* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 5 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JOHN CERRONE,

Petitioner-Appellant,

v. ARI ZAVARAS, as the Executive Director of the Department of Corrections of the State of Colorado; ATTORNEY GENERAL FOR THE STATE OF COLORADO,

Respondents-Appellees. No. 96-1219 (D.C. No. 95-S-2303) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL, HENRY, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.1 Petitioner, in the district court, dismissed an une xhausted § 2254 claim

asserting a speedy trial violation. -2- Petitioner appeals the district court’s denial of h abeas relief, 28 U.S.C. § 2254, from his Colorado convictions for pandering and for violating the Colorado Organized Crime Control Act. On appeal, p etitioner argues that, in selecting the grand jury that indicted him, the state court judge impermissibly excluded 1) persons with Spanish surnames; and 2) w age earners. 1 Because petitioner failed to file a timely objection to the magistrate judge’s recommendation to deny relief on his challenge to t he exclusion of wage earners, however, he has waived appellate review of that iss ue. See, e.g. , Talley v. Hesse , 91 F.3d 1411, 1412 (10th Cir. 1996). Although we r ecognize an exception to this firm waiver rule where the ends of justice require review, see id. at 1413, that is not the case here. The single issue presented for resolution, therefor e, is whether the state judge selected the indicting grand jury in a purpos efully discriminatory manner by excluding all prospective jurors with Spanish surnames. If so, petitioner would be entitled to habeas relief. See Vasquez v. Hillery , 474 U.S. 254, 263-64 (1986) (holding discrimination in selection of grand jury is fundamental flaw undermining structural integrity of criminal tribun al itself and, therefore, is not subject to harmless error review).2 The district court’s order denying petitioner habea s relief is dated April 26,

1996, two days after the Antiterrorism and Effectiv e Death Penalty Act (AEDPA) was signed into law. The AEDPA increases the defer ence federal habeas courts must afford state courts’ factual findings and lega l determinations. See Houchin v. Zavaras , 107 F.3d 1465, 1470 (10th Cir. 1997) (considering amended 28 U.S.C. § 2254(d) and (e)). While courts normally apply the law in force at the time of their decision, they will not use the new law if its appl ication would have a retroactive effect. The Supreme Court has recent ly accepted certiorari on this issue. See Lindh v. Murphy , ___U.S.___, 117 S. Ct. 726 . . . (1997) (accepting certiorari on th e question of whether § 107(c) of AEDPA fails to specify the extent to wh ich § 2254(d) is to apply retroactively to pending habeas petitions, and, if so, whether the court correctly determined that the “habeas-curtailing statutes apply retroactively?” 65 U.S.L.W. 3483 (Jan. 14, 1 997)). We need not await the Supreme Court’s decision on these iss ues as [petitioner] cannot prevail under either version of the statute. Houchin , 107 F.3d at 1470 (citation omitted). -3- We grant petitioner’s motion for a certificate of appealability, see 28 U.S.C. § 2253(c), and affirm the denial of habea s relief. In doing so, we review the district court’s legal determinations de novo. See Davis v. Executive Dir. of Dep’t of Corrections , 100 F.3d 750, 756 (10th Cir. 1996), cert. denied , 1997 WL 120775 (1997). Absent procedural error in the state court, we must presume state court factual findings are correct if they are fairly supported by the record. See 28 U.S.C. § 2254; 2see also, e.g. , Purkett v. Elem , 514 U.S. 765, 115 S. Ct. 1769, 1771 (1995) (per curiam).-4-

The indicting grand jury was selected in the follow ing manner, see People
v. Cerrone , 854 P.2d 178, 181-83 & 182 n.5 (Colo. 1993): In response to a petition from the state attorney general, the chief judge for the Denver district court ordered impanelment of a state grand jury, se e Colo. Rev. Stat. § 13-73-101 (subsequently amended in 1996), issuing summonses t o 375 prospective grand jurors from a five-county area. Petitioner does no t challenge the manner in which this original pool of prospective grand jurors was chosen. Each of those summoned then completed a written que stionnaire, which requested information concerning past and present e mployment, educational background, criminal records, prior participation i n judicial proceedings, and any circumstances that might interfere with the prospec tive juror’s service on the grand jury, as well as information concerning immed iate family members, relatives and close friends. The chief judge, “wit h the advice of the attorney general,” id. , § 13-73-103, then selected the members of the grand jury, first by using the answers to the written questionnaires to excuse all but forty-two prospective jurors, then conducting oral voir dire of those remaining potential jurors. Of those excused on the basis of the writt en questionnaires, the chief judge excused fifty prospective jurors for unspecif ied reasons, despite the fact that those jurors had not indicated any reason on their questionnaires that might have prevented them from serving on the grand jury. At least five of those fifty3 Although Batsonaddressed allegations that a prosecutor’s discrimi natory

