U.S. v. Orange, No. 05-6105.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtPaul Kelly, Jr.
Citation447 F.3d 792
Decision Date02 May 2006
Docket NumberNo. 05-6105.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Keith Lamar ORANGE, Defendant-Appellant.
447 F.3d 792
UNITED STATES of America, Plaintiff-Appellee,
v.
Keith Lamar ORANGE, Defendant-Appellant.
No. 05-6105.
United States Court of Appeals, Tenth Circuit.
May 2, 2006.

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Kerry A. Kelly, Assistant U.S. Attorney (and John C. Richter, U.S. Attorney, on the briefs), Oklahoma City, OK, for Plaintiff-Appellee.

Gary S. Peterson, Oklahoma City, OK, for Defendant-Appellant.

Before KELLY, BRISCOE, and McCONNELL, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.


Petitioner-Appellant Keith Lamar Orange, appeals from the district court's denial of his 28 U.S.C. § 2255 petition based on claims of ineffective assistance of counsel. United States v. Orange, 364 F.Supp.2d 1288 (W.D.Okla.2005). On appeal, Mr. Orange argues that his trial counsel was ineffective because he failed to challenge the jury composition of Mr. Orange's grand and petit juries, and did not do any factual investigation. Mr. Orange maintains that this professionally unreasonable decision prejudiced him because a jury composition challenge would have succeeded. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Background

On March 18, 1998, a federal grand jury in the Western District of Oklahoma indicted Mr. Orange on one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 286, and five counts of filing and causing a false claim to be presented to a United States agency, in violation of 18 U.S.C. § 287 & 18 U.S.C. § 2. The case was based on Mr. Orange's substantial participation in "an elaborate scheme operated from prison to file fraudulent income tax returns seeking refunds." United States v. Orange, No. 99-6009, 2000 WL 757735, at *1 (10th Cir. June 12, 2000) (unpublished). On August 27, 1998, following a four day trial, a jury convicted Mr. Orange on these counts. The district court sentenced Mr. Orange to 78 months imprisonment on the conspiracy count and 60 months imprisonment on the remaining counts, all sentences to run concurrently. The court also imposed a three year term of supervised release. His conviction was upheld on direct appeal, and the Supreme Court denied certiorari. Orange v. United States, 531 U.S. 939, 121 S.Ct. 332, 148 L.Ed.2d 267 (2000).

Proceeding pro se, Mr. Orange filed a motion pursuant to 28 U.S.C. § 2255 on October 11, 2001, raising a variety of claims. R. Doc. 294. Pertinent to this case, Mr. Orange challenged the district's jury selection process, both facially and as applied, as violative of his Sixth Amendment right to a fair cross section and his Fifth Amendment right to equal protection. R. Doc. 294 at 6-10. Mr. Orange also alleged ineffective assistance of counsel,

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because of his trial counsel's failure to challenge the ethnic composition of Mr. Orange's jury. R. Doc. 299 at 2. The district court denied relief, R. Doc. 302, finding that Mr. Orange failed to demonstrate a systematic exclusion of a group or that the district's use of voter registration lists as the source for the master jury wheel names was constitutionally or statutorily unsound. R. Doc. 301 at 4.

Mr. Orange appealed, and this court denied Mr. Orange's request for a certificate of appealability ("COA") on all issues and dismissed the appeal. United States v. Orange, 49 Fed.Appx. 815 (10th Cir.2002) (unpublished). In dismissing the appeal, the panel determined that (1) Mr. Orange failed to make a sufficient showing on either his facial or as-applied challenges to jury composition and (2) having found that the jury composition challenges were without merit, counsel was not ineffective for failing to raise them. Id. at 817.

On rehearing, a split panel reversed the district court's ruling on Mr. Orange's ineffective assistance of counsel claim as it related to the jury composition issue. R. Doc. 312 at 4. This court instructed the district court to (1) determine whether trial counsel's failure to challenge the jury composition was strategic, and if not, (2) investigate the merits to determine whether Mr. Orange can show deficient performance and prejudice sufficient to establish ineffective assistance of counsel. Id. at 4-5.

