                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 15a0220p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


 ANTONIO GARCIA-DORANTES,                                        ┐
                                       Petitioner-Appellee,      │
                                                                 │
                                                                 │         No. 13-2439
            v.                                                   │
                                                                  >
                                                                 │
 MILLICENT WARREN, Warden,                                       │
                         Respondent-Appellant.                   │
                                                                 ┘
                             Appeal from the United States District Court
                            for the Eastern District of Michigan at Detroit.
                        No. 2:05-cv-10172—David M. Lawson, District Judge.
                                          Argued: April 28, 2015
                                 Decided and Filed: September 4, 2015

            Before: MERRITT and ROGERS, Circuit Judges; POLSTER, District Judge.*

                                            _________________

                                                 COUNSEL

ARGUED: John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellant. Bradley R. Hall, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Detroit, Michigan, for Appellee. ON BRIEF: John S. Pallas, B. Eric Restuccia, OFFICE OF
THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Bradley R.
Hall, James R. Gerometta, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Detroit,
Michigan, for Appellee.

    ROGERS, J., delivered the opinion of the court in which POLSTER, D.J., joined.
MERRITT, J. (pp. 23–25), delivered a separate dissenting opinion.




        *
         The Honorable Dan Aaron Polster, United States District Judge for the Northern District of Ohio, sitting
by designation.




                                                       1
No. 13-2439                         Garcia-Dorantes v. Warren                       Page 2

                                        _________________

                                             OPINION
                                        _________________

       ROGERS, Circuit Judge. This case involves Antonio Garcia-Dorantes’ procedurally
defaulted claim challenging the constitutionality of the jury selection computer program in Kent
County, Michigan. In September 2001, a jury convicted Garcia-Dorantes of murder in the
second degree and assault with intent to do great bodily harm less than the crime of murder.
Before his trial started, Garcia-Dorantes failed to raise a Sixth Amendment challenge to the
racial composition of the jury venire. In July 2002, the Grand Rapids Press published a story
about a computer glitch in the Kent County software that had systematically excluded African-
Americans from the jury pool from April 2001 through early 2002. As a result of the article,
Garcia-Dorantes included a Sixth Amendment fair-cross-section claim in his direct appeal, which
the state courts denied as procedurally defaulted due to his failure to object to the composition of
the jury venire at trial. Garcia-Dorantes then filed a 28 U.S.C. § 2254 habeas petition in federal
court. The district court—attempting to apply the prejudice standard set forth in Ambrose v.
Booker, 684 F.3d 638, 652 (6th Cir. 2012), a companion case—found that Garcia-Dorantes had
sufficiently demonstrated cause and actual prejudice to excuse his procedural default and had
established a prima facie violation of his Sixth Amendment fair-cross-section right.           The
Respondent appeals. Because Garcia-Dorantes has shown cause and actual prejudice to excuse
his procedural default and has established a prima facie violation of his Sixth Amendment fair-
cross-section right, the district court properly granted habeas relief.

       On September 10, 2001, a jury convicted Antonio Garcia-Dorantes of murder in the
second degree and “assault with intent to do great bodily harm less than the crime of murder.”
R. 29 (PgID 520). The district court described the offense and trial as follows:

       [Garcia-Dorantes] was involved in a fight and stabbed two people, one fatally, in
       Grand Rapids, Michigan in the early morning hours of October 22, 2000.
       Jose Gomez, the homicide victim, died from a single stab wound to his upper
       chest, just beneath his collar bone. A 3-3/8 inch stab wound penetrated his left
       lung and punctured his pulmonary artery. The medical examiner determined that
       Gomez had been intoxicated at the time of the fight, with a blood alcohol level of
       .31 percent. Although the medical examiner testified that most persons would be
No. 13-2439                               Garcia-Dorantes v. Warren                                Page 3

         comatose with a blood alcohol level above .30 percent, he could not discount the
         possibility that Gomez could have attacked someone in a fight situation if he was
         a habitual drinker.
         Manuel Garcia was the assault victim. He worked for Gomez. The two men had
         been drinking that night until about 4:00 a.m. They arrived at Gomez’s house
         with a third companion, Gonzalo Ramirez-Toledo. When they drove up, [Garcia-
         Dorantes’] truck was parked across the street. [Garcia-Dorantes] testified that he
         thought the men were part of a gang and that they had tried to force him off the
         road during an earlier encounter that [day].1
         [Garcia-Dorantes or one of the other men in his truck] was standing outside of his
         truck. [According to Garcia,] Gomez got out of Garcia’s truck and walked toward
         [Garcia-Dorantes], stating that he “did not want any problems”; he told the
         petitioner that he should leave or Gomez would call the police. Garcia and
         Ramirez-Toledo then got out of Garcia’s truck and approached [Garcia-Dorantes].
         Two other persons had also exited [Garcia-Dorantes’] truck. Ramirez-Toledo
         said [Garcia-Dorantes] had his hand behind his back when he first saw him
         standing beside his truck. Ramirez-Toledo said he did not see what occurred
         between [Garcia-Dorantes] and Gomez, nor did he see a knife in [Garcia-
         Dorantes’] hand.
         Garcia testified that when Gomez asked the men to leave, [Garcia-Dorantes]
         replied “And if I don’t want to?” and punched Gomez in the face. Gomez fell
         down, got up again and “threw himself” at [Garcia-Dorantes].                 Garcia
         acknowledged that he did not see which man started the fight[, though he initially
         claimed that Garcia-Dorantes hit Gomez first]. As Garcia attempted to break the
         fight up, he felt a cramp in his leg and later learned that he had been stabbed in
         the buttock. Garcia was also stabbed in the back of his neck. Garcia testified that
         [Garcia-Dorantes] then threatened him with a bottle. Ramirez-Toledo testified
         that Gomez asked him to call the police. As Ramirez-Toledo did so, one of
         [Garcia-Dorantes’] friends hit him in the head with a bottle. [There is no record
         that Ramirez-Toledo ever connected with a 9-1-1 operator.] Ramirez-Toledo then
         heard Gomez say, “Let’s go.” Ramirez-Toledo observed [Garcia-Dorantes] get
         into his truck and leave the area, squealing his tires as he left. Gomez, Garcia,
         and Ramirez-Toledo [then] got into Garcia’s truck. Once inside, Garcia noticed
         that [Ramirez-Toledo] was very bloody. Garcia [left to drive] Gomez [and
         Ramirez-Toledo] to the hospital. [Garcia-Dorantes] and his companions had
         [already] left the area. While driving Gomez to the hospital, Garcia passed
         [Garcia-Dorantes’] truck when it stopped at a stop sign. When Garcia stopped at
         a red light, [Garcia-Dorantes] drove up and crashed into the rear of Garcia’s truck.
         Garcia continued driving but claimed that [Garcia-Dorantes] crashed into his

