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Glass v. Goldsmith

filed*fn*: December 19, 1991.

EUGENE GLASS, PETITIONER-APPELLANT,
v.
B. D. GOLDSMITH, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the District of Arizona. Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CV-88-1959-PGR

Before: Wallace, Chief Judge, Schroeder and Rymer, Circuit Judges.

MEMORANDUM

Eugene Glass, an Arizona state prisoner, appeals pro se the dismissal of his 28 U.S.C. ยง 2254 habeas corpus petition. The district court determined that Glass did not show cause for his state procedural default. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm in part and vacate and remand in part.

Procedural Default

The failure of a federal habeas petitioner to present his or her claims to the state's highest court for a determination on the merits, as required by state procedure, precludes federal review of the claims absent a showing of cause for the procedural default and actual prejudice. Reed v. Ross, 468 U.S. 1, 11 (1984); Wainwright v. Sykes, 433 U.S. 72, 87 (1977). The cause and prejudice requirements apply as well to the failure to contemporaneously object at trial to the jury selection. Wainwright, 433 U.S. at 87-88. Even in the absence of a showing of cause for procedural default, a federal habeas court may grant a writ of habeas corpus under extraordinary circumstances, i.e., "where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986).

Here, Glass raised the following grounds for federal habeas corpus relief:

1) ineffective assistance of trial counsel;

2) denial of his right to confront witnesses;

3) denial of a fair and impartial trial due to the prosecutor's use of peremptory strikes to exclude blacks from the jury;

4) prosecutorial misconduct;

5) unduly suggestive identification procedure;

6) trial court error in refusing to grant Glass's motion for a judgment of acquittal; and

7) trial court error in failing to advise the jury of Ariz. ...


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