                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit Rule 206
                                        File Name: 12a0200p.06

                 UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                 X
                                  -
               11-1430
                                  -
 JOSEPH AMBROSE,                  -
          Petitioner-Appellee, -
                                      Nos. 11-1430/10-1247/09-1539

                                  ,
                                   >
                                  -
           v.

        Respondent-Appellant. -
 RAYMOND D. BOOKER,
                                  -
                                  -
           10-1247                -
                                  -
                                  -
         Petitioner-Appellant, -
 GREGORY CARTER,
                                  -
                                  -
           v.
         Respondent-Appellee. -
 BLAINE LAFLER,
                                  -
                                  -
                                  -
                                  -
           09-1539

                                  -
         Petitioner-Appellant, -
 CARL BURNIE WELLBORN,

                                  -
                                  -
           v.
         Respondent-Appellee. -
 MARY BERGHUIS,

                                  -
                                 N
                   Appeals from the United States District Court
                 for the Eastern District of Michigan at Bay City
              and the Western District of Michigan at Grand Rapids.
               No. 06-13361—Thomas L. Ludington; District Judge;
              Nos. 09-215; 05-346—Robert J. Jonker, District Judge.
                                    Argued: February 28, 2012
                               Decided and Filed: June 28, 2012
 Before: MERRITT and ROGERS, Circuit Judges, and POLSTER, District Judge.*




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


                                                    1
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                     Page 2


                                 _________________

                                      COUNSEL
ARGUED: B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant in 11-1430. Bradley R. Hall, FEDERAL PUBLIC
DEFENDER OFFICE, Detroit, Michigan, for Appellee in 11-1430. Bradley R. Hall,
FEDERAL PUBLIC DEFENDER OFFICE, Detroit Michigan, for Appellants in 10-1247
and 09-1539. John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellees in 10-1247 and 09-1539. ON BRIEF: B. Eric
Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan,
for Appellant in 11-1430. Bradley R. Hall, Kenneth R. Sasse, FEDERAL PUBLIC
DEFENDER OFFICE, Detroit, Michigan, for Appellee in 11-1430. Bradley R. Hall,
James R. Gerometta, FEDERAL PUBLIC DEFENDER OFFICE, Detroit Michigan, for
Appellants in 10-1247 and 09-1539. John S. Pallas, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellees in 10-1247 and 09-1539.
Debra M. Gagliardi, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee in 10-1332. Gregory Carter, Manistee, Michigan, pro se.
                                 _________________

                                       OPINION
                                 _________________

       ROGERS, Circuit Judge. These habeas petitions involve the far-reaching effects
of an unintentional computer glitch that caused the systematic underrepresentation of
African-Americans in the jury pools of Kent County, Michigan. The three petitioners
received separate jury trials in Kent County in either 2001 or 2002. At jury selection,
the petitioners did not object to the racial composition of their respective jury venires,
and were subsequently convicted. A few months later, the Grand Rapids Press published
a story detailing how Kent County’s jury selection software had a computer glitch that
had systematically excluded African-Americans from the jury pool. In light of these
revelations, the petitioners each filed motions for post-conviction relief in state court.
The state court found that the petitioners had waived these claims by failing to object to
the racial composition of the jury venire during voir dire.

       The petitioners each filed a § 2254 habeas petition. The Western District of
Michigan denied two of the petitions—Carter v. Lafler, No. 10-1247, and Wellborn v.
Berghuis, No. 09-1539—holding that the petitioners had not shown cause to excuse their
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                       Page 3


procedural default. In Ambrose v. Booker, No. 11-1430, the Eastern District of Michigan
granted habeas relief. The Ambrose court held that the petitioner could not have known
of the computer glitch, presumed prejudice because the glitch caused a structural error,
and then granted the petition on the merits. Remand in all three cases is appropriate
because the petitioners have shown cause to excuse their defaults, but federal-state
comity requires that the district court find actual prejudice before granting relief.

                                             I.

1.      Ambrose

        On April 19, 2001, a Kent County jury convicted Joseph Ambrose of two counts
of armed robbery, one count of carjacking, and one count of felony-firearm possession.
Ambrose v. Booker, 781 F. Supp. 2d 532, 535 (E.D. Mich. 2011). Ambrose sought leave
to appeal; however, his appointed counsel withdrew and the Michigan Court of Appeals
determined that Ambrose’s appeal was frivolous. Id. Ambrose did not appeal to the
Michigan Supreme Court.

