The Honorable Philip P. Simon of the United States District

1

Court for the Northern District of Indiana, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2766

JEFFREY WHITE,

Petitioner-Appellant,

v.

DONALD GAETZ, Acting Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 07-2112—Michael P. McCuskey, Chief Judge.

ARGUED OCTOBER 5, 2009—DECIDED DECEMBER 21, 2009

Before EVANS and SYKES, Circuit Judges, and SIMON,

District Judge.1

SIMON, District Judge. When a trial judge looks out

over the courtroom and sees no one sitting there, it presents a practical problem when he or she is trying to com-
2 No. 08-2766

plete jury selection. Illinois deals with this problem with

a “bystander” venire statute which authorizes the judge

to order the local sheriff to round up people and bring

them to court so that jury selection can be completed.

This process was used to select the final juror in the trial

of Jeffrey White in which he was convicted of first degree

murder. In this appeal from the denial of a habeas corpus

petition brought pursuant to 28 U.S.C. §2254, White

claims that the way in which the bystander venire was

selected violated his constitutional right to have his jury

selected from a fair cross section of the community. He

seeks a new trial. The district judge denied the petition,

and we affirm.

During jury selection of White’s trial, after ten jurors

had been seated, the pool of prospective jurors was exhausted. One of the two remaining slots was eventually

filled by a member of the original jury pool and the selection of that juror is not in dispute in this appeal. But in

order to fill the final seat the trial judge invoked Illinois’

standby juror statute which provides:

When by reason of challenge in the selection of a

jury for the trial of any cause, or by reason of the

sudden sickness or absence of any juror for any

cause, the regular panel is exhausted, the court may

direct the sheriff to summon a sufficient number of

persons having the qualifications of jurors to fill the

panel for the pending trial, but upon objection by

either party to the cause to the sheriff summoning

a sufficient number of persons to fill the panel, the

court shall appoint a special bailiff to summon

such person . . . .
No. 08-2766 3

Some of these facts come from the state court trial transcript. 2

White filed a motion, objected to by the State, asking that we

take judicial notice of the state court trial transcript. That

motion is GRANTED. We agree that judicial notice is appropriate because White relied on the transcripts in his habeas

petition before the district court, the Illinois Appellate Court

relied on them after both parties cited them in their briefs, and

they would assist this Court. See Fed. Rule App. P. 10(e)(2).

705 Ill. Comp. Stat. 305/13. Under the authority of this

statute, the judge directed the sheriff’s office to recruit

additional jurors. The process that the sheriff used was

to call up various county supervisors and ask them

to supply people to fill out the venire. White’s counsel

objected, but the court responded that it was up to the

sheriff to determine who would be summoned. Although

White’s counsel objected to the process, he did not make

a request that a special bailiff be appointed, as is

permitted by the statute, until after the jury was already

selected and the trial was about to begin.

The first bystander juror was excused for cause after

stating that she worked for the sheriff in his records

department, and that she knew the prosecutors in

charge of White’s trial and handled some paperwork for

White’s case. The next standby juror questioned was an 2

individual named Amy Carter. Ms. Carter was a receptionist at the Decatur Public Building Commission. To

summon her, the sheriff’s office called her boss asking

for people who might be interested in serving on a jury.

Her boss then asked Ms. Carter if she was willing to

serve, and she said that she was. After a full voir dire
4 No. 08-2766

of Ms. Carter by both the trial judge and the parties, she

was accepted as a juror by both sides. White neither

challenged her for cause nor used one of his remaining

available peremptory challenges to dismiss her, and

there is absolutely nothing to suggest that Ms. Carter

was biased in any way.

Before addressing White’s claim, we will briefly review

the facts which landed White in this mess. They read like

a script from Quentin Tarentino. White and two others

were hired by Corliss McSpadden to drive to Arizona

to pick up a load of marijuana—50 pounds in all.

