Case Information
*1 Bеfore: MERRITT and ROGERS, Circuit Judges, and POLSTER, District Judge. [*] _________________
COUNSEL ARGUED: B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant in 11-1430. Bradley R. Hall, FEDERAL PUBLIC DEFENDER OFFICE, Detroit, Michigan, for Appellee in 11-1430. Bradley R. Hall, FEDERAL PUBLIC DEFENDER OFFICE, Detroit Michigan, for Appellants in 10-1247 and 09-1539. John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees in 10-1247 and 09-1539. ON BRIEF: B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant in 11-1430. Bradley R. Hall, Kenneth R. Sasse, FEDERAL PUBLIC DEFENDER OFFICE, Detroit, Michigan, for Appellee in 11-1430. Bradley R. Hall, James R. Gerometta, FEDERAL PUBLIC DEFENDER OFFICE, Detroit Michigan, for Appellants in 10-1247 and 09-1539. John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees in 10-1247 and 09-1539. Debra M. Gagliardi, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee in 10-1332. Gregory Carter, Manistee, Michigan, pro se.
_________________
OPINION
_________________
ROGERS, Circuit Judge. These habeas petitions involve the far-reaching effects of an unintentional computer glitch that caused the systematic underrepresentation of African-Americans in the jury pools of Kent County, Michigan. The three petitioners received separate jury trials in Kent County in either 2001 or 2002. At jury selection, the petitioners did not object to the racial composition of their respective jury venires, and were subsequently convicted. A few months later, the Grand Rapids Press published a story detailing how Kent County’s jury selection software had a computer glitch that had systematically excluded African-Americans from the jury pool. In light of these revelations, the petitioners each filed motions for post-conviction relief in state court. The state court found that the petitioners had waived these claims by failing to object to the racial composition of the jury venire during voir dire .
The petitioners each filed a § 2254 habeas petition. The Western District of Michigan denied two of the petitions— Carter v. Lafler , No. 10-1247, and Wellborn v. Berghuis , No. 09-1539—holding that the petitioners had not shown cause to excuse their procedural default. In Ambrose v. Booker , No. 11-1430, the Eastern District of Michigan granted habeas relief. The Ambrose court held that the petitioner could not have known of the computer glitch, presumed prejudice because the glitch caused a structural error, and then granted the petition on the merits. Remand in all three cases is appropriate because the petitioners have shown cause to excuse their defaults, but federal-state comity requires that the district court find actual prejudice before granting relief.
I.
1. Ambrose
On April 19, 2001, a Kent County jury convicted Joseph Ambrose of two counts
of armed robbery, one count of carjacking, and one count of felony-firearm possession.
Ambrose v. Booker
,
On July 30, 2002, the Grand Rapids Press reported that a computer glitch had an impact on Kent County’s system for selecting jury venires. The glitch was introduced aсcidentally by the county when it assumed control of the jury selection computer program from a private vendor in April 2001. The problem came to light in 2002, when a local high school teacher, Wayne Bentley, completed a study of minority representation on Kent County juries. Bentley found that the underrepresentation of minorities was statistically significant, and shared his findings with county officials. The county subsequently conducted an internal study that revealed that “nearly 75 percent of the county’s 454,000 eligible residents were excluded from potential jury pools since spring 2001” and that “[m]any blacks were excluded from . . . jury pools due to a computer glitch that selected a majority of potential candidates from the suburbs.” The chief judge of the Kent County Circuit Court, George Buth, stated, “There has been a mistake—a big mistake.”
In light of these revelations, Ambrose initiated state post-conviction proceedings.
Ambrose requested relief from judgment, claiming he was denied his right to be tried by
a jury drawn from a fair cross-section of the community. The trial court denied
Ambrose’s motion because, among other things, Ambrose failed to object to the venire
panel before the jury was empaneled. The Michigan Court of Appeals denied leave to
appeal, as did the Michigan Supreme Court.
