Roger Libby v. Dwight Neven, Warden

580 F. App'x 560
Court of Appeals for the Ninth Circuit·Decided June 24, 2014·No. 11-16547·Unpublished

Opinions

MEMORANDUM *

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 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, 115 Nev. 45, 975 P.2d 833, 839 (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 Tol-[563] bert 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 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, 125 S.Ct. 2317, 162 L.Ed.2d 196 (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, 109 Nev. 905, 859 P.2d 1050, 1056 (1993), vacated sub nom. Libby v. Nevada, 516 U.S. 1037, 116 S.Ct. 691, 133 L.Ed.2d 650 (1996). It was not 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 indi-cia 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, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); see also Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (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 hear[564] ings 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

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Roger Libby v. Dwight Neven, Warden, 580 F. App'x 560 (9th Cir. 2014).

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Related

Bailey v. Hill
599 F.3d 976 (Ninth Circuit, 2010)
Remmer v. United States
347 U.S. 227 (Supreme Court, 1954)
Draper v. Washington
372 U.S. 487 (Supreme Court, 1963)
Smith v. Phillips
455 U.S. 209 (Supreme Court, 1982)
Morgan v. Illinois
504 U.S. 719 (Supreme Court, 1992)
Baldwin v. Reese
541 U.S. 27 (Supreme Court, 2004)
Crittenden v. Ayers
624 F.3d 943 (Ninth Circuit, 2010)
Russell A. Tinsley v. Bob Borg
895 F.2d 520 (Ninth Circuit, 1990)
Joseph J. Tracey v. Joan Palmateer
341 F.3d 1037 (Ninth Circuit, 2003)
Miller-El v. Dretke
545 U.S. 231 (Supreme Court, 2005)
Averill Briggs v. Randy Grounds
682 F.3d 1165 (Ninth Circuit, 2012)
Keith Jamerson v. Gail Lewis
713 F.3d 1218 (Ninth Circuit, 2013)
Libby v. State
975 P.2d 833 (Nevada Supreme Court, 1999)
Libby v. State
859 P.2d 1050 (Nevada Supreme Court, 1993)
Robert Murray v. Dora Schriro
745 F.3d 984 (Ninth Circuit, 2014)
Turner v. Marshall
121 F.3d 1248 (Ninth Circuit, 1997)
Tolbert v. Page
182 F.3d 677 (Ninth Circuit, 1999)
Libby v. Nevada
516 U.S. 1037 (Supreme Court, 1996)
Vasquez v. United States
516 U.S. 1037 (Supreme Court, 1996)