use of peremptory challenges, in selecting a petit jury, violated equal protection, (continued...) -5- had Spanish surnames. Of the forty-two remaining p rospective grand jurors summoned for oral voir dire, none had Spanish surnames and, consequently, the grand jury indicting defendant also did not have any members with Spanish

surnames. Petitioner alleges that the chief judge purposefull y discriminated against the prospective grand jurors with Spanish surnames when he excluded them from grand jury service. See generallyCastaneda v. Partida , 430 U.S. 482, 483-84, 490, 501 (1977) (affirming grant of habeas relief w here state discriminated against Mexican-Americans in grand jury selection p rocess). Following several pretrial hearings on petitioner’s motion to quash the indictment, however, the state trial court found that the chief judge had no t purposefully discriminated against individuals with Spanish surnames when he s elected the grand jury. See
Cerrone , 854 P.2d at 180-81. The Colorado Supreme Court a ffirmed that factual determination. See id. at 193-94. Because petitioner does not assert any procedural deficiencies, we must presume the correc tness of the state trial court’s factual finding that the chief judge did not purpos efully discriminate when he excluded the prospective grand jurors with Spanish surnames, see Batson v. Kentucky , 476 U.S. 79, 98 n.21 (1986); 3 see also Hernandez v. New York , 5003 (...continued)

the Court noted that “[t]he basic principles prohib iting exclusion of persons from participation in jury service on account of their r ace ‘are essentially the same for grand juries and for petit juries.’” 476 U.S. at 84 n.3 (quoting Alexander v. Louisiana , 405 U.S. 625, 626 n.3 (1972)). -6- U.S. 352, 364, 366-67 (1991), so long as that findi ng is fairly supported by the record. Petitioner bears the burden of proving purposeful d iscrimination in the selection of the indicting grand jury. See Batson , 476 U.S. at 93, 98. In making this determination, however, the court will apply athree-part burden-shifting analysis. See Hernandez , 500 U.S. at 358-59 (citing Batson , 476 U.S. at 96-98). The parties do not dispute that petitioner, in the state court proceeding, met his step-one burden of establishing a prima facie case of discrimination. See also id. at 359 (holding once State offers race-neutral expl anation and trial court rules on ultimate question of intentional discrimination, pr eliminary issue of whether defendant made prima facie case becomes moot). The burden of production then shifted to the State to come forward with a racially neutral explanation for the exclusion of t he Spanish-surnamed jurors. See id. at 358-59 (citing Batson , 476 U.S. at 97-98); see also Purkett , 514 U.S. 765, 115 S. Ct. at 1770. Although the State “must give a ‘clear and reasonably specific’ explanation of . . . ‘legitimate reasons’ ” for the exclusion of all prospective grand jurors with Spanish surnames, Bat son , 476 U.S. at 98 n.204 On appeal, petitioner asserts that eighteen of the nineteen volumes of

transcript included in the state court record have been lost. Nonetheless, petitioner does not indicate that this lack of reco rd has affected his ability to present this claim for § 2254 relief and does not d ispute, but rather relies, himself, on the evidentiary summaries in the state appellate courts’ decisions. See Appellant’s Opening Br. at 3 n.1; see also Thomas v. Kerby , 44 F.3d 884, 886 n.2 (10th Cir. 1995); Milone v. Camp , 22 F.3d 693, 697 n.2 (7th Cir. 1994). Under these circumstances, we do not deem the loss of the transcripts to be “a substantial impediment to petitioner’s appeal or ou r review thereof.” Thomas , 44 F.3d at 886 n.2. -7- (quoting Texas Dep’t of Community Affairs v. Burdin e , 450 U.S. 248, 258 (1981)), this second step does not demand an explan ation that is persuasive or even plausible, but only one that is race neutral, see Purkett , 514 U.S. 765, 115 S. Ct. at 1771. If the State met its burden at this s econd step, then petitioner would have had the burden of proving purposeful discrimin ation. See Hernandez , 500 U.S. at 359 (citing Batson , 476 U.S. at 98); see also Purkett , 514 U.S. 765, 115 S.
Ct. at 1770-71. The trial court determined that the State had met i ts burden of production by presenting the testimony of a deputy attorney ge neral and an assistant attorney general, both of whom advised and assisted the Denv er chief judge in selecting the grand jury that indicted petitioner, and two as sistant attorneys general who had assisted the chief judge in selecting statewide grand juries in other years. See
Cerrone , 854 P.2d 180-81. 4Their testimony indicated that the chief judge . . . tried to select from the orig inal random pool of 375 a venire of approximately 40 who were more high ly educated, on-8-