See People v. Ambrose
,
Ambrose then filed this habeas petition in the United States District Court for the Eastern District of Michigan. The district court referred the matter to a magistrate judge, who held an evidentiary hearing at which four items of evidence were introduced. First, the magistrate judge heard the testimony of Wayne Bentley, the teacher that uncovered the disparate representation. Second, the magistrate judge heard testimony from Terry Holtrop, the case manager for the Kent County Circuit Court. Ambrose , 781 F. Supp. 2d at 537-38. Holtrop explained how Bentley’s evidence spurred an internal investigation by the County, culminating in the Kent County Jury Management System Report (hereafter “the Report”) dated August 1, 2002. The Report described how a transfer of control over a database—from a private vendor to the County in an effort to cut costs—caused the error :
[I]n the initial set-up of the Oracle database to accommodate the driver’s license and State ID data from the State file, an error was made in one parameter. Whether this was a programming error, the carry-over of a setting that existed within the Sybase database, misinterpreting instructions, or simply human error, that is now almost impossible to determine. The parameter that was entered within the database was 118,169. What should have been inserted within this setting was the total number of records in the State File, or 453,981 in 2001.
The net effect of this incorrect parameter is that the Jury Management System performed a random selection against the first 118,169 jurors on the file. The percentage of jurors selected per Zip Code was proportional to the Zip Code composition of the first 118,169 records—but not Kent County as a whole. The total pool of prospective jurors from the State File is of course 3.8 times larger than the 118,169 and hence the type of jury pull data as is evidenced in the various tables included in this report, for the second half of 2001 and the first half of 2002.
The next logical question being, why then did the jury pull from Zip Code 49341 jump so dramatically for 2001, from an average of 3.8% up to 10.24% . . . and why did the jury pulls from Zip Code 49507 decline from an average of 8.56% to 2.13%?
The answer being that in 1998 (as was mentioned previously) the State File did not come in random order, but rather in Zip Code order . . . lowest numbers to highest numbers. In subsequent years, new prospective jurors (either based on age or having moved to the County) were added to the end of the database. Existing prospective jurors (those that were on file the previous year) would simply have address information updated based on what the State provided. Their position in the dataset would not change. Therefore, the first 118,169 records of the dataset have a high percentage of lower numbered zip codes. As indicated on the map included in his packet, all the Zip Codes with the lower numbers are located outside of the Grand Rapids metro area. Third, the magistrate judge considered statistical analysis submitted by Dr. Paul Stephenson, a statistician who used different methodologies to evaluate the impact of the glitch. Dr. Stephenson first compared the percentage of eligible African-Americans in Kent County and the actual percеntage in the venire. He found an absolute disparity of 6.03% and a comparative disparity of 73.1% fewer African-American members than would be expected. [1] While Dr. Stephenson believed that these disparities were useful “descriptive statistics,” he did not believe they were “viable for inferential purposes.” Stephenson next used both a standard deviation and binomial test, and found that although the tests provided “insufficient evidence to demonstrate that the representation of Blacks or African-Americans in [a specific] venire is biased, this is in part due to the size of the venire.” Stephenson also noted “while it would be less likely, one also could expect approximately 2% of all venires to contain no . . . African-American members.” Stephenson then employed a “Chi-square Goodness-of-fit test.” Using this test, Dr. Stephenson found that “there is essentially no chance of acquiring the results we obtained if the selection process for potential jurors is unbiased. As a result, there is overwhelming evidence to conclude that the selection process for terms during the first months of 2002 was biased.” Dr. Stephenson concluded that “the analysis presented in this report demonstrates that a systematic bias did exist in the selection of individuals summoned for jury duty during the first three months of 2002. This bias would have inevitably led to under representation of . . . African-Americans in the terms during this period of time.”
Fourth, the magistrate judge considered a report by Dr. Edward Rothman, who analyzed the composition of the Kent County Jury Pool between January 1998 and December 2002. Dr. Rothman used the census figures from the 2000 census, at which time African-Americans comprised 8.24% of the population of Kent County. Dr. Rothman applied these figures to the period April 2001 to August 2002, and concluded that there was a 3.45% absolute dispаrity between jury-eligible African- Americans and those who appeared on jury venires. Rothman found a comparative disparity of 42%. Based on these four pieces of evidence, the magistrate judge concluded that Petitioner had proven a prima facie case of a fair cross-section claim.