         1
          Garcia-Dorantes explained, “In the afternoon around two or three, I was in my truck driving. I was going
and another truck was coming in the street. The other truck tried to ram against me. I had to . . . skid aside to move
aside from the truck.” When asked if he knew the individuals in the truck, Garcia-Dorantes responded, “I had seen
them before. I had known that they were gang members and you have to be afraid of a gang member.”
No. 13-2439                      Garcia-Dorantes v. Warren                       Page 4

      pickup truck two more times. Garcia drove to Gomez’s brother’s house, where
      they called the police and an ambulance. Police responded to a dispatch of a
      shooting to an address on Rose Street. Upon arrival, emergency personnel
      informed the police that it had actually been a stabbing and Gomez had died.
      Officers then received a dispatch for a “hit and run” and went to [Garcia-
      Dorantes’] house. The police were informed that [Garcia-Dorantes] had been
      involved in a hit and run accident. They noticed damage to the front of [Garcia-
      Dorantes’] vehicle. They arrested [Garcia-Dorantes] and his friend named
      Christian Diaz.
      Police Officer John Riley testified that he interviewed [Garcia-Dorantes] in the
      early morning hours of October 22, 2000. Riley ascertained that [Garcia-
      Dorantes] spoke very little English. Riley testified that he was “pretty fluent” in
      Spanish, and he read [Garcia-Dorantes] his Miranda rights in Spanish.
      Thereafter, [Garcia-Dorantes] made two verbal statements. In his first statement,
      he blamed his wife for the truck crash and resulting damage. Later that afternoon,
      he made a second statement in which he admitted to having been involved in a
      fight. [Garcia-Dorantes] told the police that he thought that Gomez and his
      friends were “gangbangers” who had threatened him earlier.
      Detective Gregory Griffin was present when both statements were made. He
      testified that although he found no evidence that any of the persons involved in
      this altercation were gang members, he could not rule out that Gomez was a gang
      member.
      [Garcia-Dorantes] testified on his own behalf at trial, explaining that he was
      celebrating his daughter’s birthday on October 21, 2000. He and his friends later
      left the party to go to his girlfriend’s house, with whom he was having an
      extramarital affair. [Garcia-Dorantes] parked in front of the house and went to the
      door. When there was no answer, he returned to his truck. It was then that he
      saw Garcia’s truck arrive. [Garcia Dorantes] claimed that Garcia had tried to ram
      him with his truck earlier that day and had tried to run [him] off the road. He
      thought Gomez, Garcia, and Toledo were gang members. According to [Garcia-
      Dorantes], a person from the victim’s truck provoked the fight. When others
      joined in, he became scared and pulled a knife, thrusting it once as a person
      lunged at him. It does not appear as though any of the other individuals had
      weapons. [Garcia-Dorantes] left and his friends followed. [Garcia-Dorantes]
      claimed that when he went to drive away, the men pulled their truck in front of
      him and “locked” their brakes, causing [Garcia-Dorantes’] vehicle to collide with
      their truck.
      [Garcia-Dorantes] went home and told his wife about the accident. He said his
      wife volunteered to tell the police that she had been driving because [Garcia-
      Dorantes] was intoxicated at the time. [Garcia-Dorantes] denied intending to
      harm anyone.
      [Garcia-Dorantes’] common-law wife, Anayeli Castellanos, testified that [Garcia-
      Dorantes] woke her in the early morning hours of October 22, 2000 and informed
No. 13-2439                                Garcia-Dorantes v. Warren                                Page 5

        her that someone had crashed into his truck. [Garcia-Dorantes] demanded that
        she call the police to report the incident. The police arrived and arrested [Garcia-
        Dorantes]. Castellanos admitted that she suggested that [Gracia-Dorantes] inform
        the police that she had been driving because [Garcia-Dorantes] appeared scared
        and had been drinking2.
        [In closing, Garcia-Dorantes] argued that he acted in self-defense, and that the
        crime was no worse than manslaughter.3 [After the trial court instructed the jury
        on three separate, alternative charges related to Gomez’s death—murder in the
        first degree, murder in the second degree, and voluntary manslaughter—][t]he
        jury found [Garcia-Dorantes] guilty of the lesser offense of second-degree murder
        in Gomez’s death and assault with intent to do great bodily harm less than murder
        as to Garcia.

On September 30, 2002, following the conviction, the court sentenced Garcia-Dorantes to fifteen
to fifty years’ imprisonment on the second-degree murder charge, and five to ten years’
imprisonment on the assault charge, with the sentences to run concurrently.

        On July 30, 2002, [after Garcia-Dorantes had been convicted,] the Grand Rapids
        Press reported that a computer glitch had [had] an impact on Kent County’s
        system for selecting jury venires. The glitch was introduced accidentally by the
        county when it assumed control of the jury selection computer program from a
        private vendor in April 2001. The problem came to light in 2002, when a local
        high school teacher, Wayne Bentley, completed a study of minority representation
        on Kent County juries. Bentley found that the underrepresentation of minorities
        was statistically significant, and shared his findings with county officials. The
        county subsequently conducted an internal study that revealed that “nearly
        75 percent of the county’s 454,000 eligible residents were excluded from potential
        jury pools since spring 2001” and that “[m]any blacks were excluded
        from . . . jury pools due to a computer glitch that selected a majority of potential
        candidates from the suburbs.” The chief judge of the Kent County Circuit Court,
        George Buth, stated, “There has been a mistake—a big mistake.”

Ambrose v. Booker, 684 F.3d 638, 640–41 (6th Cir. 2012). In light of these revelations, Garcia-
Dorantes—who had been convicted on September 10, 2001—raised a Sixth Amendment fair-
cross-section claim on direct appeal based on the computer glitch. People v. Garcia-Dorantes,
No. 239306, 2003 WL 22416511, at *1–3 (Mich. Ct. App. Oct. 23, 2003). However, the


        2
            It does not appear that Ms. Castellanos’s testimony was included in the record on appeal.
        3
           During closing argument, defense counsel stated, “If you don’t find self-defense, ladies and gentlemen—
and, like I said, I don’t even know why I’m talking about this, because to me this is clearly and unambiguously self-
defense, but duty requires me to address it—so if you don’t find self-defense, I do not see how it could be anything
more than voluntary manslaughter.”
No. 13-2439                        Garcia-Dorantes v. Warren                      Page 6

Michigan Court of Appeals denied his claim, finding that Garcia-Dorantes had forfeited it when
defense counsel failed to object to the jury array or panel. Id. at *2. The Michigan Supreme
Court denied leave to appeal. People v. Garcia-Dorantes, 680 N.W.2d 865 (Mich. 2004).

       On July 12, 2005, Garcia-Dorantes filed a 28 U.S.C. § 2254 petition in district court,
claiming, in part, that he had been denied his right to a fair trial because a computer glitch had
resulted in the exclusion or underrepresentation of minorities in the jury venire.         Garcia-
Dorantes, No. 05-10172-BC, 2005 WL 2659056, at *1 (E.D. Mich. Oct. 18, 2005). The district
court held the habeas proceeding in abeyance pending the exhaustion of state law remedies. Id.
at *3. On February 15, 2007, the district court granted Garcia-Dorantes’ motion to reopen,
Garcia-Dorantes v. Warren, No. 05-10172, 2007 WL 531094 (E.D. Mich. Feb. 15, 2007), and
on March 8, 2011, denied all but Garcia-Dorantes’ Sixth Amendment claim. Garcia-Dorantes v.
Warren, 769 F. Supp. 2d 1092, 1112−13 (E.D. Mich. 2011). The district court then ordered a
magistrate judge to conduct an evidentiary hearing on the issue of whether Garcia-Dorantes “was
deprived of his right under the Sixth Amendment to a trial by a jury chosen from a fair cross-
section of the community.” Id. at 1112. The magistrate judge reviewed four items presented by
stipulation: (1) the testimony of Wayne Bentley, a Grand Rapids school teacher and member of
the Kent County jury commission who uncovered the disparate representation; (2) the November
14, 2007 deposition of Terry Holtrop, the case management manager for Kent County; (3) the
report of Dr. Paul Stephenson; and (4) the report of Dr. Edward Rothman. This evidence is the
same as that summarized in an earlier, companion case as follows:

       First, the magistrate judge [reviewed] the testimony of Wayne Bentley, the
       teacher that uncovered the disparate representation. Second, the magistrate judge
       [considered the] testimony from Terry Holtrop, the case manager for the Kent
       County Circuit Court. Ambrose, 781 F.Supp.2d [532, 537–38 (E.D. Mich. 2011)].
       Holtrop explained how Bentley’s evidence spurred an internal investigation by the
       County, culminating in the Kent County Jury Management System Report
       (hereafter “the Report”) dated August 1, 2002. The Report described how a
       transfer of control over a database—from a private vendor to the County in an
       effort to cut costs—caused the error:
               [I]n the initial set-up of the Oracle database to accommodate the
               driver’s license and State ID data from the State file, an error was
               made in one parameter. Whether this was a programming error,
               the carry-over of a setting that existed within the Sybase database,
               misinterpreting instructions, or simply human error, that is now
No. 13-2439                       Garcia-Dorantes v. Warren                        Page 7

              almost impossible to determine. The parameter that was entered
              within the database was 118,169. What should have been inserted
              within this setting was the total number of records in the State File,
              or 453,981 in 2001.
              The net effect of this incorrect parameter is that the Jury
              Management System performed a random selection against the
              first 118,169 jurors on the file. The percentage of jurors selected
              per Zip Code was proportional to the Zip Code composition of the
              first 118,169 records—but not Kent County as a whole. The total
              pool of prospective jurors from the State File is of course 3.8 times
              larger than the 118,169 and hence the type of jury pool data as is
              evidenced in the various tables included in this report, for the
              second half of 2001 and the first half of 2002.
              The next logical question being, why then did the jury pull from
              Zip Code 49341 jump so dramatically for 2001, from an average of
              3.8% up to 10.24% . . . and why did the jury pulls from Zip Code
              49507 decline from an average of 8.56% to 2.13%.
              The answer being that in 1998 (as was mentioned previously) the
              State File did not come in random order, but rather in Zip Code
              order . . . lowest numbers to highest numbers. In subsequent years,
              new prospective jurors (either based on age or having moved to the
              County) were added to the end of the database. Existing
              prospective jurors (those that were on file the previous year) would
              simply have address information updated based on what the State
              provided. Their position in the dataset would not change.
              Therefore, the first 118,169 records of the dataset have a high
              percentage of lower numbered zip codes. As indicated on the map
              included in his packet, all the Zip Codes with the lower numbers
              are located outside of the Grand Rapids metro area.
      Third, the magistrate judge considered statistical analysis submitted by Dr. Paul
      Stephenson, a statistician who used different methodologies to evaluate the
      impact of the glitch. Dr. Stephenson[, whose report focused primarily on January
      2002,] first compared the percentage of eligible African-Americans in Kent
      County and the actual percentage in the venire. He found an absolute disparity of
      6.03% and a comparative disparity of 73.1% fewer African-American members
      than would be expected. While Dr. Stephenson believed that these disparities
      were useful “descriptive statistics,” he did not believe they were “viable for
      inferential purposes.” Stephenson next used both a standard deviation and
      binomial test, and found that although the tests provided “insufficient evidence to
      demonstrate that the representation of Blacks or African-Americans in [a specific]
      venire is biased, this is in part due to the size of the venire.” Stephenson also
      noted [that] “while it would be less likely, one also could expect approximately
      2% of all venires to contain no . . . African-American members.” Stephenson
      then employed a “Chi-square Goodness-of-fit test.” Using this test, Dr.
No. 13-2439                             Garcia-Dorantes v. Warren                             Page 8

        Stephenson found that “there is essentially no chance of acquiring the results we
        obtained if the selection process for potential jurors is unbiased. As a result, there
        is overwhelming evidence to conclude that the selection process for terms during
        the first months of 2002 was biased.” Dr. Stephenson concluded that “the
        analysis presented in this report demonstrates that a systematic bias did exist in
        the selection of individuals summoned for jury duty during the first three months
        of 2002. This bias would have inevitably led to under representation
        of . . . African-Americans in the terms during this period of time.”
        Fourth, the magistrate judge considered a report by Dr. Edward Rothman, who
        analyzed the composition of the Kent County Jury Pool between January 1998
        and December 2002. Dr. Rothman used the census figures from the 2000 census,
        at which time African-Americans comprised 8.24% of the population of Kent
        County[, and Hispanics comprised 5.98% of the population]. Dr. Rothman
        applied these figures to the period April 2001 to August 2002, and concluded that
        there was a 3.45% absolute disparity between jury-eligible African-Americans
        and those who appeared on jury venires[, and a 1.66% absolute disparity between
        jury-eligible Hispanics and those who appeared on jury venires]. Rothman
        found a comparative disparity of 42% [for African-Americans and 27.64% for
        Hispanics].

Ambrose, 684 F.3d at 641–43.                On January 5, 2012, the magistrate judge issued a
recommendation that Garcia-Dorantes’ Sixth Amendment claim be allowed to proceed because
his procedural default was excused4 and he had established a prima facie fair-cross-section
violation.

        Before the district court issued its opinion, we decided Ambrose v. Booker, 684 F.3d 638
(6th Cir. 2012), a companion case arising from the same Kent County computer glitch, in which
we held that a petitioner must show both cause and actual prejudice to excuse a procedural
default, “even if the error structural.” Id. at 649. To guide district courts’ analyses of whether a
petitioner has shown actual prejudice in a case alleging a violation of the Sixth Amendment fair-
cross-section right, we explained:

        We are then left with the question of the proper standard on remand. We are
        guided in part by the Eleventh Circuit’s analysis of a similar question in Hollis v.
        Davis, 941 F.2d 1471, 1480 (11th Cir. 1991). In that case, the petitioner claimed
        that his counsel was ineffective for failing to object to Alabama’s systematic
        exclusion of African-American jurors from grand and petit juries. To excuse this

        4
          The magistrate judge found only that Garcia-Dorantes had shown cause to excuse his procedural default;
the judge did not evaluate whether Garcia-Dorantes had also shown prejudice, asserting instead that because “the
systematic exclusion based on race in the selection of jurors is a structural error,” prejudice is presumed.
No. 13-2439                               Garcia-Dorantes v. Warren                                Page 9

       default, the Hollis court required that petitioner show actual prejudice, which
       involved determining whether there was a reasonable probability that “a properly
       selected jury [would] have been less likely to convict.” Id. at 1482. The Eleventh
       Circuit’s analysis is persuasive. The most important aspect to the inquiry is the
       strength of the case against the defendant.5 As the Eleventh Circuit reasoned, “a
       transcript could show a case against [petitioner] so strong, and defense so weak,
       that a court would consider it highly improbable that an unbiased jury could
       acquit.” Id. at 1483 (internal quotation marks omitted). In that circumstance,
       actual prejudice would not be shown.
       Although the instant petitions do not involve a Strickland claim, this standard is
       appropriate because it balances the competing demands of constitutionally
       protected equal protection interests and comity toward the state courts. We
       recognize that the application of the actual prejudice standard in cases such as
       these presents a particularly challenging charge to the district courts below to
       answer the question, “what would have happened?” The law nonetheless requires
       that the question be answered—with a careful look at the transcripts involved, and
       with judgment that takes into account a fair balance of the competing interests of
       comity toward the final judgments of the state’s criminal processes and the
       protection of constitutional equal protection interests.

Ambrose, 684 F.3d at 652.

       The district court, applying the actual prejudice standard set forth in Ambrose,
conditionally granted Garcia-Dorantes’ petition for writ of habeas corpus. First, the district court
found that Garcia-Dorantes had shown “cause and actual prejudice” to excuse his procedural


       5
           At this point we included the following footnote:
               This is not to say that the race of the jurors, defendant, and victim must be ignored. For
       example, the Fifth Circuit recognized actual prejudice in a case involving an all-white jury, a black
       defendant, and a white victim who was allegedly raped. See Huffman v. Wainwright, 651 F.2d
       347, 350 (5th Cir. 1981). Relying on Huffman, the Eleventh Circuit reasoned:
                            In Strickland terms, if we compared the result reached by an all white
                  jury, selected by systematic exclusion of blacks, with the result which would
                  have been reached by a racially mixed jury, we would have greater confidence
                  in the latter outcome, finding much less probability that racial bias had affected
                  it. This principle was recognized in Huffman, 651 F.2d at 350:
                           Huffman was a black man accused of raping a white woman.
                           A mixed-race jury might clearly have a special perception in a
                           mixed race case. His defense was consent. His jury was all
                           white. Although a constitutionally drawn jury may be all
                           white, or all black, depriving Huffman of the chance of having
                           a mixed-race jury would seem to meet the prejudice
                           requirements for relief.
       Hollis, 941 F.2d at 1482 (internal citations and quotation marks omitted).
No. 13-2439                                Garcia-Dorantes v. Warren                                Page 10

default. In finding that Garcia-Dorantes had shown actual prejudice, the court began by rejecting
Dr. Sommers’ expert testimony6—testimony that posited that, in general, juries with more
minority members are less likely to convict regardless of the crime—as irrelevant to answering
the question of whether there is a reasonable probability that a properly selected jury would have
been less likely to convict Garcia-Dorantes. The court explained:

         [E]ven if the Court credits the petitioner’s showing on this point as true [e.g., that
         juries with more minority members are less likely to convict], it is irrelevant to
         the question of actual prejudice. A properly selected jury could well have been all
         white, with no minority members at all. The petitioner is not entitled to a more
         lenient jury, or a jury panel with a particular racial balance—just one that has
         been selected through a constitutionally sound process, regardless of the race of
         the members. Taylor v. Louisiana, 419 U.S. 522, 538 (1975). The question is not
         whether the petitioner missed his chance to stand trial before a more merciful jury
         panel or a panel with a particular racial balance, but rather whether there is a
         reasonable probability that a different jury would have reached a different result.