the assumption that additional formal education wou ld tend to help them understand the cases that would come before th em. . . . [T]he chief judge also tried to select persons with jobs and family commitments that would most easily allow them witho ut hardship to be away from work or home nearly every Friday for o ne year, operating on the assumption that persons who work f or hourly wages are more likely to lose pay when serving on a state grand jury than are salaried employees, with the result that servin g on a state grand jury is often more of a hardship for hourly wage earners. Finally, . . . the chief judge thought that the jury selection statutes could be interpreted as not permitting the consideration of more than 75 people from any one county, that as a result the ch ief judge routinely excluded from the venire persons who were summoned from addresses in one county but who had moved to a diff erent county, and that this was the most likely explanation for the exclusion of two of the Spanish-surnamed individuals in question. Id. at 190 (footnote omitted); see also id. at 192-93. Further, the deputy attorney general testified that the chief judge made an affi rmative effort to select individuals from minority groups to serve on grand juries, had in other years selected grand jurors with Spanish surnames, and th at the chief judge’s exclusion of the particular Spanish-surnamed prospective gran d jurors in petitioner’s case was consistent with what the deputy attorney genera l would have advised, or did advise, the chief judge in this case, based upon th e race-neutral criteria previously set forth. See id. at 192. The deputy attorney general also indicated that it had been his experience that, although prospective jurors did not include o n their questionnaire possible problems with service on the grand jury, when they appeared for voir dire, one-third to one-half of them changed their minds and did assert that they would-9-

be unable to serve. See id. at 192. For that reason, “those who screen the questionnaires try to anticipate such occurrences and will recommend exclusion of a potential juror on the basis of a perceived possi ble hardship even if that person does not identify any specific hardship on the ques tionnaire.” Id. Citing Castaneda , 430 U.S. 482, petitioner argues that the State co uld not rebut his prima facie showing of discrimination without presenting the testimony of the decisionmaker ultimately responsible for sel ecting the grand jury, the Denver district court’s chief judge. Castaneda , however, is distinguishable. Under the Texas grand jury selection procedure at i ssue in Castaneda , jury commissioners, appointed by a state district judge, selected prospective grand jurors from the community at large, and then the st ate judge would test their qualifications to serve on a grand jury, based uponan inquiry dictated by state
statute. See id. at 484-85. In response to the defendant’s prima f acie showing of discrimination, “the State introduced practically n o evidence.” Id. at 498. Although the State presented the testimony of the s tate court judge that appointed the jury commissioners regarding his selection of, and general instructions to, those commissioners, see id. at 490-91, 498, “[t]he jury commissioners themselves, who were the only ones in a position to explain the apparent substantial underrepresentation of Mexican-American s and to provide information-10-

on the actual operation of the selection process, w ere never called” to testify, id.
at 491. Unlike in Castaneda , the State in this case was able to assert a racia lly neutral explanation for the exclusion of all of the prospective grand jurors with Spanish surnames through the testimony of those actually involved in the selection process. Although the State did not pres ent the testimony of the chief judge, who alone possessed the ultimate authority t o select those members of the grand jury pool that would participate in voir dire and those who would eventually make up the grand jury, the State did pr esent the testimony of the deputy and assistant attorneys general, who activel y participated, assisted and advised the chief judge in making these selections. Those witnesses were able to testify to specific, race-neutral criteria used to excuse prospective jurors prior to oral voir dire. Further, the state trial judge had the opportunity to test those race-neutral reasons by comparing the questionnaire s of those prospective grand jurors chosen for voir dire and those excluded base d upon their written responses.
See Cerrone , 854 P.2d at 192. This testimony was sufficient to meet the State’s b urden of production and also fairly supported the state trial court’s factu al determination that the chief judge had not purposefully discriminated in selecti ng the grand jury that indicted petitioner. We must presume this finding to be correct. We, therefore, need not-11-

consider the affidavit of the chief judge, submitte d by the State to the federal district court as part of its objections to the mag istrate judge’s recommendation. We AFFIRM the judgment of the United States Distric t Court for the District of Colorado denying petitioner habeas reli ef. Entered for the Court

David M. Ebel Circuit Judge