc). Although the state’s
attorney did not recall certain details about jury selection, the decision to credit his
gender-neutral explanations for how he decided to use his peremptory challenges
was not based on an unreasonable determination of the facts under our “doubly
2
deferential” standard of review. See Briggs v. Grounds, 682 F.3d 1165, 1170 (9th
Cir. 2012).
We have conducted our own comparative juror analysis to ascertain whether
the Nevada Supreme Court’s decision that the state did not purposefully
discriminate against female prospective jurors was based on an unreasonable
determination of the facts. 28 U.S.C. § 2254(d)(2); see also Murray v. Schriro,
745 F.3d 984, 1005–06 (9th Cir. 2014); Jamerson v. Runnels, 713 F.3d 1218, 1225
(9th Cir. 2013). We compared the reasons proffered by the state’s attorney for
using his peremptory challenges to excuse seven women to the voir dire transcripts
of all of the men whom the state permitted to serve on the jury. See Miller-El v.
Dretke, 545 U.S. 231, 241–52 (2005). We found significant, gender-neutral
differences between the women who were challenged by the state and the men who
were permitted to serve. The differences matched the rationales supplied by the
state’s attorney at the J.E.B. hearing.
B. Claim Two
The Nevada Supreme Court held that the trial court did not err in declining
to remove a seated juror who had been exposed to publicity about the case and had
discussed the case with another person. Libby v. State, 859 P.2d 1050, 1056 (Nev.
1993), vacated sub nom. Libby v. Nevada, 516 U.S. 1037 (1996). It was not
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objectively unreasonable for the state court to credit the juror’s statement that she
could be fair and impartial even though she disregarded the court’s admonishment
and failed to voluntarily disclose that she had done so. See Dyer v. Calderon, 151
F.3d 970, 973 (9th Cir. 1998) (en banc) (“The Supreme Court has held that an
honest yet mistaken answer to a voir dire question rarely amounts to a
constitutional violation; even an intentionally dishonest answer is not fatal, so long
as the falsehood does not bespeak a lack of impartiality.”). Nor was it objectively
unreasonable for the state court to conclude that this was not one of the
“extraordinary cases” where a court will presume that a juror is biased because the
state court reasonably could have found that the indicia of implied bias were not
present. See id. at 981–82; Tinsley v. Borg, 895 F.2d 520, 528 (9th Cir. 1990).
The Nevada Supreme Court’s resolution of Libby’s contention that the trial
court should have permitted additional voir dire of the seated jurors concerning
their compliance with the court’s admonishment was not contrary to clearly
established federal law. The court agreed that Libby was entitled to additional voir
dire under state law, but deemed the error harmless. Libby, 859 P.2d at 1056. The
court’s decision did not rest on federal law. See id. Under federal law, “the
remedy for allegations of juror partiality is a hearing in which the defendant has the
opportunity to prove actual bias.” Smith v. Phillips, 455 U.S. 209, 215 (1982); see
4
also Remmer v. United States, 347 U.S. 227 (1954). As noted in the previous
paragraph, the trial court held a hearing on whether one juror was actually biased
because there was evidence that she had discussed the case with another person.
The decision not to hold additional hearings involving the other seated jurors was
not contrary to clearly established federal law because there was no meaningful,
individualized evidence that the other jurors might be actually or impliedly biased.
“Remmer and Smith do not stand for the proposition that any time evidence of juror
bias comes to light, due process requires the trial court to question the jurors
alleged to have bias.” Tracey v. Palmateer, 341 F.3d 1037, 1044 (9th Cir. 2003).
C. Claim Three
The Nevada Supreme Court’s decision to deny relief on Libby’s claim that
the trial court erred by excusing more than one-third of the venire off the record
and without Libby or his attorney present was not contrary to clearly established
federal law. Libby, 859 P.2d at 1059. Libby’s reliance on Morgan v. Illinois, 504
U.S. 719 (1992), is misplaced because he had the opportunity to question all of the
seated jurors about their willingness to follow the law when imposing a death
sentence. His reference to Draper v. Washington, 372 U.S. 487 (1963), is
unavailing because its holding does not specify that the portion of jury selection at
issue in this case must be transcribed.
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D. Claim Four
The district court did not err by sua sponte identifying unexhausted claims in
Libby’s petition. “A State shall not be deemed to have waived the exhaustion
requirement or be estopped from reliance upon the requirement unless the State,
through counsel, expressly waives the requirement.” 28 U.S.C. § 2254(b)(3).
Although the state argued that certain other claims were unexhausted in a pre-
answer filing, it did not expressly waive the exhaustion requirement as to the
remaining claims by merely declining to affirmatively assert that they were
unexhausted before answering the petition. See Rule 5(b) Governing Section 2254
Cases in the United States District Courts (requiring the state to identify
unexhausted claims in the answer). The district court did not err in ascertaining
that the twelve claims listed in the certificate of appealability were not “fairly
presented” to the state courts. See Baldwin v. Reese, 541 U.S. 27, 33 (2004).
AFFIRMED.
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FILED
JUN 24 2014
MOLLY C. DWYER, CLERK
Libby v. Neven, No. 11-16547 U.S. COURT OF APPEALS
GRABER, Circuit Judge, concurring in part and specially concurring in part:
I concur in the result and in the analysis of Claims Two, Three, and Four.
With respect to Claim One, Libby argues that the Nevada courts’ method of
conducting comparative juror analysis contravened clearly established federal law
as set out by the Supreme Court of the United States. For that reason, he argues,
we should review this claim de novo. But even if we did so, I would not find
purposeful gender discrimination in jury selection. Accordingly, I would affirm
the judgment without considering (either explicitly or implicitly) whether the
Nevada courts’ legal analysis was flawed. In my view, the standard of review here
does not determine the outcome.