        On July 30, 2002, the Grand Rapids Press reported that a computer glitch 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.”
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                         Page 4


       In light of these revelations, Ambrose initiated state post-conviction proceedings.
Ambrose requested relief from judgment, claiming he was denied his right to be tried by
a jury drawn from a fair cross-section of the community. The trial court denied
Ambrose’s motion because, among other things, Ambrose failed to object to the venire
panel before the jury was empaneled. The Michigan Court of Appeals denied leave to
appeal, as did the Michigan Supreme Court. See People v. Ambrose, 706 N.W.2d 16
(Mich. 2005) (unpublished table decision).

       Ambrose then filed this habeas petition in the United States District Court for the
Eastern District of Michigan. The district court referred the matter to a magistrate judge,
who held an evidentiary hearing at which four items of evidence were introduced. First,
the magistrate judge heard the testimony of Wayne Bentley, the teacher that uncovered
the disparate representation. Second, the magistrate judge heard testimony from Terry
Holtrop, the case manager for the Kent County Circuit Court. Ambrose, 781 F. Supp.
2d at 537-38.     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 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 pull data as is evidenced in the various tables included in this report,
       for the second half of 2001 and the first half of 2002.
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                                Page 5


         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 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.1 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


         1
             The Tenth Circuit has explained the differences between the measures:
                    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) (formatting altered).
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                      Page 6


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 “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.
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.
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. Rothman found a comparative
disparity of 42%. Based on these four pieces of evidence, the magistrate judge
concluded that Petitioner had proven a prima facie case of a fair cross-section claim.

       The district court adopted the magistrate judge’s report and recommendation.
Ambrose, 781 F. Supp. 2d at 545-46. First, the district court held that Ambrose had not
procedurally defaulted his claim. The court acknowledged that district courts had split
on the issue of procedural default with regard to the Kent County computer glitch, but
the court concluded that Ambrose had shown good cause to excuse his default because
he could not have known of the glitch. Id. at 542-43. Second, the district court found
that the number of African-Americans in the jury pool was not “fair and reasonable in
relation to the number of such persons in the community.” Id. at 543-44. The district
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                      Page 7


court recognized that the absolute disparity of 3.45% fell below the 10% mark
established by Swain v. Alabama, 380 U.S. 202, 208-09 (1965). However, this
10% mark was not a bright-line rule; to hold otherwise would prevent fair cross-section
claims in areas where the minority population was less than 10%. Ambrose, 781 F.
Supp. 2d at 543-44. Finally, the district court held that the systematic exclusion did not
need to be intentional. Id. at 545. The district court granted a conditional writ of habeas
corpus and respondents timely appealed.

2.        Carter

          Gregory Carter’s habeas petition was reviewed by both the Eastern and Western
Districts of Michigan, which came to opposite conclusions. A jury convicted Carter of
armed robbery of a convenience store in Kent County, Michigan. At trial, the
prosecution presented “overwhelming” evidence of the robbery, including a videotape
which showed Carter robbing the store. Carter v. Lafler, No. 1:09-cv-215, 2010 WL
160814, at *1 (W.D. Mich. Jan. 8, 2010). Petitioner was sentenced to two years’
incarceration for a felony firearm charge to be served consecutively with a term of 15
to 40 years’ imprisonment for the armed robbery. Id. Carter did not object to the venire
panel at trial, and did not challenge the panel’s composition at any stage of his direct
appeal.

          In light of the revelations about the problems with Kent County’s jury selection
system, Carter initiated state post-conviction proceedings under M.C.R. 6.501. In his
motion, Carter challenged the composition of the jury based on flaws in the Kent County
jury selection system, and raised an ineffective assistance of counsel claim. The trial
court denied the motion, reasoning that Carter had defaulted by failing to object to the
venire’s composition before the jury was empaneled. Further, the trial court found that
Carter’s ineffective assistance of counsel claim failed under Michigan’s version of
Strickland v. Washington, 466 U.S. 668 (1984). Carter applied for leave to appeal, but
both the Michigan Court of Appeals and Michigan Supreme Court denied the application
“for failure to meet the burden of establishing entitlement to relief under MCR
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                      Page 8


6.508(D).” People v. Carter, No. 254482 (Mich. App. Aug. 20, 2004); People v. Carter,
696 N.W.2d 714 (Mich. 2005) (table opinion).

