                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            JUN 5 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JOHN CERRONE,

                Petitioner-Appellant,

    v.                                                   No. 96-1219
                                                     (D.C. No. 95-S-2303)
    ARI ZAVARAS, as the Executive                         (D. Colo.)
    Director of the Department of
    Corrections of the State of Colorado;
    ATTORNEY GENERAL FOR THE
    STATE OF COLORADO,

                Respondents-Appellees.




                              ORDER AND JUDGMENT *



Before EBEL, HENRY, and MURPHY, Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Petitioner appeals the district court’s denial of habeas relief, 28 U.S.C.

§ 2254, from his Colorado convictions for pandering and for violating the

Colorado Organized Crime Control Act. On appeal, petitioner argues that, in

selecting the grand jury that indicted him, the state court judge impermissibly

excluded 1) persons with Spanish surnames; and 2) wage earners. 1 Because

petitioner failed to file a timely objection to the magistrate judge’s

recommendation to deny relief on his challenge to the exclusion of wage earners,

however, he has waived appellate review of that issue. See, e.g., Talley v. Hesse,

91 F.3d 1411, 1412 (10th Cir. 1996). Although we recognize an exception to this

firm waiver rule where the ends of justice require review, see id. at 1413, that is

not the case here.

      The single issue presented for resolution, therefore, is whether the state

judge selected the indicting grand jury in a purposefully discriminatory manner by

excluding all prospective jurors with Spanish surnames. If so, petitioner would

be entitled to habeas relief. See Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986)

(holding discrimination in selection of grand jury is fundamental flaw

undermining structural integrity of criminal tribunal itself and, therefore, is not

subject to harmless error review).



1
       Petitioner, in the district court, dismissed an unexhausted § 2254 claim
asserting a speedy trial violation.

                                         -2-
      We grant petitioner’s motion for a certificate of appealability, see

28 U.S.C. § 2253(c), and affirm the denial of habeas relief. In doing so, we

review the district court’s legal determinations de novo. See Davis v. Executive

Dir. of Dep’t of Corrections, 100 F.3d 750, 756 (10th Cir. 1996), cert. denied,

1997 WL 120775 (1997). Absent procedural error in the state court, we must

presume state court factual findings are correct if they are fairly supported by the

record. See 28 U.S.C. § 2254; 2 see also, e.g., Purkett v. Elem, 514 U.S. 765, 115

S. Ct. 1769, 1771 (1995) (per curiam).




2
      The district court’s order denying petitioner habeas relief is dated April 26,
1996, two days after the Antiterrorism and Effective Death Penalty Act (AEDPA)
was signed into law. The AEDPA increases the deference federal habeas courts
must afford state courts’ factual findings and legal determinations. See Houchin
v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997) (considering amended 28 U.S.C.
§ 2254(d) and (e)).

      While courts normally apply the law in force at the time of their
      decision, they will not use the new law if its application would have
      a retroactive effect. The Supreme Court has recently accepted
      certiorari on this issue. See Lindh v. Murphy, ___U.S.___, 117
      S. Ct. 726 . . . (1997) (accepting certiorari on the question of whether
      § 107(c) of AEDPA fails to specify the extent to which § 2254(d) is
      to apply retroactively to pending habeas petitions, and, if so, whether
      the court correctly determined that the “habeas-curtailing statutes
      apply retroactively?” 65 U.S.L.W. 3483 (Jan. 14, 1997)). We need
      not await the Supreme Court’s decision on these issues as [petitioner]
      cannot prevail under either version of the statute.

Houchin, 107 F.3d at 1470 (citation omitted).

                                         -3-
      The indicting grand jury was selected in the following manner, see People

v. Cerrone, 854 P.2d 178, 181-83 & 182 n.5 (Colo. 1993): In response to a

petition from the state attorney general, the chief judge for the Denver district

court ordered impanelment of a state grand jury, see Colo. Rev. Stat. § 13-73-101

(subsequently amended in 1996), issuing summonses to 375 prospective grand

jurors from a five-county area. Petitioner does not challenge the manner in which

this original pool of prospective grand jurors was chosen.

      Each of those summoned then completed a written questionnaire, which

requested information concerning past and present employment, educational

background, criminal records, prior participation in judicial proceedings, and any

circumstances that might interfere with the prospective juror’s service on the

grand jury, as well as information concerning immediate family members,

relatives and close friends. The chief judge, “with the advice of the attorney

general,” id., § 13-73-103, then selected the members of the grand jury, first by

using the answers to the written questionnaires to excuse all but forty-two

prospective jurors, then conducting oral voir dire of those remaining potential

jurors. Of those excused on the basis of the written questionnaires, the chief

judge excused fifty prospective jurors for unspecified reasons, despite the fact

that those jurors had not indicated any reason on their questionnaires that might

have prevented them from serving on the grand jury. At least five of those fifty


                                          -4-
had Spanish surnames. Of the forty-two remaining prospective grand jurors

summoned for oral voir dire, none had Spanish surnames and, consequently, the

grand jury indicting defendant also did not have any members with Spanish

surnames.

