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Howell v. Superintendent Rockview SCI

United States Court of Appeals, Third Circuit

September 17, 2019


          Argued May 1, 2019

          On 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

          Leigh 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 Appellees

          Before: RESTREPO, PORTER and FISHER, Circuit Judges.



         Criminal 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.


         Jury 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 all-white jury.

         Prior 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.

         Dr. 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.

         An 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.

         Howell 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, [1] 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.

         Howell 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.

         The District Court adopted the magistrate judge's report and recommendation and denied Howell's petition. Howell now appeals.


         The 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.

         The 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).

         The 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)).

         If the 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).


         The 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.


         A 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).

         In its 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.

         Irrespective 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.

         Duren 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.

         The 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.[2] 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) (emphasis omitted)).

         The 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 federal law.


         Because 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.

         1. Distinctive Group

         Blacks 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))).

         2. Unfair and Unreasonable Representation

         Howell's 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.

         i. Reliability of the Data

         Howell 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.[3] See Weaver, 267 F.3d at 243-44.

         In 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[4]; 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 unreasonable."[5] Id.

         Howell's 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.[6]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.

         Howell 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' ...

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