                       NOT RECOMMENDED FOR PUBLICATION

                                    File Name: 20a0335n.06

                                        Case No. 18-2106

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

  CURTIS PARKS,                                      )
                                                                                       FILED
                                                     )                           Jun 09, 2020
        Petitioner-Appellant,                        )                       DEBORAH S. HUNT, Clerk
                                                     )
                 v.                                  )
                                                     )     ON APPEAL FROM THE
  WILLIS CHAPMAN, Warden,                            )     UNITED STATES DISTRICT
                                                     )     COURT FOR THE EASTERN
        Respondent-Appellee.                         )     DISTRICT OF MICHIGAN


Before: BATCHELDER, DONALD, and READLER, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Curtis Parks, an inmate in a Michigan

prison, appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas

corpus. We AFFIRM.

                                                I.

       Beverly Jefferson was a 44-year-old woman who lived in an apartment with her three cats.

Early one Sunday morning in April 2001, she answered a knock at her door to find an African-

American man, Curtis Parks, asking to use her phone. She did not know Parks but let him in.

Parks punched her in the face, knocked her to the floor, and raped her. He stayed all day and raped

her several times. He broke her belongings, urinated on her bed, and threatened her continually.

He told her he had been watching her for a while. Eventually, Parks fell asleep and Jefferson

called 911.

       When the responding police officer arrived, Parks was in the process of raping Jefferson

again. The officer heard Jefferson screaming, kicked in the door, and found Parks on top of her

with his pants down, raping her. Parks lunged at the officer who drew his gun and subdued and
Case No. 18-2106, Parks v. Chapman


arrested Parks. At the emergency room, Jefferson received stitches to close the wounds to her lip,

both inside and out. A sexual-assault nurse found “very fresh” injuries to Jefferson’s vagina and

anus that were typical of forced sex and assault, not consensual intercourse.

        In October 2001, the state prosecutor charged Parks with three counts of criminal sexual

conduct in the first-degree and tried him to a jury in Kent County, Michigan. It was unknown at

the time but was later established that a computer error was causing an underrepresentation of

African-Americans in the panels of prospective jurors (venires) being drawn for Kent County

trials—African-Americans made up 8.24% of the community but, due to the error, made up only

4.79% of the improperly constructed community-wide pool. For Parks’s venire, however, at least

four of the 42 (9.52%) prospective jurors were African-American,1 but the prosecutor removed

those four with peremptory challenges (the prosecutor used seven of his 12 peremptory

challenges), and the resulting jury was all Caucasian. Parks’s defense counsel, who used four

peremptory challenges of his own, did not raise any Batson2 claim; to the contrary, he told the

court that he was “satisfied” with the empaneled jury.

        At trial, Jefferson testified at length and in detail, describing the violence, the repeated

rapes, and her call to 911. The responding officer testified about Jefferson’s screams, finding

Parks on top of her with his pants off, and Parks’s lunging at him. The emergency room doctor

testified about Jefferson’s lip injury, that it was new and needed stitches to close it, and that Parks

could not have been unaware of it. And the sex-assault nurse testified about the injuries to

Jefferson’s vagina and anus, that they were fresh and typical of forced sexual assault, not

consensual sex. Parks testified in his defense, asserting that Jefferson was a prostitute who


        1
         The record established that four excluded jurors were African-American and that the 12 empaneled jurors
were Caucasian. It is unknown whether any, or how many, of the other 26 people in the venire were African-American.
        2
            Batson v. Kentucky, 476 U.S. 79 (1986).



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Case No. 18-2106, Parks v. Chapman


propositioned him and only called the police because she thought he was not going to pay. Parks

said he was unaware of Jefferson’s bloody lip and denied being on her when the officer arrived or

that he had lunged at the officer. The jury convicted Parks on all counts.

        On direct appeal, Parks raised a “fair cross section” claim based on the computer error, but

the Michigan appellate court found that he had forfeited the claim by failing to raise a timely

objection at trial, i.e., before the jury was impaneled and sworn, and had actually affirmatively

waived it by “express[ing] satisfaction with the jury’s composition.” Michigan v. Parks, No.

239728, 2003 WL 21958299, at *1 (Mich. Ct. App. Aug. 14, 2003) (per curiam). Parks also raised

a Batson claim on direct appeal, based on the prosecutor’s use of peremptory challenges to remove

the four African-Americans from the venire, and the court’s empaneling an all-Caucasian jury.

The trial transcript and record did not reflect the race of any jurors, but Parks submitted affidavits

from the four dismissed African-Americans and from another person who attested to the all-

Caucasian jury. The Michigan appellate court found that Parks had similarly forfeited and waived

that claim by failing to raise it at trial, but further stated that it was not “clear from the record that

the prosecutor used her peremptory challenges in a discriminatory fashion.” Id. And Parks raised

an ineffective-assistance-of-counsel (IAC) claim based on his counsel’s failure to make the Batson

challenge at trial, but the court found “no record of any wrongdoing,” and hence no IAC, because

the transcript from the jury voir dire did not “indicate that the prosecutor exercised her peremptory

challenges to remove African-Americans from the jury because of their race.” Id. The Michigan

appellate court affirmed, id. at *3, and the Michigan Supreme Court denied leave to appeal.

Michigan v. Parks, 677 N.W.2d 27 (Mich. 2004). Parks did not pursue any state post-conviction

motions; he next filed a pro se federal habeas petition.




