Frederic Noltie v. Kurt Peterson, Superintendent, Washington Corr. Ctr., 9 F.3d 802 (9th Cir. 1993). · Go Syfert
Frederic Noltie v. Kurt Peterson, Superintendent, Washington Corr. Ctr., 9 F.3d 802 (9th Cir. 1993). Cases Citing This Book View Copy Cite
“the case for the futility doctrine is most compelling where 2 the question is one of pure law, and the circumstances of the individual case are largely irrelevant.”
84 citation events (39 in the last 25 years) across 10 distinct courts.
Strongest positive: (DP) Letner v. Davis (caed, 2022-10-18)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) (DP) Letner v. Davis (3×) also: Cited "see"
E.D. Cal. · 2022 · quote attribution · 1 verbatim quote · confidence high
the case for the futility doctrine is most compelling where 2 the question is one of pure law, and the circumstances of the individual case are largely irrelevant.
cited Cited as authority (rule) Fifteen Twenty-One Second Avenue Condominium Association v. Viracon LLC
W.D. Wash. · 2024 · confidence medium
Picot, 780 at 1211 (quoting Schwarzenegger, 374 9 F.3d at 802.
discussed Cited as authority (rule) (HC) Bisel v. Fisher
E.D. Cal. · 2022 · confidence medium
If the court finds an 14 independent and adequate state procedural ground, “federal habeas review is barred unless the 15 prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate 16 that the failure to consider the claims will result in a fundamental miscarriage of justice.” Noltie 17 v. Peterson, 9 F.3d 802, 804-805 (9th Cir. 1993); Coleman, 501 U.S. at 750 ; Park, 202 F.3d at 18 1150. 19 The mere occurrence, however, of a procedural default will not necessarily bar a federal 20 court from reviewing claims in a petition for writ of habeas corpus.
discussed Cited as authority (rule) United States v. Tyronne Pollard, Jr.
9th Cir. · 2021 · confidence medium
In this court, after briefly accepting futility as cause, see, e.g., Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir. 1981), we cited Isaac to call the futility doctrine “short-lived,” Noltie v. Peterson, 9 F.3d 802, 805 (9th Cir. 1993).
discussed Cited as authority (rule) (HC) Xiong v. Hatton
E.D. Cal. · 2019 · confidence medium
If the court finds an 20 independent and adequate state procedural ground, “federal habeas review is barred unless the 21 prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate 22 that the failure to consider the claims will result in a fundamental miscarriage of justice.” Noltie 23 v. Peterson, 9 F.3d 802, 804-805 (9th Cir. 1993); Coleman, 501 U.S. at 750 ; Park, 202 F.3d at 24 1150. 25 The mere occurrence, however, of a procedural default will not necessarily bar a federal 26 court from reviewing claims in a petition for writ of habeas corpus.
discussed Cited as authority (rule) Donna Lee v. Debra Jacquez
9th Cir. · 2015 · confidence medium
A federal court may review the merits of a claim that was procedurally defaulted on an independent and adequate state procedural ground if the petitioner "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.” Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993).
discussed Cited as authority (rule) Richard Hurles v. Charles L. Ryan
9th Cir. · 2014 · confidence medium
Now that we have found “an independent and adequate state procedural ground, ‘federal habeas review is barred unless [Hurles] can demonstrate cause for the procedural default and actual prejudice, or [can] demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice.’ ” Bennett, 322 F.3d at 580 (quoting Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993)).
discussed Cited as authority (rule) Richard Hurles v. Charles L. Ryan
9th Cir. · 2013 · confidence medium
Now that we have found “an independent and adequate state procedural ground, ‘federal habeas review is barred unless [Hurles] can demonstrate cause for the procedural default and actual prejudice, or [can] demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice.’ ” Bennett, 322 F.3d at 580 (quoting Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993)).
discussed Cited as authority (rule) Nitschke v. BELLEQUE
9th Cir. · 2012 · confidence medium
If a federal court finds that a state court judgment rested on “an independent and adequate state procedural ground, ‘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.’ " Ben *1113 nett v. Mueller, 322 F.3d 573, 580 (9th Cir.2003) (quoting Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993)); see also Martinez, 132 S.Ct. at 1316 .
cited Cited as authority (rule) Cooper v. Neven
