Petition for Writ of Certiorari — Gregory Carter, Petitioner v. Blaine Lafler, Warden
Supreme Court briefMar 26, 2018
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APPENDIX
APPENDIX
A-1
Sixth Circuit Unpublished Order Denying Petition for Panel Rehearing,
Carter v. Lafler, No. 17-1409 (Oct. 26, 2017)…………………………APP 001
A-2
Sixth Circuit Unpublished Order Denying Motion for a Certificate of
Appealability, Carter v. Lafler, No. 17-1409 (Aug. 30, 2017)……….APP 002
A-3
District Court Order Denying Motion to Amend the Judgment, Carter v.
Lafler, No. 1:09-CV-215 (Mar. 24, 2017).…………………………….APP 009
A-4
District Court Judgment, Carter v. Lafler, No. 1:09-CV-215 (Jan. 19, 2017)
………………………………………………………………………………APP 012
A-5
District Court Order Approving and Adopting Report and
Recommendation, Carter v. Lafler, No. 1:09-CV-215……………….APP 013
A-6
Magistrate Judge Report and Recommendation, Carter v. Lafler, No. 1:09CV-215 (Dec. 14, 2016)………………………………………………….APP 015
A-7
Sixth Circuit Published Opinion Reversing Denial of § 2254 Petition,
Carter v. Lafler, No. 10-1247 (June 28, 2012)………………………..APP 040
A-8
Sixth Circuit Order Appointing the Federal Defender Office, Carter v.
Lafler, No. 1:09-CV-215…………………………………………………APP 062
A-9
Western District of Michigan District Court Order Adopting Report and
Recommendation, Carter v. Lafler, No. 1:09-CV-215………………APP 063
A-10
Western District of Michigan Magistrate Judge Report and
Recommendation, Carter v. Lafler, No. 1:09-CV-215………………APP 071
A-11
Eastern District of Michigan District Court Order Adopting Report and
Recommendation and Transferring Case to the Western District, Carter v.
Lafler, No. 1:09-CV-215…………………………………………………APP 087
A-12
Eastern District of Michigan Magistrate Judge Report and
Recommendation, Carter v. Lafler, No. 1:09-CV-215……………….APP 097
A-13
Michigan Supreme Court Order Denying Application for Leave to Appeal,
People v. Carter, No. 127081……………………………………………APP 107
A-14
Michigan Court of Appeals Denying Application for Leave to Appeal,
People v. Carter, No. 254482……………………………………………APP 108
APPENDIX
A-15
Kent County Circuit Court Opinion and Order Denying Motion for Relief
from the Judgment, People v. Carter, No. 01-00091-FC…………….APP 109
A-16
Eastern District of Michigan Order Granting a COA, Parks v. Warren, No.
2:05-cv010036…………………………………………………………….APP 113
A-17
Western District of Michigan District Court Order Denying Motion to
Amend the Judgment, Wellborn v. Berghuis, No. 1:05-CV-346…..APP 116
A-18
Eric Powell’s Motion to Dismiss Voluntarily Appeal, Powell v. Howes, No.
16-2410…………………………………………………………………….APP 018
A-19
Sixth Circuit Order Dismissing Appeal, Powell v. Howes, No. 162410………………………………………………………………………APP 120
A-1
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No. 17-1409
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
GREGORY CARTER,
Petitioner-Appellant,
v.
BLAINE LAFLER, Warden,
Respondent-Appellee.
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Oct 26, 2017
DEBORAH S. HUNT, Clerk
ORDER
Before: ROGERS, SUTTON, and BUSH, Circuit Judges.
Gregory Carter, a Michigan prisoner proceeding through counsel, petitions the court for a
rehearing of its August 30, 2017, order denying his construed application for a certificate of
appealability.
We have reviewed the petition and conclude that we did not overlook or
misapprehend any material point of law or fact when we entered our previous order. See Fed. R.
App. P. 40(a)(2).
Accordingly, the petition for rehearing is DENIED.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
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No. 17-1409
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
GREGORY CARTER,
Petitioner-Appellant,
v.
BLAINE LAFLER, Warden,
Respondent-Appellee.
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Aug 30, 2017
DEBORAH S. HUNT, Clerk
ORDER
Gregory Carter, a Michigan prisoner proceeding through counsel, appeals the order of the
district court denying his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254.
This court construes Carter’s notice of appeal as an application for a certificate of appealability
(“COA”). See Fed. R. App. P. 22(b)(2).
Carter was convicted in a Michigan state court of armed robbery and possession of a
firearm during the commission of a felony. His case concerned the robbery of a gas station in
Grand Rapids, Michigan. He was sentenced to a fifteen-to-forty-year term of imprisonment for
the armed-robbery conviction, to run consecutively to a two-year term of imprisonment for the
felony-firearm conviction. Carter appealed to the Michigan Court of Appeals, arguing that:
1) the trial court erred when it allowed a police witness to testify about certain recorded
statements Carter made while in custody; 2) counsel was ineffective for failing to investigate and
present an alibi defense; and 3) the trial court abused its discretion when it denied counsel’s
motion to withdraw. The Michigan Court of Appeals affirmed Carter’s conviction on direct
appeal, People v. Carter, No. 235590, 2003 WL 1795513 (Mich. Ct. App. Apr. 3, 2003) (per
curiam), and Carter did not seek leave to appeal.
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-2In 2003, Carter filed a motion seeking relief from judgment in the trial court, arguing that
he was denied his right to a fair trial due to flaws in the jury-selection system of Kent County,
Michigan. The trial court outlined the factual basis for Carter’s claim as follows:
In 2001 Kent County’s jury selection process came under intense media scrutiny.
It was alleged that the system was fundamentally flawed, leading to a systematic
exclusion of minority jurors from the jury pool. Following media coverage of
this problem, the County determined that a flaw in the random computer process
could, in fact, lead to the disproportionate exclusion of minorities from the jury
pool. The system was subsequently corrected.
People v. Michigan, No. 01-0091-FC, slip op. at 2 (Kent Cty. Cir. Ct. Oct. 27, 2003). The
system defect was not discovered until after Carter’s trial. Carter, who is African-American, was
convicted by an all-white jury. In his post-conviction motion, Carter alleged that he was denied
a fair trial due to Kent County’s exclusion of minorities from jury pools. He also argued that
counsel was ineffective for failing to investigate an alibi defense and that he was entitled to
resentencing. The trial court dismissed Carter’s jury-pool claim because he failed to raise the
issue before trial and rejected his remaining claims on the merits. The Michigan Court of
Appeals and the Michigan Supreme Court denied him leave to appeal.
In 2006, Carter filed a § 2254 petition in the United States District Court for the Eastern
District of Michigan, arguing that he was denied due process due to the flaws that existed in the
jury-pool selection system of Kent County. The district court referred the petition to a magistrate
judge. The magistrate judge found that, although Carter’s claim was procedurally defaulted,
Carter had cause to excuse his procedural default because neither Carter nor his counsel had any
reason to suspect before trial that there was a flaw in Kent County’s jury-pool selection practices.
The magistrate judge recommended that Carter be appointed counsel and granted an evidentiary
hearing on his claim. The district court adopted the report and transferred Carter’s action to the
United States District Court for the Western District of Michigan for an evidentiary hearing. The
Western District referred Carter’s petition to a magistrate judge, who concluded that Carter’s
petition was procedurally defaulted and that, in contrast to the Eastern District’s earlier
determination, Carter had not shown cause to excuse his procedural default. The magistrate
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-3judge reasoned that, while Carter and his counsel were unaware of the flaws in Kent County’s
jury-pool selection practices, they were aware that Carter’s jury pool had no African-Americans
and could have objected to the jury-pool composition before trial. The district court adopted the
report and denied the petition but granted a COA on the issue of whether Carter could overcome
his procedural default.
We consolidated Carter’s appeal with the appeals of Joseph Ambrose and Carl Wellborn,
two similarly situated petitioners, and concluded that all three petitioners had cause to excuse the
procedural default of their jury pool claims. See Ambrose v. Booker, 684 F.3d 638, 645-49 (6th
Cir. 2012) (“Ambrose II”); see also Ambrose v. Booker, 781 F. Supp. 2d 532 (E.D. Mich. 2011)
(“Ambrose I”). We therefore reversed and remanded the cases for a determination of whether the
petitioners could establish prejudice. See Ambrose II at 652. We instructed the lower courts to
assess the petitioners’ claims using the prejudice standard for ineffective-assistance-of-counsel
claims put forward in Strickland v. Washington, 466 U.S. 668 (1984). See Ambrose II, 684 F.3d
at 652.
On remand, the same counsel was appointed to represent all three petitioners, and,
although the three cases proceeded on separate tracks, petitioner Ambrose’s case became the de
facto lead case. The Eastern District of Michigan granted Ambrose habeas relief. Ambrose v.
Booker, 24 F. Supp. 3d 626 (E.D. Mich. 2014) (“Ambrose III”), rev’d, 801 F.3d 567 (6th Cir.
2015) (“Ambrose IV”), cert. denied sub nom. Ambrose v. Romanowski, 136 S. Ct. 2461 (2016).
The court found that Ambrose had demonstrated prejudice, observing that, had Kent County’s
jury pool selection process worked properly, “there is a reasonable probability that [Ambrose]
would have been tried before a more diverse jury. And there is a reasonable probability that a
more diverse jury would have been less likely to convict him.” Id. at 630. The court also found
that Ambrose had made a prima facie showing of the violation of his Sixth Amendment right to
be represented by a fair cross-section of his community. See id. at 657-58. The court’s decision
was based, in part, on the testimony of Dr. Samuel Sommers, a psychologist, who “essentially
testified that a more diverse jury would have been less likely to convict Ambrose because
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-4African-American jurors are statistically less likely to convict than their Caucasian counterparts.”
Id. at 640. During Ambrose’s appeal, Carter’s remanded case remained pending in district court.
On the government’s appeal in Ambrose’s case, we again reversed. Ambrose IV, 801
F.3d 567. We found that the district court erred in relying on the testimony of Dr. Sommers. See
id. at 579-80. We also found that the district court erroneously applied the prejudice standard of
Hollis v. Davis, 941 F.2d 1471, 1482 (11th Cir. 1991), rather than the more stringent prejudice
standard of Strickland. See Ambrose IV, 801 F.3d. at 577-78. We observed that the Strickland
standard, in the context of Ambrose’s claim, required the district court to “consider whether, in
light of the underrepresentation of African Americans in the jury venire, ‘there is a reasonable
probability that . . . the result of the proceeding would have been different.’” Id. at 578 (quoting
Strickland, 466 U.S. at 694). We concluded that, under the Strickland prejudice standard,
Ambrose failed to show prejudice, and therefore we reversed the judgment of the district court
and remanded Ambrose’s case for the entry of judgment denying habeas relief. See id. at 58082. The Supreme Court denied Ambrose’s subsequent petition for a writ of certiorari. Ambrose,
136 S. Ct. 2461.
“[A]pplying the actual prejudice standard announced in Ambrose II, as clarified in
Ambrose IV,” a magistrate judge issued a report recommending denying Carter’s petition as
procedurally defaulted on the basis that Carter had failed to show prejudice. Over Carter’s
objections, the district court adopted the report, denied the petition, and declined to issue a COA.
Carter filed a motion to alter or amend the judgment, which the district court denied.
To obtain a COA, an applicant must make a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2). To satisfy this standard, the applicant must
demonstrate “that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). To obtain
a certificate of appealability from the denial of a habeas petition on procedural grounds, an
applicant must show that reasonable jurists would find it “debatable whether the petition states a
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-5valid claim of the denial of a constitutional right” and that reasonable jurists “would find it
debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
To show prejudice, Carter must demonstrate a “reasonable probability that a different
(e.g., properly selected) jury would have reached a different result, ‘a probability sufficient to
undermine confidence in the outcome of the trial.’” Ambrose IV, 801 F.3d at 578 (quoting
Strickland, 466 U.S. at 694). “The most important aspect to the inquiry is the strength of the
case against the defendant.” Ambrose II, 684 F.3d at 652. “[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.” Id. (quoting Hollis, 941 F.2d at 1483).
Reasonable jurists would not debate the district court’s conclusion that Carter failed to
demonstrate prejudice. At trial, prosecutors played video surveillance tape footage from the gas
station that was robbed showing the robbery and introduced still photographs from the tape into
evidence. Jessie Adrianson, the manager of the gas station, testified that she was able to observe
the robber and positively identified Carter as the robber and as the individual depicted in the
photographs. Adrianson’s in-court identification followed her earlier positive identification of
Carter in a police line-up as the robber.
Adrianson’s description of the robber to police
following the incident matched a later police description of Carter at the time he was arrested.
Detective Erica Clark testified specifically that Carter was found with a black fleece coat, two
gold hoop earrings, and a pack of Kool cigarettes, items which were consistent with Adrianson’s
description of the robber. Following Carter’s arrest, his conversations were monitored and he
was recorded saying, among other things, that his wife should dispose of a gun that was needed
to make the “case” against him.