The district court adopted the magistrate judge’s report and recommendation.
Ambrose
,
2. Carter
Gregory Carter’s habeas petition was reviewed by both the Eastern and Western Districts of Michigan, which came to opposite conclusions. A jury convicted Carter of armed robbery of a convenience store in Kent County, Michigan. At trial, the prosecution presented “overwhelming” evidence of the robbery, including a videotape which showed Carter robbing the store. Carter v. Lafler , No. 1:09-cv-215, 2010 WL 160814, at *1 (W.D. Mich. Jan. 8, 2010). Petitioner was sentenced to two years’ incarceration for a felony firearm charge to be served consecutively with a term of 15 to 40 years’ imprisonment for the armed robbery. Carter did not object to the venire panel at trial, and did not challenge the panel’s composition at any stage of his direct appeal.
In light of the revelations about the problems with Kent County’s jury selection
system, Carter initiated state post-conviction proceedings under M.C.R. 6.501. In his
motion, Carter challenged the composition of the jury based on flaws in the Kent County
jury selection system, and raised an ineffective assistance of counsel claim. The trial
court denied the motion, reasoning that Carter had defaulted by failing to object to the
venire’s composition before the jury was empaneled. Further, the trial court found that
Carter’s ineffective assistance оf counsel claim failed under Michigan’s version of
Strickland v. Washington
,
Carter filed a habeas petition in the United States District Court for the Eastern
District of Michigan. The district court held that there was cause and prejudice to excuse
Carter’s procedural default.
Carter v. Lafler
, No. 06-cv-10552,
Upon receiving the case, the Western District of Michigan assigned the case to
a magistrate judge. The magistrate judge recommended that the district court deny the
habeas petition as procedurally defaulted without an evidentiary hearing.
Carter v.
Lafler
, No. 1:09-cv-215,
3. Wellborn
Carl Wellborn was convicted of sexually abusing his granddaughters by a Kent
County Jury in March 2001.
Wellborn v. Berghuis
, No. 05-cv-346,
Wellborn raised a variety of claims in his habeas petition, but only appeals his fair cross-section claim. The district court found that this claim was procedurally defaulted, and held that there was no сause to excuse the default. Id. at *3. Because the petitioner observed the juror array, the court reasoned, he was on notice of a potential underrepresentation. Id. The court found that the petitioner must show evidence that the underrepresentation was intentionally concealed, a showing Wellborn did not make. Id. at *3-4. The court acknowledged that the Eastern District had addressed the computer glitch and excused procedural default, but found Wellborn’s case distinguishable on two grounds: Wellborn was white and there was overwhelming evidence of Wellborn’s guilt. at *3-4. Wellborn filed this timely appeal.
II.
As an initial matter, the parties disagree on the standard of review. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires federal courts to grant considerable deference to state courts and presume the correctness of state court faсt finding. 28 U.S.C. § 2254(d), (e)(1). However, this deferential standard applies only to claims that state courts have adjudicated on the merits. Respondents admit that “the State court . . . refus[ed] to examine the merits of Petitioner’s claim.” Even without this concession, it is evident that the state courts rejected petitioners’ fair cross-section claims on procedural grounds, based on the failure to object to the jury panel at trial. For this reason, AEDPA deference does not apply and the court reviews legal conclusions de novo and findings of fact for clear error. See, e.g., Dyer v. Bowlen , 465 F.3d 280, 283–84 (6th Cir. 2006).
1. Cause for Procedural Default
There is no dispute that petitioners defaulted their claims by failing to object to
the jury venire at trial, in violation of Michigan’s contemporaneous objection rule.
See,
e.g.
,
People v. Dixon
, 552 N.W.2d 663, 667 (Mich. Ct. App. 1996). However,
petitioners have shown “cause and prejudice” sufficient to excuse the default under
Coleman v. Thompson
,
It is undisputed that petitioners lacked actual knowledge of the glitch, and the record demonstrates that they could not have reasonably known of the error at the time the jury was sworn. The glitch was a mistyped parameter in the software, buried in a mountain of computer codе, that was only discovered after a broad statistical analysis led to an extensive internal investigation. This is not the type of error that would be reasonably discoverable by a defendant at jury selection. The difficulty of detecting this problem is underscored by the fact that the glitch persisted for nearly two years without detection by defendants, judges, or Kent County officials.