9th Cir. · 2011 · confidence medium
See id. at 750 , 111 S.Ct. 2546 ; Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993); Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir.1998).
cited Cited as authority (rule) Wayne Houff v. Sharon Blacketter
9th Cir. · 2010 · confidence medium
See O’Sullivan v. Boerckel, 526 U.S. 838, 848-849 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999); Noltie v. Peterson, 9 F.3d 802, 804-805 (9th Cir.1993).
discussed Cited as authority (rule) Palmer v. Martinez
9th Cir. · 2009 · confidence medium
See Gray v. Netherland, 518 U.S. 152, 162-63 , 116 S.Ct. 2074 , 135 L.Ed.2d 457 (1996); Coleman v. Thompson, 501 U.S. 722, 750 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993).
discussed Cited as authority (rule) Palmer v. Martinez
9th Cir. · 2009 · confidence medium
See Gray v. Netherland, 518 U.S. 152, 162-63 , 116 S.Ct. 2074 , 135 L.Ed.2d 457 (1996); Coleman v. Thompson, 501 U.S. 722, 750 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993).
cited Cited as authority (rule) Castillo v. Clark
C.D. Cal. · 2009 · confidence medium
See, e.g., Coleman, 501 U.S. at 750 , 111 S.Ct. 2546 ; Murray, 477 U.S. at 496, 106 S.Ct. 2639 ; Noltie v. Peterson, 9 F.3d 802, 806 (9th Cir.1993).
discussed Cited as authority (rule) Samayoa v. Ayers
S.D. Cal. · 2009 · confidence medium
If Petitioner fails to meet this interim burden “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.” Noltie v. Peterson, 9 F.3d 802, 804-805 (9th Cir.1993); Coleman, 501 U.S. at 750 , 111 S.Ct. 2546 ; Park v. California, 202 F.3d 1146, 1150 (9th Cir.2000).
cited Cited as authority (rule) Date v. Schriro
D. Ariz. · 2008 · confidence medium
K, M, Y); Noltie v. Peterson, 9 F.3d 802, 804 (9th Cir. 1993). 9 .
cited Cited as authority (rule) Hays v. Farwell
D. Nev. · 2007 · confidence medium
See, Schlup v. Delo, 513 U.S. 298, 299 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995); Noltie v. Peterson, 9 F.3d 802, 806 (9th Cir.1993).
discussed Cited as authority (rule) Scott v. Schriro
9th Cir. · 2006 · confidence medium
If we find the state court denied relief on an independent and adequate state procedural ground, “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.” Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993).
discussed Cited as authority (rule) Bennett v. Mueller
C.D. Cal. · 2005 · confidence medium
If the court finds an independent and adequate state procedural ground, “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.” Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993); see Coleman v. Thompson, 501 U.S. at 750 , 111 S.Ct. 2546 ; Park v. California, 202 F.3d at 1150 .
cited Cited as authority (rule) Vorce v. Cook
9th Cir. · 2005 · confidence medium
Harris v. Reed, 489 U.S. 255, 262 , 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993).
cited Cited as authority (rule) John Henry Casey v. Robert Moore
9th Cir. · 2004 · confidence medium
Coleman, 501 U.S. at 750 , 111 S.Ct. 2546 ; Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993).
cited Cited as authority (rule) Jerome Powell v. John Lambert
9th Cir. · 2004 · confidence medium
Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993).
discussed Cited as authority (rule) Joseph Murl Bennett v. Glen Mueller, Warden Cal Terhune, Director Attorney General of the State of California
9th Cir. · 2003 · confidence medium
If the court finds an independent and adequate state procedural ground, “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.” Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993); Coleman, 501 U.S. at 750 , 111 S.Ct. 2546 ; Park, 202 F.3d at 1150 .
discussed Cited as authority (rule) Joseph Murl Bennett v. Glen Mueller, Warden Cal Terhune, Director Attorney General of the State of California
9th Cir. · 2002 · confidence medium
If the court finds an independent and adequate state procedural ground, “federal habeas review is barred unless the prisoner can demon *758 strate 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.” Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993); Coleman, 501 U.S. at 750 , 111 S.Ct. 2546 ; Park, 202 F.3d at 1150 .
discussed Cited as authority (rule) Joseph Murl Bennett v. Glen Mueller, Warden Terhune, Director Attorney Generalof the State of California
9th Cir. · 2001 · confidence medium