In opposition, the defense did not present any witnesses or evidence. The defense instead
attempted to argue that Carter was misidentified and that the prosecution’s other evidence did not
establish Carter’s culpability. “[T]o successfully argue that it is reasonably probably that a
different jury would have accepted the defense theory, and thus have reached a different result, a
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-6defendant must show that there is some support for that theory.” Ambrose II, 801 F.3d at 581.
Carter did not produce any evidence in support of his theory of misidentification. Accordingly,
reasonable jurists would not debate whether the district court was correct in its procedural
reasoning. Slack, 529 U.S. at 484.
Reasonable jurists would also not debate whether the district court was correct in denying
Carter’s motion to alter or amend the judgment. In that motion, Carter sought a COA on the
issue of whether “prejudice should be presumed in cases involving underlying structural error.”
However, as the district court correctly observed, this court had already decided that issue,
requiring Carter to show “actual prejudice to excuse [his] procedural default, even if the error is
structural.” 684 F.3d at 649. Carter based his request on the Supreme Court’s grant of certiorari
in the case of Weaver v. Massachusetts, 137 S. Ct. 1899 (2017). The Supreme Court has since
decided Weaver, and the holding of Weaver is unavailing for Carter. See Weaver, 137 S. Ct. at
1913-14 (holding that prejudice is not presumed in cases involving claims of ineffective
assistance of counsel that result in structural error). Accordingly, reasonable jurists would not
debate whether the district court was correct in its procedural reasoning. See Slack, 529 U.S. at
484.
For the foregoing reasons, Carter’s application for a COA is DENIED.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
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UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Deborah S. Hunt
Clerk
100 EAST FIFTH STREET, ROOM 540
POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Tel. (513) 564-7000
www.ca6.uscourts.gov
Filed: August 30, 2017
Mr. James R. Gerometta
Federal Defender Office
613 Abbott Street
Fifth Floor
Detroit, MI 48226
Ms. Raina I. Korbakis
Office of the Attorney General
of Michigan
P.O. Box 30217
Lansing, MI 48116
Re: Case No. 17-1409, Gregory Carter v. Blaine Lafler
Originating Case No. : 1:09-cv-00215
Dear Counsel,
The Court issued the enclosed Order today in this case.
Sincerely yours,
s/Robin Baker
Case Manager
Direct Dial No. 513-564-7027
cc: Mr. Thomas Dorwin
Enclosure
No mandate to issue
APP 008
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Case 1:09-cv-00215-RJJ-RSK ECF No. 95 filed 03/24/17 PageID.1020 Page 1 of 3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY CARTER,
Petitioner,
CASE NO. 1:09-CV-215
v.
HON. ROBERT J. JONKER
BLAINE LAFLER,
Respondent.
__________________________________/
ORDER DENYING MOTION TO AMEND JUDGMENT
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. On
January 19, 2017, this Court issued an opinion and judgment (ECF Nos. 92, 93) dismissing the
application for habeas relief. The matter is presently before the Court on Petitioner’s motion to alter
or amend the judgment (ECF No. 94).
To establish a basis for relief under Rule 59, a plaintiff must show an “error of law” by the
Court, “newly discovered evidence,” or an “intervening change in controlling law.” GenCorp, Inc.
v. Am. Int’l Underwriters, 178 F.3d 804, 833-34 (6th Cir. 1999). Alternatively, the plaintiff must
establish that relief is warranted to prevent “manifest injustice.” Id.
Petitioner requests relief in the form of a certificate of appealability to the Sixth Circuit to
decide whether “prejudice should be presumed in cases involving underlying structural error.” (ECF
No. 94, PageID.1013). But the Sixth Circuit has already decided that issue in the context of this case,
where Plaintiff has been procedurally barred from raising his Sixth Amendment fair cross-section
claim on collateral review by failing to object to what was a structural error at trial. In Ambrose v.
Booker, 684 F.3d 638, 640-41 (6th Cir. 2012), the Sixth Circuit held that “[h]aving shown cause,
APP 009
Case 1:09-cv-00215-RJJ-RSK ECF No. 95 filed 03/24/17 PageID.1021 Page 2 of 3
petitioners must [also] show actual prejudice to excuse their default, even if the error is structural.”
Id. at 649. And the Supreme Court denied certiorari to hear Petitioner’s appeal of the Sixth Circuit’s
holding in that case. See Ambrose v. Booker, 133 S. Ct. 993, No. 12-7784, (Jan. 22, 2013). The
Supreme Court previously highlighted the difference between direct review and collateral attack in
assessing the need for actual prejudice. “In a collateral attack upon a conviction . . . [Supreme Court
precedent] requires . . . not only a showing of ‘cause’ for the defendant’s failure to challenge the
composition of the grand jury before trial, but also a showing of actual prejudice.” Francis v.
Henderson, 425 U.S. 536, 542 (1976).1
Petitioner cites to the Supreme Court’s grant of certiorari in Weaver v. Massachusetts,
___ U.S. ___, 137 S. Ct. 809 (2017), claiming the outcome in that case may affect the Court’s
holding here. Perhaps, though, that case will decide whether prejudice is presumed in an entirely
different context: namely, a defendant’s claim, raised on direct review, of ineffective assistance of
counsel that results in structural error. As the Supreme Court has emphasized, “[t]he principle that
collateral review is different from direct review resounds throughout our habeas jurisprudence.”
Brecht v. Abrahamson, 507 U.S. 619, 633 (1993). “When the process of direct review . . . comes to
an end, a presumption of finality and legality attaches to the conviction and sentence.” Id. “To hold
that the presumption of prejudice applies not only when properly preserved structural errors are
raised on appeal but also when related . . . claims are raised in a collateral proceeding would
diminish the difference between direct and collateral review.” Purvis v. Crosby, 451 F.3d 734, 743
1
The error raised in the Francis case was the unconstitutional systematic exclusion of
African-Americans from the grand jury, a structural error. In a footnote, the Supreme Court stated
that “[t]he presumption of prejudice which supports the existence of the right is not inconsistent with
a holding that actual prejudice must be shown in order to obtain relief from a statutorily provided
waiver for failure to assert it in a timely manner.” Id. at 542 n.6 (citing Davis v. United States, 411
U.S. 233, 245 (1973)).
2
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Case 1:09-cv-00215-RJJ-RSK ECF No. 95 filed 03/24/17 PageID.1022 Page 3 of 3
(11th Cir. 2006). In any event, if the outcome in Weaver demands a different analysis from the Sixth
Circuit, the impetus should come from the Supreme Court or the Circuit Court.
Under current settled authority, there is no reason for altering or amending the judgment in
this case.
IT IS ORDERED that Petitioner’s motion to alter or amend the judgment (ECF No. 94) is
DENIED.
Dated:
March 24, 2017
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
3
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY CARTER,
Petitioner,
CASE NO. 1:09-CV-215
v.
HON. ROBERT J. JONKER
BLAINE LAFLER,
Respondent.
__________________________________/
JUDGMENT
In accordance with the Opinion and Order Approving and Adopting Report and
Recommendation entered this day, Judgment is entered in favor of the named Respondent and
against Petitioner Gregory Carter.
Dated:
January 19, 2017
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY CARTER,
Petitioner,
CASE NO. 1:09-CV-215
v.
HON. ROBERT J. JONKER
BLAINE LAFLER,
Respondent.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Kent’s Report and Recommendation in this matter
(ECF No. 88) and Petitioner Carter’s Objection to it (ECF No. 91). Under the Federal Rules of Civil
Procedure, where, as here, a party has objected to portions of a Report and Recommendation, “[t]he
district judge . . . has a duty to reject the magistrate judge’s recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12 WRIGHT, MILLER, & MARCUS, FEDERAL PRACTICE
AND PROCEDURE § 3070.2, at 381 (2d ed. 1997). Specifically, the Rules provide that:
The district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge
with instructions.
FED R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the
Report and Recommendation itself; and Petitioner’s Objection to it. After its review, the Court
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finds that Magistrate Judge Kent’s Report and Recommendation is factually sound and legally correct.
The Magistrate Judge recommends denying the habeas petition on the basis that Petitioner
has failed to establish the actual prejudice necessary to overcome his procedural default. In his
Objection, Petitioner fails to address the compelling evidence of Petitioner’s guilt presented at trial.
The Report and Recommendation carefully, thoroughly, and accurately discusses this evidence. For
example, Petitioner Carter’s sentencing judge found that “Mr. Carter was convicted by . . .
overwhelming evidence,” including “a videotape of the robbery” that was of “excellent” quality and
“showed very clearly Mr. Carter robbing this particular convenience store.” (ECF No. 11, Sent.
Trans. at 4). Additionally, the Magistrate Judge describes the victim’s unwavering description and
identification of Petitioner as the robber, the details of which were corroborated by the black fleece
jacket, hoop earrings, and pack of Kool cigarettes in the robber’s possession at the time of his arrest.
The Court agrees with the Magistrate Judge’s conclusion that Petitioner’s habeas petition should
be dismissed, for the very reasons the Report and Recommendation delineates.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (ECF No. 88) is approved and adopted as the opinion of the Court.
IT IS FURTHER ORDERED that the habeas petition (ECF No. 1) is DENIED and this
case is DISMISSED.
Dated:
January 19, 2017
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
2
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY CARTER,
Petitioner,
Case No. 1:09-cv-215
v.
Hon. Robert J. Jonker
BLAINE C. LAFLER,
Respondent.
/
REPORT AND RECOMMENDATION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. The petition was dismissed and is now before the Court on remand from the Sixth Circuit
Court of Appeals.
I.
Background
This case arose from the September 28, 2000 robbery of a Speedway gas station in
Grand Rapids, Michigan. On May 9, 2001, after a trial in the Kent County Circuit Court, a jury
convicted petitioner of armed robbery, M.C.L. § 750.529, and possession of a firearm during the
commission of a felony, M.C.L. § 750.227b. People v. Gregory Carter, No. 235590, 2003 WL
1795513 at *1 (Mich. App. April 3, 2003). Petitioner was sentenced to two years incarceration for
the felony firearm charge, to be served consecutive “to the term of incarceration which he’s currently
serving and for which he was on parole at the time of this offense.” Sent. Trans. (docket no. 11,
PageID.190). In addition, petitioner was sentenced to a term of 15 to 40 years in prison for the
armed robbery conviction, consecutive to the felony firearm sentence. Id.
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Petitioner presented three issues in his direct appeal to the Michigan Court of
Appeals:
I.
Did the court err by allowing a police officer to testify as to her
impressions of alleged statements made by [petitioner] in taperecorded statements from the jail without a proper foundation for
admission and in violation of the best evidence rule, denying
[petitioner] his due process right to a fair trial?
II.
Was [petitioner] denied the effective assistance of counsel where
counsel failed to file an alibi notice or to investigate and prepare an
alibi defense?
III.
Did the trial court abuse its discretion in denying counsel’s motion to
withdraw?
See Brief on Appeal (docket no. 15). The Michigan Court of Appeals affirmed the conviction.
People v. Gregory Carter, No. 235590. Petitioner did not appeal any of these issues to the Michigan
Supreme Court. See Corbin R. Davis Affidavit (docket no. 12).
On October 27, 2003, the state trial court entered an opinion and order denying
petitioner’s motion for relief from judgment, identifying petitioner’s three claims as follows:
In his pleadings, Defendant seeks Relief from Judgment pursuant to MCR
6.501 on the grounds that he was denied his right to a fair trial due to flaws in the
Kent County jury selection which he alleges “systematically excluded” minorities
from the jury pool, ineffective assistance of counsel, and resentencing.
Opinion and Order at 1 (docket no. 13).
Petitioner’s first two claims are relevant to this habeas action. The trial court set forth
the following analysis with respect to the jury issue:
1. Systematic Exclusion of Minorities from the Jury Pool
In 2001, Kent County’s jury selection process came under intense media
scrutiny. It was alleged that the system was fundamentally flawed, leading to a
systematic exclusion of minority jurors from the jury pool. Following media
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coverage of this problem, the County determine that a flaw in the random computer
process could, in fact, lead to the disproportionate exclusion of minorities from the
jury pool. The system was subsequently corrected.
Following this revelation many defendants requested new trials on the basis
that they were denied their constitutional right to a fair trial by virtue of this flawed
system. The Court of Appeals addressed this issue recently in People v. McKinney,
___ Mich App ___; ___ NW2d ___ (2003) (Slip copy). In this case the defendant
claimed that African-Americans were “systematically excluded from Kent County’s
jury venires when her trial was conducted.” Id. at ___. The defendant in this case
cites the same newspaper articles that the defendant in the instant matter has attached
as exhibits. The Court of Appeals stated:
Questions concerning the systemic exclusion of minorities in
jury venires are generally reviewed de novo. People v. Hubbard
(After Remand), 217 Mich.App. 459, 472, 552 N.W.2d 493 (1996).