       Carter filed a habeas petition in the United States District Court for the Eastern
District of Michigan. The district court held that there was cause and prejudice to excuse
Carter’s procedural default. Carter v. Lafler, No. 06-cv-10552, 2009 WL 649889, at *3
(E.D. Mich. Mar.10, 2009). The district court recognized that Carter had procedurally
defaulted by failing to object at trial to the composition of the venire panel. The default
was excused, however, because the district court found that Carter could not have known
about the systematic exclusion caused by the computer glitch at the time the jury was
sworn. Id. Having excused the default, the court determined that an evidentiary hearing
was necessary to determine whether Carter’s jury was empaneled during the period
impacted by the computer glitch. Id. at *4-5. Because Carter was imprisoned in the
Western District of Michigan, and because the trial had occurred in the Western District,
the court transferred the action “for an evidentiary hearing and determination on the
Sixth Amendment claim.” Id. at *5.

       Upon receiving the case, the Western District of Michigan assigned the case to
a magistrate judge. The magistrate judge recommended that the district court deny the
habeas petition as procedurally defaulted without an evidentiary hearing. Carter v.
Lafler, No. 1:09-cv-215, 2010 WL 160814, at *4-13 (W.D. Mich. Jan. 8, 2010). The
district court adopted this recommendation because the court determined that Carter had
not shown good cause for his procedural default. Id. at *3. Although Carter was
unaware of the computer glitch at the time of his trial, the district court held that the
racial composition of the jury venire gave him notice of his claim. Id. Carter timely
appeals.

3.     Wellborn

       Carl Wellborn was convicted of sexually abusing his granddaughters by a Kent
County Jury in March 2001. Wellborn v. Berghuis, No. 05-cv-346, 2009 WL 891708,
at *8-14 (W.D. Mich. Mar. 31, 2009) (report and recommendation). On direct appeal,
Wellborn claimed that he was denied a jury drawn from a fair cross-section of the
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                        Page 9


community based on the Kent County computer glitch. The Michigan Court of Appeals
found that Wellborn had defaulted his fair cross-section claim because he failed to raise
it before the jury was sworn. Id. at *14. The Michigan Court of Appeals affirmed
Wellborn’s convictions, and the Michigan Supreme Court denied leave to appeal. Id.

        Wellborn raised a variety of claims in his habeas petition, but only appeals his
fair cross-section claim. The district court found that this claim was procedurally
defaulted, and held that there was no cause to excuse the default. Id. at *3. Because the
petitioner observed the juror array, the court reasoned, he was on notice of a potential
underrepresentation. Id. The court found that the petitioner must show evidence that the
underrepresentation was intentionally concealed, a showing Wellborn did not make. Id.
at *3-4. The court acknowledged that the Eastern District had addressed the computer
glitch and excused procedural default, but found Wellborn’s case distinguishable on two
grounds: Wellborn was white and there was overwhelming evidence of Wellborn’s guilt.
Id. at *3-4. Wellborn filed this timely appeal.

                                             II.

        As an initial matter, the parties disagree on the standard of review. The
Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires federal courts to
grant considerable deference to state courts and presume the correctness of state court
fact finding. 28 U.S.C. § 2254(d), (e)(1). However, this deferential standard applies
only to claims that state courts have adjudicated on the merits. Respondents admit that
“the State court . . . refus[ed] to examine the merits of Petitioner’s claim.” Even without
this concession, it is evident that the state courts rejected petitioners’ fair cross-section
claims on procedural grounds, based on the failure to object to the jury panel at trial.
For this reason, AEDPA deference does not apply and the court reviews legal
conclusions de novo and findings of fact for clear error. See, e.g., Dyer v. Bowlen, 465
F.3d 280, 283–84 (6th Cir. 2006).
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                   Page 10