Further, looking at the venire panel did not provide petitioners with notice of their claims. Petitioners’ claims arise from the right “to be tried by an impartial jury drawn from sources reflecting a cross section of the community.” Berghuis v. Smith , 130 S. Ct. 1382, 1387 (2010) (emphasis added). A petitioner raising this claim is challenging the pool from which the jury is drawn, and not necessarily the venire panel directly before him. Accordingly, the composition of one panel does not indicate whether a fair cross-section claim exists.
The irrelevance of the composition of a single venire panel is underscorеd by the
fact that a petitioner may bring a claim even if minorities are included in his panel. The
Sixth Amendment guarantees only the opportunity for a representative jury, not a
representative jury itself.
United States v. Biaggi
,
[T]o hold that a litigant is not entitled to a representative jury when the jury venires are drawn from a fair cross-section of the community but that the cross-section requirement can be dispensed with when the dice fall a particular way in an individual case undermines the analytical foundation upon which the right to a jury drawn from a cross-section of the community is based.
Barber v. Ponte
,
[R]equiring a defendant to make a contemporaneous objection based simply on an anecdotal view of the jury’s racial composition defies logic; any individual panel could over represent a “distinctive” group even though the group might be underrepresented in the jury venire as a whole. A gaze into the jury gallery tells you nothing and, in fact, can be misleading. To also suggest that an effective defense attorney must investigate the jury assembly process in every case cоnditioned upon his client’s loss of the right is unnecessary and wasteful.
Ambrose v. Booker , No. 06–13361–BC, 2011 WL 1806426, at *2 (E.D. Mich. May 11, 2011). Here, each petitioner saw only one venire panel, which did not alert any of the petitioners to the systematic underrepresentation. Even the judges and Kent County officials who were confronted with venire panels daily did not notice the underrepresentation. To say that petitioners should have looked at a single venire panel and noticed something that the officials failed to notice for sixteen months rings hollow. [2]
Even if the composition of one venire panel were relevant, the absence of minorities on a panel would not have alerted petitioners that a fair cross-section claim existed. Due to the small size of the African-American population in Kent County, it is entirely possible that a defendant could receive an all-white juror array even if there were no underrepresentation of African-Americans in the jury pool. Dr. Stephenson concluded as much after conducting a standard deviation test and a binomial test on the Kent County jury pool. Stephenson Report, at 3. Because of Kent County’s small African-American population (8.25%) and the small size of venire panels, Dr. Stephenson concluded that one “could expect approximately 2% of all venires to contain no Black or African-American members.” at 4. Even if the computer had been glitch-free, petitioners could have received a panel without a single African- American panel member. Given the small minority population in Kent County, if petitioners had faced an all-white jury panel, they could have believed that there was no underrepresentation problem.
Moreover, the Supreme Court has found cause to excuse a procedural default in a factually similar case. In Amadeo v. Zant , a district attorney conspired with the jury commissioners of a Georgia county to systematically exclude African-Americans and women from the jury pool. 486 U.S. 214 (1988). The wrongdoers purposefully underrepresented minorities, but were careful to keep representation within a presumptively valid statistical range (under 10%). The petitioner did not object at trial to the racial composition of the jury venire. Several months later, the petitioner learned of a memorandum that detailed a scheme “to underrepresent black people and women on the master jury lists from which . . . juries were drawn.” Id. at 217. The memorandum was hidden in a public record—intermingled with irrelevant data—and only discovered in unrelated litigation. The Supreme Court excused the procedural default, reasoning that the memorаndum was not reasonably available to petitioner’s lawyers. at 224. The court based its decision on the fact that petitioner’s lawyers did not deliberately bypass a jury challenge. Id. at 226-28. Similarly, in this case, petitioners could not have discovered the computer glitch prior to trial and did not deliberately bypass a jury challenge. Further, the memorandum in Amadeo was filed in publicly accessible records whereas here the error was contained in a single line of code in the jury selection software. It would make little sense to excuse a failure to discover a publicly filed memorandum, but require petitioners to scour non-public programming codes of jury selection software. Accordingly, under the reasoning of Amadeo , petitioners’ defaults are excused.