“A criminal defendant is entitled to an impartial jury drawn from a
fair cross section of the community.” Id., citing Taylor v. Louisiana,
419 U.S. 522, 526-531, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). To
establish a prima facie violation of the fair cross-section requirement,
the defendant bears the burden of proving “that a distinctive group
was underrepresented in his venire or jury pool, and that the
underrepresentation was the result of systematic exclusion of the
group from the jury selection process.” People v. Smith, 463 Mich.
199, 203, 615 N.W.2d 1 (2000), citing Duren v. Missouri, 439 U.S.
357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).
The Court of Appeals went on to deny the request for a new trial because defendant
had not raised the issue before the jury was empannelled and sworn. Id. at ___. See
also People v. Dixon, 217 Mich App 400, 404; 552 NW2d 663 (1996). Likewise, the
defendant in the instant matter failed to raise this as an objection during his trial, and
the motion for a new trial should similarly be dismissed.
Id. at 2-3.1
The trial court also denied petitioner’s ineffective assistance of counsel claim,
providing in pertinent part as follows:
1
The Michigan Court of Appeals decision in McKinney has since been published as People v.
MicKinney, 258 Mich. App 157; 670 NW2d 254 (2003).
3
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The Defendant’s argument, in sum, is that his trial counsel was ineffective
due to his failure to investigate a possible alibi defense. The defendant alleges that
he was at a treatment facility in Illinois at the time of the incident. However, this
defense was raised on the evening following the first day of the trial. Furthermore,
the defense counsel did contact the treatment facility and was informed that the
Defendant had not been admitted to the program. Additionally, the defense counsel
attempted to contact the Defendant’s parole officer, but was unable to do so. The
Defendant, therefore, has failed to establish that the defense counsel acted
unreasonably under the circumstances, and his claim of ineffective assistance of
counsel must fail. People v. Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).
Id. at 4.
The court summarized it decision denying petitioner’s claims as follows:
During his trial, the Defendant did not object to the composition of the jury,
and therefore, this issue was not properly preserved and can not constitute grounds
for a new trial pursuant to MCR 6.500. Likewise, Defendant has not met the burden
necessary under People v. Pickens, 446 Mich298, 314; 531 NW2d 797 (1994) which
adopted the test for ineffective assistance of counsel that was articulated in Strickland
v. Washington, 446 US 668, 694; 104 Sct 2052; 80 LE2d 674 (1984). Furthermore,
Defendant’s allegations of error relating to his sentence are without merit.
Id. at 1.
Petitioner filed a delayed application for leave to appeal this order to the Michigan
Court of Appeals, raising two issues (in his words):
I.
Did the trial court rule erroneously, when it rule that by defendant
counsel failure to object to the composition of the jury at trial,
therefore, his issue was not properly preserved and can not constitute
ground for a new trial pursuant to MCR 6.500.
II.
Was the defendant denied his United States Sixth and Fourteen
Amendments rights to representation by an jury from a fair crosssection of the community. Whereas, there was a serious flaw in the
Kent County computerized jury selection system which systematically
excluded minority jurors from the jury pool.
Application for leave to appeal (docket no. 13).
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The Michigan Court of Appeals denied the delayed application “for failure to meet
the burden of establishing entitlement to relief under MCR 6.508(D).” People v. Gregory Carter,
No. 254482 (Mich. App. Aug. 20, 2004) (docket no. 13). Petitioner raised the same two issues in
his application for leave to appeal to the Michigan Supreme Court, which denied the application
“because defendant has failed to meet the burden of establishing entitlement to relief under MCR
6.508(D).” People v. Gregory Carter, No. 127081 (Mich. May 31, 2005).
Petitioner filed a federal habeas petition in the Eastern District of Michigan on
February 9, 2006, raising the following issue (in his words):
Whether or not petitioner was denied due process of law in violation of his
Sixth and Fourteenth Amendments of the United States Constitution to be
represented by a jury from a fair cross section of the community, whereas, there was
a serious flaw in the selection process of the Kent County jury selection pool which
was programmed to systematically exclude minorities from the jury selection process.
Petition at ¶ 13 (docket no. 1). In his attached memorandum of law, petitioner also argued that the
trial court “ruled erroneously when it ruled that by petitioner’s counsel’s failure to object to the
composition of the [jury] at trial, therefore, the issue was not properly preserved and cannot
constitute grounds for a new trial pursuant to MCR 6.500.” Id. at p. 17. In his answer, respondent
asserted that petitioner’s claim regarding the systematic exclusion of minorities from the jury pool
was barred from habeas review by procedural default in the state court. In petitioner’s reply, he
referred to a Grand Rapids Press newspaper article from October 20, 2002, in which the Kent County
Circuit Court’s Chief Judge acknowledged the problem. Petitioner also asserted that a competent
attorney could not have provided assistance under these circumstances, because the flaw in the jury
selection procedure was discovered long after his trial.
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In reviewing the petition, a magistrate judge in the Eastern District summarized two
newspaper articles from the Grand Rapids Press which addressed the “computer glitch” which
resulted in the omission of eligible jurors with certain ZIP codes in Kent County. See Report and
Recommendation (“R&R) (July 2, 2008) (docket no. 26, PageID.338-339). The magistrate judge
concluded that while petitioner’s jury selection claim was procedurally defaulted, the procedural
default should be excused because “neither petitioner nor his counsel had any reason to suspect that
the fair cross-section requirement had been violated, nor any reason to conduct an investigation into
Kent County’s jury selection practices.” Id. at PageID.341. In excusing the procedural default, the
magistrate judge did not address the issue of prejudice. Id. See Coleman v. Thompson, 501 U.S.
722, 750 (1991) (review of a federal habeas claim can be excused where “the prisoner can
demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal
law”). Nevertheless, the magistrate judge concluded that an evidentiary hearing was necessary.
R&R (July 2, 2008) at PageID.344.
In its order adopting the R&R, the district court adopted the recitation of facts as set
forth by the magistrate judge and expressed its belief that an evidentiary hearing was proper because
petitioner had not had an opportunity to show his prima facie case under Duren v. Missouri, 439 U.S.
357. Opinion and Order (docket no.29, PageID.359, 367). The court concluded that the claim was
procedurally defaulted, but found that there was cause for the default:
Here, as set forth by the Magistrate Judge, the factual basis of petitioner’s fair
cross-section claim was reasonably unknown to Petitioner and his counsel at the time
the jury was sworn. The alleged systematic exclusion resulted from an unknown
computer glitch that was not discovered until several months after Petitioner’s
conviction. Petitioner may assert ineffective assistance of counsel as cause for his
procedural default.
6
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Id. at PageID.363. After ruling on these issues, the district court transferred this habeas action to the
Western District “for an evidentiary hearing and determination on the Sixth Amendment claim.” Id.
at PageID.367.
After transfer to the Western District, a magistrate judge entered a report which
respectfully disagreed with the previous order for an evidentiary hearing. See R&R (Dec. 18, 2009)
(docket no. 39). While the magistrate judge concluded that petitioner’s habeas claim was
procedurally defaulted, he recommended that this Court reconsider the previous determination that
petitioner had demonstrated cause for the procedural default:
Where “a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas review
of the claim is barred unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or demonstrate that
failure to consider the claim will result in a fundamental miscarriage of justice.”
Coleman v. Thompson, 501 U.S. 722, 750 (1991). A procedural default “provides
an independent and adequate state-law ground for the conviction and sentence, and
thus prevents federal habeas corpus review of the defaulted claim, unless the
petitioner can demonstrate cause and prejudice.” Gray v. Netherland, 518 U.S. 152,
162 (1996). Not every state procedural rule will warrant application of the
procedural default doctrine. Only a procedural rule that was “‘firmly established and
regularly followed’ by the time as of which it [was] to be applied,” Ford v. Georgia,
498 U.S. 411, 424 (1991), will support application of the doctrine. “For a habeas
claim to be procedurally defaulted on the basis of a state procedural rule, the
petitioner must have violated a procedural rule, but the state court must also have
based its decision on the procedural default.” Simpson v. Jones, 238 F.3d 399, 407
(6th Cir. 2000). MCR 6.508(D) is a valid procedural bar for habeas purposes. See
Canty v. Cason, No. 02-2030, 2003 WL 152322 (6th Cir. Jan. 16, 2003); Burroughs
v. Makowski, 282 F.3d 410, 414 (6th Cir. 2002); Luberda v. Trippett, 211 F.3d 1004,
1008 (6th Cir. 2000).
The Kent Circuit Court was the first state court to review petitioner’s habeas
claims, which were raised in his motion for relief from judgment under MCR 6.500
et seq. Both the Michigan Court of Appeals and the Michigan Supreme Court denied
petitioner’s application for leave to appeal the trial court’s order denying postjudgment relief because he failed to meet the burden of establishing entitlement to
relief under MCR 6.508(D). As the last state court rendering judgment in the case,
7
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the Michigan Supreme Court’s decision denying petitioner’s claims on the basis of
the state procedural bar of MCR 6.508(D) prevents habeas review. See Burroughs,
282 F.3d at 414; Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000). Accordingly,
petitioner’s claims are procedurally defaulted. See Order of Transfer at pp. 4-5.
However, the undersigned concludes that this court should re-consider the
Order of Transfer to the extent that order found that petitioner had shown good cause
to excuse the procedural default. The “good cause” determination is inconsistent
with previous decisions entered in this district in similar cases. See, e.g., Wellborn
v. Berghuis, No. 1:05-cv-346, 2009 WL 891708 at *21-27 (W.D. Mich. March 31,
2009), appeal pending, No. 09-1539 (6th Cir.); Burros v. Curtin, 1:05-cv-701, 2009
WL 736066 at *5-12 (W.D. Mich. March 18, 2009).
Since petitioner procedurally defaulted this claim in state court, the claim is
barred unless he demonstrates either: (1) cause for his failure to comply with the state
procedural rule and actual prejudice flowing from the violation of federal law alleged
in his claim, or (2) that a lack of federal habeas review of the claim will result in a
fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536-37 (2006);
Murray v. Carrier, 477 U.S. 478, 495 (1986); Hicks v. Straub, 377 F.3d 538, 551-52
(6th Cir. 2004).
To show cause sufficient to excuse a failure to raise claims on direct appeal,
petitioner must point to “some objective factor external to the defense” that prevented
him from raising the issue in his first appeal. McCleskey v. Zant, 499 U.S. 467, 497
(1991); Murray v. Carrier, 477 U.S. 478, 488 (1986).
Petitioner’s claim arises from the Sixth Amendment’s guarantee that a
criminal defendant shall have an impartial jury drawn from a fair cross-section of the
community. Duren v. Missouri, 439 U.S. 357, 358-59 (1979); Taylor v. Louisiana,
419 U.S. 522, 526-31 (1975). The petit jury does not have to mirror the community,
but distinct groups cannot be systematically excluded from the venire. See, United
States v. Jackman, 46 F.3d 1240, 1244 (2nd Cir. 1995). To establish a prima facie
violation of the fair cross-section requirement, petitioner bore the burden of proving
“that a distinctive group was under-represented in his venire or jury pool, and that the
under-representation was the result of systematic exclusion of the group from the jury
selection process.” People v. Smith, 463 Mich. 199 (2000), citing Duren v. Missouri,
supra.
While petitioner bases the present habeas claim on the ground that he “was
found guilty by an all white jury,” Petition at p. 4, he did not challenge the jury array
at trial. If petitioner felt the jury venire was unbalanced, he did not say so. Rather,
at the close of the jury voir dire, petitioner’s counsel stated that “the defense is
satisfied.” Trial Trans. at 72 (May 7, 2001) (docket no. 8). The jury was then
8
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empaneled and sworn. There were no objections regarding the composition of the
jury array at any time during the trial, much less the voir dire, and trial counsel’s
statement constituted an express waiver of the issue. Petitioner did not raise this
issue in his direct appeal. Rather, he first raised it in his motion for relief from
judgment. At that time, petitioner apparently relied on a newspaper article from
October 20, 2002 to support his claim that Kent County’s jury selection process “was
programmed in a manner that it would systematically exclude minorities from the
jury selection pool.” Petitioner’s Memorandum of Law at 4.
For cause, petitioner contends that the error was not procedurally defaulted
because the flaw in the jury selection process, i.e., the under-representation of
African Americans, was not discovered until after he filed his appeal of right. The
court disagrees. Simply seeing an array when the deficiency is apparent provides a
defendant and his attorney with adequate notice. Petitioner did not need to know the
precise nature of the computer problem to object to the lack of African Americans
on the jury array.
R&R (Dec. 18, 2009) at PageID.423-426. Ultimately, the magistrate judge concluded that petitioner
did not demonstrate cause for the procedural default. Id. at PageID.426-429.