The court then explained that even without Dr. Sommers’ expert testimony, a review of Garcia-
Dorantes’ trial record supported a finding that Garcia-Dorantes had shown actual prejudice:

         Based on the record evidence, it is not reasonable to find that the “case against
         petitioner so strong, and defense so weak, that a court would consider it highly
         improbable that an unbiased jury could acquit.” Ambrose, 684 F.3d at
         652. . . . There is no question that the trial record here discloses sufficient
         evidence on which a jury could have found that Garcia-Dorantes acted with
         malice and therefore reasonably could have found him guilty of second-degree
         murder. But “the question before [this Court] is not one of the sufficiency of the
         evidence.” Richey, 498 F.3d at 364. The evidence of the petitioner’s state of
         mind—his intent—was hardly overwhelming. [. . .]
         [T]he petitioner has raised a credible claim that on the facts of this case, “[a]
         mixed-race jury might clearly have a special perception.” Because African-
         American and Hispanic jurors from more urban areas would be more likely to
         have encountered gang violence than suburban white jurors, they may have better

         6
           In particular, Dr. Sommers testified that: (1) “research literature demonstrates that more diverse juries are
less likely to convict;” (2) “[t]here remains an increased likelihood of a . . . conviction with a greater percentage of
White jurors even in a strong case;” (3) “all-White . . . jurors . . . behave[] very differently in racially diverse jury
settings,” because “when people enter any kind of group discussion or group interaction and believe that there is
going to be disagreement and divergent opinions, people sort of scrutinize information more carefully;” and (4) in
racially charged cases, “White people might actually be more conscious of biases and try to counteract [them].” On
cross examination, however, Dr. Sommers conceded that the “weight of the evidence may play the largest role in
conviction decisions.” He explained, “I wouldn’t be surprised if you would see very high conviction rates in [a trial
with very strong evidence against the defendant] regardless of who the jury is. But again, what the research suggests
is that those rates would be just . . . a little bit higher with an all-White jury.”
No. 13-2439                          Garcia-Dorantes v. Warren                           Page 11

       understood the situation that the petitioner faced in a 4:00 a.m. confrontation with
       a person who he thought was a gang member, and a jury selected from a fair
       cross-section of the Kent County community therefore might have a different
       perception of and reached different conclusions about the state of mind that the
       petitioner had during the resulting street fight. As the petitioner points out, none
       of the witnesses—including petitioner—testified to having a precise memory of
       what happened at the moment Jose Gomez was stabbed. Because the evidence on
       the petitioner’s state of mind reasonably allowed for competing inferences, the
       subjective perceptions, life experience, and common sense of jurors, as shaped by
       their individual racial and cultural backgrounds, would carry considerable weight
       in deciding what precise intent the defendant had at the crucial moment. That
       observation applies with equal force to the question whether the petitioner
       intended to inflict great bodily harm when he stabbed Manuel Garcia.
       Based on the facts and circumstances of the case, when comparing the result
       reached by a jury “selected by systematic exclusion of blacks, with the result
       which would have been reached by a racially mixed jury, [the Court] would have
       greater confidence in the latter outcome, finding much less probability that racial
       bias had affected it.” Ambrose, 684 F.3d at 652 n.4.

       Second, the district court found that Garcia-Dorantes had “established a prima facie
violation of the fair-cross-section requirement under the Sixth Amendment,” showing both a
systematic and substantial underrepresentation of minorities in jury venires. In evaluating the
“fair and reasonable” representation prong from Duren, the court relied heavily on the magistrate
judge’s recommendation:

       Considering the absolute disparity figures cited by Dr. Rothman (3.45%) and Dr.
       Stephenson (6.03%), the magistrate judge noted that three recent cases have found
       an absolute disparity of 3% or less to be insufficient under Duren. United States
       v. Mujahid, 433 F. App’x 559 (2011) (absolute disparity of 2.87% insufficient);
       United States v. Rodriguez-Lara, 421 F.3d 932 (9th Cir. 2005) (3%); United
       States v. Royal, 174 F.3d 1 (1st Cir. 1999) (2.9%). The magistrate judge also
       noted that neither absolute disparity figure would suffice under the standard
       requiring a minimum of 10% absolute disparity which has been adopted in other
       circuits, but he found that the 10% rule was not dispositive because the Sixth
       Circuit has not adopted it. . . . That is . . . reasonable . . . , especially in light of the
       Supreme Court’s declination of the respondent’s invitation to adopt such an
       inflexible rule, finding no need in such cases “to take sides today on the method
       or methods by which underrepresentation is appropriately measured.” Smith,
       559 U.S. at 329−30 & n.4.
       Considering the comparative disparity figures cited by Rothman (42%) and
       Stephenson (73.1%), the magistrate judge found that the latter figure would
       suffice under some recent holdings, but the former would not, citing United States
       v. Weaver, 267 F.3d 231 (3d Cir. 2001) (comparative disparities of 40.01% and
No. 13-2439                         Garcia-Dorantes v. Warren                      Page 12

       72.98% insufficient, where absolute disparities were 1.23% and 0.71%
       respectively); United States v. Chanthadara, 230 F.3d 1237 (10th Cir. 2000)
       (finding that comparative disparities of 40.89% and 58.39% were insufficient, but
       noting another holding that a 68.22% comparative disparity was sufficient);
       United States v. Clifford, 640 F.2d 150 (8th Cir. 1981) (46% comparative
       disparity insufficient).
       After reviewing those authorities, the magistrate judge concluded that the
       evidence was sufficient to support a finding of underrepresentation under Duren,
       because it “presents a more obvious example of exclusion ‘inherent in the
       particular jury-selection process utilized’ than that in Smith.” The magistrate
       judge concluded that because the computer error “understated the county
       population by 3.8 times,” and because of the unique circumstance that the input
       file listed names in zip code order, where the lower zip codes represented
       suburban areas with much smaller proportions of African-American residents, it
       was apparent that the computer selection routine inherently and systematically
       excluded African-Americans from the panels that were selected.

       Respondent now appeals the district court’s grant of conditional habeas relief, claiming
that (1) Garcia-Dorantes failed to show actual prejudice to excuse his procedural default, and
(2) the district court erred in finding that the representation of African-Americans and Hispanics
in the venire from which his jury was selected was not fair and reasonable.