The district court appointed counsel and held evidentiary hearings over several days, wherein it was established that prior to trial, Mr. Orange asked his counsel, Stan Parsons, to pursue a jury composition challenge. Tr. Vol. 11 at 14-16, 49-50. Mr. Parsons testified that in response to Mr. Orange's request, he undertook legal research and, based on that research, concluded a jury composition challenge was unlikely to succeed. Id. at 16-18. Mr. Parsons visited with Mr. Orange, shared his research and did not recall Mr. Orange bringing up the subject again. Id. at 18. Not surprisingly, Mr. Orange remembered the events differently. He testified that after he brought up the jury composition motion with Mr. Parsons, Mr. Parsons "never mentioned it again." Id. at 50. Mr. Orange testified that he followed up with Mr. Parsons, who told him he "hadn't got around to it." Id. Mr. Orange also claimed he asked Mr. Parsons to object to the jury composition on the first day of trial and Mr. Parsons responded that it was too late. Id. at 51. On February 25, 2004, the district court heard testimony about the practice in the Western District of Oklahoma regarding factual investigation into jury composition issues and the rarity of such requests.

On January 18, 2005, the district court held a hearing to address the Western District's jury selection method and relevant statistical analysis. The district has four divisions for jury selection purposes, and a jury wheel is maintained for each of the divisions. Tr. Vol. 3 at 21-22. To create the master jury wheel, the clerk's office randomly and publicly selects a starting number. The master jury wheel contains only names and addresses. Every sixteenth name thereafter is selected. Id. at 44-45. The clerk's office sends out juror questionnaires to the people whose names are drawn in order to create the

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qualified jury wheel. Id. at 24-25.2 Only jurors who return the questionnaires are included on the qualified jury wheels. Both the master and qualified jury wheels are created on a random basis. Id. at 35-36.

The district court heard expert testimony and received exhibits on the racial composition of the 1993 and 1997 jury wheels.3 The 1993 district wide4 qualified wheel was comprised as follows:

--------------------------------------------------
                Distinctive Black Indian Asian Hispanic
                Group
                --------------------------------------------------
                Percentage of 7.40 4.21 1.47 3.02
                voting age
                population
                (1990 Census)
                --------------------------------------------------
                Percentage of 4.78 2.66 .67 1.36
                qualified
                venire
                --------------------------------------------------
                Absolute 2.62 1.55 .80 1.66
                Disparity
                --------------------------------------------------
                Comparative 35.41 36.82 54.41 54.97
                Disparity
                --------------------------------------------------
                

Orange, 364 F.Supp.2d at 1295; Aplt. Br. at 14; Aplee. Br. Addendum at unnumbered 28. The 1997 qualified wheel for the Oklahoma City division (where Mr. Orange's petit jury was selected from) was comprised as follows:

--------------------------------------------------
                Distinctive Black Indian Asian Hispanic
                Group
                --------------------------------------------------
                Percentage of 8.63 4.27 1.64 2.74
                voting age
                population
                (1990 Census)
                --------------------------------------------------
                Percentage of 5.06 2.64 .80 1.49
                qualified
                venire
                --------------------------------------------------
                Absolute 3.57 1.63 .84 1.25
                Disparity
                --------------------------------------------------
                Comparative 41.37 38.17 51.22 45.62
                Disparity
                --------------------------------------------------
                

Orange, 364 F.Supp.2d at 1295; Aplt. Br. at 12; Aplee. Br. Addendum at unnumbered 28. On appeal, these numbers are undisputed.

The district court held that Mr. Orange could not establish any prejudice resulting from counsel's performance, and first declined to decide whether that performance was deficient. Orange, 364 F.Supp.2d. at 1298. Immediately thereafter, the district court noted that Mr. Parsons certainly viewed his decision not to challenge the jury selection procedure as strategic, and then indicated that such a decision was not deficient performance. Id. This appeal followed.

Discussion

We review the district court's legal rulings on a § 2255 motion de novo and its findings of fact for clear error. United States v. Pearce, 146 F.3d 771, 774 (10th Cir.1998). A claim for ineffective assistance of counsel presents a mixed question of fact and law, which we review de novo. Boltz v. Mullin, 415 F.3d 1215, 1221 (10th Cir.2005).