After finding no cause, the magistrate judge concluded that the procedural default was
not excused:
Petitioner’s failure to demonstrate cause for his procedural default prevents
federal review of his habeas claims unless the court’s failure to do so will result in
a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. The miscarriageof-justice exception only can be met in an “extraordinary” case where a prisoner
asserts a claim of actual innocence based upon new reliable evidence. House, 547
U.S. at 537. A habeas petitioner asserting a claim of actual innocence must establish
that, in light of new evidence it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt. Id. (citing Schlup v. Delo,
513 U.S. 298, 327 (1995)). Petitioner has made no such claim or showing of actual
innocence in this case.
Accordingly, petitioner’s claim is procedurally barred on habeas review.
Id. at PageID.429 (footnote omitted).
The district judge adopted the recommended disposition and dismissed the petition.
See Order Approving R&R (docket no. 42); Judgment (docket no. 43). However, the Court issued
9
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a certificate of appealability on whether petitioner’s due process claim was barred by procedural
default. Order Approving R&R at PageID.446-447.
Petitioner appealed the decision to the Sixth Circuit, where his case was joined with
two other cases, Ambrose v. Booker, 781 F. Supp.2d 532 (E.D. Mich. 2011) (“Ambrose I”), and
Wellborn v. Berghuis, 1:05-cv-346 (W.D. Mich. March 31, 2009), which involved the same alleged
computer problem in the jury selection. See Ambrose v. Booker, 684 F.3d 638 (6th Cir. 2012)
(“Ambrose II”). However, the three cases reached different results, i.e., the habeas petition was
granted in Ambrose and denied in Carter and Wellborn. As discussed, infra, the Sixth Circuit
reversed and remanded all three cases in Ambrose II.
As an initial matter, the Sixth Circuit summarized petitioner’s claim as follows:
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.
*
*
*
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.
10
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Id. 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 of counsel claim
failed under Michigan’s version of Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Carter applied for leave to appeal, but both the
Michigan Court of Appeals and Michigan Supreme Court denied the application “for
failure to meet the burden of establishing entitlement to relief under MCR 6.508(D).”
People v. Carter, No. 254482 (Mich. App. Aug. 20, 2004); People v. Carter, 472
Mich. 912, 696 N.W.2d 714 (2005) (table opinion).
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,
2009 WL 649889, at *3 (E.D. Mich. Mar. 10, 2009). The district court recognized
that Carter had procedurally defaulted by failing to object at trial to the composition
of the venire panel. The default was excused, however, because the district court
found that Carter could not have known about the systematic exclusion caused by the
computer glitch at the time the jury was sworn. Id. Having excused the default, the
court determined that an evidentiary hearing was necessary to determine whether
Carter's jury was empaneled during the period impacted by the computer glitch. Id.
at *4-5. Because Carter was imprisoned in the Western District of Michigan, and
because the trial had occurred in the Western District, the court transferred the action
“for an evidentiary hearing and determination on the Sixth Amendment claim.” Id.
at *5.
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, 2010 WL 160814, at *4-13 (W.D. Mich. Jan. 8, 2010).
The district court adopted this recommendation because the court determined that
Carter had not shown good cause for his procedural default. Id. at *3. Although
Carter was unaware of the computer glitch at the time of his trial, the district court
held that the racial composition of the jury venire gave him notice of his claim. Id.
Carter timely appeals.
Ambrose II, 684 F.3d at 640, 643-44 (6th Cir. 2012).
11
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Ultimately, the Sixth Circuit found that this Court erred in finding that petitioner did
not demonstrate cause to excuse the procedural default, stating in pertinent part:
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, 217 Mich. App. 400, 552 N.W.2d 663, 667 (1996).
However, petitioners have shown “cause and prejudice” sufficient to excuse the
default under Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d
640 (1991). The cause inquiry “ordinarily turn[s] on whether . . . some objective
factor external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule,” and is satisfied by “a showing that the factual or legal basis for a
claim was not reasonably available to counsel.” Murray v. Carrier, 477 U.S. 478,
488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). As discussed below, petitioners have
shown cause because the factual basis for the claim -- the computer glitch – was not
reasonably available to counsel, and petitioners could not have known that minorities
were underrepresented in the jury pool by looking at the venire panel. Moreover, the
Supreme Court has found cause to excuse a procedural default in a factually similar
case. See Amadeo v. Zant, 486 U.S. 214, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988).
Id. at 645.
However, the Sixth Circuit did not address whether petitioners met the “prejudice”
prong sufficient to excuse a procedural default. Rather, that court remanded the cases to their
respective trial courts for a determination of whether actual prejudice existed, instructing the courts
to utilize the prejudice standard for ineffective assistance of counsel claims set forth in Strickland
v. Washington, 466 U.S. 668 (1984):
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 Eleventh 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.” Id. 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. As the Eleventh Circuit reasoned, “a
12
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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.” Id.
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.
Ambrose II, 684 F.3d at 652 (footnote omitted).
On remand, this Court appointed as petitioner’s counsel, Attorney Bradley R. Hall
of the Federal Defender Office for the Eastern District of Michigan, who was also counsel for the
petitioner in the Eastern District case of Ambrose v. Booker. The Eastern District case proceeded
as the de facto lead case on remand. Order (docket no. 60); see Order granting “Stipulation to
adjourn briefing schedule in anticipation of evidentiary hearing in Ambrose v. Booker” (docket no.
68). This Court also appointed Attorney Hall as counsel for petitioner in Wellborn v. Berghuis, 1:05cv-346 (Order, docket no. 57). On September 16, 2013, the court held an evidentiary hearing in
Ambrose v. Booker, in which petitioner called an expert witness, Samuel Sommers, Ph.D., who
“essentially testified that a more diverse jury would have been less likely to convict Ambrose
because African-American jurors are statistically less likely to convict than their Caucasian
counterparts.” Ambrose v. Booker, 24 F. Supp. 3d 626, 640 (E.D. Mich. 2014) (“Ambrose III”).2
Ultimately, the court concluded that “[b]ased on Dr. Sommers’s testimony, and the fact that there
2
The Court notes that a transcript of Dr. Sommers’ testimony appears as docket no. 72-3.
13
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is a reasonable probability that a properly selected jury in Ambrose’s case would have included at
least one African American, Ambrose has demonstrated actual prejudice to excuse his default so
long as the evidence against him was not overwhelming.” Id. at 653. The court went on to address
the merits of the claim and found that “Ambrose has satisfied his prima facie showing of a violation
of the fair cross-section requirement; a showing that has not been rebutted by the State. His habeas
petition will be granted.” Id. at 658.
Respondent appealed and, once again, the Sixth Circuit reversed. See Ambrose v.
Booker, 801 F.3d 567 (6th Cir. 2015) (“Ambrose IV”). In Ambrose IV, the Sixth Circuit found that
the district court applied the wrong prejudice standard on remand and reiterated that the actual
prejudice standard in Strickland applied:
As an initial matter, the district court on remand should not have applied a
less stringent Hollis – rather than the Strickland – prejudice standard to determine
whether to excuse Ambrose’s procedural default. The “actual prejudice” inquiry
outlined in Ambrose v. Booker, 684 F.3d 638, 652 (2012), was intended to mirror the
inquiry required by Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).
Courts must consider whether, in light of the
underrepresentation of African Americans in the jury venire, “there is a reasonable
probability that . . . the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Stated another way, courts must ask, is
there a reasonable probability that a different (e.g., properly selected) jury would have
reached a different result, “a probability sufficient to undermine confidence in the
outcome of the trial.” Id.
Ambrose IV, 801 F.3d at 577-78.
Next, the Sixth Circuit stated that the district court in Ambrose III should not have
relied on Dr. Sommers’ testimony in reaching its result:
The district court also should not have relied on Dr. Sommers’ expert
testimony – in which Dr. Sommers stated that racially diverse juries are less likely
to convict than all-white juries – in making the court’s “actual prejudice”
determination. Dr. Sommers’ testimony is not relevant to the “actual prejudice”
14
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determination because it: (1) does not support a finding that a different jury would
have reached a different result; (2) lacks any individualized assessment of the case
against Ambrose; and (3) relies on impermissible racial stereotypes.
Id. at 579 (6th Cir. 2015).
Then, the Sixth Circuit found that petitioner did not demonstrate actual prejudice,
stating in pertinent part:
Ultimately, under the stricter Strickland standard, and without consideration
of Dr. Sommers’ testimony, Ambrose has failed to show actual prejudice to excuse
his procedural default. Though a careful review of the record reveals some
inconsistencies in the trial testimony of the two victims, and the prosecution,
admittedly, failed to explain why Ambrose – after carjacking the victims at gunpoint
and stealing their possessions – would later abandon the car with a cell phone, gold
and silver jewelry, and a watch still inside, these issues on their own do not create a
reasonable probability that a different jury would have reached a different result, a
probability sufficient to undermine confidence in the outcome. “The most important
aspect to the [actual prejudice] inquiry is the strength of the case against the
defendant,” which requires courts to take a “careful look at the transcripts involved.”
Id. at 580. After reviewing the record, the Sixth Circuit concluded that “[b]ecause Ambrose failed
to show actual prejudice to excuse his procedural default, his petition for writ of habeas corpus
should have been denied.” Id. at 582. Finally, petitioner sought a writ of certiorari, which the
Supreme Court denied on June 13, 2016. See Ambrose v. Romanowski, 136 S. Ct. 2461 (2016).
Based on this record, the Court is to evaluate petitioner’s claim by applying the actual prejudice
standard announced in Ambrose II, as clarified in Ambrose IV.
II.
Evidence presented at trial
A.
Prosecution’s case in chief
1.
Testimony of Jessie Adrianson
On September 28, 2000, Ms. Adrianson (sometimes referred to as the “victim”) was
managing a Speedway gas station in Grand Rapids, Michigan. Trial Trans. II (docket no. 9,
15
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PageID.143).3 At approximately 9:40 p.m., petitioner walked in holding a pistol, held the pistol up
to her and said, “Give me the money.” Id. Adrianson gave him all of the cash in the drawer. Id.
Petitioner told her to lift the drawer out. Id. She complied, but there was nothing underneath it. Id.
Then, petitioner told her, “That’s not all you have.” Id. Ms. Adrianson, being afraid that petitioner
was going to shoot her, opened up the second drawer and gave him all of the cash out of that register.
Id. She gave petitioner approximately $200.00 total from two cash registers. Id. at PageID.144.
After she gave him the money, petitioner wanted a carton of Kool cigarettes, which she gave him.
Id. Petitioner shoved the money in his pocket and put the pistol down into his pants, in the
waistband. Id. When petitioner left, “he just kind of waived [sic] the cigarettes, and said, ‘Don’t
call the police.’” Id.
Ms. Adrianson saw him walk around the back of the building, towards a park. Id. at
PageID.144-145. She made eye contact with him again through the windows. Id. at PageID.145.
In Ms. Adrianson’s words, “I watched him -- watched his face as he walked around the building.”
Id. As soon as petitioner walked around the building, she “locked the door and pushed the panic
button.” Id. It was unnecessary for her to call the police, who arrived a couple of minutes later. Id.
When the police arrived, she gave the following description to an officer:
I told him it was a black male, 5’9”, 5’10”; he had a light mustache; he had
braids in his hair closely braided to his head; he had earrings in his ears, small hoop
earrings; he had a black -- like a fleece zip-up shirt, blue jeans and tennis shoes.
Id. at PageID.148.
3
The Court notes that the transcript from the first day of trial is designated “Transcript of Trial Volume II,” while the transcript from the second day of trial is designated as “Transcript of Trial - Volume
I.”
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At trial, Ms. Adrianson positively identified petitioner as the robber.
Id. at
PageID.143. After eliciting testimony from Ms. Adrianson about the use of security cameras at the
store, the prosecution played a videotape of the robbery for the jury, with explanations provided by
the victim, and still photographs from the videotape were admitted into evidence. Id. at PageID.145147.4 Ms. Adrianson identified petitioner as the person depicted in the photographs robbing the
store. Id. at PageID.145-148.
Ms. Adrianson was shown a photographic line-up on October 10, 2000, but did not
identify anyone from the six photographs shown to her on that date. Trial Trans. II at PageID.150;
Trial Trans. I (docket no. 10, PageID.167). Petitioner’s picture was not among the photographs
shown to her at that time. Trial Trans. II at PageID.151. Then, on December 21, 2000, police
contacted Ms. Adrianson to view a line-up. Id. at PageID.148. The police brought between six and
eight men into a room where they could be seen but could not see the witness. Id. The detectives
told Ms. Adrianson they thought they had a suspect, but needed her to identify the suspect if he was
present in the lineup. Id. All of the individuals in the lineup were also asked to speak. Id. at
PageID.150. Ms. Adrianson identified petitioner in the lineup and was “absolutely positive” that he
was the man who robbed her. Id. at PageID.149.
2.
