United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
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.
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).
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).
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.
JUROR GARDNER: Yes.
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.
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.)
that it has sorted this mess out,  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.
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