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Case No. 18-2106, Parks v. Chapman


        Parks’s § 2254 petition raised two claims—Batson and fair-cross-section—but recognized

that both were procedurally defaulted. He argued that trial counsel’s IAC excused the procedural

default of the Batson claim. The district court denied the IAC claim, finding no evidence of trial

counsel’s deficient performance, and held the Batson claim procedurally defaulted because Parks

could not overcome the default without proving IAC. See Parks v. Warren, No. 05-10036, 2011

WL 5838486, at *1 (E.D. Mich. Nov. 21, 2011). On the fair-cross-section claim, the court found

cause to excuse the default—namely, that the computer error was unknown at the time of Parks’s

trial—and assumed prejudice, so it appointed counsel for Parks and held an evidentiary hearing.

Id. Thereafter, the court denied the fair-cross-section claim on the merits, finding that even though

the Kent County Court had underrepresented African-Americans in its community-wide jury pool

for several months, the racial composition of Parks’s venire paralleled the proportion of African-

Americans in the community. Id.

        On appeal here, a prior panel held that it was improper for the district court to assume

prejudice in order to excuse the procedural default and decide the fair-cross-section claim on the

merits, so it vacated the ruling on that claim and remanded for the district court to decide whether

Parks had suffered actual prejudice to excuse the procedural default. Parks v. Klee, 555 F. App’x

573 (6th Cir. 2014). The panel also vacated the ruling on the IAC claim and included it in the

remand, explaining that “the district court appears to have overlooked the existence in the record

of the voir dire transcript from Parks’[s] state court trial.” Id.

        On remand, the district court recognized, again, that Parks had procedurally defaulted both

his fair-cross-section and Batson claims. Parks v. Warren, 278 F. Supp. 3d 975, 978 (E.D. Mich.

2017). On the fair-cross-section claim, the court found cause but no prejudice “because the trial

record plainly depicts a case against [Parks] so strong, and a defense so weak, that it is highly




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Case No. 18-2106, Parks v. Chapman


improbable that an unbiased jury could acquit him.” Id. at 981. Therefore, the district court denied

the fair-cross-section claim based on procedural default. Id. at 983.

       On the Batson claim, Parks asserted that the cause for the default was trial counsel’s IAC,

citing Strickland.3 Id. at 984. But the district court rejected that contention:

       [Parks] is not entitled to relief on his Batson and Strickland claims, because he has
       not pointed to any circumstances evident from the record sufficient to make out a
       prima facie claim that the prosecutor’s use of peremptory strikes was racially
       motivated. And because the record discloses no plausible basis for raising a Batson
       objection, [Parks]’s counsel cannot have been ineffective for failing to make one.

Id. at 985. Having found no basis for raising a Batson challenge, the district court concluded that

because there had been no reason for trial counsel to raise the Batson challenge, counsel had not

performed deficiently, and because counsel’s performance had not been deficient, counsel had not

rendered ineffective assistance. Parks had thus shown neither cause nor prejudice to excuse his

procedural default of the claimed Batson violation.

       In sum, the district court found that Parks did not and could not point to evidence in “the

record sufficient to suggest that the [peremptory] removal of those [four African-American] jurors

was ‘motivated by race.’” Id. at 986. The court specifically listed certain shortcomings in Parks’s

proof, stating that the record revealed: (1) the race of only the four affiants and that the empaneled

jury was all Caucasian, but did not reveal the race of anyone else in the venire who was neither

affirmatively removed nor ultimately selected, so there was no proof “that the prosecutor engaged

in a ‘pattern’ of strikes against African-American jurors”; (2) no racial pretext in the prosecutor’s

voir dire questioning or commentary; and (3) that both sides used peremptory challenges, but

neither used them all, and the prosecutor used just four of her seven on African-Americans. Id. at

986–87. The district court emphasized that the absence of African-Americans, standing alone,


       3
           Strickland v. Washington, 466 U.S. 668 (1984).



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Case No. 18-2106, Parks v. Chapman


does not “support any valid inference of purposeful discrimination.” Id. at 987. The court

acknowledged that the record was silent as to the prosecutor’s reasons for removing those jurors,

“principally because [Parks]’s attorney did not object to any of the challenges, and at the end of

the selection process he stated that ‘the defense is satisfied with the jury.’” Id. at 984. The court

then denied the Batson claim after finding that, even if Parks’s counsel had raised the claim, the

voir dire transcript revealed “plausible non-racial reasons for the exercise of the challenges to the

four African-American jurors.” Id. at 983. Finally, the court denied Parks’s request for an

evidentiary hearing because his request was based on only “naked speculation,” which “does not

warrant an evidentiary hearing in a habeas proceeding.” Id. But the court did grant Parks a

certificate of appealability on both the fair-cross-section and Batson claims.

       Parks moved the district court to reconsider based on the Supreme Court’s then-recent

decision in Weaver v. Massachusetts, 137 S. Ct. 1899 (2017), which—according to Parks—

abrogated the rule laid down in Ambrose v. Booker, 684 F.3d 638 (6th Cir. 2012), that required

proof of actual prejudice, and required the court to instead presume prejudice on collateral review

of any claims implicating structural error. The district court denied the motion, explaining that

Weaver does not compel that conclusion, and that the Sixth Circuit had rejected that argument in

Carter v. Lafler, No. 17-1409, 2017 WL 4535932, at *3 (6th Cir. Aug. 30, 2017) (order), and

Wellborn v. Berghuis, No. 17-2076, 2018 WL 4372196, at *2 (6th Cir. May 16, 2018) (order).

Parks v. Warren, No. 05-10036, 2018 WL 4478767, at *3 (E.D. Mich. Sept. 19, 2018).

                                                 II.

       The district court held that Parks procedurally defaulted two of the claims before the court

in this appeal because he failed to raise them in the state trial court. In an appeal from a district




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Case No. 18-2106, Parks v. Chapman


court’s finding of procedural default, we review the district court’s legal conclusions de novo and

its findings of fact for clear error. Scott v. Houk, 760 F.3d 497, 503 (6th Cir. 2014).