       As an initial matter, in determining whether to excuse Garcia-Dorantes’ procedural
default, the district court applied the correct “actual prejudice” standard set forth in Ambrose v.
Booker, 684 F.3d 638, 652 (2012), a standard intended to mirror the inquiry required by
Strickland v. Washington, 466 U.S. 668, 694 (1984). Courts must consider whether, in light of
the underrepresentation of African Americans in the jury venire, “there is a reasonable
probability that . . . the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. Stated another way, courts must ask, is there a reasonable probability that a different (i.e.
properly selected) jury would have reached a different result, “a probability sufficient to
undermine confidence in the outcome of the trial.” Strickland, 466 U.S. at 694. Though Garcia-
Dorantes argues that a less demanding “Hollis” standard—which he contends asks only whether
there is a “reasonable probability that a proper jury would have been less likely to convict,”
Hollis v. Davis, 941 F.2d 1471, 1482 (11th Cir. 1991)—applies, the Ambrose opinion stated
clearly: “Although the instant petitions do not involve a Strickland claim, this standard is
appropriate because it balances the competing demands of constitutionally protected equal
No. 13-2439                                Garcia-Dorantes v. Warren                                 Page 13

protection interests and comity toward the state courts.” Ambrose, 684 F.3d at 652 (emphasis
added). “This standard” refers to the Strickland standard—and not a different Hollis standard7—
a reading that wholly aligns with our previous statement that “federal courts should not reverse
state court decisions unless a petitioner can show that the outcome would have been different.”
Id. at 651 (emphasis added).

         The district court also correctly found that Dr. Sommers’ expert testimony, in which
Dr. Sommers stated that racially diverse juries are less likely to convict than all-white juries, was
not relevant to the “actual prejudice” determination because his testimony: (1) does not support a
finding that a different jury would have reached a different result; (2) lacks any individualized
assessment of the case against Garcia-Dorantes; and (3) relies on impermissible racial
stereotypes. First, Dr. Sommers’ testimony at best only supports a finding that a properly
selected jury would have been less likely to convict—a standard that requires little more than a
showing of a mere possibility of prejudice. This finding does not meet the more exacting


         7
          It is not even entirely clear that there is a separate, less demanding Hollis standard; rather, the Hollis court
appears to have used the “less likely to convict” language as an alternative way to phrase “probability of a different
outcome” in cases where unconstitutional jury selection is alleged. The structure and analysis of the Hollis court’s
opinion supports this reading. First, the Hollis court began its prejudice analysis with a discussion of Strickland:
                   A petitioner shows prejudice due to ineffective assistance of counsel when “there is a
         reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
         would have been different. A reasonable probability is a probability sufficient to undermine
         confidence in the outcome,” but “a defendant need not show that counsel’s deficient conduct more
         likely than not altered the outcome in the case.” Strickland, 466 U.S. at 694. We conclude that we
         must determine whether in this case there is a probability of a different result sufficient to
         undermine confidence in the outcome.
Hollis, 941 F.2d at 1480. The court then explained that, in assessing the “probability of a different outcome,” the
court must ask “[w]ould a properly selected petit jury have been less likely to convict?” Id. at 1482. A review of
the court’s subsequent analysis shows that, in answering this question, the court relied on the Strickland standard
rather than a less demanding, “less likely to convict” standard. For instance, the court explained that “[b]ecause it is
so likely that the make-up of the grand and petit jury would have been different had Bullock County not
discriminated against blacks in assembling its jury list, we cannot say with confidence that the outcome of Mr.
Hollis’s case would have been the same.” Id. (emphasis added). Later, the court reasoned: “We would have far
more confidence in a term of imprisonment selected by a jury containing members of the defendant’s own race,
particularly where the black defendant is on trial for an offense against a white person.” Id. at 1483 (emphasis
added). And ultimately the court concluded that, “at least as to sentencing, there is a probability of a different result,
but for the unconstitutional jury selection, sufficient to undermine confidence in the outcome.” Id. (emphasis added).
The Hollis court used the “less likely to convict” language only once, while the court repeatedly relied on the
“confidence in the outcome” language from Strickland. Had the court truly adopted a less demanding, “less likely to
convict” standard, such a standard would have contradicted the court’s earlier statement that “[t]o establish actual
prejudice, a petitioner must show ‘not merely that the errors at his trial created a possibility of prejudice, but that
they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.’” Id. at 1480 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).
No. 13-2439                               Garcia-Dorantes v. Warren                              Page 14

Strickland standard, namely that Garcia-Dorantes had to show that, with a properly selected jury,
there was a reasonable probability that the outcome of his trial “would have been different.”
Ambrose, 684 F.3d at 651−52. To find that there is a reasonable probability that with a properly
selected jury a petitioner’s trial outcome would have been different, a court must do more than
simply find that, in general, a more racially diverse jury is less likely to convict; such a finding
says nothing about the case at hand. “To establish actual prejudice, a petitioner must show ‘not
merely that the errors at his trial created a possibility of prejudice, but that they worked to his
actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Hollis, 941 F.2d at 1480 (quotations and citation omitted).

         Second, Dr. Sommers’ testimony lacked any individualized assessment of the evidence
against Garcia-Dorantes, the factor we repeatedly identified in Ambrose as the “most important
aspect to the inquiry.” Ambrose, 684 F.3d at 652. To permit a finding of actual prejudice based
solely on such expert testimony would essentially eliminate the actual prejudice requirement in
all but the most extreme cases (e.g., where the evidence against the defendant is so airtight that
no reasonable jury could vote to acquit).

         Third, reliance on the type of evidence provided by Dr. Sommers rests solely on general
racial characteristics, considerations flatly inconsistent with the underlying theory of Batson v.
Kentucky, 476 U.S. 79, (1986) and its progeny. As Justice Marshall explained, in his Batson
concurrence:

         Exclusion of blacks from a jury, solely because of race, can no more be justified
         by a belief that blacks are less likely than whites to consider fairly or
         sympathetically the State’s case against a black defendant than it can be justified
         by the notion that blacks lack the “intelligence, experience, or moral integrity,”
         Neal v. Delaware, 103 U.S. 370, 394 (1881), to be entrusted with that role.

Batson, 476 U.S. at 104–05 (Marshall, J., concurring).

         Ultimately, the district court, applying the proper Strickland standard,8 correctly found
that Garcia-Dorantes had shown actual prejudice to excuse his procedural default.9 A careful

         8
          The court explained, “[t]he question is not whether the petitioner missed his chance to stand trial before a
more merciful jury panel or a panel with a particular racial balance, but rather whether there is a reasonable
probability that a different jury would have reached a different result.”
No. 13-2439                            Garcia-Dorantes v. Warren                            Page 15

review of Garcia-Dorantes’ trial record indicates that there is a reasonable probability that a
different jury would have reached a different result. Because Garcia-Dorantes conceded that he
had, in fact, stabbed the victim, the trial focused on whether he had acted with the requisite
intent. The jury thus was instructed on, and had a choice between, first-degree murder, second-
degree murder, manslaughter, and self-defense and, as the district court explained, “[t]he
evidence of [Garcia-Dorantes’] state of mind—his intent—was hardly overwhelming.” All of
the witnesses, including Garcia-Dorantes, testified that they were (likely severely) intoxicated on
the night of the fight, and none testified to having a precise memory of what happened at the
moment Gomez was stabbed. Garcia-Dorantes claimed that he had not intended to harm anyone,
and that he had pulled a knife only after he became scared during an attack by “gang members.”
Individuals on both sides of the fight agreed that they did not really know each other prior to the
fight. Though Garcia and Ramirez-Toledo both claimed that Garcia-Dorantes had provoked the
fight and that none of the other fight participants had weapons, in what came down to a he-said-
he-said scenario, it is far from clear that Garcia-Dorantes had intended to kill the victim. The
trial court judge, at sentencing, even described the incident as “completely senseless,” stating, “I
have to believe that perhaps a[n] element of uncontrolled machismo coupled with too much
alcohol may have contributed to this.” Because there is a reasonable probability that a different
jury—faced with the same evidence presented at Garcia-Dorantes’ trial—would have returned a
verdict on one of the alternative charges or acquitted Garcia-Dorantes based on self-defense, the
district court correctly found that Garcia-Dorantes had shown actual prejudice.

