                                                                           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                            NOT FOR PUBLICATION                             JUN 24 2014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


                                          3
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.


                                           5
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.




                                            6
                                                                          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.