        In short, a § 2254 petitioner is barred from asserting claims in federal court that have been

“procedurally defaulted.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). To overcome a procedural

default, the petitioner must “demonstrate cause for the default and actual prejudice as a result of

the alleged violation . . . or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

                                                  A.

        The first issue is whether Parks procedurally defaulted his Batson claim. Parks argues that

his trial counsel was ineffective for failing to raise that claim at voir dire and that IAC demonstrates

cause and prejudice to overcome the default. See Wade v. Timmerman-Cooper, 785 F.3d 1059,

1077 (6th Cir. 2015) (ineffective assistance of counsel can serve as both cause and prejudice).

        Our precedent does not definitively provide the standard of review that we must apply to

Parks’s argument regarding procedural default. The Michigan appellate court did address Parks’s

IAC claim on the merits. Ordinarily, then, the Antiterrorism and Effective Death Penalty Act

(AEDPA) would govern our review of that claim in this collateral posture. As a result, we could

grant relief only if the last reasoned opinion from the state court that adjudicated the challenged

issue on the merits “was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States[,] or resulted in a decision

that was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). But in

examining whether a petitioner has shown cause and prejudice to excuse procedural default, “we

have sometimes said that AEDPA deference does not cabin our review of the cause and prejudice

aspect of procedural default” and have instead applied de novo review. Williams v. Burt, 949 F.3d




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Case No. 18-2106, Parks v. Chapman


966, 974 (6th Cir. 2020) (citing Hall v. Vasbinder, 563 F.3d 222, 236-37 (6th Cir. 2009)). We

need not resolve this issue today, however, as Parks plainly cannot meet the demanding Strickland

test even on the more lenient de novo standard of review. See id.

       To prove an IAC claim, the petitioner “must show that [his counsel’s] deficient

performance prejudiced [his] defense.” Strickland, 466 U.S. at 687. That is, Parks must show,

based on the evidence that was before the state court, see Cullen v. Pinholster, 563 U.S. 170, 181

(2011), that counsel’s performance was deficient and that deficiency prejudiced his defense.

       The allegedly deficient performance is Parks’s trial counsel’s decision not to object to the

prosecutor’s use of peremptory challenges to remove the four African-Americans from the jury;

i.e., counsel’s decision not to raise the Batson challenge. The Michigan appellate court, the district

court, and the prosecutor reasoned this way: there is no evidence in the record that race influenced

the prosecutor’s peremptory removals; therefore the trial court would have denied a Batson

objection (i.e., the objection would have been futile); therefore trial counsel was not obligated to

object (and pursue a futile argument); therefore that decision was not necessarily or objectively

incorrect; therefore trial counsel did not perform deficiently by deciding not to object; therefore

no IAC. Parks attacks the first of that line of falling logical dominoes, insisting that “the record

amply establishes a prima facie showing of racial discrimination,” Apt. Br. at 39 (and at 34 & 37),

based solely on the prosecutor’s removal of the four identified African-Americans and on the all-

Caucasian jury. The parties dispute whether the case law supports or rejects this theory, but we

can sidestep that dispute here by assuming that if defense counsel had raised it to the trial judge,

the judge would have asked the prosecutor for an explanation (i.e., would have found Batson’s

step one—the prima facie case—satisfied and proceeded to step two).




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Case No. 18-2106, Parks v. Chapman


        But we must start the analysis with Strickland rather than Batson, and the first question

therefore is whether defense counsel’s decision might have been reasonable under prevailing

professional norms. Strickland, 466 U.S. at 688. Maybe it was a strategic decision because

defense counsel did not want those four on the jury anyway, or maybe their removal would make

room for other potential jurors whom defense counsel found more favorable. We do not know and

should not speculate. But that does not mean that we should ignore or discredit defense counsel’s

affirmative statement to the trial court that he was “satisfied with this jury”; that is, defense counsel

was expressly “satisfied” with an all-Caucasian jury, for whatever reason. Even if that was a bad

decision, “errors of tactics or omission do not necessarily mean that counsel has functioned in a

constitutionally deficient manner.” Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001).

        Moreover, even if we assume that, in this case, counsel’s performance (i.e., decision to

forgo the Batson challenge) was outside “the wide range of reasonable professional assistance,”

Parks must still demonstrate that there is a reasonable probability that, due to that decision, the

result of the trial would have been different. Strickland, 466 U.S. at 689, 694. That is, Parks must

show that if the trial court had upheld the Batson challenge, or if the prosecutor had withdrawn the

peremptory strikes, and the four African-Americans had sat on Parks’s jury, the outcome of his

trial would have been different. See id. And he cannot. The case against Parks was so strong and

his defense was so weak, that no unbiased juror would have voted acquit him.

        Because Parks cannot prove IAC on de novo review, let alone AEDPA review, he cannot

overcome his procedural default of his Batson claim and we have no authority to consider the

Batson claim in this appeal.




                                                   9
Case No. 18-2106, Parks v. Chapman


                                                   B.

        The next issue in this appeal is whether the district court erred by denying the fair-cross-

section claim because it was procedurally defaulted. Parks contends that he has overcome his

procedural default of the fair-cross-section claim because he had cause for not raising it, namely,

that he was not aware of it (no one was), and he can prove prejudice “because fair-cross section

violations always render trials fundamentally unfair.” But, as explained above, the prior panel

decision held that Parks had to prove “actual prejudice,” Parks, 555 F. App’x at 573, and the

district court found that he could not do so. Before that appeal, the district court found that even

though African-Americans had for several months been underrepresented in the jury pools of the

Kent County Court, there was no prejudice to Parks because the racial composition of his venire

(at least 9.52% African-American) exceeded the proportion of African-Americans in the

community (8.24%). Parks, 2011 WL 5838486, at *3. On remand, the district court found no

prejudice “because the trial record plainly depicts a case against [Parks] so strong, and a defense

so weak, that it is highly improbable that an unbiased jury could acquit him.” Parks, 278 F. Supp.