If the court finds an independent and adequate state procedural ground, “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.” Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993); Coleman, 501 U.S. at 750 , 111 S.Ct. 2546 ; Park, 202 F.3d at 1150 (“A district court properly refuses to reach the merits of a habeas petition if the petitioner has defaulted on the particular state’s procedural requirements and is…
cited Cited as authority (rule) Karl Hinze Lagrand v. Terry Stewart, Director, Arizona Department of Corrections, and Dan Vanelli, Warden, Smu Ii, Arizona State Prison, Florence
9th Cir. · 1999 · confidence medium
See Engle v. Isaac, 456 U.S. 107, 130 , 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982); Noltie v. Peterson, 9 F.3d 802, 805 (9th Cir.1993).
cited Cited as authority (rule) Whaley v. Thompson
D. Or. · 1998 · confidence medium
Sawyer v. Whitley, 505 U.S. 333, 337 , 112 S.Ct. 2514 , 120 L.Ed.2d 269 (1992); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993).
discussed Cited as authority (rule) Chevez Johnson v. Kenneth W. Ducharme
9th Cir. · 1998 · signal: cf. · confidence medium
See Russell, 893 F.2d at 1035 (because ends of justice inquiry is merits related, citation to In re Taylor, 105 Wash.2d 683 , 717 P.2d 755 (Wash.1986) does not preclude federal review); cf. Noltie, 9 F.3d at 805 (claim is barred from federal review when petitioner failed to raise claim, denied by Washington Court of Appeals, in petition for review before Washington Supreme Court and petitioner never filed a personal restraint petition).
cited Cited as authority (rule) George W. Nulph v. S. Frank Thompson, Superintendent Oregon State Penitentiary
9th Cir. · 1998 · confidence medium
Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993); Coleman v. Thompson, 501 U.S. 722, 750 (1991).
examined Cited as authority (rule) Joseph Clifford Northup v. Kay Walter (3×) also: Cited "see"
9th Cir. · 1997 · confidence medium
See id. at 750 ; Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993).
cited Cited as authority (rule) Ray Albert Lewis v. Tana Wood
9th Cir. · 1997 · confidence medium
See id. at 750 ; Noltie v. Peterson, 9 F.3d 802, 804-805 (9th Cir.1993). 5 Lewis first contends that the district court erred by dismissing his second, third and fourth claims as procedurally barred.
discussed Cited as authority (rule) David R. Stobaugh v. Tana Wood
9th Cir. · 1997 · confidence medium
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993). 5 Here, Stobaugh filed a supplemental pro se brief in the Washington Court of Court of Appeals challenging his conviction on the basis that he had been entrapped and that his trial and appellate counsel were ineffective for failing to pursue an entrapment defense.
discussed Cited as authority (rule) Santiago Bernal Avina v. Janet Barbour, Superintendent
9th Cir. · 1996 · confidence medium
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir1993). 4 Under Washington law, a prisoner must file his collateral attack on a judgment and sentence within one year after the judgment becomes final.
cited Cited as authority (rule) Lambright v. Lewis
D. Ariz. · 1996 · confidence medium
Sawyer v. Whitley, 505 U.S. 333 , 112 S.Ct. 2514 , 120 L.Ed.2d 269 (1992); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993).
discussed Cited as authority (rule) Morris O'Dell v. Eldon Vail (2×) also: Cited "see"
9th Cir. · 1996 · confidence medium
Id. at 750 ; Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993).
discussed Cited as authority (rule) Michael A. Lake v. James Hope, Warden
9th Cir. · 1996 · confidence medium
Harris v. Reed, 489 U.S. 255, 261-62 (1989); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993). 13 Lake contends that the Idaho courts actually addressed the merits of his federal claims, and the district court had no choice but to give Lake relief.
discussed Cited as authority (rule) Julian Harold Combs v. Manfred F. Maass (2×) also: Cited "see"
9th Cir. · 1996 · confidence medium
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993).
discussed Cited as authority (rule) Richard Allan MORAN, Petitioner-Appellant, v. E.K. McDANIEL, Warden, Respondent-Appellee (2×)
9th Cir. · 1996 · confidence medium
Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993). “[T]he independent state grounds doctrine bars the federal courts from reconsidering the issue in the context of habeas corpus review as long as the state court explicitly invokes a state procedural bar rule as a separate basis for its decision.” McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir.1995).
discussed Cited as authority (rule) Eddie Joe Bush v. Lou Hesse Donice Neal (2×) also: Cited "see"
