May 1, 2019
Appeal from the United States District Court for the Western
District of Pennsylvania (D.C. No. 2-12-cv-00884) District
Judge: Honorable David S. Cercone
M. Skipper, Chief Federal Defender Helen Marino, First
Assistant Federal Defender Arianna J. Freeman Loren D.
Stewart [ARGUED] Federal Community Defender Eastern District
of Pennsylvania Federal Community Defender Office for the
Eastern District of Pennsylvania Counsel for Appellant
Stephen A. Zappala, Jr., District Attorney Ronald M. Wabby,
Jr., Deputy District Attorney Rusheen R. Pettit [ARGUED]
Allegheny County Office of District Attorney Counsel for
Before: RESTREPO, PORTER and FISHER, Circuit Judges.
FISHER, CIRCUIT JUDGE.
defendants are deprived of their Sixth Amendment right to a
jury selected from a broad representation of the community
when distinctive groups are systematically excluded from the
jury selection process. See Duren v. Missouri, 439
U.S. 357, 363-64 (1979). Because any under-representation in
Joseph Howell's jury pool was not caused by a
systematically discriminatory process, the District Court
properly denied his habeas petition alleging a Sixth
Amendment violation. We will affirm.
selection in Howell's 2004 prosecution consisted of two
venire panels. The first included thirty-five individuals,
two of whom were black but were both excused for hardship.
The second panel included twenty-five potential jurors, all
of whom were white. Ultimately, Howell, a black man, was
convicted for the 2002 felony murder of a white man by an
to jury selection, Howell filed a Motion to Ensure
Representative Venire, arguing that he was entitled to a jury
pool that represented a fair cross section of the community-
Allegheny County-particularly with respect to race. The trial
court held a hearing on Howell's allegations that black
individuals were systemically under-represented in Allegheny
County's jury pools, during which it adopted the record
from two other cases where defendants also raised a
fair-cross-section challenge. The incorporated record
included expert testimony from Dr. John F. Karns, a
sociologist, regarding the racial statistics and demography
of Allegheny County.
Karns' testimony expounded on demographic data gathered
over a six-month period in 2001, over a ten-day period in
2002, and from the 2000 census. The 2001 study was based on
data gathered by the firm Gentile Meinert & Associates
and interpreted by Dr. Karns. Gentile Meinert &
Associates provided prospective jurors (individuals who
appeared for jury selection pursuant to a summons) with a
paper survey that asked questions about their race, age, and
gender. From this study, which surveyed approximately 4500
potential jurors, Dr. Karns calculated that black individuals
made up 4.87% of Allegheny County's jury pool. He also
found that black individuals made up 10.7% of the population
of Allegheny County eligible for jury service. Based on these
numbers, Dr. Karns concluded that "whites [were]
overrepresented" in jury pools, resulting in systematic
exclusion of "a significant number of people for a
significant time." App. at 112, 127. Despite this
conclusion, the trial court denied Howell's motion.
all-white jury was impaneled and found Howell guilty of
felony murder. Howell moved for extraordinary relief, arguing
that he should be retried by a representative jury, even if
assembling the jury would require multiple venires. The trial
court denied his motion; it then sentenced Howell to a
mandatory sentence of life without parole.
timely appealed to the Pennsylvania Superior Court, which
held that Howell had not been denied a trial by a fair
cross-section of the community. The Superior Court noted Dr.
Karns' testimony,  and identified the proper test for
determining whether a fair-cross-section violation occurred.
The court then concluded that Howell "fail[ed] to
demonstrate 'an actual discriminatory practice in the
jury selection process, '" and, therefore, held that
Howell did not demonstrate a constitutional violation. App.
at 252-54 (quoting Commonwealth v. Johnson, 838 A.2d
663, 682 (Pa. 2003)). The state court stated that, though the
U.S. Supreme Court's test does not require a showing of
discriminatory intent, it was bound to follow Pennsylvania
Supreme Court precedent, which does require such a showing.
filed a habeas petition based on six grounds, including his
fair-cross-section claim. A magistrate judge issued a report
and recommendation that assumed, without deciding, "that
the Superior Court erred in requiring [Howell] to show
discriminatory intent," but concluded that, under de
novo review, Howell failed to establish a Sixth
Amendment violation. App. at 14-16. The magistrate judge
compared the level of racial disparity in Howell's case
to those in other cases around the country. She concluded
that, because other courts found no constitutional violation
in cases with higher percentages of disparity than here,
Howell could not establish his claim.
District Court adopted the magistrate judge's report and
recommendation and denied Howell's petition. Howell now
District Court exercised subject matter jurisdiction pursuant
to 28 U.S.C. §§ 2241 and 2254. We exercise
appellate jurisdiction pursuant to 28 U.S.C. §§
1291 and 2253.