McSpadden gave White money to buy the marijuana, but

problems arose when White decided to steal the load

instead of delivering it to McSpadden. Guys who deal

in large quantities of drugs don’t like being ripped off,

and McSpadden was no different. He confronted White,

pistol whipped him, ran over his cohort with a car and

issued a death threat to White. At one point, White

was actually kidnapped at gunpoint and threatened with

death by two of McSpadden’s buddies, Travis Williams

and Andrew Murphy. White escaped, but he became

convinced that Williams and Murphy were working

for McSpadden and doing his dirty work in collecting

on the drug debt. All of which prompted White to start

carrying a gun.

Shortly after the kidnapping, White encountered

Murphy for a second time at a county courthouse, and

Murphy threatened him again. According to White, he left

the courthouse but later returned with a friend and they

proceeded to follow Murphy in his car. As fate would
No. 08-2766 5

have it, Murphy was heading to the home of Travis

Williams, the other kidnapper. When White arrived at

Williams’ house, Williams and Murphy were out front.

White, who was in the passenger’s seat, reached out of

the window and pointed a gun back over the roof of the

car and shot towards Murphy and Williams. One of

the bullets struck Williams in the head and killed him.

White was arrested a few days later and eventually

confessed to shooting Williams. He stated that he shot

at Williams and Murphy out of fear. White claimed that

he was just trying to scare them and that he did not

mean to shoot anybody.

The jury convicted White of first degree murder and

he was sentenced to twenty-eight years of imprisonment.

The Illinois Appellate Court affirmed the judgment.

People v. White, 819 N.E.2d 1239 (Ill. App. Ct. 2004). The

principal arguments on appeal concerned the manner

in which the bystander jurors were selected. First, White

argued that the sheriff was not correctly appointed to

summon the bystander jurors. The court made quick

work of that argument finding that the Illinois statute

authorized the sheriff to summon additional jurors. Id.

at 1245. White then argued that a special bailiff should

have been appointed to find bystander jurors, but the

court found that his request for a special bailiff—coming

after the jury had already been selected—was too late.

Finally, the court found that the trial court did not abuse

its discretion in finding that the sheriff’s method of summoning jurors was within the discretion given to the

sheriff under the statute. Id. at 1245-47. White filed a

petition for leave to appeal to the Illinois Supreme Court,

but the petition was denied.
6 No. 08-2766

White then filed a pro se post-conviction petition, which

the Circuit Court of Macon County denied as “frivolous

and patently without merit.” (A. 109). The Illinois Appellate Court affirmed, and the Illinois Supreme Court later

denied White’s petition for leave to appeal. White next

moved on to federal court where he filed a pro se

Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.

§ 2254 in the Central District of Illinois. He raised five

issues. The district court denied the petition, and this

court granted a certificate of appealability limited to the

issue of whether White’s Sixth Amendment right to a

fair and impartial jury was violated by the manner in

which the sheriff summoned the bystander jurors. (A.

235). The district judge reasoned that there was no Sixth

Amendment violation by having the sheriff select the

bystander jurors since the sheriff was not involved in

White’s investigation and the county supervisors whom

he called upon to get the bystander jurors had no

interest in the prosecution.

The first issue is whether White fairly presented his

federal constitutional claim regarding the selection of the

standby venire to the state courts. A federal constitutional claim is procedurally barred if a petitioner fails to

fairly present that claim in one complete round of state

court review. Baldwin v. Reese, 541 U.S. 27, 29, 30-31 (2004).

To determine whether a petitioner fairly presented a

claim before the state courts, this Court looks to

whether the petitioner: (1) relied on relevant federal cases

applying constitutional analysis; (2) relied on state cases

applying federal constitutional analysis to a similar

factual situation; (3) asserted the claim in terms so par-
No. 08-2766 7

ticular as to call to mind a specific constitutional right;

and (4) alleged a pattern of facts that is well within the

mainstream of federal constitutional litigation. Ellsworth

v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001). Our task

is to determine in practical terms whether the state

courts were sufficiently alerted to the nature of White’s

federal constitutional claim. Id.

White’s arguments before the Illinois Appellate Court

and in the Illinois Supreme Court dealt exclusively

with the application of the Illinois bystander statute. White

did not rely on any federal constitutional provision and

cited to no cases employing a constitutional analysis.

