Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

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 for 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. 

MARKMAN, J. (concurring). 

 I concur and write separately to explain why I believe it is unnecessary to hold this 

case in abeyance for the United States Supreme Court’s decision in Berghuis v Smith, __ 

US __; 130 S Ct 48 (2009). Simply put, because, 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 divides this Court and that panel. 

 In People v Smith, this Court considered whether Kent County’s former juryselection system violated the defendant’s Sixth Amendment right to an impartial jury 

drawn from a fair cross-section of the community. 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 distinctive 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 burden 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 clearly 
2

established federal law. The panel first found fault in this Court’s use of three tests for 

determining “fair and reasonable representation,” 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 method be used to measure underrepresentation 

in Sixth Amendment challenges.” Berghuis, 543 F3d at 337. The panel’s central 

holding, however, focused on our determination that the underrepresentation had not 

occurred as a result of “systematic 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-selection process when such disparities are rooted in “social 

and economic factors.” Id. at 341. The panel did not cite the United States Supreme 

Court case that announced this legal principle—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 defendant’s proffered arguments constituted a Sixth Amendment 

violation and an unreasonable application of Duren, i.e., that the selection of district court 

jurors before the selection of circuit court 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 juries contained more, 

fewer, or a number approximately equal to the 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 the 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 corpus shall not issue unless the 

state court adjudication “resulted in a decision that was contrary to, or an unreasonable 

application of, clearly established Federal law, as determined by the Supreme Court of 

the United States[.]” 28 USC 2254(d)(1). The Sixth Circuit 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 demanded by AEDPA, explaining: “[A] federal 

habeas court may not issue the writ simply because that court concludes in its 

independent judgment that the relevant state-court decision applied clearly established 

federal law erroneously or incorrectly. Rather, that application must also have been 

unreasonable.” Id. (citation and quotation marks omitted). 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, 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 considerable 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 the Sixth Circuit’s misapplication 

of AEDPA than it is the merits of this Court’s understanding of “systematic 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 ___, order 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-selection process did not “systematically 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. 

 CORRIGAN and YOUNG, JJ., join the statement of MARKMAN, J. 

 KELLY, C.J., and HATHAWAY, J., would hold this case in abeyance for Berghuis v 

Smith, cert gtd ___ US ___; 130 S Ct 48; 174 L Ed 2d 631 (September 30, 2009).