Order Michigan Supreme Court
Lansing, Michigan
December 18, 2009 Marilyn Kelly,
Chief Justice
138871 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman
Plaintiff-Appellee, Diane M. Hathaway,
Justices
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 jury-
selection 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 cross-
section 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
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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).
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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).
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.
December 18, 2009 _________________________________________
y1215 Clerk