Respondents attempt to distinguish Amadeo , but are ultimately unsuccessful. Respondents first argue that, unlike in these cases, the officials in Amadeo deliberately reduced the minority representation in the juror poоl. Although this may be true, the focus of the cause-and-prejudice test is not on the intent of the officials but rather on petitioners’ knowledge of the underrepresentation. For example, if a government official intended to conceal an intentional underrepresentation, there would be no good cause to excuse procedural default if the petitioner discovered the scheme. Therefore, a government official’s lack of intent is irrelevant.
Respondents do not persuasively explain how the disparity in this case was any more detectable than the one in Amadeo . Respondents argue that the scheme in Amadeo was specifically tailored to avoid detection by keeping the underrepresentation within statistically presumptive levels. They contend that systematic underrepresentation is discoverable unless a scheme exists that was specifically tailored to avoid detection. It is true that the government officials in Amadeo endeavored to conceal the underrepresentation by keeping it to less than 10% absolute disparity. Amadeo , 486 U.S. at 218. However, in these cases, the absolute disparity was only 3.45%; the underrepresentation would be at least as difficult to detect.
Policy considerations also support this reasoning. First, finding good cause to
excuse the default does not undermine the purpose of the contemporaneous objection
rule. The purpose of preservation requirements, such as the objection rule, is to allow
the trial court to correct errors and ensure that a trial is fair in the first instance.
See
United States v. Young
,
Second, the procedural default rule was not intended to bar defaults such as
petitioners’. The Supreme Court has made clear that the test is intended to prevent
defense counsel from defaulting in state court for strategic gain. As the Court stated,
“defense counsel may not make a tactical decision to forgo a procedural
opрortunity—for instance, an opportunity to object at trial or to raise an issue on
appeal—and then, when he discovers that the tactic has been unsuccessful, pursue an
alternative strategy in federal court.”
Reed v. Ross
,
Third, were we to hold that petitioners cannot demonstrate cause, we would be instituting a de facto requirement that defense attorneys in Kent County automatically raise fair cross-section objections. A prudent lawyer in such a situation would recognize that a failure to raise a fair cross-section claim would bar a later assertion of the right should a computer glitch—or even a scheme such as the one in Amadeo —come to light. Such a result would run counter to the lawyer’s duty to avoid frivolous litigation, as well as the procedural default doctrine’s concern with judicial efficiency. Instead, finding cause to excuse petitioners’ failure to object would leave open a critical safety valve to deal with real fair-cross-section claims.
Respondents rely on a number of our cases in this context, but these cases are
factually or analytically distinguishable. First, respondents rely on
United States v.
Boulding,
a case involving two federal defendants who failed to object to the racial
diversity of the jury panel until after the jurors were sworn.
Notwithstanding respondents’ arguments to the contrary,
United States v. Blair
,
Finally, respondents argue that because other defendants are able to raise fair
cross-section claims by looking at the venire panel, petitioners should have too.
However, the cases on which respondents rely do not involve a similarly subtle absolute
disparity or a hidden cause of underrepresentation.
See United States v. Buchanan
, 213
F.3d 302, 309 (6th Cir. 2000) (оverturned on other grounds);
United States v. Jackman
,
2. Prejudice for Procedural Default
Having shown cause, petitioners must show actual prejudice to excuse their
default, even if the error is structural. The Supreme Court has held that a petitioner must
show “actual prejudice” to excuse a default. In
Francis v. Henderson
,
This circuit has accordingly declined to presume prejudice for the purposes of
procedural default when considering structural error claims, although we have not yet
addressed the issue in the context of a fair cross-section claim. For example, in
Keith
v. Mitchell
, 455 F.3d 662, 673 (6th Cir. 2006), a defendant failed to object to the
exclusion of three scrupled jurors
[3]
during his murder trial. Defendant relied on
Gray v.
Mississippi
,
This court has expressly found the
Henderson-Davis
rule to apply to a jury
selection claim, albeit in dicta on a direct review of a federal appeal. In
United States
v. Ovalle,
If, as Davis held, the federal courts must give effect to these important and legitimate concerns in §2255 proceedings, then surely considerations of comity and federalism require that they give no less effect to the same clear interests when asked to overturn state criminal convictions.