        We do not rely, however, on the district court’s reasoning that Garcia-Dorantes “ha[d]
raised a credible claim that on the facts of this case, ‘[a] mixed-race jury might clearly have a
special perception.’”       Though the court reasoned that, “[b]ecause African-American and
Hispanic jurors from more urban areas would be more likely to have encountered gang violence
than suburban white jurors, they may have better understood the situation that the petitioner
faced in a 4:00 a.m. confrontation with a person who he thought was a gang member . . . [and
thus have] reached different conclusions about [Garcia-Dorantes’] state of mind,” this argument

        9
          Respondent does not challenge Garcia-Dorantes’ showing of “cause,” nor could she. Because the factual
basis for Garcia-Dorantes’ claim—the computer glitch—was not reasonably available to counsel, and Garcia-
Dorantes could not have known that minorities were underrepresented in the jury pool by looking at the venire
panel, Garcia-Dorantes has shown cause.
No. 13-2439                               Garcia-Dorantes v. Warren                               Page 16

fails for two reasons. First, as the Respondent points out, there is nothing inherent in race or
ethnicity that would give a juror special insight into gang violence; rather, such an analysis
appears more predicated on the experiences of jurors from urban and suburban settings. Since
“[d]efendants are not entitled to a jury of any particular composition,” Taylor v. Louisiana,
419 U.S. 522, 538 (1975), it follows that they are not entitled to a jury predisposed to better
“understand” their defense strategy.10 There is “no requirement that petit juries actually chosen
must mirror the community and reflect the various distinctive groups in the population.” Id. at
538. As the district court explained, “[t]he question is not whether the petitioner missed his
chance to stand trial before a more merciful jury panel or a panel with a particular racial balance,
but rather whether there is a reasonable probability that a different jury would have reached a
different result.” Second, this argument sounds much like the stereotyping arguments courts
have sought to avoid, see Batson v. Kentucky, 476 U.S. 79, 104–05 (1986) (Marshall, J.,
concurring), namely that because an individual is black or Hispanic, he is predisposed to better
understand, or be sympathetic to, a defendant’s case. Ultimately, saying that a mixed-race jury
might have a special perception (one born of differing experiences and circumstances) is not the
same as saying that systematic underrepresentation in the jury venire led to an outcome much
more likely to have been affected by racial bias—the harm the Sixth Amendment right guards
against.

         Finally, with respect to prejudice, the Respondent’s argument that Garcia-Dorantes
cannot show prejudice because he “cannot even show that the petit jury would more likely than
not have been different,” incorrectly conflates the reasonable probability question with a
preponderance of the evidence standard. Assuming arguendo that the Respondent’s statistical
calculation is correct,11 a 48.51% likelihood that one of the two omitted African Americans

         10
           Prosecutors, likewise, are not allowed to use race as a basis for peremptory challenges, even if they
believe “that blacks are less likely than whites to consider fairly or sympathetically the State’s case against a black
defendant.” Batson, 476 U.S. at 104 (Marshall, J., concurring).
         11
           Respondent argues:
         The venire was comprised of 43 persons. Thus, the likelihood is that there would have been two
         more African American prospective jurors for the venire in the absence of the computer
         glitch . . . . If randomly selected, there was a 48.51% likelihood that one of these African
         Americans would have been seated for the petit jury, or 51.49% that neither would have.
         In other words, it is more likely than not that neither of the two missing African American
         prospective jurors would have been selected for the petit jury. This same analysis may be repeated
         for Latinos where the statistical disparities were smaller. The likelihood is that there was one
No. 13-2439                             Garcia-Dorantes v. Warren                              Page 17

would have been seated for Garcia-Dorantes’ petit jury likely satisfies the reasonable probability
standard. Though a statistical showing that there is a tiny likelihood that the petit jury would
have been different—absent the systematic underrepresentation—may support a finding of no
actual prejudice, reasonable probability is not, either in law or in common parlance, limited to
circumstances that are numerically greater than 50%.

       In addition to showing cause and prejudice to excuse his procedural default, Garcia-
Dorantes has established a prima facie violation of his Sixth Amendment fair-cross-section right
because: (1) African-Americans and Hispanics are “distinctive” groups; (2) Respondent has
forfeited any claim that the underrepresentation of minorities in the jury venire was not due to
the systematic exclusion of the groups in the jury-selection process; and (3) the representation of
the underrepresented groups in the jury venire was not “fair and reasonable.” Under Duren v.
Missouri, 439 U.S. 357 (1979), to establish a prima facie case of a Sixth Amendment fair-cross-
section violation, a plaintiff must prove:

       (1) that the group alleged to be excluded is a “distinctive” group in the
       community; (2) that the representation of this group in venires from which juries
       are selected is not fair and reasonable in relation to the number of such persons in
       the community; and (3) that this underrepresentation is due to systematic
       exclusion of the group in the jury-selection process.

Id. at 364. Because it is undisputed that Garcia-Dorantes has satisfied the first and third Duren
prongs, we address only whether Garcia-Dorantes has shown that the representation of African
Americans and Hispanics in the jury venire from which his jury was drawn was “not fair and
reasonable in relation to the number of such persons in the community.”

       Here, the absolute disparity for African-Americans of 3.45% and corresponding
42% comparative disparity are sufficient to satisfy the Duren second prong. To determine
whether the representation of a distinctive group is not “fair and reasonable,” courts typically use
either—or both—the “absolute disparity” or the “comparative disparity” test to measure the
distinctive group’s underrepresentation.




       missing Latino juror . . . . Likewise, the likelihood that one juror would be selected to sit on the
       petit jury is 27.90%, or 72.10% that the juror would not be selected.
No. 13-2439                         Garcia-Dorantes v. Warren                        Page 18

       Absolute disparity measures the difference between the percentage of a group in
       the general population and its percentage in the qualified wheel. For instance, if
       Asians constitute 10% of the general population and 5% of the qualified wheel,
       the absolute disparity is 5%. Comparative disparity measures the decreased
       likelihood that members of an underrepresented group will be called for jury
       service, in contrast to what their presence in the community suggests it should be.
       This figure is determined by dividing the absolute disparity of the group by that
       group’s percentage in the general population. In the example above, the
       comparative disparity is 50%: Asians are half as likely to be on venires as they
       would be if represented in proportion to their numbers in the community.

United States v. Shinault, 147 F.3d 1266, 1272 (10th Cir. 1998).

       Respondent argues that the disparities at issue here—3.45% and 1.66% absolute
disparities, and 42% and 27.64% comparative disparities for African Americans and Hispanics,
respectively—fail to show that the representation of African Americans and Hispanics in the jury
venires were not “fair and reasonable.” However, although Respondent points to numerous
cases from other circuits in which courts have held that such numbers do not satisfy the Duren
second prong, neither Supreme Court precedent, nor our prior decisions compel such a
conclusion.   First, the Supreme Court has not mandated the proper statistical measure to
determine whether a minority is underrepresented for the purposes of Duren’s second prong.
Berghuis v. Smith, 559 U.S. 314, 329 (2010). In fact, in Smith, the Court explicitly refrained
from “tak[ing] sides . . . on the method or methods by which underrepresentation is appropriately
measured.” Id. at 329–30.

