Ambrose v. Booker

• Decision Date: 29 August 2012
• Docket Number: 09–1539.,10–1247,Nos. 11–1430,s. 11–1430
• Citation: 684 F.3d 638
• Parties: Joseph AMBROSE, Petitioner–Appellee, v. Raymond D. BOOKER, Respondent–Appellant. Gregory Carter, Petitioner–Appellant, v. Blaine Lafler, Respondent–Appellee. Carl Burnie Wellborn, Petitioner–Appellant, v. Mary Berghuis, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

684 F.3d 638

Joseph AMBROSE, Petitioner–Appellee,

v.Raymond D. BOOKER, Respondent–Appellant.

Gregory Carter, Petitioner–Appellant,

v.Blaine Lafler, Respondent–Appellee.

Carl Burnie Wellborn, Petitioner–Appellant,

v.Mary Berghuis, Respondent–Appellee.

Nos. 11–1430, 10–1247, 09–1539.

United States Court of Appeals, Sixth Circuit.

Argued: Feb. 28, 2012.

Decided and Filed: June 28, 2012.

Rehearing and Rehearing En Banc Denied Aug. 29, 2012.

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.

Before: MERRITT and ROGERS, Circuit Judges, and POLSTER, District Judge.^*

OPINION

ROGERS, Circuit Judge.

These habeas petitions involve the far-reaching effects of an unintentional computer glitch that caused the systematic underrepresentation of African–Americans in the jury pools of Kent County, Michigan. The three petitioners received separate jury trials in Kent County in either 2001 or 2002. At jury selection, the petitioners did not object to the racial composition of their respective jury venires, and were subsequently convicted. A few months later, the Grand Rapids Press published a story detailing how Kent County's jury selection software had a computer glitch that had systematically excluded African–Americans from the jury pool. In light of these revelations, the petitioners each filed motions for post-conviction relief in state court. The state court found that the petitioners had waived these claims by failing to object to the racial composition of the jury venire during voir dire.

The petitioners each filed a § 2254 habeas petition. The Western District of Michigan denied two of the petitions— Carter v. Lafler, No. 10–1247, and Wellborn v. Berghuis, No. 09–1539—holding that the petitioners had not shown cause to excuse their procedural default. In Ambrose v. Booker, No. 11–1430, the Eastern District of Michigan granted habeas relief. The Ambrose court held that the petitioner could not have known of the computer glitch, presumed prejudice because the glitch caused a structural error, and then granted the petition on the merits. Remand in all three cases is appropriate because the petitioners have shown cause to excuse their defaults, but federal-state comity requires that the district court find actual prejudice before granting relief.

I.

1. Ambrose

On April 19, 2001, a Kent County jury convicted Joseph Ambrose of two counts of armed robbery, one count of carjacking, and one count of felony-firearm possession. Ambrose v. Booker, 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.”

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, 474 Mich. 931, 706 N.W.2d 16 (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.

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 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...