Testimony of Grand Rapids Police Department
(GRPD) Officer Jonathan Baak
GRPD Officers Baak and William Nowicki were dispatched to the scene of the
robbery on September 28, 2000. Id. at PageID.151-152; see also, Officer Nowicki’s testimony at
PageID.156. Officer Baak interviewed Ms. Adrianson, who described the robber as a black male in
his mid-30’s; 5’8-to-5’9; 160-to-170 pounds; with hair braided close to the scalp and longer in the
4
The photographs appear in this Court’s record as docket no. 81.
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back; and, wearing a black long sleeved fleece pull-over, blue jeans, and white tennis shoes. Id. at
PageID.152. She also described the robber as having “light mustache bumps on the face, and an
earring in both ears.” Id. She described the weapon as “a large, silver colored handgun.” Id.
3.
Testimony of GRPD Officer Nowicki
GRPD Officer Nowicki, who secured the scene with Officer Baak, received
information concerning a car that may have been used in the robbery. Id. at PageID.156. A Kent
County Sheriff’s Department Detective met them at the scene and told Nowicki that a suspicious
vehicle had been seen that evening casing another gas station in Ada, Michigan. Id. at PageID.156157. Nowicki reported the description of the vehicle, and sent two officers to the address listed on
the car’s registration at 1211 Beamus Street. Id. Nowicki went to the address when the officers on
the scene reported that the car had arrived. Id. The car was registered to Irene Carter (petitioner’s
mother). Id.; see Trans. I at PageID.166. There were two occupants of the car, a man and a woman,
Mario Shanklin and Shakerva Mack, neither of whom matched the appearance of the person who
was on the gas station videotape. Trans. II at PageID.156-157. On cross-examination, Officer
Nowicki admitted that he did not take a picture of Shanklin or have any further contact with him.
Id. at PageID.157-158. However, Officer Nowicki testified that he had previously watched the
videotape of the robbery, that he knew what the suspect looked like, and that he knew that Shanklin
was not that person. Id. at PageID.158.
4.
GRPD Officer Kim Hartuniewicz
Officer Hartuniewicz, a canine handler for the police, was called to the robbery scene
to determine if the police dog could pick up a scent and track it. Id. at PageID.153. The police dog
picked up a scent and followed it to a parking lot south of the gas station, where he lost the scent.
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Id. Officer Hartuniewicz testified that a dog will generally lose a scent if the person that is the
subject of the track either got into a car or on a bike. Id. On cross-examination, Hartuniewicz
admitted that there was nothing belonging to the robber to give the police dog a basis for a scent; she
took the police dog to the suspect’s last known location, then followed the scent from that point. Id.
at PageID.154.
5.
Testimony of GRPD Officer David Kiddle
Officer Kiddle testified that on December 18, 2000, he was on patrol when he stopped
a car for having a license plate that did not belong on that vehicle. Id. at PageID.155. Petitioner, his
wife, Linda Carter, and his daughter were in the car. Id. Petitioner did not have a license, and told
Officer Kiddle that his name was Donald Brown. Id. Petitioner’s wife told Kiddle that petitioner
was her nephew, Donald Brown. Id. When Kiddle checked for a driving record on Donald Brown,
he found none. Id. He arrested petitioner for driving without a license and gave him a ticket for
improper registration. Id. After petitioner was transported to jail and the car towed, Officer Kiddle
received information that the car might have been used in a robbery that took place “approximately”
a month earlier. Id. On cross-examination, Kiddle acknowledged that people driving without a
license or suspended licenses give false names “a lot.” Id. at PageID.156.
6.
Testimony of GRPD Officer William Corner
GRPD Officer Corner arrived at the scene of the robbery to assist in securing the area.
Trial Trans. I (docket no. 10, PageID.162). He interviewed a bystander, Cassandra Butler, who told
him that she was afraid that her ex-boyfriend, Roderick Jones, was possibly the person who
committed the robbery. Id. Office Corner had Ms. Butler examine the videotape, and after doing
so, Butler said that the person in the videotape was not Roderick Jones. Id. at PageID.162-163. On
19
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cross-examination, Corner testified that he tried to get an address for Roderick Jones, but Butler
could not provide him with one. Id. at PageID.163. In addition, the police department had no
information on Roderick Jones or his location. Id. Officers went to several locations that night to
locate suspects, but had no success. Id.
7.
Testimony of GRPD Officer William Wolz
GRPD Office Wolz, a fingerprint examiner, testified that he checked a number of
finger and palm prints that were found on the north entry door. Id. at PageID.163-164. However,
none of the prints were identified. Id.
8.
Testimony of GRPD Detective Erica Clark
Detective Clark was assigned to investigate the robbery within a day after it occurred.
Id. at PageID.165. Initially, she had no suspects. Id. However, after petitioner was arrested in
December 18, 2000, Detective Clark received information that he was part of the family that lived
at 1211 Beamus, the house police had gone to the night of the robbery. Id. at PageID.165-166. Clark
noted that petitioner gave a false name when he was stopped by police, that his real name was
Gregory Carter, and that she “recognized the name as being the Carter’s living at that address.” Id.
at PageID.166. Given this information, Detectives Clark and Fannon interviewed petitioner at the
jail. Id. at PageID.165-166. At that time, petitioner stated that he was not involved in the robbery.
Id. at PageID.166. However, Clark noticed that Carter was wearing a black fleece coat that zipped
in the front; the coat matched the description of the coat worn by the person who robbed the
Speedway. Id. In addition, Clark checked the property found on petitioner when he was arrested,
finding two gold hoop earrings and a partial pack of Kool cigarettes. Id. These items were
20
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consistent with the victim’s statement that the robber wore earrings in both ears and took a carton
of Kool cigarettes. Id.
Detective Clark arranged for live lineups. Id. at PageID.167. In the first lineup,
conducted on October 10, 2000, in which petitioner did not appear, the victim did not identify
anyone as the robber. Id. In the second lineup, in which petitioner appeared, the victim identified
him as the robber. Id. At that point, Clark sought a warrant to charge petitioner with armed robbery.
Id.
After petitioner was charged and placed in jail, the prosecutor’s office asked Detective
Clark to monitor petitioner’s incoming and outgoing mail. Id. at PageID.167-168. In one letter, dated
January 3, 2001, addressed to “whom it may concern,” petitioner stated that “this letter is to inform
the judge, as well as the state’s attorney that may be assigned to prosecute any cases against Mrs.
Linda Carter or Mrs. Linda Abrams, I Gregory Carter take full responsibility, and, that any charges
pending against Mrs. Carter or Abrams is not true.” Id. at PageID.168. Petitioner’s phone calls were
also monitored, resulting in between six and nine hours of taped calls. Id. at PageID.168-169. Clark
testified that petitioner spoke to several people in these taped calls, including Linda Carter (his wife),
Irene Carter (his mother), and Mario Shanklin (cousin). Id. at PageID.169. The tapes included some
conversations relevant to the investigation of the robbery. For instance, when discussing his arrest,
petitioner told his wife that “[t]hey don’t know nothing about you” and asked his wife if she had
“move[d] those things.” Id. at PageID.170-171. When petitioner’s wife asked petitioner if there was
anything else she needed to get rid of “at home,” she inquired “No shells? None of that?” Id. at
PageID.171. Petitioner then stated:
“Let him come tear the motherfucker up. They gonna do that anyway. The reason
why, they lookin’ for a gun, they ain’t got shit. They trying’ to make a motherfuckin’
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case. That’s why they need the gun. Hey, try to cash and -- or -- and go get rid of
that.”
Id.
Detective Clark testified that the telephone conversations mentioned a person named
Kenny, and that petitioner talked his cousin, Mario Shanklin about going and getting some stuff from
Kenny. Id. When speaking to Mario, petitioner said, “you give them people what they want, I
Goddamn guarantee you’ll go to jail.” Id. at PageID.172. In another conversation, petitioner
threatened to kill his wife stating:
“When I get out, I’m going to kill yo mother fuckin’ ass, you know that; don’t you
. . . Who gonna take care of your baby? Keep you mother fuckin’ mouth closed.”
Id.
Petitioner also spoke to a woman named Joyce (his sister), asking her for a favor
regarding Linda (his wife):
“This bitch, Linda, the state’s attorney, they gonna bring charges against this bitch.
I don’t want this whoe to know none of my business. Tell Mario he get in. I said in.
Go over to Kenny’s house and get that shit.”
Id.
On cross-examination, Detective Clark acknowledged that petitioner never mentioned
hiding the gun used in the robbery and that the police did not search petitioner’s wife’s house. Id. at
PageID.173. The detective explained that all the information from the phone conversations indicated
that evidence was left at “Kenny’s house.” Id. Clark also acknowledged that the quality of the
audiotapes was not good, and that at times, a listener could not make out full sentences. Id.
B.
The defense
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The defense did not present any witnesses or evidence. Id. at PageID.175. During
closing argument, petitioner’s trial counsel argued, among other things: that the prosecution had not
met its burden; that the victim mis-identified petitioner as the robber; that the man on the video tape
was not petitioner; that petitioner knew his telephone conversations were being monitored; that
petitioner’s telephone conversations did not refer to a gun as evidence in an armed robbery; that the
“stuff” referred to in the telephone conversations probably did not mean “a gun” but could have meant
drugs or “evidence of an affair”; that there was no fingerprint evidence linking petitioner to the crime;
and, that there were other suspects. Id. at PageID.176-179.
III.
Discussion
To determine whether petitioner demonstrated actual prejudice sufficient to excuse
the procedural default, “courts must ask, is there a reasonable probability that a different (e.g.,
properly selected) jury would have reached a different result, a probability sufficient to undermine
confidence in the outcome of the trial.” Ambrose IV, 801 F.3d at 578 (internal quotation marks
omitted). “The most important aspect to the actual prejudice inquiry is the strength of the case against
the defendant, which requires courts to take a careful look at the transcripts involved.” Id. at 580
(internal quotation marks and brackets omitted). Actual prejudice does not exist where the trial
transcript showed that the prosecution’s case against the petitioner was so strong, and the defense was
so weak, “that a court would consider it highly improbable that an unbiased jury could acquit.” Id.
at 575, quoting Ambrose II, 684 F.3d at 652.
After reviewing the trial transcript in detail, the Court concludes that petitioner has
failed to demonstrate actual prejudice necessary to excuse his procedural default. The prosecution’s
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case against petitioner was strong. At sentencing, the trial judge described the evidence against
petitioner as “overwhelming”:
I presided at the trial. It was a trial in which Mr. Carter was convicted by, I
think you’d have to say overwhelming evidence. There was, among other things, a
videotape of the robbery, and while such videotapes tend to be of rather poor quality,
this one was excellent, and it showed very clearly Mr. Carter robbing this particular
convenience store.
Sent. Trans. at PageID.190.
In addition to the videotape, the victim did not waver in her description or
identification of petitioner as the robber. As discussed, the victim clearly saw the robber, heard him
speak, and watched him leave the store. The government’s other evidence was consistent with the
victim’s eyewitness identification of petitioner as the robber. When arrested, petitioner possessed a
black fleece coat which zipped in front and two hoop earrings as described by the victim. Trial Trans.
I at PageID.166; Trial Trans. II at PageID.148. In addition, petitioner had a pack of Kool cigarettes,
the same brand which the robber stole from the store. Trial Trans. I at PageID.166; Trial Trans. II at
PageID.144. Finally, petitioner’s jail conversations indicated that he did not want the authorities to
discover a gun, which they needed to make their “case” against him. Trial Trans. I at PageID.171.
Given the other evidence, the jury could infer that petitioner was referring to the pistol used to rob
the victim. Trial Trans. II at PageID.134.
In contrast to the prosecution, defendant presented no evidence. In closing argument,
petitioner’s counsel presented a defense theory that the victim incorrectly identified petitioner as the
robber, that petitioner was not the man in the Speedway videotape, and that the prosecutor’s other
evidence proved nothing. “[T]o successfully argue that it is reasonably probable that a different jury
would have accepted the defense theory, and thus have reached a different result, a defendant must
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show that there is some support for that theory.” Ambrose IV, 801 F.3d at 581. Here, petitioner
presented no evidence to support his theory of misidentification. The thrust of petitioner’s claim is
that the victim’s identification was wrong because it involved cross-racial identification. Petitioner’s
Supplemental Brief (docket no. 72, PageID.577). However, petitioner presented no evidence to
support this claim, admitting that “Mr. Carter’s trial did not include testimony from an expert on the
unreliability of cross-racial identifications.” Id.
In summary, the evidence presented at trial does not create a reasonable probability
that a different jury would have reached a different result. Ambrose IV, 801 F.3d at 578, 581.
Petitioner has failed to demonstrate actual prejudice sufficient to excuse the procedural default.
Accordingly, the petition should be denied.
IV.
Recommendation
I respectfully recommend that the habeas petition be DENIED. Rule 8, Rules
Governing § 2254 Cases in the United States District Courts.