       Second, we have previously found a 1.28% absolute disparity and 34% comparative
disparity—disparity figures lower than those presented in this case—sufficient to satisfy the
Duren second prong, particularly where the underrepresented population is a small percentage of
the community. In doing so, we have emphasized that, “[w]here the distinctive group alleged to
have been underrepresented is small, . . . the comparative disparity test is the more appropriate
measure of underrepresentation.” Smith v. Berghuis, 543 F.3d 326, 338 (6th Cir. 2008), rev’d on
other grounds, 559 U.S. 314 (2010). This is supported by the concern that absolute disparities
“understate[] the systematic representative deficiencies in cases . . . where . . . the groups at issue
comprise small percentages of the general population.” United States v. Weaver, 267 F.3d 231,
242 (3d Cir. 2001) (quoting United States v. Shinault, 147 F.3d 1266, 1273 (10th Cir. 1998)).
No. 13-2439                               Garcia-Dorantes v. Warren                              Page 19

For instance, in Smith, 7.28% of the Kent County population was comprised of African-
Americans eligible for jury service, yet only 6% of the venire panel members in Kent County
were African-American.           The Michigan Supreme Court determined that this disparity was
constitutionally insignificant, but decided the case based on a failure to show the exclusion was
“systematic.” Id. at 339. On appeal, we addressed the significance of the 1.28% absolute
disparity and 34% comparative disparity.12 Id. at 336−39. Even though we recognized that a
number of other courts had found absolute disparities in that range not to be constitutionally
significant, id. at 337 (collecting cases), we nevertheless found that it would be unwise to apply
the absolute disparity test when the underrepresented group is so small; we concluded that in
such situations, the comparative disparity test is more appropriate, reasoning:

         “[A]n intractable use of the absolute measure may, in certain
         circumstances . . . produce distorted results. For example, if a district with 10%
         non-white population has .5% non-whites in the wheel, the 9.5% disparity may
         not evoke disapproval under an absolute measure but may require it under a
         comparative measure.”

Id. at 337−38 (quoting Foster v. Sparks, 506 F.2d 805, 835 (5th Cir. 1975)).                              We then
determined that, given the size of the minority population in Kent County, and the size of the
comparative disparity (34%), the petitioner had satisfied the second prong of Duren.

         The instant case is factually similar to Smith, a published precedent of our court. Both
cases involve the jury pool in Kent County, a county in which African-Americans and Hispanics
comprised a small percentage of the population, both in 1990 and 2000. Thus, as we found in
Smith, the absolute disparity test—on its own—is of little use. Further, focusing on comparative
disparity—as suggested by the Smith court—leads to the conclusion that Garcia-Dorantes has
satisfied Duren’s second prong: the 42% comparative disparity here exceeds the
34% comparative disparity found sufficient in Smith. This finding comports with the finding of
an Eighth Circuit court in United States v. Rogers, 73 F.3d 774 (8th Cir. 1996). In Rogers, an
Eighth Circuit panel indicated that a comparative disparity of 30% would be sufficient to meet

         12
            This portion of the Smith opinion—which addresses the second prong of Duren—is not dicta. The
Michigan Supreme Court assumed that the petitioner had met the second prong of Duren, but concluded that
petitioner had not met the Duren third prong. We held that habeas relief was required. In doing so, we had to
decide whether the petitioner met the second prong. Moreover, when the Supreme Court reversed and remanded, it
did so because it found petitioner failed to meet the third prong of Duren, thus leaving intact our holding related to
Duren’s second prong. Smith, 559 U.S. at 320.
No. 13-2439                             Garcia-Dorantes v. Warren                           Page 20

the underrepresentation prong of the Duren test where African-Americans comprised only
1.87% of the jury-eligible population. Id. at 776−77. Though the Rogers court noted that it was
bound by precedent that had previously upheld the challenged Iowa jury-selection plan, the
majority urged the court to revisit the precedent given the 30% comparative disparity figure. The
court reasoned that, because the minority population comprised only 1.87% of the total
population, comparative disparity was the most accurate measure of the underrepresentation.13
Id.

        Finally, the Ambrose district court, in its initial conditional grant of habeas, correctly
considered and distinguished many of the cases from other circuits on which Respondent relies:

        [T]he First Circuit and Second Circuit cases cited by Respondent for “similar”
        statistics did not analyze a comparative disparity, see [United States v. Royal, 174
        F.3d1, 10 (1st Cir. 1999)], and [United States v. Rioux, 97 F.3d 648, 657–58 (2d
        Cir. 1996)], and the Third Circuit case rejecting comparative disparities of
        40.01% and 72.98% was also faced with absolute disparities of only 1.23% and
        0.71%, respectively, see [United States v. Weaver, 267 F.3d 231, 241–243 (3rd
        Cir. 2001)]. The absolute disparity in this case was much higher, at 3.45%. While
        the Seventh Circuit rejected an absolute disparity of 3%, the court noted at the
        same time that there was nothing to suggest that “this discrepancy amounts to
        anything more than a statistical coincidence.” [United States v. Ashley, 54 F.3d
        311, 313–314 (7th Cir. 1995).] Here, the discrepancy was indisputably caused by
        the error in compiling the jury pool. Indeed, Dr. Stephenson’s rejection of both
        the absolute and comparative disparity tests as statistically inadequate and his
        adoption of the Chi-square Goodness-of-fit test result as demonstrating the
        underrepresentation of African Americans in the jury pool is unrebutted.
        Of the cases cited by Respondent in its objection, that leaves only the Tenth
        Circuit’s decision in [United States v. Orange], wherein the court rejected an
        absolute disparity of 3.57% and comparative disparity of 51.22%. [447 F.3d 792,
        798–99 (10th Cir. 2006)]. The court relied on its earlier cases rejecting similar,
        and larger disparities. Id. However, a review of the Tenth Circuit cases does not

        13
           However, in United States v. Clifford, 640 F.2d 150 (8th Cir. 1981), a case decided before Rogers,
another Eighth Circuit panel explained:
        This court has not seen fit to adopt the comparative disparity concept as a better means of
        calculating underrepresentation. However, even if this were not the case, the 46% comparative
        disparity figure asserted by Clifford does not rise to the level found to establish substantial
        underrepresentation.
Id. at 155. The percentage of Native Americans—the “distinctive group”—in the population in Clifford, however,
was 15.6%, almost twice the percentage of African-Americans in the population in Kent County. Thus, the absolute
disparity may not have misstated the underrepresentation of the Native Americans to the same extent as cases
dealing with smaller populations.
No. 13-2439                               Garcia-Dorantes v. Warren                               Page 21

         reveal a persuasive rationale. Despite its reversal on other grounds, it is prudent
         to follow the Sixth Circuit’s decision in Smith.

Ambrose, 781 F. Supp. 2d at 545. Given that African-Americans and Hispanics constitute a
small percentage of the Kent County population, the absolute and comparative disparity figures
here—taken together—are sufficient to satisfy Duren’s second prong.

         Contrary to Respondent’s contention, in so finding, we have not “lowered” the standard
for determining whether there is a “fair and reasonable” representation of a distinct group. See
Appellant’s Br. at 51. Our circuit has never established a bright-line threshold for either absolute
or comparative disparity figures, and in Smith, we clearly held that disparities lower than those
present here satisfied the second prong of Duren. Nor do we agree with Respondent that finding
that these disparity levels satisfy the Duren second prong requires an additional finding that there
were “non-benign” factors at play. It is true that, in Smith, we noted that “[o]ther courts
have . . . found significant underrepresentation in the context of small minority populations that
would otherwise not satisfy the requisite burden under Duren where ‘non-benign factors’ may be
operating to produce such underrepresentation.” 543 F.3d at 339. However, we did not indicate
that a showing of “non-benign” factors was always required for a petitioner to succeed on a
claim where the relatively small size of the distinct group in the population makes the
applicability of the absolute and comparative disparity tests problematic and, in any event, the
3.45% absolute disparity and 42% comparative disparity figures here are not so low as to require
such an additional showing.

         Because Garcia-Dorantes has satisfied the Duren second prong based on the combination
of absolute and comparative disparity, we decline to apply in this case either the “disparity of
risk” test14 or “comparative disparity of risk”15 test discussed by Garcia-Dorantes. Neither


         14
           The “disparity of risk” test measures “the likelihood that the difference between a group’s representation
in the jury pool and its population in the community will result in a significant risk that the jury will not fairly
represent the group.” People v. Bryant, 822 N.W.2d 124, 142−43 (Mich. 2012). “It does so by comparing the
chance that a defendant’s jury (before or without voir dire) will include members of a distinct group if that group’s
representation in the jury pool is consistent with its population in the community with the chance that a defendant’s
jury will include members of the same group given the particular underrepresentation alleged.” Id. at 143.
Proponents of the “disparity of risk” test claim that the test “does not distort the results when the representation in
the community is either very large or very small.” Fitzharris, Can We Calculate Fairness and Reasonableness?,
112 MICH. L. REV. 489, 507 (2013) (citing Peter A. Detre, Note, A Proposal for Measuring Underrepresentation in
the Composition of the Jury Wheel, 103 YALE L.J. 1913, 1935−36 (1994)). However, opponents of the test point out
No. 13-2439                                Garcia-Dorantes v. Warren                                  Page 22

Respondent nor Garcia-Dorantes argues for a wholesale adoption of either test, and both tests are
relatively untested. We do not, however, reject the possibility that such tests may be useful in
some future case.