1.     Cause for Procedural Default

       There is no dispute that petitioners defaulted their claims by failing to object to
the jury venire at trial, in violation of Michigan’s contemporaneous objection rule. See,
e.g., People v. Dixon, 552 N.W.2d 663, 667 (Mich. Ct. App. 1996). However,
petitioners have shown “cause and prejudice” sufficient to excuse the default under
Coleman v. Thompson, 501 U.S. 722, 750 (1991). The cause inquiry “ordinarily turn[s]
on whether . . . some objective factor external to the defense impeded counsel’s efforts
to comply with the State’s procedural rule,” and is satisfied by “a showing that the
factual or legal basis for a claim was not reasonably available to counsel.” Murray v.
Carrier, 477 U.S. 478, 488 (1986). As discussed below, petitioners have shown cause
because the factual basis for the claim—the computer glitch—was not reasonably
available to counsel, and petitioners could not have known that minorities were
underrepresented in the jury pool by looking at the venire panel. Moreover, the Supreme
Court has found cause to excuse a procedural default in a factually similar case. See
Amadeo v. Zant, 486 U.S. 214 (1988).

       It is undisputed that petitioners lacked actual knowledge of the glitch, and the
record demonstrates that they could not have reasonably known of the error at the time
the jury was sworn. The glitch was a mistyped parameter in the software, buried in a
mountain of computer code, that was only discovered after a broad statistical analysis
led to an extensive internal investigation. This is not the type of error that would be
reasonably discoverable by a defendant at jury selection. The difficulty of detecting this
problem is underscored by the fact that the glitch persisted for nearly two years without
detection by defendants, judges, or Kent County officials.

       Further, looking at the venire panel did not provide petitioners with notice of
their claims. Petitioners’ claims arise from the right “to be tried by an impartial jury
drawn from sources reflecting a cross section of the community.” Berghuis v. Smith,
130 S. Ct. 1382, 1387 (2010) (emphasis added). A petitioner raising this claim is
challenging the pool from which the jury is drawn, and not necessarily the venire panel
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                    Page 11


directly before him. Accordingly, the composition of one panel does not indicate
whether a fair cross-section claim exists.

       The irrelevance of the composition of a single venire panel is underscored by the
fact that a petitioner may bring a claim even if minorities are included in his panel. The
Sixth Amendment guarantees only the opportunity for a representative jury, not a
representative jury itself. United States v. Biaggi, 909 F.2d 662, 678 (2d Cir. 1990).
The focus, therefore, is on the procedure for selecting juries, and not the outcome of that
process. As the First Circuit eloquently put it:

       [T]o hold that a litigant is not entitled to a representative jury when the
       jury venires are drawn from a fair cross-section of the community but
       that the cross-section requirement can be dispensed with when the dice
       fall a particular way in an individual case undermines the analytical
       foundation upon which the right to a jury drawn from a cross-section of
       the community is based.

Barber v. Ponte, 772 F.2d 982, 993 (1st Cir. 1985), vacated on other grounds, 772 F.2d
996 (1st Cir. 1985) (en banc). It may be true that a venire panel’s composition may put
a petitioner on notice of a procedural irregularity in some instances, for example in areas
where the minority population is so high that the probability of an all-white panel is
minuscule. However, where the minority population is comparatively small, the actual
composition of the venire panel does not provide reasonable notice of the existence or
non-existence of a fair cross-section claim. As the district court persuasively stated in
Ambrose:

       [R]equiring a defendant to make a contemporaneous objection based
       simply on an anecdotal view of the jury’s racial composition defies logic;
       any individual panel could over represent a “distinctive” group even
       though the group might be underrepresented in the jury venire as a
       whole. A gaze into the jury gallery tells you nothing and, in fact, can be
       misleading. To also suggest that an effective defense attorney must
       investigate the jury assembly process in every case conditioned upon his
       client’s loss of the right is unnecessary and wasteful.

Ambrose v. Booker, No. 06–13361–BC, 2011 WL 1806426, at *2 (E.D. Mich.
May 11, 2011). Here, each petitioner saw only one venire panel, which did not alert any
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                                  Page 12


of the petitioners to the systematic underrepresentation. Even the judges and Kent
County officials who were confronted with venire panels daily did not notice the
underrepresentation. To say that petitioners should have looked at a single venire panel
and noticed something that the officials failed to notice for sixteen months rings hollow.2

         Even if the composition of one venire panel were relevant, the absence of
minorities on a panel would not have alerted petitioners that a fair cross-section claim
existed. Due to the small size of the African-American population in Kent County, it is
entirely possible that a defendant could receive an all-white juror array even if there
were no underrepresentation of African-Americans in the jury pool. Dr. Stephenson
concluded as much after conducting a standard deviation test and a binomial test on the
Kent County jury pool. Stephenson Report, at 3. Because of Kent County’s small
African-American population (8.25%) and the small size of venire panels,
Dr. Stephenson concluded that one “could expect approximately 2% of all venires to
contain no Black or African-American members.” Id. at 4. Even if the computer had
been glitch-free, petitioners could have received a panel without a single African-
American panel member. Given the small minority population in Kent County, if
petitioners had faced an all-white jury panel, they could have believed that there was no
underrepresentation problem.