Dated: December 14, 2016
/s/ Ray Kent
RAY KENT
United States Magistrate Judge
ANY OBJECTIONS to this Amended Report and Recommendation must be served and filed with
the Clerk of the Court within fourteen (14) days after service of the report. All objections and
responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written
objections within the specified time waives the right to appeal the District Court’s order. Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
25
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Case 1:09-cv-00215-RJJ-RSK
Case: 09-1539 Document:
ECF006111351959
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Filed:PageID.501
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Page:
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0200p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;
JOSEPH AMBROSE,
Nos. 11-1430/10-1247/09-1539
Petitioner-Appellee,
>
v.
RAYMOND D. BOOKER,
Respondent-Appellant.
10-1247
GREGORY CARTER,
Petitioner-Appellant,
v.
BLAINE LAFLER,
Respondent-Appellee.
09-1539
CARL BURNIE WELLBORN,
Petitioner-Appellant,
v.
MARY BERGHUIS,
Respondent-Appellee.
1
Appeals from the United States District Court
for the Eastern District of Michigan at Bay City
and the Western District of Michigan at Grand Rapids.
No. 06-13361—Thomas L. Ludington; District Judge;
Nos. 09-215; 05-346—Robert J. Jonker, District Judge.
11-1430
Argued: February 28, 2012
Decided and Filed: June 28, 2012
Before: MERRITT and ROGERS, Circuit Judges, and POLSTER, District Judge.*
*
The Honorable Dan Aaron Polster, United States District Judge for the Northern District of Ohio,
sitting by designation.
1
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_________________
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
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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, 781 F. Supp. 2d 532, 535 (E.D. Mich. 2011). Ambrose sought leave
to appeal; however, his appointed counsel withdrew and the Michigan Court of Appeals
determined that Ambrose’s appeal was frivolous. Id. Ambrose did not appeal to the
Michigan Supreme Court.
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
accidentally 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.”
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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, 706 N.W.2d 16
(Mich. 2005) (unpublished table decision).
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.
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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 percentage 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
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, the 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, 147 F.3d 1266, 1272 (10th Cir. 1998) (formatting altered).
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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 disparity between jury-eligible AfricanAmericans 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, 781 F. Supp. 2d at 545-46. First, the district court held that Ambrose had not
procedurally defaulted his claim. The court acknowledged that district courts had split
on the issue of procedural default with regard to the Kent County computer glitch, but
the court concluded that Ambrose had shown good cause to excuse his default because
he could not have known of the glitch. Id. at 542-43. Second, the district court found
that the number of African-Americans in the jury pool was not “fair and reasonable in
relation to the number of such persons in the community.” Id. at 543-44. The district
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court recognized that the absolute disparity of 3.45% fell below the 10% mark
established by Swain v. Alabama, 380 U.S. 202, 208-09 (1965). However, this
10% mark was not a bright-line rule; to hold otherwise would prevent fair cross-section
claims in areas where the minority population was less than 10%. Ambrose, 781 F.
Supp. 2d at 543-44. Finally, the district court held that the systematic exclusion did not
need to be intentional. Id. at 545. The district court granted a conditional writ of habeas
corpus and respondents timely appealed.
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. Id. 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 of counsel claim failed under Michigan’s version of
Strickland v. Washington, 466 U.S. 668 (1984). Carter applied for leave to appeal, but
both the Michigan Court of Appeals and Michigan Supreme Court denied the application
“for failure to meet the burden of establishing entitlement to relief under MCR
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6.508(D).” People v. Carter, No. 254482 (Mich. App. Aug. 20, 2004); People v. Carter,
696 N.W.2d 714 (Mich. 2005) (table opinion).
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, 2009 WL 649889, at *3
(E.D. Mich. Mar.10, 2009). The district court recognized that Carter had procedurally
defaulted by failing to object at trial to the composition of the venire panel. The default
was excused, however, because the district court found that Carter could not have known
about the systematic exclusion caused by the computer glitch at the time the jury was
sworn. Id. Having excused the default, the court determined that an evidentiary hearing
was necessary to determine whether Carter’s jury was empaneled during the period
impacted by the computer glitch. Id. at *4-5. Because Carter was imprisoned in the
Western District of Michigan, and because the trial had occurred in the Western District,
the court transferred the action “for an evidentiary hearing and determination on the
Sixth Amendment claim.” Id. at *5.
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, 2010 WL 160814, at *4-13 (W.D. Mich. Jan. 8, 2010). The
district court adopted this recommendation because the court determined that Carter had
not shown good cause for his procedural default. Id. at *3. Although Carter was
unaware of the computer glitch at the time of his trial, the district court held that the
racial composition of the jury venire gave him notice of his claim. Id. Carter timely
appeals.
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, 2009 WL 891708,
at *8-14 (W.D. Mich. Mar. 31, 2009) (report and recommendation). On direct appeal,
Wellborn claimed that he was denied a jury drawn from a fair cross-section of the
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community based on the Kent County computer glitch. The Michigan Court of Appeals
found that Wellborn had defaulted his fair cross-section claim because he failed to raise
it before the jury was sworn. Id. at *14. The Michigan Court of Appeals affirmed
Wellborn’s convictions, and the Michigan Supreme Court denied leave to appeal. Id.
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 cause 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.
Id. 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
fact 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).
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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, 501 U.S. 722, 750 (1991). The cause inquiry “ordinarily turn[s]
on whether . . . some objective factor external to the defense impeded counsel’s efforts
to comply with the State’s procedural rule,” and is satisfied by “a showing that the
factual or legal basis for a claim was not reasonably available to counsel.” Murray v.
Carrier, 477 U.S. 478, 488 (1986). As discussed below, petitioners have shown cause
because the factual basis for the claim—the computer glitch—was not reasonably
available to counsel, and petitioners could not have known that minorities were
underrepresented in the jury pool by looking at the venire panel. Moreover, the Supreme
Court has found cause to excuse a procedural default in a factually similar case. See
Amadeo v. Zant, 486 U.S. 214 (1988).
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 code, 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
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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 underscored 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, 909 F.2d 662, 678 (2d Cir. 1990).
The focus, therefore, is on the procedure for selecting juries, and not the outcome of that
process. As the First Circuit eloquently put it:
[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, 772 F.2d 982, 993 (1st Cir. 1985), vacated on other grounds, 772 F.2d
996 (1st Cir. 1985) (en banc). It may be true that a venire panel’s composition may put
a petitioner on notice of a procedural irregularity in some instances, for example in areas
where the minority population is so high that the probability of an all-white panel is
minuscule. However, where the minority population is comparatively small, the actual
composition of the venire panel does not provide reasonable notice of the existence or
non-existence of a fair cross-section claim. As the district court persuasively stated in
Ambrose:
[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 conditioned 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
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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.” Id. at 4. Even if the computer had
been glitch-free, petitioners could have received a panel without a single AfricanAmerican 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
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, 264 F.3d 561, 568 (5th Cir. 2001), the
court stated: “[Defendant] must demonstrate . . . not only that [African–Americans] were not adequately
represented on his jury but also that this was the general practice in other venires.” Id. (quoting Timmel
v. Phillips, 799 F.2d 1083, 1086 (5th Cir. 1986)). This did not establish a requirement that a defendant
prove that the venire have actual underrepresentation, but instead was explaining that proving
underrepresentation on one venire was insufficient to maintain a fair cross-section claim. Id.
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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 memorandum was not reasonably available to petitioner’s
lawyers. Id. 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 pool. 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
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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, 470 U.S. 1, 15 (1985). In the ordinary case, a contemporaneous
objection allows a trial court to fix an error at the outset of trial, saving valuable time and
resources. See United States v. Lowry, No. 91-6169, 1992 WL 92746, at *4 (6th Cir.
Apr. 22, 1992). However, in this case, even if petitioners had objected prior to the
empanelment of the jury, the trial court could not have remedied the error. Had the trial
court granted the hypothetical contemporaneous objection, it would have dismissed the
jury panel and asked the Kent County Commissioners to draw a new panel. This panel
would have come from the same jury pool, affected by the same yet-to-be discovered
computer glitch. The underrepresentation would have persisted even if petitioners had
objected at trial.
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
opportunity—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, 468 U.S. 1, 14 (1984) (internal
citations omitted). In this case, respondents do not—nor could they—contend that
petitioners tactically declined to raise a pre-trial challenge to their venire panels.
Petitioners’ claims are premised on the fact that they were unaware of the defects in the
challenged jury selection procedure. Respondents would be hard-pressed to argue that
petitioners tactically relied on the computer glitch of which they did not know.
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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. 412 F. App’x 798, 800 (6th
Cir. 2011). Defendants’ counsel explained that he had not objected during jury selection
because he did not want to offend or alienate the jury. Id. at 802. We held that
“defendants’ counsel had ample opportunity to make an objection, and could have done
so in a sidebar or requested a recess if concerned about the objection’s effect on the
jury.” Id. at 802. This case is distinguishable from the instant case in at least two ways.
First, the default in Boulding was precisely the type of strategic default contemplated by
the court in Reed. Counsel wanted to avoid offending the jury, so he withheld his
objection until after the jury was empaneled. Here, respondents cannot show that
petitioners strategically withheld their objections. Second, the Boulding defendant knew
of the potential objection but chose to wait to object until it was untimely. Petitioners,
by contrast, did not know of the underrepresentation of minorities in the jury pool until
months after their trials. This again goes to the motive of the failure to object: in
Boulding it was strategic, here it was unwitting.
Notwithstanding respondents’ arguments to the contrary, United States v. Blair,
214 F.3d 690, 699 (6th Cir. 2000), is also distinguishable. In Blair, the defendant “failed
to recognize or chose to ignore a potential challenge to the jury selection plan” because
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this court had not yet decided that the plan violated the Equal Protection Clause. Blair
held that a defendant must raise a claim if the factual basis is known, even if no court has
ruled on the legal implications of those specific facts. Here, in contrast, petitioners did
not know of the factual basis of the claim.
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) (overturned on other grounds); United States v. Jackman,
46 F.3d 1240, 1243 (2d Cir. 1995). In the ordinary case, fair cross-section claims should
be raised at jury selection. However, where the underrepresentation is as obscure as the
one in this case—due to a small minority population and a small absolute disparity—a
failure to object must be excused.
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, 425 U.S. 536
(1976), a defendant was convicted in state court of murder. He first raised a challenge
to the racial composition of his grand jury in his § 2254 petition. The Court held that a
petitioner must show both cause and “actual prejudice” to excuse the procedural default.
The Court stated, “[t]he presumption of prejudice which supports the existence of the
right is not inconsistent with a holding that actual prejudice must be shown in order to
obtain relief from a statutorily provided waiver for failure to assert it in a timely
manner.” Id. at 542 n.6 (quoting Davis v. United States, 411 U.S. 233, 245 (1973)) (the
“Henderson-Davis rule”).
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
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exclusion of three scrupled jurors3 during his murder trial. Defendant relied on Gray v.
Mississippi, 481 U.S. 648 (1987), in which the Supreme Court stated that the exclusion
of a scrupled juror is not subject to the harmless error analysis. The Keith defendant
sought to extend Gray’s holding to “obviate any requirement for him to demonstrate
prejudice resulting from his procedural default.” Keith, 455 F.3d at 674. This court
declined in part because Gray had not been extended by the Supreme Court or any
federal court of appeals to the procedural default context. More importantly, we
reasoned that extending Gray to the procedural default context would require us to
ignore the fundamental differences between direct and collateral review in the federalist
system. Id. at 675. We concluded that the argument for the “extension of Gray is
weakened, not because the issue is any less important, but because considerations of
federalism and respect for the state trial process demand that it be so.” Id. The
procedural default doctrine is “grounded in concerns of comity and federalism”;
therefore, “[w]hen a federal court vacates the judgment of a state trial court, a showing
of actual prejudice is required to insure that defaulted claims are considered only when
they will have made a difference.” Id.
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, 136 F.3d 1092 (6th Cir. 1998), four defendants raised challenges to the Eastern
District of Michigan’s jury selection plan on direct appeal. Two of the defendants raised
timely objections to the plan; therefore, we determined that all defendants were entitled
to relief because the state court had the opportunity to address the problem. Id. at 110809. However, we noted that the non-objecting defendants would not have otherwise
been entitled to relief because they had failed to show cause and actual prejudice under
the Henderson-Davis rule, even though the error was structural. Petitioner attempts to
distinguish this case by arguing that it was a federal case, applying Federal Rule of
Criminal Procedure 12. However, in Henderson, the Supreme Court explicitly rejected
3
That is, jurors who had expressed reservations about recommending a death sentence.
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the notion that the federal courts could strictly impose procedural requirements and then
review a state’s requirements in a different fashion. The Court stated, in pertinent part:
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, 425 U.S. at 541. Ovalle reflects this court’s “actual prejudice” requirement.
