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Cobb v. McDaniels

United States District Court, D. Nevada

March 28, 2017

DELBERT CHARLES COBB, Petitioner,
v.
E. K. McDANIELS, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Before the Court are the second amended petition for writ of habeas corpus (ECF No. 17), respondents' motion to dismiss (ECF No. 32), petitioner's opposition (ECF No. 50), and respondents' reply (ECF No. 57). The Court grants the motion in part, finding that petitioner has not exhausted his available state-court remedies for some of his grounds.

         II. DISCUSSION

         Before a federal court may consider a petition for a writ of habeas corpus, the petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner must fairly present that ground to the state's highest court, describing the operative facts and legal theory, and give that court the opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982).

         “[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state remedies only if he characterized the claims he raised in state proceedings specifically as federal claims. In short, the petitioner must have either referenced specific provisions of the federal constitution or statutes or cited to federal case law.” Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in original), amended, 247 F.3d 904 (9th Cir. 2001). Citation to state case law that applies federal constitutional principles will also suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). “The mere similarity between a claim of state and federal error is insufficient to establish exhaustion. Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion.” Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted).

         Ground 1 is a claim that the prosecution peremptorily struck two prospective jurors, named Carter and Dawson, because of their race. See Batson v. Kentucky, 476 U.S. 79 (1986). Respondents argue that ground 1 is not exhausted with respect to Carter because on direct appeal petitioner challenged the removal of a juror named Gardner. (Exh. 151 at 21-23 (ECF No. 25 at 24-26).) Respondents have revealed a comedy of errors. The problem started when Rhonda Carter and Roberta Gardner were seated as prospective jurors. The names were similar enough to be confusing, but there was more. Carter had badge number 884, and Gardner had badge number 886. (Exh. 121a, lines 3 and 25 (ECF No. 23-3).) To make things worse, the transcript of jury selection has a mistake:

MR. DiGIACOMO [prosecutor]: . . . There's a couple of specific questions I had for the three of you. Let me start with Ms. Carter. And let me preface this with, I have no desire whatsoever to embarrass you, but there's some stuff in your questionnaire that I need to talk to you about, okay? And specifically, it relates to your son.

         PROSPECTIVE JUROR GARDNER: Yes.

         (Exh. 111 at 17-18 (ECF No. 22 at 18-19) (emphasis added).) The transcript continued, with the prosecutor or the judge saying “Carter” and the person answering questions identified as “Gardner.” Defense counsel then asked prospective jurors who were African American to raise their hands and to say their badge numbers. The transcript shows that Carter said “884.” (Id. at 25 (ECF No. 22 at 26).) According to the jury list, the prosecution peremptorily struck Carter, and the defense peremptorily struck Gardner. (Exh. 121a, lines 3 and 25 (ECF No. 23-3).) The defense counsel raised a Batson challenge. He stated:

MR. WHIPPLE: Thank you, Your Honor. Your Honor, during the jury - during jury selection and when we were doing preempts, the government preempted Juror No. 639, Mrs. Dawson. They also prior to that preempted Juror No. 884, Mrs. Carter. Ms. Carter, of course, is African American. That left one remaining African American on the jury pool. That was Mrs. Dawson. They also preempted her.

         (Exh. 111 at 261 (ECF No. 22 at 262).) The opening brief on direct appeal made the error worse: “The State also preempted Juror Number 884, Mrs. Gardener (an African American).” (Exh. 151 at 21 (ECF No. 25 at 24) (emphasis added).) Appellate counsel, who was different from trial counsel and who was not present at jury selection, now used the incorrect name and the correct badge number. The error continued in the answering brief and the reply brief. (Exh. 153 at 13-14 (ECF No. 25-2 at 15-16); Exh. 154 at 4-9 (ECF No. 25-3, at 6-11).) The initial petition in this Court also continued with the error. (ECF No. 5 at 8-9.) Finally, in the second amended petition, petitioner got the name correct. (ECF No. 17 at 16.)

         Hoping that it has sorted this mess out, [1] the Court is reasonably certain, but not completely certain, that petitioner has presented to the Nevada Supreme Court the identity of the correct person. Regardless of the confusion of the names and the confusion of saying that Gardner was badge number 884, petitioner has remained consistent in state court and this Court that juror number 884 was struck for impermissible reasons. That probably is enough for the Nevada Supreme Court to identify that petitioner was challenging the strike of Carter. If the jury list and the jury questionnaires, currently Exhibits 121a through 121i (ECF No. 23-3 through 23-13), were part of the record on appeal, then this Court would be more certain that the Nevada Supreme Court knew that Carter was the juror in question. Carter's responses in her jury questionnaire match the prosecutor's questions to the juror identified both as Carter and Gardner in the transcript. This Court does not know if those exhibits were part of the record on appeal. The jury list has a court-exhibit sticker, but none of them are file-stamped, and they lack the bates number stamping found on Nevada appellate appendices. Nonetheless, with the badge number being consistent throughout the proceedings, the Court will find that ground 1 is exhausted with respect to Carter.

         Respondents argue that ground 1 is not exhausted with respect to Dawson because petitioner presents here a comparative juror analysis. (ECF No. 17 at 24-28.) Petitioner did not present to the state courts any such analysis. (See Exh. 151 at 19-23 (ECF No. 25 at 22-26).) Nevertheless, the Court finds that the additional facts presented in the comparative ...


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