         Moreover, the Supreme Court has found cause to excuse a procedural default in
a factually similar case. In Amadeo v. Zant, a district attorney conspired with the jury
commissioners of a Georgia county to systematically exclude African-Americans and
women from the jury pool. 486 U.S. 214 (1988). The wrongdoers purposefully
underrepresented minorities, but were careful to keep representation within a
presumptively valid statistical range (under 10%). The petitioner did not object at trial



         2
           Respondents contend on the contrary that a fair cross-section claim requires proof that the
specific venire underrepresented minorities. However, respondents misstate the holding of the case on
which they rely for this proposition. In United States v. Williams, 264 F.3d 561, 568 (5th Cir. 2001), the
court stated: “[Defendant] must demonstrate . . . not only that [African–Americans] were not adequately
represented on his jury but also that this was the general practice in other venires.” Id. (quoting Timmel
v. Phillips, 799 F.2d 1083, 1086 (5th Cir. 1986)). This did not establish a requirement that a defendant
prove that the venire have actual underrepresentation, but instead was explaining that proving
underrepresentation on one venire was insufficient to maintain a fair cross-section claim. Id.
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                    Page 13


to the racial composition of the jury venire. Several months later, the petitioner learned
of a memorandum that detailed a scheme “to underrepresent black people and women
on the master jury lists from which . . . juries were drawn.” Id. at 217. The
memorandum was hidden in a public record—intermingled with irrelevant data—and
only discovered in unrelated litigation. The Supreme Court excused the procedural
default, reasoning that the memorandum was not reasonably available to petitioner’s
lawyers. Id. at 224. The court based its decision on the fact that petitioner’s lawyers did
not deliberately bypass a jury challenge. Id. at 226-28. Similarly, in this case,
petitioners could not have discovered the computer glitch prior to trial and did not
deliberately bypass a jury challenge. Further, the memorandum in Amadeo was filed in
publicly accessible records whereas here the error was contained in a single line of code
in the jury selection software. It would make little sense to excuse a failure to discover
a publicly filed memorandum, but require petitioners to scour non-public programming
codes of jury selection software. Accordingly, under the reasoning of Amadeo,
petitioners’ defaults are excused.

       Respondents attempt to distinguish Amadeo, but are ultimately unsuccessful.
Respondents first argue that, unlike in these cases, the officials in Amadeo deliberately
reduced the minority representation in the juror pool. Although this may be true, the
focus of the cause-and-prejudice test is not on the intent of the officials but rather on
petitioners’ knowledge of the underrepresentation. For example, if a government official
intended to conceal an intentional underrepresentation, there would be no good cause to
excuse procedural default if the petitioner discovered the scheme. Therefore, a
government official’s lack of intent is irrelevant.

       Respondents do not persuasively explain how the disparity in this case was any
more detectable than the one in Amadeo. Respondents argue that the scheme in Amadeo
was specifically tailored to avoid detection by keeping the underrepresentation within
statistically presumptive levels. They contend that systematic underrepresentation is
discoverable unless a scheme exists that was specifically tailored to avoid detection. It
is true that the government officials in Amadeo endeavored to conceal the
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                        Page 14


underrepresentation by keeping it to less than 10% absolute disparity. Amadeo, 486 U.S.
at 218.    However, in these cases, the absolute disparity was only 3.45%; the
underrepresentation would be at least as difficult to detect.