Other circuits have required a petitioner to show “actual prejudice,” even where
the petitioner claimed a structural error had occurred. In Purvis v. Crosby, 451 F.3d 734
(11th Cir. 2006), the Eleventh Circuit refused to presume prejudice where an ineffective
assistance of counsel claim arose from a failure to object to a structural error. The court
reasoned that allowing the petitioner to dress up a procedural default as an ineffective
counsel claim would allow the defendant to circumvent Henderson and Davis. Id. at
742-43. Similarly, the Seventh Circuit declined to presume prejudice for the purposes
of procedural default notwithstanding a petitioner’s claims that alleged perjured
testimony and an alleged Brady violation constituted structural error. Ward v. Hinsely,
377 F.3d 719, 725 (7th Cir. 2004). The Seventh Circuit reasoned that “[t]he procedural
default doctrine is grounded in concerns of comity and federalism. These concerns are
in no way diminished if the federal claim raised before the federal habeas court is one
of structural error.” Id. at 726 (internal citations and quotation marks omitted).
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 court 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.
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In arguing for presuming prejudice on habeas in this case, petitioners cite a
number of our cases that are distinguishable. Quintero v. Bell, 368 F.3d 892 (6th Cir.
2004), is distinguishable because, in that case, counsel’s error was so egregious that
prejudice could not be reasonably disputed. Trial counsel had failed to object to the
inclusion of seven jurors that had served on juries that had convicted petitioner’s coconspirators. Id. at 893. We held that failing to object was an “abandonment of
‘meaningful adversarial testing’ throughout the proceeding,” which made “‘the
adversary process presumptively unreliable.’” Id. (quoting United States v. Cronic, 466
U.S. 648, 659 (1984)). The same cannot be said about the failure to raise a fair crosssection claim. In Quintero, the disputed jurors had already convicted petitioner’s coconspirators. A fair cross-section claim does not present the same danger because there
is not the same inevitability of result.
Petitioners also rely on language in Johnson v. Sherry, 586 F.3d 439, 444 (6th
Cir. 2009), a case in which we addressed a defaulted claim arising from a courtroom
closure. We suggested a “strong likelihood” that if the performance was deficient, it
would be deemed prejudicial, reasoning in part that the right to a public trial is a
structural guarantee. The tentative and conditional nature of this language—in a case
that, unlike this one, involved Strickland prejudice regarding a court closure claim—is
not sufficient to overcome our reading of the clear import of Supreme Court and Sixth
Circuit precedent to the jury selection cases we have before us.
Finally, petitioners parse language from three Supreme Court cases, but cannot
show how these cases require a different result. In United States v. Frady, 456 U.S. 152,
170 (1982), for instance, the Court’s holding was that the petitioner had to show actual
prejudice to overcome his default in not objecting to a jury instruction, and that he had
not done so. The Court rejected Frady’s argument that prejudice was not required for
the jury instruction claim, without saying anything about whether presumed prejudice
for the jury instruction claim would meet the “actual prejudice” requirement for
overcoming procedural default. Second, petitioners claim that the Court in Amadeo v.
Zant declined to impose an “actual prejudice” requirement. However, the Amadeo court
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declined to reach the issue of prejudice because it was conceded by the government
below. 486 U.S. at 228 n.6. Third, petitioners argue that Justice Thomas’s dissent from
the denial of a writ of certiorari in Bell v. Quintero, 125 S. Ct. 2240 (2005), somehow
demonstrates Henderson is no longer valid. Justice Thomas noted that “[t]he Court of
Appeals’[s] holding also rests on a confusion—the idea that the presence of a structural
error, by itself, is necessarily related to counsel’s deficient performance and warrants a
presumption of prejudice.” Id. at 2242. Because the writ was not granted, petitioner
infers that the majority rejected Justice Thomas’s opinion. However, there are a
multitude of reasons that certiorari may not have been granted. The fact that Justice
Thomas reiterated the Henderson-Davis rule in his dissent does not mean the majority
took the other position.
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 Eleventh 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.” Id. 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
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, 651 F.2d 347, 350
(5th Cir. 1981). Relying on Huffman, the Eleventh Circuit reasoned:
In Strickland terms, if we compared the result reached by an all white jury, selected by
systematic exclusion of blacks, with the result which would have been reached by a
racially mixed jury, we would have greater confidence in the latter outcome, finding
much less probability that racial bias had affected it. This principle was recognized in
Huffman, 651 F.2d at 350:
Huffman was a black man accused of raping a white woman. A
mixed-race jury might clearly have a special perception in a mixed
race case. His defense was consent. His jury was all white. Although
a constitutionally drawn jury may be all white, or all black, depriving
Huffman of the chance of having a mixed-race jury would seem to
meet the prejudice requirements for relief.
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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.” Id. 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, 941 F.2d at 1482 (internal citations and quotation marks omitted).
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UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 11-1430/10-1247/09-1539
FILED
Jun 28, 2012
11-1430
LEONARD GREEN, Clerk
JOSEPH AMBROSE,
Petitioner-Appellee,
v.
RAYMOND D. BOOKER,
Respondent-Appellant.
10-1247
GREGORY CARTER,
Petitioner-Appellant,
v.
BLAINE LAFLER,
Respondent-Appellee.
09-1539
CARL BURNIE WELLBORN,
Petitioner-Appellant,
v.
MARY BERGHUIS,
Respondent-Appellee.
Before: MERRITT and ROGERS, Circuit Judges; POLSTER, District Judge.
JUDGMENT
On Appeals from the United States District Court
for the Eastern District of Michigan at Bay City
and the Western District of Michigan at Grand Rapids.
THIS CAUSE was heard on the record from the district court and was argued by counsel.
IN CONSIDERATION WHEREOF, it is ORDERED that the district court orders in all three cases
are REVERSED, and the cases are REMANDED for further proceedings consistent with this opinion.
ENTERED BY ORDER OF THE COURT
Leonard Green, Clerk
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Case No. 10-1247
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ORDER
GREGORY CARTER
Petitioner - Appellant
v.
BLAINE LAFLER
Respondent - Appellee
Upon consideration of the motion filed by Mr. Gregory Carter for the appointment of
counsel,
It is ORDERED that the motion be and it hereby is GRANTED. Mr. Bradley Hall has been
extended the appointment of counsel under the Criminal Justice Act.
ENTERED PURSUANT TO RULE 45(a),
RULES OF THE SIXTH CIRCUIT
Leonard Green, Clerk
Issued: May 24, 2011
___________________________________
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY CARTER,
Petitioner,
CASE NO. 1:09-CV-215
v.
HON. ROBERT J. JONKER
BLAINE C. LAFLER,
Respondent.
______________________________________/
ORDER APPROVING REPORT AND RECOMMENDATION
The Court has reviewed the Magistrate Judge’s Report and Recommendation (docket # 39)
and Petitioner’s objection to it (docket # 41). Under the Federal Rules of Civil Procedure, where,
as here, a party has objected to portions of a Report and Recommendation, “[t]he district judge . . .
has a duty to reject the magistrate judge’s recommendation unless, on de novo reconsideration, he
or she finds it justified.” 12 WRIGHT , MILLER, & MARCUS, FEDERAL PRACTICE AND PROCEDURE
§ 3070.2, at 381 (2d ed. 1997). Specifically, the Rules provide that:
The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject,
or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.
FED . R. CIV . P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C). De novo review in these circumstances
requires at least a review of the evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d
1208, 1215 (6th Cir. 1981). After de novo review, the Court concludes that Petitioner Gregory
Carter’s petition for habeas corpus under 28 U.S.C. § 2254 should be denied.
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Following a trial in May 2001, a jury convicted Mr. Carter of armed robbery under Mich.
Comp. Laws 750.529 and possession of a firearm during the commission of a felony under Mich.
Comp. Laws 750.227b. At Mr. Carter’s sentencing, the judge found that “Mr. Carter was convicted
by . . . overwhelming evidence,” including “a videotape of the robbery” that was of “excellent”
quality and “showed very clearly Mr. Carter robbing this particular convenience store.” (Docket
# 11, Sent. Trans. at 4) The court sentenced Mr. Carter to two years of incarceration for the felony
firearm charge, to be served consecutive to the term of incarceration that Mr. Carter was already
serving. He was further sentenced to fifteen to forty years of incarceration for the armed robbery
conviction, to be served consecutive to the felony firearm sentence. (Id.)
After pursuing his direct appeals without success, Mr. Carter filed in state court a motion for
relief from judgment on three grounds, including an ineffective assistance of counsel argument and
the contention that he was denied his right to a fair trial due to flaws is the Kent County jury
selection process, which he alleges systematically excluded minorities from the jury pool. The state
court rejected both contentions, in part because Mr. Carter failed to object to the jury before it was
sworn in as a panel. Mr. Carter’s delayed state-court application for leave to appeal and his
application to the Michigan Supreme Court both were denied under Mich. Ct. R. 6.508(D).
In February 2006, Mr. Carter filed in the Eastern District of Michigan this petition under
section 2254. He alleged that he was denied due process of law, in violation of the Sixth and
Fourteenth Amendments, when he was tried by a jury selected from a jury pool that systematically
excluded minorities from the jury selection process. The magistrate judge in the Eastern District of
Michigan concluded, and the district judge agreed, that although Mr. Carter had procedurally
defaulted his jury selection claim, the default should be excused because the “glitch” had not been
2
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publicly disclosed at the time of Mr. Carter’s trial, and “neither petitioner nor his counsel had any
reason to suspect that the fair cross-section requirement had been violated, nor any reason to conduct
an investigation into Kent County’s jury selection process.”
(Docket # 26, Report and
Recommendation at 5) The magistrate concluded that an evidentiary hearing was necessary to
determine whether the pool from which Mr. Carter’s jury venire was drawn was unrepresentative
as a result of the computer glitch.
(Id. at 8)
The district judge adopted the Report and
Recommendation, and it further concluded that Mr. Carter could assert ineffective assistance of
counsel as cause for his procedural default. (Docket # 29 at 5) The court then transferred this action
to the Western District of Michigan “for an evidentiary hearing and determination of the Sixth
Amendment claim.” (Id. at 9)
Discussion
In section 2254 cases, hearings are not mandatory and are held only at the discretion of the
court. See Vroman v. Brigano, 346 F.3d 598, 606 (6th Cir. 2003); 42 U.S.C. § 2254(e)(2); see also
Rule 8, Rules Governing Section 2254 Cases in the United States District Courts. Day v.
McDonough, 547 U.S. 198, 209 (2006). This Court also has discretion to determine if a prior ruling
made by the transferor court, including an order to conduct an evidentiary hearing, should be
reconsidered. Gillig v. Advanced Cardiovascular Sys., 67 F.3d 586, 590 (6th Cir. 1995). Transfer
of a case does not “freeze prior rulings.”
Id. (quotation omitted).
A transferee court’s
reconsideration of a prior order, however, should not be undertaken lightly, but it should be done
only for “convincing reasons.” Id. The magistrate judge in this district has filed a Report and
Recommendation articulating the reasons he finds convincing for dismissing the habeas petition
without an evidentiary hearing. Mr. Carter has objected to the Report and Recommendation.
3
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The Report and Recommendation recommends that Mr. Carter’s section 2254 petition be
denied without a hearing. It concludes that Mr. Carter procedurally defaulted his federal claims in
state court under an independent and adequate state rule. It further concluded that Mr. Carter’s claim
was barred because Mr. Carter failed to meet either of the burdens that would permit his defaulted
claim to be reviewed in a 2254 motion: (1) he failed to demonstrate cause and prejudice because he
did not object to the composition of the jury, and (2) he failed to demonstrate the risk of a
fundamental miscarriage of justice because the record established overwhelming evidence of his
guilt. See Hicks v. Straub, 377 F.3d 538, 551-52 (6th Cir. 2004). The Report and Recommendation
finally concluded that, because Mr. Carter’s claim is barred by procedural default, the court need not
conduct an evidentiary hearing into the substance of Mr. Carter’s claim.
Mr. Carter first objects that a transferee court may reconsider a prior order only if the
transferor court abused its discretion in promulgating the order. This contention is without merit.
On appeal, the Court of Appeals reviews for abuse of discretion the transferee court’s
reconsideration of the transferor court’s order. See Gillig, 67 F.3d at 590. Here, however, the Court
is not reviewing on appeal the orders of the Eastern District in this case, and the Court is not limited
by an appellate standard of review when reconsidering a prejudgment order. Instead, the Court is
taking up the case as it left the Eastern District and continuing a “logical progression toward
judgment” just as though the case had originated in this Court. See id. at 589. And just as with a
case that originated in this Court, a prejudgment order remains interlocutory and “can be
reconsidered at any time” if reconsideration is in the interest of progressing to final judgment. See
id.
4
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Mr. Carter also objects on the ground that he cannot establish cause and prejudice without
an evidentiary hearing regarding the composition of his jury pool. This contention also is without
merit. Mr. Carter cannot establish good cause because he did not object at the close of jury voir dire
to the composition of the jury venire. Indeed, defense counsel stated expressly that the defense was
“satisfied” with the jury. (Docket # 8, Tr. Trans. at 72). Mr. Carter further did not object to the jury
at any time during trial or on his direct appeals. As discussed thoroughly in the Report and
Recommendation, Mr. Carter did not need to know about the precise nature of the computer problem
in the jury selection to see a deficiency in the jury array. See also Wellborn v. Berghuis, — F. Supp.
