Garcia-Dorantes v. Warren

• Decision Date: 09 October 2013
• Docket Number: Case No. 05–10172.
• Citation: 978 F.Supp.2d 815
• Parties: Antonio GARCIA–DORANTES, Petitioner, v. Millicent WARREN, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

978 F.Supp.2d 815

Antonio GARCIA–DORANTES, Petitioner,

v.Millicent WARREN, Respondent.

Case No. 05–10172.

United States District Court,

E.D. Michigan,

Southern Division.

Oct. 9, 2013.

Antonio Garcia–Dorantes, Lapeer, MI, pro se.

Brad H. Beaver, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER ADOPTING IN PART REPORT AND RECOMMENDATION, OVERRULING IN PART RESPONDENT'S OBJECTIONS, AND GRANTING PETITION FOR WRIT OF HABEAS CORPUS

DAVID M. LAWSON, District Judge.

Petitioner Antonio Garcia–Dorantes, presently in the custody of the Michigan department of corrections, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions and sentences for second-degree murder and assault with intent to do great bodily harm less than murder. Counsel subsequently was appointed and filed an amended petition, which contained seven claims, including improper admission of his pretrial statements, which he alleged were involuntary and taken in violation of Miranda v. Arizona; violation of his rights under the Confrontation Clause; denial of a fair trial due to prosecutorial misconduct; ineffective assistance of trial and appellate counsel; denial of due process and equal protection rights through the systematic exclusion of minority jurors in Kent county; and violation his of Sixth Amendment right to a jury trial when the judge calculated his sentencing guidelines on the basis of judge-found facts.

On March 8, 2011, the Court filed an opinion and order denying all claims in the petition except claim VI, relating to the exclusion of minority jurors in Kent County. The Court referred the case to Magistrate Judge Charles E. Binder to conduct an evidentiary hearing and expand the record as to the ethnic composition of the jury venire in the defendant's case. The hearing was held on August 25, 2011, and the parties afterwards filed supplemental briefs on the question whether the petitioner's sixth claim should be allowed to proceed. On January 5, 2012, the magistrate judge issued a report finding that (1) the petitioner's fair cross-section claim was subject to procedural default, because it was denied by the state court of appeals on the basis that the petitioner failed to object to the composition of the panel before the jury was sworn; (2) the petitioner had shown cause for his failure to object, because he could not have known of the computer glitch which led to the systematic exclusion of minority jurors from the venire; and (3) the petitioner did not need to show actual prejudice, because prejudice should be presumed in the case of an alleged structural error, such as a fair cross-section claim. The magistrate judge recommended that the petitioner's fair cross-section claim be allowed to proceed. Addressing the merits, the magistrate judge determined that the petitioner presented a prima facie case of underrepresentation in violation of the Sixth Amendment's fair cross-section requirement and the state offered no compelling justification. The magistrate judge, therefore, recommended conditionally granting the petition for writ of habeas corpus. The respondent filed timely objections, and the petitioner filed a response to the objections.

I.

The respondent filed four objections to the report and recommendation. First, she says the magistrate judge erred in finding cause to excuse the procedural default. Second, she argues that the magistrate judge was mistaken in concluding that prejudice can be presumed when assessing the procedural default defense, even when the error is structural. Third, the respondent believes that the magistrate judge did not assess the evidence of racial disparity properly, and that the petitioner did not demonstrate that the computer glitch caused any such disparity. Fourth, the respondent asserts that Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), and Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), were decided wrongly, and she asserts that the Sixth Amendment does not guarantee the right to a jury selected from a fair cross-section of the community.