District Court did not hold an evidentiary hearing but relied
exclusively on the state court record; we therefore undertake
a plenary review of the District Court's order utilizing
the same standard that the District Court applied. Branch
v. Sweeney, 758 F.3d 226, 232 (3d Cir. 2014).
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") dictates the parameters of our review and
requires us to afford considerable deference to the state
court's legal and factual determinations. Lambert v.
Blackwell, 387 F.3d 210, 234 (3d Cir. 2004). We may
overturn a state-court holding only where it "resulted
in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law," or "was based on an unreasonable
determination of the facts in light of the evidence
presented." Id. (quoting 28 U.S.C. §
2254(d)(1)-(2)). The state court's factual conclusions
"'shall be presumed to be correct' unless the
petitioner rebuts 'the presumption of correctness by
clear and convincing evidence.'" Id.
(quoting 28 U.S.C. § 2254(e)(1)).
state court erred, habeas relief should be granted only if,
upon de novo review, the prisoner has established
that he "is in custody in violation of the Constitution
or laws or treaties of the United States." 28 U.S.C.
§ 2254(a); see also Saranchak v. Beard, 616
F.3d 292, 301 (3d Cir. 2010).
Sixth Amendment promises all criminal defendants a trial by a
"jury drawn from a pool broadly representative of the
community . . . as assurance of a diffused
impartiality." Taylor v. Louisiana, 419 U.S.
522, 530-31 (1975) (quoting Thiel v. S. Pac. Co.,
328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting)). A
violation of this right occurs where "jury wheels, pools
of names, panels, or venires from which juries are drawn . .
. exclude distinctive groups in the community."
Duren, 439 U.S. at 363-64 (quoting Taylor,
419 U.S. at 538). Howell argues that his Sixth Amendment
rights were violated by Allegheny County's systematic
exclusion of black jurors at the time of his trial.
state-court decision is "contrary to" or an
"unreasonable application of" federal law if it
directly conflicts with Supreme Court precedent or reaches a
different result than the Supreme Court when presented with
materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405 (2000).
analysis, the state court relied on its interpretation of
Pennsylvania Supreme Court precedent to determine whether
Howell established a prima facie violation of his right to a
jury composed of a representative cross-section of his
community. Quoting Commonwealth v. Estes, 851 A.2d
933 (Pa. Super. Ct. 2004) (citing Johnson, 838 A.2d
663), the court set forth the Duren standard for
establishing such a violation- that (1) an allegedly excluded
group is "distinctive" in the community; (2) the
group's representation in jury-selection panels is not
fair and reasonable in relation to the community's
population; and (3) the group is under-represented due to its
systematic exclusion from the jury-selection process-but then
went on to state that "[p]roof is required of an actual
discriminatory practice in the jury selection process, not
merely underrepresentation of one particular group."
App. at 252-54. The state court acknowledged Howell's
argument that he was "not required to prove
discriminatory intent . . . under Duren," but
the court concluded that "the Pennsylvania Supreme Court
has held otherwise" and that it was "bound by
[that] prior decision." App. at 253-54.
of how the Superior Court reached its conclusion, that
conclusion must comport with "clearly established
Federal law as determined by the Supreme Court of the United
States." 28 U.S.C. § 2254(d)(1); see also
Williams, 529 U.S. at 412 ("As the statutory
language makes clear . . . § 2254(d)(1) restricts the
source of clearly established Federal law to [the Supreme]
Court's jurisprudence."). Therefore, the question
before us is whether the Superior Court's decision is
consistent with Duren and its progeny.
established a three-factor test for determining when a
fair-cross-section violation has occurred. Significantly,
that test does not include a requirement for proof of
discriminatory intent. To the contrary, the Court-in a
footnote-distinguished the Sixth Amendment claim before it
from cases brought under the Equal Protection Clause by
noting that, in the latter, a showing of discriminatory
purpose is essential, but that, in the former,
"systematic disproportion itself demonstrates an
infringement." Duren, 439 U.S. at 368 n.26.
Commonwealth correctly notes that the Court's statements
in a footnote are not necessarily binding authority on habeas
review because "'clearly established Federal
law' . . . includes only the holdings, as opposed to the
dicta, of [the] Court's decisions." Woods v.
Donald, 135 S.Ct. 1372, 1376 (2015) (citing White v.
Woodall, 572 U.S. 415, 419 (2014)). However, Footnote 26
is not the only place in Duren where the Court makes
clear that a showing of discriminatory intent is not
required. In the body of the opinion, the Court enumerated
the three elements that a prisoner must establish to prove a
constitutional violation, thereby setting the outer
parameters of a fair-cross-section analysis, and it simply
did not include discriminatory intent as one of those
elements. Therefore, requiring a prisoner to show
discriminatory intent imposes a more stringent standard than
the one articulated by the Supreme Court. Though states may
provide broader constitutional protections than required by
federal law, they "may not impose . . . greater
restrictions as a matter of federal constitutional law when
[the Supreme] Court specifically refrains from imposing
them." Oregon v. Hass, 420 U.S. 714, 719 (1975)
state court did not address the three factors identified in
the Duren test, but instead rested its decision
exclusively on Howell's failure to identify a
discriminatory purpose. By requiring proof of this additional
element, the Superior Court imposed greater restrictions on
Howell than those required by the Supreme Court, contrary to
and in an unreasonable application of clearly established
the Superior Court's decision contradicts federal law,
this Court must review Howell's claim de novo.
