Roger Libby v. Dwight Neven, Warden

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.

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…

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NOT FOR PUBLICATION JUN 24 2014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

* 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…