      Petitioner alleges that the chief judge purposefully discriminated against

the prospective grand jurors with Spanish surnames when he excluded them from

grand jury service. See generally Castaneda v. Partida, 430 U.S. 482, 483-84,

490, 501 (1977) (affirming grant of habeas relief where state discriminated

against Mexican-Americans in grand jury selection process). Following several

pretrial hearings on petitioner’s motion to quash the indictment, however, the

state trial court found that the chief judge had not purposefully discriminated

against individuals with Spanish surnames when he selected the grand jury. See

Cerrone, 854 P.2d at 180-81. The Colorado Supreme Court affirmed that factual

determination. See id. at 193-94. Because petitioner does not assert any

procedural deficiencies, we must presume the correctness of the state trial court’s

factual finding that the chief judge did not purposefully discriminate when he

excluded the prospective grand jurors with Spanish surnames, see Batson v.

Kentucky, 476 U.S. 79, 98 n.21 (1986); 3 see also Hernandez v. New York, 500


3
      Although Batson addressed allegations that a prosecutor’s discriminatory
use of peremptory challenges, in selecting a petit jury, violated equal protection,
                                                                       (continued...)

                                         -5-
U.S. 352, 364, 366-67 (1991), so long as that finding is fairly supported by the

record.

      Petitioner bears the burden of proving purposeful discrimination in the

selection of the indicting grand jury. See Batson, 476 U.S. at 93, 98. In making

this determination, however, the court will apply a three-part burden-shifting

analysis. See Hernandez, 500 U.S. at 358-59 (citing Batson, 476 U.S. at 96-98).

The parties do not dispute that petitioner, in the state court proceeding, met his

step-one burden of establishing a prima facie case of discrimination. See also id.

at 359 (holding once State offers race-neutral explanation and trial court rules on

ultimate question of intentional discrimination, preliminary issue of whether

defendant made prima facie case becomes moot).

      The burden of production then shifted to the State to come forward with a

racially neutral explanation for the exclusion of the Spanish-surnamed jurors. See

id. at 358-59 (citing Batson, 476 U.S. at 97-98); see also Purkett, 514 U.S. 765,

115 S. Ct. at 1770. Although the State “must give a ‘clear and reasonably

specific’ explanation of . . . ‘legitimate reasons’” for the exclusion of all

prospective grand jurors with Spanish surnames, Batson, 476 U.S. at 98 n.20


3
 (...continued)
the Court noted that “[t]he basic principles prohibiting exclusion of persons from
participation in jury service on account of their race ‘are essentially the same for
grand juries and for petit juries.’” 476 U.S. at 84 n.3 (quoting Alexander v.
Louisiana, 405 U.S. 625, 626 n.3 (1972)).

                                          -6-
(quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 258

(1981)), this second step does not demand an explanation that is persuasive or

even plausible, but only one that is race neutral, see Purkett, 514 U.S. 765, 115 S.

Ct. at 1771. If the State met its burden at this second step, then petitioner would

have had the burden of proving purposeful discrimination. See Hernandez, 500

U.S. at 359 (citing Batson, 476 U.S. at 98); see also Purkett, 514 U.S. 765, 115 S.

Ct. at 1770-71.

      The trial court determined that the State had met its burden of production

by presenting the testimony of a deputy attorney general and an assistant attorney

general, both of whom advised and assisted the Denver chief judge in selecting

the grand jury that indicted petitioner, and two assistant attorneys general who

had assisted the chief judge in selecting statewide grand juries in other years. See

Cerrone, 854 P.2d 180-81. 4 Their testimony indicated that

      the chief judge . . . tried to select from the original random pool of
      375 a venire of approximately 40 who were more highly educated, on


4
       On appeal, petitioner asserts that eighteen of the nineteen volumes of
transcript included in the state court record have been lost. Nonetheless,
petitioner does not indicate that this lack of record has affected his ability to
present this claim for § 2254 relief and does not dispute, but rather relies,
himself, on the evidentiary summaries in the state appellate courts’ decisions.
See Appellant’s Opening Br. at 3 n.1; see also Thomas v. Kerby, 44 F.3d 884, 886
n.2 (10th Cir. 1995); Milone v. Camp, 22 F.3d 693, 697 n.2 (7th Cir. 1994).
Under these circumstances, we do not deem the loss of the transcripts to be “a
substantial impediment to petitioner’s appeal or our review thereof.” Thomas, 44
F.3d at 886 n.2.