        Policy considerations also support this reasoning. First, finding good cause to
excuse the default does not undermine the purpose of the contemporaneous objection
rule. The purpose of preservation requirements, such as the objection rule, is to allow
the trial court to correct errors and ensure that a trial is fair in the first instance. See
United States v. Young, 470 U.S. 1, 15 (1985). In the ordinary case, a contemporaneous
objection allows a trial court to fix an error at the outset of trial, saving valuable time and
resources. See United States v. Lowry, No. 91-6169, 1992 WL 92746, at *4 (6th Cir.
Apr. 22, 1992). However, in this case, even if petitioners had objected prior to the
empanelment of the jury, the trial court could not have remedied the error. Had the trial
court granted the hypothetical contemporaneous objection, it would have dismissed the
jury panel and asked the Kent County Commissioners to draw a new panel. This panel
would have come from the same jury pool, affected by the same yet-to-be discovered
computer glitch. The underrepresentation would have persisted even if petitioners had
objected at trial.

        Second, the procedural default rule was not intended to bar defaults such as
petitioners’. The Supreme Court has made clear that the test is intended to prevent
defense counsel from defaulting in state court for strategic gain. As the Court stated,
“defense counsel may not make a tactical decision to forgo a procedural
opportunity—for instance, an opportunity to object at trial or to raise an issue on
appeal—and then, when he discovers that the tactic has been unsuccessful, pursue an
alternative strategy in federal court.” Reed v. Ross, 468 U.S. 1, 14 (1984) (internal
citations omitted). In this case, respondents do not—nor could they—contend that
petitioners tactically declined to raise a pre-trial challenge to their venire panels.
Petitioners’ claims are premised on the fact that they were unaware of the defects in the
challenged jury selection procedure. Respondents would be hard-pressed to argue that
petitioners tactically relied on the computer glitch of which they did not know.
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                    Page 15


       Third, were we to hold that petitioners cannot demonstrate cause, we would be
instituting a de facto requirement that defense attorneys in Kent County automatically
raise fair cross-section objections. A prudent lawyer in such a situation would recognize
that a failure to raise a fair cross-section claim would bar a later assertion of the right
should a computer glitch—or even a scheme such as the one in Amadeo—come to light.
Such a result would run counter to the lawyer’s duty to avoid frivolous litigation, as well
as the procedural default doctrine’s concern with judicial efficiency. Instead, finding
cause to excuse petitioners’ failure to object would leave open a critical safety valve to
deal with real fair-cross-section claims.

       Respondents rely on a number of our cases in this context, but these cases are
factually or analytically distinguishable. First, respondents rely on United States v.
Boulding, a case involving two federal defendants who failed to object to the racial
diversity of the jury panel until after the jurors were sworn. 412 F. App’x 798, 800 (6th
Cir. 2011). Defendants’ counsel explained that he had not objected during jury selection
because he did not want to offend or alienate the jury. Id. at 802. We held that
“defendants’ counsel had ample opportunity to make an objection, and could have done
so in a sidebar or requested a recess if concerned about the objection’s effect on the
jury.” Id. at 802. This case is distinguishable from the instant case in at least two ways.
First, the default in Boulding was precisely the type of strategic default contemplated by
the court in Reed. Counsel wanted to avoid offending the jury, so he withheld his
objection until after the jury was empaneled. Here, respondents cannot show that
petitioners strategically withheld their objections. Second, the Boulding defendant knew
of the potential objection but chose to wait to object until it was untimely. Petitioners,
by contrast, did not know of the underrepresentation of minorities in the jury pool until
months after their trials. This again goes to the motive of the failure to object: in
Boulding it was strategic, here it was unwitting.

       Notwithstanding respondents’ arguments to the contrary, United States v. Blair,
214 F.3d 690, 699 (6th Cir. 2000), is also distinguishable. In Blair, the defendant “failed
to recognize or chose to ignore a potential challenge to the jury selection plan” because
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                     Page 16


this court had not yet decided that the plan violated the Equal Protection Clause. Blair
held that a defendant must raise a claim if the factual basis is known, even if no court has
ruled on the legal implications of those specific facts. Here, in contrast, petitioners did
not know of the factual basis of the claim.

        Finally, respondents argue that because other defendants are able to raise fair
cross-section claims by looking at the venire panel, petitioners should have too.
However, the cases on which respondents rely do not involve a similarly subtle absolute
disparity or a hidden cause of underrepresentation. See United States v. Buchanan, 213
F.3d 302, 309 (6th Cir. 2000) (overturned on other grounds); United States v. Jackman,
46 F.3d 1240, 1243 (2d Cir. 1995). In the ordinary case, fair cross-section claims should
be raised at jury selection. However, where the underrepresentation is as obscure as the
one in this case—due to a small minority population and a small absolute disparity—a
failure to object must be excused.