3d at 981.

        Parks moved the district court to reconsider based on the Supreme Court’s then-recent

decision in Weaver, 137 S. Ct. 1899, which Parks argued had abrogated the rule laid down in

Ambrose, 684 F.3d at 650-51 (requiring proof of actual prejudice “regardless of the nature of the

underlying constitutional claim”), and instead—Parks contends—requires that the court presume

prejudice on collateral review of any claims implicating “structural error.” See Parks, 2018 WL

4478767, at *3. That is the argument he now presses in this appeal.

        The Weaver Court, despite limiting its holding to its particulars (i.e., a claim of IAC for

failure to raise a structural error in “the context of trial counsel’s failure to object to the closure of




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Case No. 18-2106, Parks v. Chapman


the courtroom during jury selection,” Weaver, 137 S. Ct. at 1907), described generally three kinds

of structural error, id. at 1908 (i.e., error as to a right that protects the defendant from some interest

other than erroneous conviction; error the effects of which are too hard to measure; error that

always results in fundamental unfairness). The Court nonetheless held that IAC on a public-trial

claim did not result in fundamental unfairness. Parks claims that a violation of the fair-cross-

section right always and necessarily renders a trial fundamentally unfair, so Weaver means that he

need not prove actual prejudice.

        But that is not a reasonable reading of Weaver. Weaver stands for the idea that finality and

judicial economy can trump even structural error; so, when a defendant raises a structural error on

collateral review rather than on direct review, he must prove actual prejudice, even though he

would not have had to prove actual prejudice if he had raised it on direct review. That is because,

if the error is one that results in fundamental unfairness (e.g., denial of counsel, no reasonable-

doubt instruction, biased judge), actual prejudice should be easy to show and when a defendant

raises the error immediately to the trial court, the court can correct the mistake; or, when it is raised

on direct review, only minimal time will have passed, so witnesses and evidence are still available.

But when the error is raised on collateral review, it is a larger burden on the system and on the

concept of fairness. Id. at 1912. All in all, Weaver does not support Parks’s contention that he

need not prove actual prejudice solely because a fair-cross-section violation is structural error.

        Because Parks has not proved and cannot prove actual prejudice, he cannot overcome his

procedural default and the panel has no authority to decide his fair-cross-section claim.

                                                   C.

        The final issue in this appeal is whether Parks is entitled to an evidentiary hearing in federal

court. Parks insists that an evidentiary hearing in federal court is warranted to force the prosecutor




                                                   11
Case No. 18-2106, Parks v. Chapman


to state specific reasons for the peremptory removals, which Parks could then attempt to construe

as sufficiently incriminating to prove the prima facie case of racial discrimination for his Batson

claim. The district court correctly rejected this as rank speculation.

       Regardless, Parks defaulted his Batson claim. Even if he could provide actual evidence of

racial discrimination, because he defaulted his Batson claim, he could not obtain habeas relief on

it. Therefore, no hearing is warranted.

                                                III.

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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Case No. 18-2106, Parks v. Chapman


         BERNICE BOUIE DONALD, Circuit Judge, concurring in the judgment. I agree

with the majority that Curtis Parks is unable to show actual prejudice for either claim because of

the strength of the case against him and would affirm the judgment of the district court. I write

separately, however, to discuss the majority’s failure to address the constitutional guarantee to be

tried by an impartial jury and the court system’s inability to protect Parks. Parks was tried and

convicted by an all-white jury, Parks v. Warren, 278 F. Supp. 3d 975, 987 (E.D. Mich. 2017),

resulting from the prosecutor’s use of four of her seven peremptory challenges to remove every

African-American juror from Parks’ jury panel and the now well-documented Kent County

computer glitch.1 He raised both procedurally defaulted claims in his 28 U.S.C. § 2254 petition.

                                                           I.

         To show that Parks’ trial counsel’s performance was deficient under Strickland for failure

to raise a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), Parks must show that his

“counsel’s representation fell below an objective standard of reasonableness.”                            Strickland,

466 U.S. at 688. We have previously acknowledged the possibility that the failure to raise a Batson

challenge constitutes deficient performance. See Mitchell v. Rees, 114 F.3d 571, 579 n.13 (6th

Cir. 1997) (stating that if the petitioner was able to demonstrate that his Batson claim had merit,



         1
             Many criminal defendants were affected by the glitch, which we have previously addressed in our prior
opinions:
         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.”
Ambrose v. Booker, 684 F.3d 638, 640-41 (6th Cir. 2012) (alteration and ellipsis in original).


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Case No. 18-2106, Parks v. Chapman


“he might also be able to prevail on [his] related ineffective assistance claim”) (abrogated on other

grounds by Abdur’Rahman v. Bell, 226 F.3d 696, 705 (6th Cir. 2000)). The majority, however,

contends that counsel’s failure to raise a Batson challenge may be considered a “strategic decision”

because defense counsel expressed that he was “satisfied” with the jury when he neglected to

exercise his remaining peremptory challenges. Op. at 9. This defies logic! The majority would

see to it that the courthouse is effectively closed to any ineffective assistance of counsel claim

based on counsel’s failure to raise a Batson challenge because counsel’s failure could always be

described as “strategic.” Counsel that declines to raise a Batson challenge, or some other issue

regarding the sufficiency of the jury, is necessarily “satisfied” with the jury in order for the jury to

be empaneled and the trial to move forward. Not only that, this rationale can be easily applied to

any ineffective assistance of counsel claim; as long as counsel was “satisfied” with their

performance, any decisions must have been “strategic” and therefore fall short of constitutional

deficiency under Strickland.