9th Cir. · 1996 · confidence medium
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993). 5 Bush filed a motion for release in the Washington Supreme Court on February 1, 1990.
cited Cited as authority (rule) Thomas William Sinclair Richey v. Tana Wood
9th Cir. · 1995 · confidence medium
See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993).
discussed Cited as authority (rule) Donald L. Anderson v. John R. Hallahan Grant Woods, Attorney General (2×) also: Cited "see"
9th Cir. · 1995 · confidence medium
See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993). 5 Here, the district court found that Anderson procedurally defaulted on his claims attacking his 1989 conviction during state post-conviction proceedings.
discussed Cited as authority (rule) Richard A. Butterfield v. State of Washington Tana Wood (2×) also: Cited "see"
9th Cir. · 1995 · confidence medium
Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993). 4 Evidence is sufficient to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 419 (1979). 5 Here, the evidence showed that Butterfield entered the trailer house of Judy Yakubek, the victim's mother, at approximately 3:00 a.m.
discussed Cited as authority (rule) Frank R. Borders v. Janet Barbour, Superintendent
9th Cir. · 1995 · confidence medium
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993). 11 Following, the dismissal of Borders' double jeopardy claim for failure to exhaust state remedies, the Washington Supreme Court held that this claim was barred under Wash.Rev.Code Sec. 10.73.140 (1990) and Wash.R.App.P. 16.4(d). 1 Thus, Borders is barred from federal habeas review unless he can show cause and prejudice or a fundamental miscarriage of justice.
cited Cited as authority (rule) Ricky Kurt Wassenaar v. Samuel Lewis
9th Cir. · 1994 · confidence medium
However, Wassenaar has submitted no evidence in support of his innocence "other than the evidence he presented to the jury that convicted him." Noltie v. Peterson, 9 F.3d 802, 806 (9th Cir.1993).
cited Cited "see" (HC) Lake v. Eaton
E.D. Cal. · 2022 · signal: see · confidence high
See Noltie v. Peterson, 9 F.3d 802, 804-06 (9th Cir. 1993). 1 seizure.
cited Cited "see" (HC) Lake v. Eaton
E.D. Cal. · 2021 · signal: see · confidence high
See Noltie v. Peterson, 9 F.3d 802, 804-06 (9th Cir. 1993). ] Accordingly, IT IS HEREBY ORDERED that within thirty days of the date of this order, 2 || petitioner shall either: 3 1.
discussed Cited "see" Maria Alfaro v. Deborah Johnson
9th Cir. · 2017 · signal: see · confidence high
See Noltie v. Peterson, 9 F.3d 802, 805 (9th Cir. 1993) (describing how Engle called into question the “short-lived ‘futility doctrine’ to avoid procedural default”). 2 We need not, however, rule on the continued viability of the rule from Sweet : Even assuming that a state supreme court’s pri- or rejection of a petitioner’s claim excuses that petitioner’s failure to exhaust, the circumstances of Alfaro’s case do not support application of this exception.
cited Cited "see" Miller v. Del Papa
9th Cir. · 2004 · signal: see · confidence high
See Noltie v. Peterson, 9 F.3d 802, 805-06 (9th Cir.1993).
cited Cited "see" Whelchel v. Wood
E.D. Wash. · 1997 · signal: see · confidence high
See Noltie v. Peterson, 9 F.3d 802, 805-06 (1993).
discussed Cited "see" Samuel William Donaghe v. David B. Weston (2×)
9th Cir. · 1997 · signal: see · confidence high
See Noltie v. Peterson, 9 F.3d 802, 805-06 (9th Cir.1993).
Retrieving the full opinion text from the archive…
Frederic NOLTIE, Petitioner-Appellant,
v.
Kurt PETERSON, Superintendent, Washington Corrections Center, Respondent-Appellee
92-36757.
Court of Appeals for the Ninth Circuit.
Nov 12, 1993.
9 F.3d 802
Sean A. Ayres, Scales & Associates, Seattle, WA, for petitioner-appellant., Paul D. Weisser, Asst. Atty. Gen., Olympia, WA, for respondent-appellee.
Wright, Goodwin, Hug.
Cited by 60 opinions  |  Published
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.[*804] 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 ease 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. “[Although 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: “[Wjhen 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 proce[*805] dural 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 his argument that the standard of proof the[*806] state trial court used to determine juror bias — preponderance of the evidence — was a violation of his Sixth Amendment right to an impartial jury.