2.      Prejudice for Procedural Default

        Having shown cause, petitioners must show actual prejudice to excuse their
default, even if the error is structural. The Supreme Court has held that a petitioner must
show “actual prejudice” to excuse a default. In Francis v. Henderson, 425 U.S. 536
(1976), a defendant was convicted in state court of murder. He first raised a challenge
to the racial composition of his grand jury in his § 2254 petition. The Court held that a
petitioner must show both cause and “actual prejudice” to excuse the procedural default.
The Court stated, “[t]he presumption of prejudice which supports the existence of the
right is not inconsistent with a holding that actual prejudice must be shown in order to
obtain relief from a statutorily provided waiver for failure to assert it in a timely
manner.” Id. at 542 n.6 (quoting Davis v. United States, 411 U.S. 233, 245 (1973)) (the
“Henderson-Davis rule”).

        This circuit has accordingly declined to presume prejudice for the purposes of
procedural default when considering structural error claims, although we have not yet
addressed the issue in the context of a fair cross-section claim. For example, in Keith
v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006), a defendant failed to object to the
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                              Page 17


exclusion of three scrupled jurors3 during his murder trial. Defendant relied on Gray v.
Mississippi, 481 U.S. 648 (1987), in which the Supreme Court stated that the exclusion
of a scrupled juror is not subject to the harmless error analysis. The Keith defendant
sought to extend Gray’s holding to “obviate any requirement for him to demonstrate
prejudice resulting from his procedural default.” Keith, 455 F.3d at 674. This court
declined in part because Gray had not been extended by the Supreme Court or any
federal court of appeals to the procedural default context. More importantly, we
reasoned that extending Gray to the procedural default context would require us to
ignore the fundamental differences between direct and collateral review in the federalist
system. Id. at 675. We concluded that the argument for the “extension of Gray is
weakened, not because the issue is any less important, but because considerations of
federalism and respect for the state trial process demand that it be so.” Id. The
procedural default doctrine is “grounded in concerns of comity and federalism”;
therefore, “[w]hen a federal court vacates the judgment of a state trial court, a showing
of actual prejudice is required to insure that defaulted claims are considered only when
they will have made a difference.” Id.

       This court has expressly found the Henderson-Davis rule to apply to a jury
selection claim, albeit in dicta on a direct review of a federal appeal. In United States
v. Ovalle, 136 F.3d 1092 (6th Cir. 1998), four defendants raised challenges to the Eastern
District of Michigan’s jury selection plan on direct appeal. Two of the defendants raised
timely objections to the plan; therefore, we determined that all defendants were entitled
to relief because the state court had the opportunity to address the problem. Id. at 1108-
09. However, we noted that the non-objecting defendants would not have otherwise
been entitled to relief because they had failed to show cause and actual prejudice under
the Henderson-Davis rule, even though the error was structural. Petitioner attempts to
distinguish this case by arguing that it was a federal case, applying Federal Rule of
Criminal Procedure 12. However, in Henderson, the Supreme Court explicitly rejected




       3
           That is, jurors who had expressed reservations about recommending a death sentence.
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                    Page 18


the notion that the federal courts could strictly impose procedural requirements and then
review a state’s requirements in a different fashion. The Court stated, in pertinent part:

       If, as Davis held, the federal courts must give effect to these important
       and legitimate concerns in §2255 proceedings, then surely considerations
       of comity and federalism require that they give no less effect to the same
       clear interests when asked to overturn state criminal convictions.

Henderson, 425 U.S. at 541. Ovalle reflects this court’s “actual prejudice” requirement.

       Other circuits have required a petitioner to show “actual prejudice,” even where
the petitioner claimed a structural error had occurred. In Purvis v. Crosby, 451 F.3d 734
(11th Cir. 2006), the Eleventh Circuit refused to presume prejudice where an ineffective
assistance of counsel claim arose from a failure to object to a structural error. The court
reasoned that allowing the petitioner to dress up a procedural default as an ineffective
counsel claim would allow the defendant to circumvent Henderson and Davis. Id. at
742-43. Similarly, the Seventh Circuit declined to presume prejudice for the purposes
of procedural default notwithstanding a petitioner’s claims that alleged perjured
testimony and an alleged Brady violation constituted structural error. Ward v. Hinsely,
377 F.3d 719, 725 (7th Cir. 2004). The Seventh Circuit reasoned that “[t]he procedural
default doctrine is grounded in concerns of comity and federalism. These concerns are
in no way diminished if the federal claim raised before the federal habeas court is one
of structural error.” Id. at 726 (internal citations and quotation marks omitted).