        Moreover, even in the extremely rare situation wherein counsel’s active decision not to

raise a Batson challenge could be considered strategic, counsel must still be guided by ensuring “a

fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. “[T]he purpose of the

effective assistance guarantee of the Sixth Amendment is not to improve the quality of the legal

representation . . . .    The purpose is simply to ensure that criminal defendants receive a

constitutionally fair trial.” Id. at 689. Therefore, because even a strategic decision to forgo

challenging the discriminatory use of a peremptory challenge nevertheless fails to provide the

defendant with a fair trial, I would hold that the failure to raise a meritorious Batson challenge is

outside the range of reasonable trial strategy.




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       It is counsel’s duty to ensure that his client faces a jury constructed in a nondiscriminatory

manner. “Those on the venire must be ‘indifferently chosen,’ to secure the defendant’s right under

the Fourteenth Amendment to ‘protection of life and liberty against race or color prejudice.’”

Batson, 476 U.S. at 86-87 (quoting Strauder v. West Virginia, 100 U.S. 303, 309 (1879)).

By neglecting to raise a meritorious Batson challenge, counsel denies the defendant the protection

to ensure this right. Not only that, the use of Batson challenges also “enforces the mandate of

equal protection and furthers the ends of justice.” Id. at 99. The duty to uphold this fundamental

principle is as much the responsibility of a nondiscriminatory prosecution as it is a vigilant defense.

                                                  A.

       Therefore, the first step in deciding Parks’ ineffective assistance of counsel claim is to

determine if a Batson challenge to the prosecutor’s use of peremptory strikes had merit. The Equal

Protection Clause guarantees “the right to be tried by a jury whose members are selected pursuant

to nondiscriminatory criteria.” Id. at 85-86. This right is violated by the purposeful, racially-

discriminatory use of peremptory challenges to remove certain persons from the jury panel. Id. at

86. In order to challenge a party’s use of peremptories, the opposing party must follow the three-

step process outlined in Batson. First, the opponent must make out a prima facie case of racial

discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995). Next, the proponent must offer a race-

neutral explanation for the use of each peremptory strike in question. Id. Finally, the trial court

must decide whether there has been purposeful discrimination based on whether it finds the

proponent’s race-neutral explanations credible. Id. at 767-68.

       Because Parks’ trial counsel did not raise a Batson challenge, there is no record of the

prosecutor’s explanations for the removal of the four African-American jurors. Nevertheless, to

show deficient performance, Parks need only show that he can satisfy step one of Batson—that he




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can establish a prima facie case of racial discrimination—because that is the only aspect of Batson

impacted by the performance of trial counsel. Step two is entirely the province of the prosecutor,

and step three is a credibility determination of the prosecutor’s reasoning by the court.

       “To establish a prima facie case, the defendant must show that (1) he is a member of a

cognizable racial group; (2) the prosecution has removed a member of his race; and

(3) circumstances raise an inference that the removal was motivated by race.” United States v.

Lawrence, 735 F.3d 385, 443 (6th Cir. 2013). Parks is African-American, and there is no dispute

that the prosecutor used four peremptory strikes on African-American jurors. Therefore, the only

question remaining is whether Parks has overcome his burden in establishing that the

circumstances here raise an inference that the jurors’ removal was motivated by race.

                                                          1.

       In reviewing the voir dire transcript, we can discern the following information regarding

the makeup of Parks’ jury. The prosecutor exercised seven peremptory challenges in the following

order: Gregory Scrivens, Thomas Zandbergen, Roger Elliot, Ahmed Shabazz, Kelli Adame, Aria

Moody, and Melanie Gipson2. Parks’ counsel exercised six peremptory challenges: Susan

Bowers, Philip Hack, Deborah Enos, Keith Williams, Richard Brancato, and Charles Rossman.

Although it is unclear how many peremptory challenges were allowed to each side here, Michigan

law generally allows twelve. Mich. Ct. R. 6.412(E).

       During Parks’ state court appeal, he obtained affidavits from three of the stricken jurors

and an individual who observed the trial and was able to assess the composition of the selected

jury.3 Ahmed Shabazz, Aria Moody, and Melanie Gipson all stated that they are African-American




       2
           Gipson is misspelled as “Gibson” in the transcript.
       3
           The government does not dispute any of the statements within the affidavits.


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Case No. 18-2106, Parks v. Chapman


and were removed from the jury panel. Additionally, Melanie Gipson indicated that Gregory

Scrivens, struck among the first group of peremptories used by the prosecutor, is her cousin and is

also African-American. Finally, Reverend Steven Vanhuizen stated that he observed the trial and

that Parks had been tried before an all-white jury.

       Parks argues that the prosecutor’s use of peremptory challenges to remove all of the

African-American jurors from the jury panel mirrors Batson’s reference to a “pattern” of strikes

against African-American jurors which “might give rise to an inference of discrimination.” 476

U.S. at 97. Specifically, Parks points to this Court’s language in United States v. Sangineto-

Miranda, 859 F.2d 1501 (6th Cir. 1988), to show why the prosecutor’s use of peremptories here

creates clear inferences of discrimination:

       If, after the jury selection process has ended, the final jury sworn has a percentage
       of minority members that is significantly less than the percentage in the group
       originally drawn for the jury (or in the whole jury pool or in the district), then that
       would be a factor pointing toward an inference of discrimination. If, on the other
       hand, the percentage of minority members in the ultimate jury is the same or
       greater, that would be a factor tending to negate the inference of discrimination.
       If there are minority members on the jury but the prosecutor did not use all its
       peremptory challenges, that would be a factor tending to refute discrimination.
       However, if all the prosecutor's challenges were used, that fact would point toward
       an inference of discrimination.