Henderson
,
Other circuits have required a petitioner to show “actual prejudice,” even where
the petitioner claimed a structural error had occurred. In
Purvis v. Crosby
,
Comity requires us to avoid overturning defaulted claims absent a showing of actual prejudice. Given the Supreme Court’s express language, and the procedural default rule’s roots in comity and federalism, a petitioner must show that he was actually prejudiced regardless of the nature of the underlying constitutional claim. The purpose of the procedural default rule is to protect state cоurt procedures from undue federal intervention. Federal courts are accordingly closely circumscribed in their review of defaulted claims. Although the nature of the procedural right is important, federal courts should not reverse state court decisions unless a petitioner can show that the outcome would have been different.
In arguing for presuming prejudice on habeas in this case, petitioners cite a
number of our cases that are distinguishable.
Quintero v. Bell
,
Petitioners also rely on language in
Johnson v. Sherry
,
Finally, petitioners parse language from three Supreme Court cases, but cannot
show how these cases require a different result. In
United States v. Frady
,
Because the district courts here did not address actual prejudice, a remand is necessary. We are then left with the question of the proper standard on remand. We are guided in part by the Elеventh Circuit’s analysis of a similar question in Hollis v. Davis , 941 F.2d 1471, 1480 (11th Cir. 1991). In that case, the petitioner claimed that his counsel was ineffective for failing to object to Alabama’s systematic exclusion of African-American jurors from grand and petit juries. To excuse this default, the Hollis court required that petitioner show actual prejudice, which involved determining whether there was a reasonable probability that “a properly selected jury [would] have been less likely to convict.” at 1482. The Eleventh Circuit’s analysis is persuasive. The most important aspect to the inquiry is the strength of the case against the defendant. [4] As the Eleventh Circuit reasoned, “a transcript could show a case against [petitioner] so strong, and defense so weak, that a court would consider it highly improbable that an unbiased jury could acquit.” at 1483 (internal quotation marks omitted). In that circumstance, actual prejudice would not be shown.
Although the instant petitions do not involve a Strickland claim, this standard is appropriate because it balances the competing demands of constitutionally protected equal protection interests and comity toward the state courts. We recognize that the application of the actual prejudice standard in cases such as these presents a particularly challenging charge to the district courts below to answer the question, “what would have happened?” The law nonetheless requires that the question be answered—with a careful look at the transcripts involved, and with judgment that takes into account a fair balance of the competing interests of comity toward the final judgments of the state’s criminal processes and the protection of constitutional equal protection interests.
III.
The district court orders in all three cases are reversed, and the cases are remanded for further proceedings consistent with this opinion.
Hollis
,
Notes
[*] The Honorable Dan Aaron Polster, United States District Judge for the Northern District of Ohio, sitting by designation. 1
[1]
The Tenth Circuit has explained the differences between the measures:
Absolute disparity measures the difference between the percentage of
a group in the general population and its percentage in the qualified
wheel. For instance, if Asians constitute 10% of the general
population and 5% of the qualified wheel, the absolute disparity is
5%.
Comparative disparity measures the decreased likelihood that
members of an underrepresented group will be called for jury service,
in contrast to what their presence in the community suggests it should
be. This figure is determined by dividing the absolute disparity of the
group by that group's percentage in the general population. In the
example above, thе comparative disparity is 50%: Asians are half as
likely to be on venires as they would be if represented in proportion
to their numbers in the community.
United States v. Shinault
,
[2]
Respondents contend on the contrary that a fair cross-section claim requires proof that the
specific venire underrepresented minorities. However, respondents misstate the holding of the case on
which they rely for this proposition. In
United States v. Williams
,
[3] That is, jurors who had expressed reservations about recommending a death sentence.
[4]
This is not to say that the race of the jurors, defendant, and victim must be ignored. For
example, the Fifth Circuit recognized actual prejudice in a case involving an all-white jury, a black
defendant, and a white victim who was allegedly raped.
See Huffman v. Wainwright
,