On June 28, 2012, the United States Court of Appeals for the Sixth Circuit decided a trio of appeals from decisions on habeas petitions raising fair cross-section claims based on the same Kent County juror selection computer glitch at issue in this case. Ambrose v. Booker, 684 F.3d 638 (6th Cir.2012), cert. denied––– U.S. ––––, 133 S.Ct. 993, 184 L.Ed.2d 771 (2013) (also deciding Carter v. Lafler and Wellborn v. Berghuis ). In each case the respondents asserted a procedural default defense based on the petitioners' failure to make a timely objection to the composition of the jury panel. The Sixth Circuit held that the petitioners in the context of the particular jury selection glitch at issue had established cause for the procedural default, because “where the underrepresentation is as obscure as the one in this case ... a failure to object must be excused.” Ambrose, 684 F.3d at 649. However, the court also held that to excuse a procedural default, a petitioner “must show that he was actually prejudiced regardless of the nature of the underlying constitutional claim.” Id. at 651. Demonstrating actual prejudice requires a showing that “there was a reasonable probability that ‘a properly selected jury [would] have been less likely to convict.’ ” Id. at 652 (quoting Hollis v. Davis, 941 F.2d 1471, 1482 (11th Cir.1991) (alteration in original)).

A.

The Ambrose decision addresses at least two of the issues the respondent raises in her four objections to Judge Binder's report. The first objection is that the magistrate judge erred in finding that cause for the procedural default was established. Ambrose confirms the correctness of the magistrate judge's finding on that issue, and the respondent's objection must be overruled.

B.

The respondent's second objection—that prejudice cannot be presumed in the procedural default context—has merit. The Ambrose court held that the petitioner must show actual prejudice. Neither party addressed actual prejudice in their briefing. In fact, the attorney general apparently confused this case with another, contending that the petitioner was sentenced in state court for armed robbery and possession of a firearm. (This is a murder case involving a knife.) Therefore, on July 23, 2012, the Court ordered the parties to submit supplemental briefs on the issue of actual prejudice, and instructed the parties that “[t]he briefs should include references to specific parts of the record that either highlight or undermine the strength of the prosecution's case.” The parties filed timely briefs in response to the Court's order.

The petitioner argues that he did suffer actual prejudice as a result of the underrepresentation of African–American jurors in his venire, because (1) the evidence was “remarkably close on the only disputed issue at trial—[his] state of mind during a street fight”; (2) “the trial involved issues to which racial minorities are likely to be uniquely sensitive, including the threat of gang violence in unfamiliar urban neighborhoods”; and (3) “reliable scientific evidence shows that in virtually all cases, increased minority participation on juries decreases the likelihood of conviction.” Pet'r's Supp. Brief at 2 (emphasis in original).

The respondent argues that the petitioner cannot establish that actual prejudice occurred because (1) “solid eyewitness testimony identified Petitioner as the man who attacked Jose Gomez and the person who stabbed and injured Manuel Garcia”; (2) “physical and scientific evidence linking Petitioner to the crimes supported the identification testimony and undermined portions of Petitioner's multiple versions of events”; (3) “Petitioner's own contradictory statements and trial testimony, and the failure of the other defense witnesses to provide any support for the claim that Petitioner killed in self-defense substantially weakened the defense”; and (4) “there were no racial or ethnic undertones of any kind in this case such that a jury selected in the absence of the Kent County computer glitch ... would have acquitted or found Petitioner guilty of lesser offenses.”

The Sixth Circuit has explained that “[t]he most important aspect to the [prejudice] inquiry is the strength of the case against the defendant.” Ambrose, 684 F.3d at 652. One possibility is that the “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.” Ibid. (quotation marks and alterations omitted). However, in a close case, where the “jury's verdict rested on a narrow ground,” the petitioner may be able to show “a reasonable probability that ... the result of the proceeding would have been different,” if the case had been presented to an unbiased jury. See Foster v. Wolfenbarger, 687 F.3d 702, 710 (6th Cir.2012). In addition to the strength of the prosecution's case, the Court may also consider “the race of the jurors, defendant, and victim,” where relevant. Ambrose, 684 F.3d at 652 n. 4. If the facts and circumstances of the case suggest that “[comparing] 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, [the Court] would have greater confidence in the latter outcome, finding much less probability that racial bias had affected it,” then this also may support a finding that actual prejudice resulted from the systematic exclusion of jurors of a particular race from the venire. Ibid. (citing Huffman v. Wainwright, 651 F.2d 347, 350 (5th Cir.1981)). The actual prejudice standard that the Court must apply is the same standard that governs ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ambrose, 684...