2d —, No. 1:05-CV-346, 2009 WL 891708, *3 (W.D. Mich. Mar. 31, 2009). The law in Michigan
is unequivocal that a defendant is on notice once he has viewed the array, and he must raise timely
any objection to it before the jury is empaneled and sworn. See id.; see also People v. Hubbard, 217
Mich. App. 459, 552 N.W.2d 493 (Mich. Ct. App.1996); People v. Oliphant, 399 Mich. 472, 250
N.W.2d 443 (1976); People v. Bryant, No. 21442, 2004 WL 513664 (Mich. Ct. App. Mar. 16, 2004);
People v. Barnes, No. 244590, 2004 WL 1121901 (Mich. Ct. App. Jan.15, 2004). As in Wellborn,
Mr. Carter “absolutely personally observed the racial composition of his jury venire and finally
selected jury.” 2009 WL 891708 at *3. Apparently he was content with the venire and his jury
because his counsel stated expressly that the defense had no objection to the panel. See id. If Mr.
Carter “was unhappy with the distribution he could have said so even if he had no reason to know
at the time the particulars of a possible computer glitch that contributed to the composition of the
array.” Id. Accordingly, Mr. Carter cannot establish good cause for his procedural default with or
without an evidentiary hearing to determine the actual composition of his jury array. See id.
5
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Mr. Carter finally objects to the Report and Recommendation on the basis of Amadeo v. Zant,
486 U.S. 214 (1988). His reliance on Amadeo is misplaced. Amadeo involved a death penalty case
in which the district attorney and jury commissioners of Putnam County, Georgia, intentionally
engineered a scheme to under-represent African Americans and women in the County’s juries, and
to conceal the scheme by keeping the under-representation sufficiently subtle to fall within the
presumptively acceptable statistical guidelines of prevailing case law. See id.; Wellborn, 2009 WL
891708 at *3. The very point of the intentional and diabolical scheme was to exclude African
Americans and women in a way that made it virtually impossible to detect. A litigant looking at any
given venire, intentionally engineered to under-represent African Americans and women, was not
automatically on notice of a problem. Under those unique circumstances, the Court refused to set
aside that the trial court’s factual finding that defense counsel did not intentionally bypass a jury
challenge, and permitted the habeas claim to proceed. This case is entirely different. There is no
allegation, much less evidence, of any intentional effort to exclude any particular racial or gender
group from the jury venire. At most, Mr. Carter claims that, as described in a newspaper article, an
inadvertent computer glitch for some undetermined period of time may have had the unintended
effect of limiting the number of African Americans summoned for jury duty. A litigant who was
actually dissatisfied with the number of available African American jurors in this scenario was on
notice of any under-representation of African Americans in the jury pool by his view of the array,
which was all he needed to lodge an objection, if he wished to do so. He did not, and he thereby
procedurally defaulted the claim.
6
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Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability
should be granted. A certificate should issue if the petitioner has demonstrated a “substantial
showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The district court must
“engage in a reasoned assessment of each claim” to determine whether a certificate is warranted, and
each issue must be considered under the standards set forth by the Supreme Court in Slack v.
McDaniel, 529 U.S. 473 (2000). Murphy v. Ohio, 263 F.3d 467 (6th Cir. 2001). Under Slack, to
warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.” 529 U.S. at
484. “A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). In applying this standard, the Court may not conduct a full merits review, but
must limit its examination to a threshold inquiry into the underlying merit of Petitioner’s claims.
Id.
The Court is denying Mr. Carter’s claim concerning the jury venire composition on
procedural grounds, but in a unique setting. Reasonable jurists could certainly conclude either that
the district court has erred in denying the jury venire composition claim on procedural grounds or
that Petitioner should be allowed to proceed further. Indeed, this has already happened in several
similar cases. See, e.g., Parks v. Warren, 574 F. Supp. 2d 737, 744-47 (E.D. Mich. 2008); Powell
v. Howes, No. 05-71345, 2007 WL 1266398 (E.D. Mich. May 1, 2007). Because the Court finds that
reasonable jurists could conclude that this Court’s dismissal of Mr. Carter’s due process claim as
7
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barred by procedural default was debatable or wrong, the Court will grant Mr. Carter a certificate
of appealability on this issue.
ACCORDINGLY, IT IS ORDERED
1.
The Report and Recommendation of the Magistrate Judge, filed December 18, 2009,
is approved and adopted as the opinion of this Court.
Dated:
2.
Mr. Carter’s motion for habeas corpus under section 2254 is DENIED.
3.
A certificate of appealability is GRANTED.
January 8, 2010
/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
8
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY CARTER,
Petitioner,
Case No. 1:09-cv-215
Hon. Robert J. Jonker
v.
BLAINE C. LAFLER,
Respondent.
/
REPORT AND RECOMMENDATION
Petitioner, a prisoner currently incarcerated at a Michigan correctional facility, has
filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner initially filed
this action in the Eastern District on February 9, 2006. Three years later, on March 10, 2009, the
court in that district entered an opinion and order transferring this action to the Western District
(sometimes referred to as the “Order of Transfer”) with directions to perform an evidentiary hearing
on petitioner’s Sixth Amendment claim. See (docket no. 29).1 For the reasons stated below, the
undersigned concludes that an evidentiary hearing is not warranted and that the petition should be
dismissed.
I.
Background
On May 9, 2001, a jury convicted petitioner of armed robbery, M.C.L. § 750.529, and
possession of a firearm during the commission of a felony, M.C.L. § 750.227b. People v. Gregory
1
The proceedings in the Eastern District appear as docket nos. 1 through 30.
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Carter, No. 235590 (Mich. App. April 3, 2003).2 The judge made the following findings at
petitioner’s sentencing:
Well, I note that Mr. Carter is on -- at the time of this offense, was on parole
for armed robbery, and, of course, these sentences have to be consecutive.
I presided at the trial. It was a trial in which Mr. Carter was convicted by, I
think you’d have to say overwhelming evidence. There was, among other things, a
videotape of the robbery, and while such videotapes tend to be of rather poor quality,
this one was excellent, and it showed very clearly Mr. Carter robbing this particular
convenience store.
Sent. Trans. at 3-4 (docket no. 11). Petitioner was sentenced to two years incarceration at the
Michigan Department of Corrections for the felony firearm charge, to be served consecutive “to the
term of incarceration which he’s currently serving and for which he was on parole at the time of this
offense.” Id. at 4. On the charge of armed robbery, petitioner was sentenced to a term of 15 to 40
years in prison for the armed robbery conviction, consecutive to the felony firearm sentence. Id.
Petitioner presented three issues in his direct appeal to the Michigan Court of
Appeals:
I.
Did the court err by allowing a police officer to testify as to her
impressions of alleged statements made by [petitioner] in taperecorded statements from the jail without a proper foundation for
admission and in violation of the best evidence rule, denying
[petitioner] his due process right to a fair trial?
II.
Was [petitioner] denied the effective assistance of counsel where
counsel failed to file an alibi notice or to investigate and prepare an
alibi defense?
III.
Did the trial court abuse its discretion in denying counsel’s motion to
withdraw?
2
The portion of the trial transcript containing the announcement of the jury verdict (i.e., pages 100102) is missing. See docket no. 10.
2
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See Brief on Appeal (docket no. 15). The Michigan Court of Appeals affirmed the conviction.
People v. Gregory Carter, No. 235590. Petitioner did not appeal any of these issues to the Michigan
Supreme Court. See Corbin R. Davis Affidavit (docket no. 12).
On October 27, 2003, the state trial court entered an opinion and order denying
petitioner’s motion for relief from judgment.3 The trial court’s opinion and order summarized
petitioner’s three claims as follows:
In his pleadings, Defendant seeks Relief from Judgment pursuant to MCR
6.501 on the grounds that he was denied his right to a fair trial due to flaws in the
Kent County jury selection which he alleges “systematically excluded” minorities
from the jury pool, ineffective assistance of counsel, and resentencing.
Opinion and Order at 1 (docket no. 13).
The court summarized its conclusions as follows:
During his trial, the Defendant did not object to the composition of the jury,
and therefore, this issue was not properly preserved and can not constitute grounds
for a new trial pursuant to MCR 6.500. Likewise, Defendant has not met the burden
necessary under People v. Pickens, 446 Mich298, 314; 531 NW2d 797 (1994) which
adopted the test for ineffective assistance of counsel that was articulated in
Strickland v. Washington, 446 US 668, 694; 104 Sct 2052; 80 LE2d 674 (1984).
Furthermore, Defendant’s allegations of error relating to his sentence are without
merit.
Id.
Petitioner’s first two claims are relevant to this habeas action. The trial court set forth
the following analysis with respect to the jury issue:
1. Systematic Exclusion of Minorities from the Jury Pool
In 2001, Kent County’s jury selection process came under intense media
scrutiny. It was alleged that the system was fundamentally flawed, leading to a
systematic exclusion of minority jurors from the jury pool. Following media
3
The state court docket sheet does not reflect a filing date for this motion. See docket no. 16.
3
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coverage of this problem, the County determine that a flaw in the random computer
process could, in fact, lead to the disproportionate exclusion of minorities from the
jury pool. The system was subsequently corrected.
Following this revelation many defendants requested new trials on the basis
that they were denied their constitutional right to a fair trial by virtue of this flawed
system. The Court of Appeals addressed this issue recently in People v. McKinney,
___ Mich App ___; ___ NW2d ___ (2003) (Slip copy). In this case the defendant
claimed that African-Americans were “systematically excluded from Kent County’s
jury venires when her trial was conducted.” Id. At ___. The defendant in this case
cites the same newspaper articles that the defendant in the instant matter has attached
as exhibits. The Court of Appeals stated:
Questions concerning the systemic exclusion of minorities in
jury venires are generally reviewed de novo. People v. Hubbard
(After Remand), 217 Mich.App. 459, 472, 552 N.W.2d 493 (1996).
“A criminal defendant is entitled to an impartial jury drawn from a
fair cross section of the community.” Id., citing Taylor v. Louisiana,
419 U.S. 522, 526-531, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). To
establish a prima facie violation of the fair cross-section requirement,
the defendant bears the burden of proving “that a distinctive group
was underrepresented in his venire or jury pool, and that the
underrepresentation was the result of systematic exclusion of the
group from the jury selection process.” People v. Smith, 463 Mich.
199, 203, 615 N.W.2d 1 (2000), citing Duren v. Missouri, 439 U.S.
357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).
The Court of Appeals went on to deny the request for a new trial because defendant
had not raised the issue before the jury was empannelled and sworn. Id. at ___. See
also People v. Dixon, 217 Mich App 400, 404; 552 NW2d 663 (1996). Likewise, the
defendant in the instant matter failed to raise this as an objection during his trial, and
the motion for a new trial should similarly be dismissed.
Id. at 2-3.4
The trial court also denied petitioner’s ineffective assistance of counsel claim,
providing in pertinent part as follows:
4
The Michigan Court of Appeals decision in McKinney has since been published as People v.
MicKinney, 258 Mich. App 157; 670 NW2d 254 (2003).
4
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The Defendant’s argument, in sum, is that his trial counsel was ineffective
due to his failure to investigate a possible alibi defense. The defendant alleges that
he was at a treatment facility in Illinois at the time of the incident. However, this
defense was raised on the evening following the first day of the trial. Furthermore,
the defense counsel did contact the treatment facility and was informed that the
Defendant had not been admitted to the program. Additionally, the defense counsel
attempted to contact the Defendant’s parole officer, but was unable to do so. The
Defendant, therefore, has failed to establish that the defense counsel acted
unreasonably under the circumstances, and his claim of ineffective assistance of
counsel must fail. People v. Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).
Id. at 4.
Petitioner filed a delayed application for leave to appeal this order to the Michigan
Court of Appeals, raising two issues (in his words):
I.
Did the trial court rule erroneously, when it rule that by defendant
counsel failure to object to the composition of the jury at trial,
therefore, his issue was not properly preserved and can not constitute
ground for a new trial pursuant to MCR 6.500.
II.
Was the defendant denied his United States Sixth and Fourteen
Amendments rights to representation by an jury from a fair crosssection of the community. Whereas, there was a serious flaw in the
Kent County computerized jury selection system which
systematically excluded minority jurors from the jury pool.
Application for leave to appeal (docket no. 13).
The Michigan Court of Appeals denied the delayed application “for failure to meet
the burden of establishing entitlement to relief under MCR 6.508(D).” People v. Gregory Carter,
No. 254482 (Mich. App. Aug. 20, 2004) (docket no. 13). Petitioner raised the same two issues in
his application for leave to appeal to the Michigan Supreme Court, which denied the application
“because defendant has failed to meet the burden of establishing entitlement to relief under MCR
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