                                         -7-
      the assumption that additional formal education would tend to help
      them understand the cases that would come before them. . . . [T]he
      chief judge also tried to select persons with jobs and family
      commitments that would most easily allow them without hardship to
      be away from work or home nearly every Friday for one year,
      operating on the assumption that persons who work for hourly wages
      are more likely to lose pay when serving on a state grand jury than
      are salaried employees, with the result that serving on a state grand
      jury is often more of a hardship for hourly wage earners. Finally, . . .
      the chief judge thought that the jury selection statutes could be
      interpreted as not permitting the consideration of more than 75
      people from any one county, that as a result the chief judge routinely
      excluded from the venire persons who were summoned from
      addresses in one county but who had moved to a different county,
      and that this was the most likely explanation for the exclusion of two
      of the Spanish-surnamed individuals in question.

Id. at 190 (footnote omitted); see also id. at 192-93. Further, the deputy attorney

general testified that the chief judge made an affirmative effort to select

individuals from minority groups to serve on grand juries, had in other years

selected grand jurors with Spanish surnames, and that the chief judge’s exclusion

of the particular Spanish-surnamed prospective grand jurors in petitioner’s case

was consistent with what the deputy attorney general would have advised, or did

advise, the chief judge in this case, based upon the race-neutral criteria previously

set forth. See id. at 192.

      The deputy attorney general also indicated that it had been his experience

that, although prospective jurors did not include on their questionnaire possible

problems with service on the grand jury, when they appeared for voir dire,

one-third to one-half of them changed their minds and did assert that they would

                                          -8-
be unable to serve. See id. at 192. For that reason, “those who screen the

questionnaires try to anticipate such occurrences and will recommend exclusion of

a potential juror on the basis of a perceived possible hardship even if that person

does not identify any specific hardship on the questionnaire.” Id.

      Citing Castaneda, 430 U.S. 482, petitioner argues that the State could not

rebut his prima facie showing of discrimination without presenting the testimony

of the decisionmaker ultimately responsible for selecting the grand jury, the

Denver district court’s chief judge. Castaneda, however, is distinguishable.

      Under the Texas grand jury selection procedure at issue in Castaneda, jury

commissioners, appointed by a state district judge, selected prospective grand

jurors from the community at large, and then the state judge would test their

qualifications to serve on a grand jury, based upon an inquiry dictated by state

statute. See id. at 484-85. In response to the defendant’s prima facie showing of

discrimination, “the State introduced practically no evidence.” Id. at 498.

Although the State presented the testimony of the state court judge that appointed

the jury commissioners regarding his selection of, and general instructions to,

those commissioners, see id. at 490-91, 498, “[t]he jury commissioners

themselves, who were the only ones in a position to explain the apparent

substantial underrepresentation of Mexican-Americans and to provide information




                                         -9-
on the actual operation of the selection process, were never called” to testify, id.

at 491.

      Unlike in Castaneda, the State in this case was able to assert a racially

neutral explanation for the exclusion of all of the prospective grand jurors with

Spanish surnames through the testimony of those actually involved in the

selection process. Although the State did not present the testimony of the chief

judge, who alone possessed the ultimate authority to select those members of the

grand jury pool that would participate in voir dire and those who would

eventually make up the grand jury, the State did present the testimony of the

deputy and assistant attorneys general, who actively participated, assisted and

advised the chief judge in making these selections. Those witnesses were able to

testify to specific, race-neutral criteria used to excuse prospective jurors prior to

oral voir dire. Further, the state trial judge had the opportunity to test those

race-neutral reasons by comparing the questionnaires of those prospective grand

jurors chosen for voir dire and those excluded based upon their written responses.

See Cerrone, 854 P.2d at 192.

      This testimony was sufficient to meet the State’s burden of production and

also fairly supported the state trial court’s factual determination that the chief

judge had not purposefully discriminated in selecting the grand jury that indicted

petitioner. We must presume this finding to be correct. We, therefore, need not


                                          -10-
consider the affidavit of the chief judge, submitted by the State to the federal

district court as part of its objections to the magistrate judge’s recommendation.

      We AFFIRM the judgment of the United States District Court for the

District of Colorado denying petitioner habeas relief.

                                                     Entered for the Court


                                                     David M. Ebel
                                                     Circuit Judge




                                         -11-
