Petitioner, Carl Burnie Wellborn, is married to Lee Ann Wellborn ("Mrs. Wellborn"). He is the step-father to Mrs. Wellborn's two daughters, Lisa and Deana. He is also the step-grandfather to Lisa's daughter AF, and Deana's daughters CR and AR. Mrs. Wellborn is the biological mother of Lisa and Deana, and the biological grandmother of AF, CR and AR. Mrs. Wellborn's ex-husband, Mr. Faunce, is the biological father of Lisa and Deana, and the biological grandfather of AF, CR and AR.
Petitioner was charged with two counts of first-degree criminal sexual conduct (CSC), M.C.L. § 750.520b(1)(b), and two counts of second-degree CSC, M.C.L. § 750.520c(1)(a) and (b). The victims were his step-granddaughters, AF and CR. After a trial in the Kent County Circuit Court, the jury returned a verdict of guilty on Count I (first-degree CSC involving AF), Count II (second-degree CSC involving AF), and Count III (second-degree CSC involving CR). Trial Trans. V at 99-105, 109-111 (docket no. 28); Trial Trans. VI at 6 (docket no. 21); Verdict Form (docket no. 80); People v. Wellborn, No. 242229, 2003 WL 22961704 at *1 (Mich. App. Dec. 16, 2013).2 The Kent County Circuit Court sentenced petitioner to 10 to 30 years imprisonment for the first-degree CSC conviction and 10 to 15 years imprisonment for each of the second-degree CSC convictions. Sent. Trans. at 13 (docket no. 22). The Michigan Court of Appeals affirmed petitioner's convictions and the Michigan Supreme Court denied his application for leave to appeal. People v. Wellborn, 2003 WL 22961704 at *1-3; People v. Carl Burnie Wellborn III, 470 Mich. 886 (June 30, 2004).
On May 16, 2005, petitioner filed the present federal habeas action seeking relief on the following grounds:
I. Whether petitioner was denied his right to the effective assistance of counsel where counsel forewent the opportunity to introduce evidence of a complainant's prior false allegations of sexual abuse which resulted in the petitioner's acquittal, and where counsel agreed that the acquittal was inadmissible?
A. Was petitioner's acquittal of the complainant's allegations in the Montcalm County case admissible as evidence of prior false allegations of sexual abuse, in conjunction with the Sixth Amendmentconfrontation clause and the Fourteenth [sic] Due Process Clause right to present a complete defense.
B. Was petitioner's trial counsel's concession that the prior acquittal was not admissible, a deprivation of petitioner's Sixth Amendment right to the effective assistance of counsel in conjunction with the Sixth Amendment confrontation clause and Fourteenth Amendment due process clause right to present a complete defense.
II. Whether petitioner was denied his constitutional right to a jury drawn from a venire representative of a fair cross-section of the community where Kent County has publicly acknowledged that due to a computer error, nearly seventy-five percent of the county's eligible jurors were being excluded in such a way as to under-represent African-Americans and other minorities?
Report and Recommendation (R&R) at PageID.194-195 (Sept. 16, 2008) (docket no. 32).
In an R&R entered on September 16, 2008, the magistrate judge recommended that the petition be denied. See R&R (docket no. 32). In reaching this determination, the magistrate judge found that the ineffective assistance of trial counsel claims failed on the merits, and that the jury venire claim was procedurally defaulted. Id. Shortly thereafter, the Sixth Circuit issued its opinion in Smith v. Berghuis, 543 F.3d 326 (6th Cir. 2008), which held that Kent County's method of selecting jurors violated the habeas petitioner's Sixth Amendment right to an impartial jury drawn from a fair cross-section of the community. Although the jury selection error in Smith v. Berghuis did not involve the computer error at issue in this case, in an abundance of caution, the outstanding R&R was dismissed as moot and the matter remanded for issuance of a new R&R, with instructions to consider the impact of Smith v. Berghuis on petitioner's claims. See Order (docket no. 36).
The second R&R addressed petitioner's jury venire claim in pertinent part as follows:
In his second habeas claim, Petitioner contends that he was denied his constitutional right to a jury drawn from a fair cross-section of the community. The Sixth Amendment guarantees a criminal defendant 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).
While acknowledging this right in its entirety, the rule in Michigan has for some time been that a defendant can be precluded from raising the issue on appeal if he does not timely raise it at trial. See People v. McCrea, 303 Mich. 213, 278 (1942). In People v. Carter, 462 Mich. 206 (2000), the Michigan Supreme Court stated that a defendant cannot waive an objection to an issue at trial and then make a claim of error on appeal. In that instance, the court found that because the defendant's counsel had expressed satisfaction with the trial court's jury instructions, the defendant had waived the issue. Id.
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.
Petitioner, a Caucasian, argues that systematic errors in the Kent County Jury Management System caused a disproportionately low number of jury notices to be sent to residences in zip codes with proportionally larger African-American and other minority populations. (Pet'r's Br. in Supp. of Pet. at 36, 42-43.) Relying mainly on newspaper articles, Petitioner argues in part that:
In a story that first appeared in the July 30, 2002, Grand Rapids Press, Kent County officials conceded that their own review of their computer system revealed that "nearly seventy-five 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 the . . . 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, was quoted as saying, "There has been a mistake - a big mistake." The article states that trouble-shooters detected the error in mid-July of 2002, and that the error had gone undetected for sixteen months. (Appendix E, page 1 of 4 of article of July 30, 2002 attached).
(Pet'r's Br. in Supp. of Pet. at 38.).
In Petitioner's case, jury selection occurred on March 19, 2002. (Pet'r's Br. in Supp. of Pet. at 36.) This would have been within the period during which the computer error purportedly occurred in the Kent County Jury Management System.
Petitioner, however, did not challenge the jury array at trial. If he felt the jury venire looked too much like him, he did not say so. At the close of jury voir dire, Petitioner's counsel stated: "Your Honor, the defense is satisfied with the panel." (Tr. I, 169.) The jury was then empaneled and sworn. There were no objections regarding the composition of the jury array at any time during the trial, much less during the voir dire, and trial counsel's statement constitutes an express waiver of the issue.
Although this Court cannot discern the race of the individual members of the jury array from the trial record, because Petitioner did not preserve the issue, Petitioner now contends that "[o]ut of approximately 70 potential jurors available to serve that day, I saw only 2 African-Americans present. There were no African-American jurors or alternates on my jury." (App. J. to Pet'r's Br. in Supp. of Pet.; docket #2.) Petitioner's statement indicates he was well aware of the composition of the jury venire when he chose to accept the jury.
The Michigan Court of Appeals determined that Petitioner waived his challenge to the venire and jury selection process because his trial counsel expressed satisfaction with the jury's composition. (MCOA Op. at 2.) When a state-law default prevents further state consideration of a federal issue, the federal courts ordinarily are precluded from considering that issue on habeas corpus review. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Engle v. Isaac, 456 U.S. 107 (1982). A procedural default is "a critical failure to comply with state procedural law." Trest v. Cain, 522 U.S. 87, 89 (1997). It will bar consideration of the merits of a federal claim if the state rule is actually enforced and is an adequate and independent ground for the state court's decision. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir., 2002).
To determine whether a petitioner procedurally defaulted a federal claim in state court, the Court must consider whether: (1) the petitioner failed to comply with an applicable state procedural rule; (2) the last state court rendering judgment on the claim at issue
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