Id. at 1521-22. The percentage of African-Americans in the jury pool was at least 9.5% (4/42),

which, despite the computer glitch, was higher than the 8.24% in the community. But, after the

prosecutor’s removal of all the African-American jurors, Parks was left with 0% African-

Americans—an all-white jury. And unlike in Sangineto-Miranda, where the final jury consisted

of some minority members despite the prosecutor’s ability to remove them with unused

peremptory challenges, id., in Parks’ case the prosecutor continued to use her peremptory

challenges until every African-American juror was removed.




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Case No. 18-2106, Parks v. Chapman


                                                 2.

       The government contends that, regardless of these inferences, the prosecutor’s non-

discriminatory reasoning for removing each African-American juror is evident from the voir dire

transcript. While Parks is correct to point out that it is impossible to know the prosecutor’s intent

without reaching step two, Batson is clear that courts “should consider all relevant circumstances”

in determining whether the opponent has met his prima facie burden. 476 U.S. at 96. In addition

to the pattern of strikes previously discussed, these circumstances include whether “the

prosecutor’s questions and statements during voir dire examination and in exercising [her]

challenges may support or refute an inference of discriminatory purpose.” Id. at 97.

       The prosecutor asked a number of questions of the prospective jurors, including some

already raised by the court: (1) If anyone in their home was employed outside the home? (2) If

anyone had an occasion to assess a dispute in which one person was telling the truth and the other

was lying? (3) How many had friends or relatives who had been victims of criminal sexual

conduct? (4) If anyone was ever accused of a crime? (5) If anyone knew someone who had been

charged with a crime or falsely accused of anything? (6) Whether anyone required 100% certainty

to convict someone of a crime? (7) If anyone believed that a victim must resist to be guilty of

rape? (8) Whether anyone may be hindered in their deliberations because of their discomfort with

the topic or any other reason why they could not be fair or impartial?

                                       i. Gregory Scrivens

       Gregory Scrivens was the first African-American juror removed from the jury panel. He

was removed during the prosecutor’s first use of peremptory challenges, along with two other

jurors. The only information Scrivens provided to the court was that he was a mechanical engineer

and worked for Rapistan Systems.




                                                 18
Case No. 18-2106, Parks v. Chapman


        The government contends that Scrivens’ employment as an engineer refutes an inference

of a discriminatory purpose for his removal and cites several cases discussing the frequent removal

of engineers from the venire because of their mathematically-framed thought processes. The fact

that another juror with the same profession4 was not removed by the prosecutor, however, supports

a finding of discriminatory intent. Like Scrivens, Keith Williams5 was a member of the original

jury panel and informed the court that he was an electrical engineer. The prosecutor had two

opportunities to remove Williams and chose not to do so before he was eventually struck by Parks’

counsel. The voir dire transcript offers no material distinction between the prosecutor’s decision

to remove Scrivens and her decision not to remove Williams. This finding supports a showing of

discriminatory intent as to Scrivens’ removal.

                                               ii. Ahmed Shabazz

        Ahmed Shabazz was the second African-American juror removed by the prosecutor.

Shabazz was added to the venire after the prosecutor’s first use of peremptory challenges. Shabazz

indicated to the court that he is a case manager for Exodus Ministries Network and had worked

with several people who have been convicted of crimes involving criminal sexual conduct but

never any victims of such crimes. When the prosecutor was given a chance to question Shabazz,

she asked him whether he would be uncomfortable using himself as a juror if he were the

prosecutor. Shabazz responded that he did not think so, and the prosecutor ceased her questioning.

        Shabazz was then removed by the prosecutor during her next available peremptory

challenge. The fact that someone has spent a significant amount of time around defendants, but

not victims, presents a plausible nondiscriminatory reason to remove that person from the jury.



        4
         Actually, two jurors in addition to Scrivens stated their professions as engineers, but one of them (Daniel
Wildey) was removed for cause before either side had a chance to execute a peremptory challenge.
        5
            There is no evidence indicating Williams’ race.


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Case No. 18-2106, Parks v. Chapman


Therefore, Shabazz’s statements do not raise an inference of discriminatory intent as to his

removal.

                                                iii. Aria Moody

       Aria Moody was the third African-American juror removed. Prior to Moody’s arrival to

the venire, the prosecutor indicated that she was satisfied with the construction of the then all-

white jury panel. But Parks’ counsel executed one of his peremptory challenges, which brought

Moody onto the jury panel. Upon being selected, Moody indicated to the court that she lives near

where the encounter occurred and may have heard about it when it first happened. The only

question that the prosecutor asked of Moody was whether she could convict on less than 100%

evidence. Upon Moody’s indicating that she could, the prosecutor executed a peremptory

challenge to remove Moody from the jury.

       Given that Moody’s answer to the prosecutor’s question seems to show that she was the

type of juror that a prosecutor would want on a jury, it is curious that only after this question did

she remove Moody. Furthermore, although the circumstances of their potential knowledge were

different, the prosecutor chose not to remove another juror, Deborah Enos.6 Enos was added to

the jury after another juror was removed for cause, prior to the prosecutor’s second set of

peremptory challenges. Enos indicated that she may have seen Parks on television or elsewhere

because she recognized his name and his face. Although Enos never served on Parks’ jury because

she was later removed by Parks’ counsel, the prosecutor had the first opportunity to remove her

and declined to do so. Moody’s potential knowledge of the case would normally refute an

inference that she was removed for a discriminatory purpose, but the prosecutor’s failure to remove




       6
           There is no evidence indicating that Enos, previously in the jury pool with Moody, is African-American.


                                                        20
Case No. 18-2106, Parks v. Chapman


Enos, who indicated similarly limited knowledge of the case, negates that premise and supports a

finding of discriminatory intent.