         Finally, because the glitch was inadvertent, no state interest was advanced by the
computer error and subsequent underrepresentation of minorities in the jury venire. Once a
petitioner establishes a prima facie violation of his Sixth Amendment fair-cross-section right—as
Garcia-Dorantes has—the burden shifts to the government to show that “a significant state
interest [is] manifestly and primarily advanced by those aspects of the jury-selection
process . . . that result[ed] in the disproportionate exclusion of a distinctive group.” Duren,
439 U.S. at 367–68.

         Accordingly, we affirm the judgment of the district court granting Garcia-Dorantes’
petition for a writ of habeas corpus.




that: (1) the test has yet to garner approval in any court besides the Michigan Supreme Court, see Bryant,
822 N.W.2d at 143; (2) the test, by emphasizing the underrepresentation of the distinct group in the petit jury, not
the jury venire, may not answer the question posed by Duren’s second prong, namely whether “the representation of
[the minority group] in venires from which juries are selected is not fair and reasonable in relation to the number of
such persons in the community,” Duren, 439 U.S. at 364; and (3) because the test assumes that the jurors in a petit
jury are chosen at random from an infinite pool and, consequently, does not control for peremptory or for-cause
challenges, or a shrinking jury venire, the test may not accurately reflect the “true” likelihood of a group’s
representation in the petit jury.
         15
             The “comparative disparity of risk” test has one advantage over the disparity of risk test, namely that it
“measures the likelihood that the state’s bad act—in this case, the systematic exclusion of black jurors from the jury
list—results in an unfavorable result, [such as] an underrepresentative petit jury.” Fitzharris, Can We Calculate
Fairness and Reasonableness?, 112 MICH. L. REV. at 515. However, the test appears to suffer from the same
shortcomings the disparity of risk test does: (1) because the test has not been adopted by any court, it may be
difficult to establish a “threshold” level; (2) the test’s result focuses on the composition of the petit jury, rather than
the venire; and (3) the analysis does not account for peremptory or for-cause challenges, or shrinking jury venires.
No. 13-2439                           Garcia-Dorantes v. Warren                   Page 23

                                        _________________

                                             DISSENT
                                        _________________

       MERRITT, Circuit Judge, dissenting. I disagree with the opinion of my colleague, Judge
Rogers, that the writ should issue setting aside the State’s judgment in the case. My reasons are
as follows:

       First, the number of available black jurors in Kent County, Michigan, remains much
below ten percent — in line with the case from Kent County recently decided by the United
States Supreme Court in 2010, Berghuis v. Smith, 559 U.S. 314, in which the Court held that the
trial by an all-white jury in a similar situation did not violate the Sixth Amendment. It reversed
this Court in that case, reported at 543 F.3d 326 (2010). The Supreme Court observed that the
number of non-white jurors seemed to be further substantially reduced because of social and
economic factors leading potential black jurors at times to avoid serving by not responding to
mail notice to appear. The Supreme Court noted that in such situations where “members of the
distinctive group” are a “small percentage of those eligible for jury service” we should be
hesitant to find that the state engaged in “systematic exclusion” when the jury turns out to be all-
white. Id. at 329-30. Based on the law of averages, along with the random nature of selecting
the persons to be called for jury duty, there are likely to be many all-white juries in Kent County.
The Court found that in such situations “absolute disparity and comparative disparity . . . can be
misleading,” and rejected Sixth Amendment arguments, like those in the instant case, based on
such abstract statistical measures.

       My colleagues cite for authority and follow this Court’s reasoning in Berghuis v. Smith,
supra, the Kent County case the Supreme Court reversed. So far as I can follow the statistical
tests explained in Judge Rogers’s opinion in this case, the reasoning is based on the “absolute”
and “comparative” statistical tests that the Supreme Court rejected as “misleading” when the
percentage of blacks and Hispanics is as low as it remains in Kent County. I read the Supreme
Court opinion as rejecting the use of these statistical tests in our earlier Berghuis opinion. The
statistical analysis remains the same in the instant case as in our earlier opinion that the Supreme
Court reversed.
No. 13-2439                         Garcia-Dorantes v. Warren                        Page 24

       Second, in the case before us, the number of available black jurors in Kent County,
Michigan, is well below 10% so that by the law of averages many juries would be all white. Yet
in this case, we do not even know that there were no blacks on the jury because apparently no
record was kept, and no record is available, about who was on the jury. We do not know how
many men or women, or how many blacks or Hispanics, were on the jury. There may well have
been one or more black members on the jury in this case. We simply do not know the facts on
this question. If we do not know the facts on this question, we cannot logically or accurately say
that in reality there was “systematic exclusion” in this case, except in the most abstract,
generalized statistical sense.

       Third, even if we assume the under representation of black jurors based on the “computer
glitch” and the various statistical tests courts have used to measure the representation of
distinctive groups in jury pools, the assumption may very well be wrong because one or more of
the clerks in the Kent County Circuit Court Clerk’s office, on their own initiative, apparently
added black members to some of the venires in order to overcome what they perceived to be
juries that were too white. Based on the findings of Michigan courts, we may take judicial notice
of the work of the clerks of court to try to make up for the shortfall of black jurors:

               Moreover, there was evidence that the error began in April 2001 and
       persisted over a period of 16 months. Terry Holtrop, the case-management
       manager for the Kent Circuit Court, testified that he became aware in April 2001
       that there was a problem of underrepresentation of minorities on Kent County
       juries. Gail VanTimmeren, the jury clerk for the Kent Circuit Court, testified that
       it was “visually evident” that there were not enough minorities coming in for jury
       duty and that she had spoken to the administrator “over and over again” about
       this. VanTimmeren asserted that on a number of occasions, she handpicked
       individuals who appeared to be African-American to be placed on a panel from
       which a jury would be selected. She asserted that “we significantly, in every
       single week, were not getting minorities in, and something was wrong.”

People v. Bryant, 796 N.W.2d 135, 143-44 (Mich. App. Ct. 2010). Thus, we do not know
whether any particular jury was unrepresentative of the community.

       Fourth, when the jury decides a highly contested case based on the instincts, credibility
determinations and inferences of twelve jurors after extensive discussions in the jury room, how
can we judge the effect of the failure to have seated, or called for jury duty, a juror from a
No. 13-2439                          Garcia-Dorantes v. Warren                       Page 25

particular distinctive group? So long as the evidence supports the verdict and so long as the
selection process does not purposely discriminate against members of the group, I am unable to
find prejudice or a reasonable basis for setting aside a jury verdict in cases like this one.

       A central purpose of the modern trial by jury is to protect the citizen from prosecutorial
overreach by democratizing the judicial process through a representative group of citizens who
apply the often-complicated rules of the criminal law and debate among themselves what justice
requires in the case. It is a great “bulwark” of liberty developed over ten centuries of Anglo-
American law. See Plucknett, “A Concise History of the Common Law” 136-38 (1956). Taking
into account all of the factors in this case — e.g., the attitude of the Supreme Court about the
lack of persuasiveness of abstract statistical arguments in this situation, our lack of precise
knowledge of what jurors were in fact impaneled, and the facts of the case and the jury verdict
— I cannot say that the jury in this case was not representative of the people of Kent County, and
I am not inclined to set aside the verdict and start all over again.