Nor did he rely on any state cases applying a federal

constitutional analysis to a similar factual situation. So

the first two factors in deciding whether his claim was

fairly presented to the state courts weigh heavily

against White. And this much he agrees. (Appellant’s

Br. at 27.)

As to the third factor, White’s claims do not bring to

mind a “specific constitutional right.” White contends

rather broadly that his claims bring to mind Sixth Amendment and Due Process concerns. But he provides no

persuasive authority to support that assertion. And

White’s prior briefing in the Illinois courts contains no

references to federal case law, federal statutes, or any

part of the United States Constitution. The focus of

White’s arguments before the Illinois courts was on the

alleged improper application of the Illinois bystander

statute, not on White’s Sixth Amendment and Due

Process rights. Thus, his arguments prior to his appeal
8 No. 08-2766

to the Central District of Illinois did not invoke federal

law. While White did mention his “right to a fair trial

before an impartial jury,” he failed to explicitly invoke

the federal right he now seeks vindicated—the right to

have a venire that is chosen from a fair cross section

of the community. Instead, that reference was to his

claim under the Illinois bystander statute. Under these

circumstances, an innocuous reference to a “right to an

impartial jury” does not call to mind the federal right to

have a venire selected from a fair cross section of the

community. See Baldwin, 541 U.S. at 33 (a mere reference

to “ineffective assistance of both trial court and

appellate court counsel” did not properly invoke

federal law because a state claim could arise with the

same language).

As to the fourth factor, White has not alleged a pattern

of facts that is well within the mainstream of federal

constitutional litigation. White cites to a series of

Supreme Court cases in an attempt to show that his case

is in the mainstream of constitutional litigation. See

Duren v. Missouri, 439 U.S. 357 (1979); Castaneda v.

Partida, 430 U.S. 482 (1977); Taylor v. Louisiana, 419 U.S.

522 (1975). But these are in no way similar to the facts

of this case. Duren and Taylor held that the systematic

exclusion of women from a venire violated the fair cross

section requirement of the Sixth Amendment. And

Casteneda held that a system that selected jurors in a way

that discriminated against Mexican-Americans was

likewise unconstitutional. These facts are completely

different from the facts of this case where the sheriff—in

trying to fulfill his obligation under the Illinois bystander
No. 08-2766 9

venire statute—called upon government employees to

round out a small portion of the venire. There was no

systematic exclusion of anyone here, but instead the

inclusion of governmental employees. So this pattern

of facts is not within the mainstream of constitutional

litigation as set out in cases like Duren, Taylor, and

Casteneda.

In sum, White did not fairly present his constitutional

claim to the Illinois courts. His beef in the state courts

was with the manner in which the Illinois bystander

statute was handled by the sheriff. He cited no federal

constitutional cases, and there was nothing about his

arguments in the state courts that would call to mind

the specific constitutional right that he now says was

violated. For these reasons, his claim is procedurally

barred.

Even if we were to look past the procedural bar, White’s

claim fails. Under 28 U.S.C. § 2254(d), a writ of habeas

corpus can be granted only if the state court adjudication “(1) resulted in a decision that was contrary to, or

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

the United States; or (2) resulted in a decision that was

based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” Id. The United States Supreme Court has never

held that a procedure to create a standby venire violates

the defendant’s constitutional rights. So the opinion of

the Illinois appellate court was neither contrary to,

nor involved an unreasonable application of, Supreme
10 No. 08-2766

Court precedent. See Wright v. Van Patten, 552 U.S. 120,

125 (2008).

White attempts to clear this hurdle by directing our

attention to two of the Supreme Court cases discussed

above—Duren v. Missouri, 439 U.S. 357 (1979) and Taylor v.