In order to establish a successful claim for ineffective assistance of counsel, Mr. Orange must show (1) that counsel's performance was deficient, and (2) that this deficient performance prejudiced his defense, depriving him of a fair trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, Mr. Orange claims ineffective assistance, based on counsel's failure to file a motion or object based on jury composition. Because Mr. Orange must demonstrate both Strickland

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prongs to establish his claim, id. at 692, 104 S.Ct. 2052, a failure to prove either one is dispositive. Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052) ("The performance component need not be addressed first. `If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.'"); see also Romano v. Gibson, 239 F.3d 1156, 1181 (10th Cir.2001) ("This court can affirm the denial of habeas relief on whichever Strickland prong is the easier to resolve.").

To satisfy the prejudice prong, Mr. Orange must show that there is a reasonable...

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    • United States State Supreme Court of Iowa
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    ...judgments.’ " (alteration in original) (quoting Ramseur v. Beyer , 983 F.2d 1215, 1233 (3d Cir. 1992) )); United States v. Orange , 447 F.3d 792, 800 (10th Cir. 2006) ("The circuits are ‘in complete agreement that neither the Act nor the Constitution require that a supplemental so......
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    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • June 8, 2010
    ...any underrepresentation of a minority group was unreasonable and unfair. Smith, 130 S.Ct. at 1394 n. 5 (citing United States v. Orange, 447 F.3d 792, 798-799, and n. 7 (10th Cir.2006) (absolute disparity of 3.57%; comparative disparities "rang[ing] from 38.17% to 51.22%"); United ......
  • Omotosho v. Giant Eagle, Inc., Case No. 4:11CV00441.
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    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • January 31, 2014
    ...against any group. Finally, other circuits have considered and rejected the theory offered by Plaintiff. See United States v. Orange, 447 F.3d 792, 800 (10th Cir.2006) (no systematic exclusion where “the clerk's office made no effort to update addresses before mailing questionnaires, or any......
  • United States v. Barlow, No. 09-CR-580 (JFB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 5, 2010
    ...(9th Cir.2007) (indicating that 4.15% absolute disparity for Native Americans was constitutionally permissible); United States v. Orange, 447 F.3d 792, 798 (10th Cir.2006) (finding 3.57% absolute disparity fell "far short" of Sixth Amendment violation); United States v. Royal, 174......
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184 cases
  • State v. Veal, No. 17-1453
    • United States
    • United States State Supreme Court of Iowa
    • May 24, 2019
    ...judgments.’ " (alteration in original) (quoting Ramseur v. Beyer , 983 F.2d 1215, 1233 (3d Cir. 1992) )); United States v. Orange , 447 F.3d 792, 800 (10th Cir. 2006) ("The circuits are ‘in complete agreement that neither the Act nor the Constitution require that a supplemental so......
  • Parker v. Phillips, No. 04-CV-0826(VEB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • June 8, 2010
    ...any underrepresentation of a minority group was unreasonable and unfair. Smith, 130 S.Ct. at 1394 n. 5 (citing United States v. Orange, 447 F.3d 792, 798-799, and n. 7 (10th Cir.2006) (absolute disparity of 3.57%; comparative disparities "rang[ing] from 38.17% to 51.22%"); United ......
  • Omotosho v. Giant Eagle, Inc., Case No. 4:11CV00441.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • January 31, 2014
    ...against any group. Finally, other circuits have considered and rejected the theory offered by Plaintiff. See United States v. Orange, 447 F.3d 792, 800 (10th Cir.2006) (no systematic exclusion where “the clerk's office made no effort to update addresses before mailing questionnaires, or any......
  • United States v. Barlow, No. 09-CR-580 (JFB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 5, 2010
    ...(9th Cir.2007) (indicating that 4.15% absolute disparity for Native Americans was constitutionally permissible); United States v. Orange, 447 F.3d 792, 798 (10th Cir.2006) (finding 3.57% absolute disparity fell "far short" of Sixth Amendment violation); United States v. Royal, 174......
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