Michigan Supreme Court Lansing, Michigan

Marilyn Kelly, Chief Justice
Michael F. Cavanag h Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway, J ustices 

# Order

December 18, 2009

138871

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v SC: 138871 COA: 289477 Wayne CC: 07-013716-FC TERRANCE WARD, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the application fo r leave to appeal the April 9, 2009 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

M ARKMAN , J. ( concurring ).

I concur and write separately to explain w hy I believe it is unn ecessary to hold this case in abeyance for th e United States Supreme Court’s decision in Berghuis v Smith

, __ US __; 130 S Ct 48 (2009). Simply put, beca use, in my judgment, this Court’s decision in People v Smith

, 463 Mich 199 (2000), was correct —and, consequently, the Sixth Circuit panel’s decision granting habeas relief to Smith was incorrect—there is no need to wait for the United States Supreme Court’s decision, which may or may not even address the jury-venire issue that di vides this Court and that panel.

In People v Smith

, this Court considered whether Kent County’s former juryselection system violated the defendant’s Si xth Amendment right to an impartial jury drawn from a fair cross-section of the comm unity. This Court asserted that under Duren v Missouri
, 439 US 357 (1979), to demonstrate a prima facie violation of the fair crosssection requirement, “defendant must show that a distinc tive 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.” Smith , 463 Mich at 203. We concluded that defendant Smith had not satisfied this burde n because he had failed to demonstrate “systematic exclusion.” Id.

In Smith v Berghuis

, 543 F3d 326, 340 (CA 6, 2008), a panel of the Sixth Circuit held that our decision in Smith constituted an unreasonable application of clearly2

established federal law. The pa nel first found fault in this Court’s use of three tests for determining “fair and reasonable representa tion,” although each of these has been employed by federal courts and the panel acknowledged that the United States Supreme Court “has not mandated that a particular me thod be used to measure underrepresentation in Sixth Amendment challenges.” Berghuis

, 543 F3d at 337. Th e panel’s central holding, however, focused on our determina tion that the underrep resentation had not occurred as a result of “s ystematic exclusion.” Id. at 340. Specifically, it concluded that, contrary to this Court’s conclusion in Smith , the Sixth Amendment is concerned with the “disparate impact” of a jury-s election process when such disp arities are rooted in “social and economic factors.” Id. at 341. The panel did not c ite the United States Supreme Court case that announced this legal prin ciple—which it found that we (unreasonably) did not apply in Smith

. Moreover, in applying its own test to the facts of Berghuis

, the panel still found that only one of de fendant’s proffered arguments constituted a Sixth Amendment violation and an unreas onable application of Duren
, i.e., that the selection of district court jurors before the selection of circuit cour t jurors systematically siphoned off minority jurors from the circuit court pool. Id. at 342. On this point, the panel reasoned that we misapplied Duren by requiring that a defendant’s proof be “unequivocal.” Id. at 343

. However, what we, in fact, required in Smith was not “unequivocal” proof, just some proof, explaining that “[n]o evidence has shown that district court ju ries contained more, fewer, or a number approximately equal to th e number of minority jurors appearing in circuit court.” Smith

, 463 Mich at 225

.
Thus, in Berghuis , the Sixth Circuit applied a test without a basis in United States Supreme Court precedent and discerned a Sixth Amendment violation after misapprehending one of this Court’s statements in Smith. The Sixth Circuit’s decision seems dubious even before th e highly deferential standard of review of state law prescribed by Congress in the Anti-Terrorism and Effective Death Penalty Act (AEDPA) is considered. Pursuant to AEDPA, a writ of habeas corp us shall not issue unless the state court adjudication “resulted in a decisi on that was contrary to, or an unreasonable application of, clearly estab lished Federal law, as determ ined by the Supreme Court of the United States[.]” 28 US C 2254(d)(1). The Sixth Circ uit itself has clarified that “clearly established federal law” is determined by “the holdings, as opposed to the dicta,” of United States Supreme Court decisions, as of the time of the state court decision under review. Walls v Konteh

, 490 F3d 432, 436 (CA 6, 2007). Further, that court has underscored the high level of deference dema nded by AEDPA, explaining: “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant stat e-court decision applie d clearly established federal law erroneously or incorrectly. Rath er, that application must also have been unreasonable.” Id . (citation and quotation marks omitted).I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk December 18, 2009 y1215 3

That is, the Sixth Circuit panel in Berghuis , acting in habeas, was bound by AEDPA to accord consider able deference to this Court’s decision in Smith . Yet the panel appeared to substitute its own judgment about matters on which the United States Supreme Court has yet to speak. I would venture to suggest that when the Supreme Court considers Berghuis , it is more likely to address th e Sixth Circuit’s misapplication of AEDPA than it is the merits of this Cour t’s understanding of “sys tematic exclusion.” However, it is unnecessary to engage in this type of speculation in order to properly resolve the case before us. In People v Jackson , ___ Mich ___, orde r of the Michigan Supreme Court, entered December 18, 2009 (Docket No. 139428), the chief judge of the Wayne County Circuit Court reasonably relied on this Court’s decision in Smith to rule that the county’s jury-selecti on process did not “s ystematically exclude” minorities. Because our decision in Smith was correct, in my judgment, defendant’s fair cross-section challenge fails and his application for leave to appeal is properly denied.

C ORRIGAN and Y OUNG , JJ., join the statement of M ARKMAN , J.

K ELLY , C.J., and H ATHAWAY , J., would hold this case in abeyance for Berghuis v Smith , cert gtd ___ US ___; 130 S Ct 48; 17 4 L Ed 2d 631 (September 30, 2009).