Louisiana, 419 U.S. 522 (1975). But neither of these

cases even come close to holding that the process used

here to select the standby venire violates the Sixth Amendment. Again, Duren and Taylor involved the systematic

exclusion of women from a venire. White contends that

those cases are analogous because government employees—the group that was selected by the sheriff to be

in the venire—are a distinctive group that is automatically biased in favor of the government, resulting in

an unrepresentative and unfair venire. But White cites

no authority for his broad contention that government

employees are always biased in favor of the government, and it’s difficult to see why that would necessarily

be the case. In fact, there is nothing to suggest that

Ms. Carter, the one juror who was selected from the

standby venire, was biased. She was not challenged for

cause by either side nor did White use one of his

remaining peremptory challenges to strike her from the

jury. So the comparison of this case to cases like

Duren and Taylor is not very apt. Those cases address the

systematic exclusion of a group of people (women) which

led to a venire that was not representative of society. By

contrast this case involved the systematic inclusion of a

group of people (government workers) to fill out a

small portion of the venire that did not result in a venire

unrepresentative of society.
No. 08-2766 11

Neither Duren nor Taylor (nor any other Supreme

Court case cited by White) address the question presented

here—whether a violation of the fair-cross-section requirement may be based on the misapplication of a bystander venire statute. So the state court’s decision to

reject White’s jury selection claim was neither contrary

to, nor an unreasonable application of, clearly established

Supreme Court precedent.

White also points us to two cases from the Eighth Circuit

to support his constitutional argument. See Anderson v.

Fey, 715 F.2d 1304 (8th Cir. 1983); Henson v. Wyrick, 634

F.2d 1080 (8th Cir. 1980). Anderson involved a situation

where a sheriff who had handled the criminal investigation selected the bystander jurors; and Henson involved

a sheriff who chose only his acquaintances for the

venire. Both courts held that where the sheriff participates in the investigation and selects bystander jurors

based on subjective criteria, the defendant’s right to a

fair trial is violated.

There are a number of problems with White’s reliance

on Anderson and Henson. First, both were decided prior

to the Antiterrorism and Effective Death Penalty Act

(AEDPA) of 1996. As discussed above, the AEDPA

requires White to establish that the state court opinion

was contrary to clearly established federal law, as determined by the Supreme Court of the United States. 28 U.S.C.

§ 2254(d)(1). Wright, 552 U.S. at 125; Carey v. Musladin,

549 U.S. 70, 77 (2006); Lieberman v. Thomas, 505 F.3d 665,

672 (7th Cir. 2007); Schaff v. Snyder, 190 F.3d 513, 530 (7th

Cir. 1999) (declining to consider Second Circuit precedent
12 No. 08-2766

because a “habeas petitioner must support his claim

with a Supreme Court decision that clearly establishes

the proposition essential to his position”).

But even if Hensen and Anderson were somehow binding

on us, they are distinguishable in any event. The

sheriff who selected the bystanders in those cases had

an interest in the outcome of the proceedings. The sheriff’s

office was the investigating agency in those cases, and in

Henson the sheriff actually sought out his acquaintances

to be in the jury pool. There was no such bias here. As the

district court pointed out, the sheriff was not involved

with the investigation, and there were no facts showing

that the sheriff was biased when he recruited the

standby venire. White claims that the sheriff was “inherently biased” against him because he is the chief law

enforcement officer in the county. But when the sheriff

does not participate in the investigation of the crime, his

institutional interest becomes more attenuated. O’Neal

v. Delo, 44 F.3d 655, 662 (8th Cir. 1995); Holt v. Wyrick,

649 F.2d 543, 546 (8th Cir. 1981).

In sum, the sheriff exercised his responsibility under

the Illinois bystander statute by rounding out a small

portion of the venire—enough to select the final juror—by

calling upon supervisors in government offices to

furnish potential jurors. The juror who was ultimately

selected had no interest in the case and was in no way

biased. White has failed to point us to any Supreme

Court cases that hold that the sheriff’s selection of a

small portion of the venire makes the entirety of the

venire not a fair cross section of society. And the Eighth
No. 08-2766 13

Circuit cases that he relies on are all distinguishable.

White’s right to an impartial jury selected from a representative cross section of the community was not violated.

We AFFIRM the judgment of the district court.

12-21-09