To establish a fair-cross-section violation, Howell must
prove that, at the time of his trial, (1) blacks were a
"'distinctive' group in the community"; (2)
"representation of [blacks] in venires from which juries
[were] selected [was] not fair and reasonable in relation to
the number of such persons in the community"; and (3)
"this underrepresentation [was] due to systematic
exclusion of [blacks] in the jury selection process."
Duren, 439 U.S. at 364.
are "unquestionably a constitutionally cognizable
group." Ramseur v. Beyer, 983 F.2d 1215, 1230
(3d Cir. 1992) (en banc). See also United States v.
Weaver, 267 F.3d 231, 239 (3d Cir. 2001) (finding that
blacks are "sufficiently numerous and distinct from
others in the population" to satisfy the first prong of
the Duren test (citing Castaneda v.
Partida, 430 U.S. 482, 495 (1977))).
Unfair and Unreasonable Representation
claim that blacks were unfairly and unreasonably represented
in jury venires "must be supported by statistical
evidence," beginning with the percentage of blacks in
the community at the time of his trial. Weaver, 267
F.3d at 240 (citing Duren, 439 U.S. at 364). Relying
on the 2000 Census, Howell has demonstrated that 10.7% of the
adult population in Allegheny County identified as black.
See Duren, 439 U.S. at 365 (accepting census data as
"prima facie evidence of population
characteristics"). This population percentage must then
be compared to the percentage of blacks included in the jury
venire to determine whether representation was
proportionately fair and reasonable. Id. at 364-67.
Reliability of the Data
relies on the 2001 study conducted by Gentile Meinert &
Associates for his claim that blacks made up 4.87% of jury
pools. However, there is no evidence regarding how many
people received jury summonses, how many people appeared for
jury selection (versus the number of individuals who received
surveys), or how many people failed to fill out the survey.
Without this information, Howell's statistical data is
not sufficiently reliable to support a finding of unfair and
unreasonable representation. See Weaver, 267 F.3d at
Weaver, this Court found that a prisoner's
figures were too weak to support his claims where the
statistician based his conclusions only on completed and
returned questionnaires without accounting for unanswered
questionnaires. Id. The Court highlighted that, to
support an allegation of under-representation, the
statistician was required to perform one of three analyses:
(1) analyze the race of every person in the jury pool; (2)
perform a sampling of the jury pool and then calculate the
standard deviation; or (3) account for the statistical impact
of the unreturned questionnaires. Id. at 244.
Because he did not provide any of these analyses, this Court
concluded that the statistical evidence was "too weak to
support a finding of representation that is unfair and
statistical data suffers from the same weaknesses we
identified in Weaver. As in Weaver, Dr.
Karns did not analyze the racial makeup of the entire jury
venire.Though approximately 4500 individuals were
given surveys over a six-month period, Dr. Karns'
analysis did not take the unanswered surveys into
consideration, which significantly weakens the reliability
and influence of the statistical data. Id. at 244.
As Dr. Karns acknowledged, if a higher percentage of blacks
failed to answer the survey than whites, the results of the
survey would be "skewed." App. at 131. However, Dr.
Karns does not know how many surveys omitted responses to
certain questions or went unanswered entirely, let alone the
race of the individuals who chose not to answer them. Because
of this missing data, it is not possible to now calculate the
standard deviation or account for the significance of
unanswered surveys, as we require.
claims that Dr. Karns' data does satisfy Weaver
because he conducted a validity analysis known as the
"Z-statistic," which Howell claims is "akin to
standard deviation," and concluded that the chances of
his conclusion that blacks were under-represented being
incorrect "are about four in 10, 000." Reply Br. at
13 (quoting App. at 112). However, the purpose of the
"Z-statistic" is simply to determine the "risk
of being wrong" about a hypothesis. App. at 112. Here,
Dr. Karns' starting hypothesis was "that there are
too few African-Americans" in jury pools. Id.
However, Dr. Karns did not provide any analysis to explain
how a low likelihood of this hypothesis being incorrect
sufficiently demonstrates that his statistical
representations are reliable, particularly in light of the
unaccounted for, unanswered surveys. For instance, it could
certainly be true that blacks appear on jury pools less often
than we would statistically expect, but that the degree of
under-representation does not rise to the level of a
constitutional violation. Dr. Karns' ...