       Comity requires us to avoid overturning defaulted claims absent a showing of
actual prejudice. Given the Supreme Court’s express language, and the procedural
default rule’s roots in comity and federalism, a petitioner must show that he was actually
prejudiced regardless of the nature of the underlying constitutional claim. The purpose
of the procedural default rule is to protect state court procedures from undue federal
intervention. Federal courts are accordingly closely circumscribed in their review of
defaulted claims. Although the nature of the procedural right is important, federal courts
should not reverse state court decisions unless a petitioner can show that the outcome
would have been different.
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                   Page 19


        In arguing for presuming prejudice on habeas in this case, petitioners cite a
number of our cases that are distinguishable. Quintero v. Bell, 368 F.3d 892 (6th Cir.
2004), is distinguishable because, in that case, counsel’s error was so egregious that
prejudice could not be reasonably disputed. Trial counsel had failed to object to the
inclusion of seven jurors that had served on juries that had convicted petitioner’s co-
conspirators. Id. at 893. We held that failing to object was an “abandonment of
‘meaningful adversarial testing’ throughout the proceeding,” which made “‘the
adversary process presumptively unreliable.’” Id. (quoting United States v. Cronic, 466
U.S. 648, 659 (1984)). The same cannot be said about the failure to raise a fair cross-
section claim. In Quintero, the disputed jurors had already convicted petitioner’s co-
conspirators. A fair cross-section claim does not present the same danger because there
is not the same inevitability of result.

        Petitioners also rely on language in Johnson v. Sherry, 586 F.3d 439, 444 (6th
Cir. 2009), a case in which we addressed a defaulted claim arising from a courtroom
closure. We suggested a “strong likelihood” that if the performance was deficient, it
would be deemed prejudicial, reasoning in part that the right to a public trial is a
structural guarantee. The tentative and conditional nature of this language—in a case
that, unlike this one, involved Strickland prejudice regarding a court closure claim—is
not sufficient to overcome our reading of the clear import of Supreme Court and Sixth
Circuit precedent to the jury selection cases we have before us.

        Finally, petitioners parse language from three Supreme Court cases, but cannot
show how these cases require a different result. In United States v. Frady, 456 U.S. 152,
170 (1982), for instance, the Court’s holding was that the petitioner had to show actual
prejudice to overcome his default in not objecting to a jury instruction, and that he had
not done so. The Court rejected Frady’s argument that prejudice was not required for
the jury instruction claim, without saying anything about whether presumed prejudice
for the jury instruction claim would meet the “actual prejudice” requirement for
overcoming procedural default. Second, petitioners claim that the Court in Amadeo v.
Zant declined to impose an “actual prejudice” requirement. However, the Amadeo court
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                                 Page 20


declined to reach the issue of prejudice because it was conceded by the government
below. 486 U.S. at 228 n.6. Third, petitioners argue that Justice Thomas’s dissent from
the denial of a writ of certiorari in Bell v. Quintero, 125 S. Ct. 2240 (2005), somehow
demonstrates Henderson is no longer valid. Justice Thomas noted that “[t]he Court of
Appeals’[s] holding also rests on a confusion—the idea that the presence of a structural
error, by itself, is necessarily related to counsel’s deficient performance and warrants a
presumption of prejudice.” Id. at 2242. Because the writ was not granted, petitioner
infers that the majority rejected Justice Thomas’s opinion. However, there are a
multitude of reasons that certiorari may not have been granted. The fact that Justice
Thomas reiterated the Henderson-Davis rule in his dissent does not mean the majority
took the other position.

        Because the district courts here did not address actual prejudice, a remand is
necessary. 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 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.4 As the

        4
           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.
Nos. 11-1430/10-1247/09-1539 Ambrose, et al. v. Booker, et al.                     Page 21


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.

                                                  III.

         The district court orders in all three cases are reversed, and the cases are
remanded for further proceedings consistent with this opinion.




Hollis, 941 F.2d at 1482 (internal citations and quotation marks omitted).