                                       iv. Melanie Gipson

       Melanie Gipson was the final African-American juror removed. Gipson was added to the

jury panel after the removal of Moody. When Gipson was questioned by the court, she explained

that she had a cousin who had been the victim of criminal sexual conduct. Following the court’s

inquiries, the prosecutor asked Gipson whether she believed a victim should have to resist and

Gipson said that she did. After the prosecutor explained that Gipson’s belief was contrary to the

law, Gipson agreed that she could follow the law, but also stated that she would need 100%

certainty to convict someone. Gipson was then removed from the jury by the prosecutor.

Following Gipson’s removal and the addition of a white juror, the prosecutor stated that she was

once again satisfied with the all-white jury.

       Here the prosecutor was consistent in that she had previously removed Thomas Zandbergen

after he had indicated that he believed a victim must resist. This circumstance, when combined

with the knowledge that Gipson would require 100% certainty to convict, does not raise an

inference of discriminatory intent.

                                                 3.

       Considering all relevant circumstances surrounding the prosecutor’s use of peremptories

to remove every African-American from the jury panel—one-by-one—until Parks was left with

an all-white jury, Parks has met his burden in establishing a prima facie case that the prosecutor’s




                                                21
Case No. 18-2106, Parks v. Chapman


use of peremptory challenges was discriminatory. I find no reasonable argument that Parks’

counsel’s performance was not deficient under Strickland.7

         First, the sheer numbers involved make out a strong prima facie case of discrimination.

Although we cannot be certain about the number of African-American jurors drawn from the

venire on the initial jury panel, the various affidavits show that there were at one point or another

a total of four on the panel.8 As in Batson, each African-American juror was removed until Parks

faced an all-white jury. 476 U.S. at 83 (“The prosecutor used his peremptory challenges to strike

all four black persons on the venire, and a jury composed only of white persons was selected.”).

This suggests a pattern to eliminate African-Americans from the jury panel.

         Second, what can be gathered from the voir dire transcript does little to refute the inference

that the prosecutor’s strikes were used in a racially discriminatory manor. While the circumstances

surrounding the removal of Shabazz and Gipson, when analyzed in a vacuum, do not suggest

discrimination, the record does nothing to refute inferences that the removal of Scrivens and

Moody were the product of purposeful discrimination. The fact that the prosecutor exercised

peremptory challenges to remove Scrivens and Moody from the jury panel but not two similarly

situated jurors is enough to raise an inference of discrimination.

         It is well established that a Batson violation may be shown by disparate treatment
         of white and minority jurors—that is, if a side-by-side comparison[] of some black
         [potential jurors] who were struck and white ones who were not shows that the only
         material distinction between the removed black and the retained white individuals
         is their race. In conducting a comparative juror analysis, the compared jurors need
         not be similarly situated in all respects. In fact, the empaneled white jurors need



         7
           Like the majority, I take no position on whether AEDPA deference applies to Parks’ Batson claim. I find
that Parks’ counsel’s performance was deficient even under the more demanding standard of Strickland through the
lens of AEDPA. See Harrington v. Richter, 562 U.S. 86, 105 (2011).
         8
          Moody stated in her undisputed affidavit that she “was one of three African-Americans in the jury pool”
because she had seen only two other African-Americans in the pool. The original jury panel also included at least one
African-American, Scrivens, who was removed from the panel before Moody moved from the pool to the panel.


                                                        22
Case No. 18-2106, Parks v. Chapman


        not even match the stricken black venirepersons in all of the characteristics the
        prosecution identified in striking the black venirepersons.

United States v. Atkins, 843 F.3d 625, 631 (6th Cir. 2016) (internal citations and quotation marks

omitted, alterations in original). While there is an argument that Moody and Enos’ potential

proximity to some aspects of the case are distinct, there is no discernible difference between

Scrivens and Williams. The only relevant information revealed by both is that they were employed

as engineers.     Scrivens, an African-American, was removed during the prosecutor’s first

opportunity to execute a peremptory challenge and Williams was not removed during either of the

prosecutor’s first two chances to exercise peremptories. “The Constitution forbids striking even a

single prospective juror for a discriminatory purpose.” Snyder v. Louisiana, 552 U.S. 472, 478

(2008) (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)).

        Finally, although the disparate treatment of even one pair of similarly situated jurors is

enough to satisfy the first step of Batson, the timing of the prosecutor’s use of challenges leaves

no doubt. Each time an African-American juror was added to the jury panel, the prosecutor

exercised a peremptory challenge to remove that juror. Scrivens was presumably the only African-

American on the initial panel. He was removed in the prosecutor’s first set of peremptory

challenges. Before the prosecutor was able to execute any more challenges, Shabazz was added

to the jury panel. Shabazz was removed with the prosecutor’s second set of challenges. When the

prosecutor was again given an opportunity to use her remaining peremptory challenges, faced with

a presumably all-white jury,9 she stated that she was satisfied with the jury. Then, following Parks’

counsel’s removal of a different juror, Moody was added. The prosecutor removed Moody at her

next opportunity and then repeated the same action after Gipson took Moody’s place. A white



        9
          The only potential juror whose race was unknown from the panel at that time was Brancato. There is no
evidence indicating that Brancato, previously in the jury pool with Moody, is African-American.


