Cooks v. Spalding

660 F.2d 738 Bobby Joe COOKS, Plaintiff-Appellant, v. James C. SPALDING, Warden of the Washington State Penitentiary at Walla Walla; Kenneth Eikenberry, Attorney General for the State of Washington, Defendants-Appellees. No. 81-3192. United States Court of Appeals, Ninth Circuit. Submitted Oct. 8, 1981. Decided Nov. 2, 1981. Irwin H. Schwartz, Seattle, Wash., for plaintiff-appellant. Nate D. Mannakee, Asst. Atty. Gen., Olympia, Wash., for defendants-appellees. Appeal from the United States District Court for the Western District of Washington. Before BROWNING and WRIGHT, Circuit Judges, and WEIGEL, * District Judge. PER CURIAM: 1 Cooks appeals from denial of a petition for habeas corpus. He alleges denial of due process and effective assistance of counsel because his attorney waived his state right to a 12-person jury. 2 Cooks was present when his counsel requested a 6-person jury and voiced no objection until after trial, a guilty verdict by the jury, and his incarceration. The state courts rejected his claim that the waiver was flawed. 3 He claims the trial court denied him due process when it deprived him of his state-created right to a knowing and voluntary election of a jury…