Noltie v. Peterson

• Decision Date: 12 November 1993
• Docket Number: No. 92-36757,92-36757
• Citation: 9 F.3d 802
• Parties: Frederic NOLTIE, Petitioner-Appellant, v. Kurt PETERSON, Superintendent, Washington Corrections Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 802

9 F.3d 802

Frederic NOLTIE, Petitioner-Appellant, v. Kurt PETERSON, Superintendent, Washington Corrections Center, Respondent-Appellee.

No. 92-36757.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 2, 1993.

Decided Nov. 12, 1993.

Sean A. Ayres, Scales & Associates, Seattle, WA, for petitioner-appellant.

Paul D. Weisser, Asst. Atty. Gen., Olympia, WA, for respondent-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: WRIGHT, GOODWIN and HUG, Circuit Judges.

GOODWIN, Circuit Judge:

Frederic Noltie was convicted in state court of sexually abusing his stepdaughter when she was between the ages of five and eight. On appeal from the denial of habeas relief he contends that the trial court denied him due process of law by forcing him to trial before a biased jury. We affirm the district court's denial of habeas relief.

During voir dire Noltie challenged for cause three prospective jurors. The state trial court denied these challenges and Noltie ultimately used all six of his preemptory challenges but was unable to remove two of the jurors. Juror Rhodes and juror F, whose privacy will be protected, served on the jury that ultimately convicted Noltie. Juror Sun was removed by a preemptory challenge.

During that portion of voir dire when jurors are asked to raise their hands in response to general questions put to the entire venire, juror Rhodes indicated that she felt she "might" have some difficulty in being a fair juror in the petitioner's case because she had two young granddaughters, and the case involved sexual abuse of a young girl.

When asked by defense counsel whether Rhodes would want someone with her frame of mind on the jury if she were Noltie, she responded: "No, I don't think so ... I don't know. I don't know. It is just, I guess children, I don't know."

Rhodes did say that she would "try to be fair," and that it would be a "terrible injustice to [Noltie] not to have a fair trial." She also said the defendant should not be expected to present evidence to show he was innocent. Finally, when asked if she would start out by leaning in favor of the State because of her concern for children, Rhodes responded that this was "just a possibility." The trial judge denied defendant's motion to excuse Rhodes for cause, stating that the dismissal of a juror for actual bias is based on probabilities, not on possibilities.

During the voir dire of juror F, she revealed she had been sexually molested by her grandfather at the age of 6 or 7. "[A]lthough nothing serious developed, nevertheless he did try to fondle me, and so forth, and I got away from him and never told anyone until now."

When asked whether there was a likelihood that she would not be fair, juror F responded: "I would say more of a likelihood than a possibility." The state judge then interjected: "[W]hen we say something is likely, we mean more likely than not. Would you be in the position of saying more likely than not you would not be fair and impartial?" F then responded, "I think I would be fair, I truthfully do."

At the conclusion or voir dire, Noltie's defense counsel challenged F for cause. The trial judge denied the challenge, saying, "it appears to the Court that her actual words were [that] she thought she could be fair, she just had some concern."

During prospective juror Sun's voir dire, she disclosed that she was a board member of the county's commission for the prevention of child abuse and neglect. Sun said she initially thought she could not be impartial in Noltie's case because of her involvement with the agency, but as the questioning went on with the other jurors, she said she had concluded that she would be fair. She also promised to base her decision "on the facts presented."

The defense counsel moved to exclude Sun for cause, but the trial court denied the motion. The defense, as noted above, expended one of its preemptory challenges to remove Sun from the jury.

On appeal, the Washington Court of Appeals affirmed Noltie's conviction. State v. Noltie, 57 Wash.App. 21, 786 P.2d 332 (1990). In his subsequent petition to the Washington Supreme Court, Noltie alleged only three claims: 1) that he was denied a fair and impartial jury by the trial court's denial of his challenge for cause of juror Rhodes; 2) the information used in his prosecution was constitutionally defective; and 3) the admission of colposcopic photographs was error. State v. Noltie, 116 Wash.2d 831, 809 P.2d 190, 194 (1991). The court subsequently rejected these claims and affirmed Noltie's convictions. Id.

1. Procedural Bar

We first must decide whether Noltie is procedurally barred from raising his constitutional claims of bias as to juror F and prospective juror Sun because he failed to raise these claims on review before the Washington State Supreme Court.

A habeas petitioner may waive a constitutional claim by failing to raise the issue on direct appeal to the state's highest court. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). When a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, --- U.S. ----, ----, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).

In this case, the parties agree that although Noltie exhausted his state court remedies on his challenge of Rhodes, he did not present his challenges to juror F or prospective juror Sun in the Washington State Supreme Court. Although Noltie did raise his challenge to Sun in the state court of appeals, he abandoned the claim on appeal to the state supreme court.

Under Washington law, issues raised in the court of appeals but not in the supreme court result in a waiver of those issues. Garth Parberry Equip. Repairs v. James, 101 Wash.2d 220, 676 P.2d 470, 472 n. 2 (1984;); Wash.R.App.Proc. 13.7(b). Washington law in some circumstances permits a defendant to raise constitutional issues not raised on direct appeal by the filing of a "personal restraint petition." However, Noltie elected not to file a further petition before the supreme court, contending it would be futile. This claim is now barred by the statute of limitations.

Because he failed to raise his claims before the state supreme court, Noltie's claims of bias as to F and Sun are barred from our review due to a state procedural default, unless Noltie can meet the Coleman exceptions mentioned above. Before we discuss those exceptions, we first address Noltie's claim that an appeal to the state supreme court here would have been futile.

2. Futility Doctrine

Noltie contends that he is not procedurally barred from raising his claims as to juror F and prospective juror Sun and cites Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir.1981). In Sweet, this Court adopted the holding of "a number of circuits" excusing the exhaustion requirement when the state's highest court had "recently addressed the issue raised in the petition and had resolved it adversely to the petitioner" unless there has been intervening U.S. Supreme Court decisions on point or "other indications that the state court intends to depart from its prior decisions." Id. at 236 (citations omitted). This was the short-lived "futility doctrine" to avoid procedural default.

Subsequent to the Sweet decision, however, the Supreme Court criticized futility as an excuse for failing to exhaust one's state-court claims. In Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), the Court stated:

If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid.

Id. at 130, 102 S.Ct. at 1573; see also Smith v. Murray 477 U.S. 527, 535, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986) (quoting Engle, 456 U.S. at 130 & n. 36, 102 S.Ct. at 1573 & n. 36).

Although we have not explicitly overruled Sweet, we have rejected the "futility doctrine" in at least one post-Engle decision. See Roberts v. Arave, 847 F.2d 528, 530 (9th Cir.1988) (citing Engle, 456 U.S. at 130, 102 S.Ct. at 1573) (holding that "the apparent futility of presenting claims to state courts does not constitute cause for procedural default"). ¹ Engle was cited and followed by the district court in this case.

Nevertheless, we need not reach the question of any residual viability of Sweet because it is clear that waiver of the exhaustion requirement on futility grounds would not have been appropriate in this case even if Sweet remained untarnished.

Noltie claims that an appeal to the Washington Supreme Court would have been futile because the court already had rejected his claim of bias as to juror Rhodes, as well as...