His point is not well taken. As the district court stated:

The case for the futility doctrine is most compelling where the question is one of pure law, and the circumstances of the individual case are largely irrelevant. Here, however, the particular facts regarding each of the jurors are critical. The state court, if given the opportunity to address the claims involving the two jurors, might find that the trial court abused its discretion in these two cases even under the challenged preponderance of the evidence standard.

The challenges to juror F and Sun are factually distinct from the one involving juror Rhodes. Juror F claimed to have been sexually molested by her grandfather, and Sun was a director of an organization dedicated to the prevention of child abuse. The state supreme court could have found the challenges to juror F and Sun far more compelling than the challenge to Rhodes. Thus, we cannot say with any degree of certainty that presenting these claims to the Washington Supreme Court would have been futile. For these reasons, Noltie’s futility argument must fail.

3. Exceptions to the Exhaustion Requirement

A petitioner who has committed a procedural default may excuse the default and obtain federal review of his constitutional claims only by showing cause and prejudice, or by demonstrating that the failure to consider the claims will result in a “fundamental miscarriage of justice.” Coleman, — U.S. at-, 111 S.Ct. at 2565.

Here, Noltie does not contend that he had cause for his procedural default. Instead, he argues that this court should address the merits of his claim because a miscarriage of justice would otherwise result. Noltie claims that the lack of an impartial jury renders his trial fundamentally unfair. He urges this court to expand the list of exceptions to the exhaustion requirement to include situations where a defendant was convicted by a biased jury.

Although the Supreme Court has never provided a definitive interpretation of the term “fundamental miscarriage of justice,” there are indications that the Court might make an exception in the exhaustion requirement in a case of actual innocence. See James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure, 1992 Cumulative Supp. § 24.4, at 341 & n. 5.1; Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) (The manifest injustice exception is reserved for the “extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent”).

Under Murray, Noltie must show actual innocence to be excused from his procedural default under the fundamental miscarriage of justice exception. Although his brief asserts his innocence, he has not submitted any evidence in support of innocence other than the evidence he presented to the jury that convicted him. Because he has failed to show actual innocence or to demonstrate cause for his procedural default, we must dismiss Nol-tie’s claims as to juror F and prospective juror Sun as procedurally barred.

4. Challenge to Juror Rhodes

Noltie alleges that it was clear error and a violation of his Sixth Amendment right to an impartial jury for the state court to have failed to excuse a juror in a criminal case who had openly acknowledged the possibility of prejudice. He also argues that it is unconstitutional under the Sixth Amendment to require a criminal defendant to prove the existence of actual bias by a preponderance of the evidence.

We need not reach the standard of proof issue here to decide this appeal. The challenge to juror Rhodes is not a situation where a less rigorous burden of proof would lead to a different result. The judge’s factual determination that Rhodes could perform her sworn duty with impartiality was adequately supported by the record. See 28 U.S.C. § 2254(d)(8).

While juror Rhodes initially did admit that she “might” have some difficulty being fair in a case involving sexual abuse of a young[*807] child, she nevertheless repeatedly stated that she hoped she would be fair and that she would try to be fair. The juror also stated that she felt it would be a terrible injustice to the defendant not to have a fair trial.

Because we must pay due deference to the trial judge who sees and hears the juror, we cannot hold that the judge in this case abused his discretion by refusing to excuse Rhodes. “The trial judge properly may choose to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading.... It is here that the federal court’s deference must operate, for while the cold record arouses some concern, only the trial judge could tell which of these answers was said with the greatest comprehension and certainty.” Patton v. Yount, 467 U.S. 1025, 1039-40, 104 S.Ct. 2885, 2893, 81 L.Ed.2d 847 (1984).

Thus, the failure to exclude Rhodes from the jury did not violate Noltie’s Sixth Amendment right to an impartial jury. His other two claims are procedurally barred. For the foregoing reasons, the judgment of the district court is

AFFIRMED.

1

. In a recent case, the Ninth Circuit in dicta cited Sweet with approval but did not mention the Engle decision. Beam v. Paskett, 966 F.2d 1563 (9th Cir.1992), vacated on other grounds, Arave v. Beam,-U.S.-, 113 S.Ct. 1837, 123 L.Ed.2d 464 (1993).