                                                      23
Case No. 18-2106, Parks v. Chapman


juror was added in Gipson’s place, and the prosecutor was once again content with an all-white

jury.

                                                           B.

         To be entitled to relief,10 however, Parks must show actual prejudice because his real claim

lies under Strickland. Despite the majority’s one-sided portrait of the underlying facts of the

case,11 I agree that Parks fails to show actual prejudice. Although there were only two witnesses

to the encounter, and both stuck to their versions of the facts, Jefferson’s account is far more




         10
            Parks maintains that he is entitled to an evidentiary hearing to establish a Batson violation. The government
contends that an evidentiary hearing cannot be held due to the amount of time that has passed since the trial (over
eighteen years) and the Supreme Court’s decision in Cullen v. Pinholster, 563 U.S. 170, 185 (2011) (barring
evidentiary hearings in federal court where a state court has already ruled on the merits). Passage of time arguments
aside, I agree with the majority that we need not decide whether an evidentiary hearing is precluded, not because a
hearing could only seek “rank speculation,” Op. at 12, but because Parks has already succeeded in showing what an
evidentiary hearing would set out to find—that his trial counsel’s performance was deficient.
         11
             A broader rendition of the facts is necessary to assess the prejudice prong. Most of the trial focused on
the conflicting testimonies of Parks and the victim, Beverly Jefferson. Jefferson testified that, in the early morning of
April 22, 2001, she awoke to an unknown man (Parks) knocking on her door. Upon answering the door, Parks asked
to use Jefferson’s phone, and Jefferson showed him inside her apartment. After using the phone, Jefferson testified
that Parks hit her in the mouth several times and told her to remove her clothes or else he would strike her again. Parks
then forcibly engaged in non-consensual vaginal intercourse with Jefferson until she managed to secure a knife from
the kitchen. Following a brief struggle, Jefferson handed the knife to Parks because Parks threatened to destroy her
possessions. Parks then penetrated Jefferson (anally and orally), but he eventually fell asleep on Jefferson’s bed as
she performed oral sex on him, during which time Jefferson called 911 and indicated that she had been raped. Parks
awoke before the police arrived and continued to rape Jefferson until Jefferson heard the police at her door and
screamed for them to enter. After hearing her pleas for help, the police kicked in the door and arrested Parks just prior
to 9:00 A.M.
         Parks testified to a very different set of events. According to Parks, he was on his way home after staying up
with his friends all night and purchasing marijuana, which he smoked while he walked home. As he was walking,
Parks heard Jefferson call out to him from the door of her apartment building. Jefferson asked Parks if he had any
“dope.” Parks informed her that he did not, and Jefferson proceeded to offer him sex in exchange for $20. Although
Parks explained that he only had $10 and began to leave, Jefferson relented and agreed to the lower amount. At that
point, the two walked up to Jefferson’s apartment and began talking. Jefferson excused herself to get ready and
proceeded to smoke something that Parks could only describe as not a cigarette. While Jefferson was getting ready,
Parks started to call his cousin from her phone but decided against it.
          According to Parks, once Jefferson was ready, she motioned him to the bed, and they engaged in intercourse.
Parks eventually dozed off while Jefferson was performing oral sex on him and later awoke to see Jefferson sitting at
her window. Parks confronted Jefferson, and she accused him of lying about how much money he had. Parks then
agreed to pay Jefferson $20 if she would “let [him] finish,” and the two once again engaged in consensual intercourse
until the police arrived.


                                                          24
Case No. 18-2106, Parks v. Chapman


credible because, unlike Parks’, her version corroborates their interactions with the police and the

physical evidence.

       First, it is certain that, on the morning of April 22, 2001, Jefferson called 911 and reported

that she had been raped by Parks. Parks posits that perhaps Jefferson called 911 because she was

displeased with the fact that Parks had fallen asleep while she performed oral sex or that she

believed Parks was not going to pay her as he had promised. To be sure, Parks does not claim to

know the reason that Jefferson called the police claiming that she had been raped, but his potential

explanations seem much less plausible than the more straightforward motive of a victim of an

ongoing sexual assault calling 911 to report it.

       Second, when officers arrived, Jefferson had a large gash on the inside of her lip which

required between seven and fourteen stitches. The laceration was treated by an emergency

physician who stated that the wound appeared to be less than twelve hours old. Parks claims that

he never struck Jefferson and that he was unaware of the laceration inside her mouth. Again,

Parks’ description seems less plausible. It is unlikely that someone would consensually engage in

intercourse with such a significant wound or that Parks would never have noticed the blood which

Jefferson testified dripped onto her clothes and furniture.

       Third, Jefferson was examined by a sexual assault nurse examiner the same morning who

discovered two abrasions and one laceration on the outer portion of her vagina and a hemorrhoidal

tag and a laceration on the outer portion of her anus. The nurse found the injuries to be “very

consistent” with forced sex but was unable to rule out the possibility that the injuries were caused

by rough sex. Like the comparison between their conflicting accounts regarding the wound to

Jefferson’s mouth, it is unlikely that someone with such significant injuries would want to continue

to engage in the same conduct that caused or would exacerbate those injuries.




                                                   25
Case No. 18-2106, Parks v. Chapman


        Additionally, while Parks’ character witnesses (a former employee in charge of

neighborhood outreach at Parks’ church and his sister) painted a picture of someone not capable

of committing the acts alleged by the State, this testimony cannot overcome the physical evidence

against Parks. In sum, the case against Parks is strong enough, such that he cannot show actual

prejudice to “undermine confidence in the outcome of the trial.” Strickland, 466 U.S. at 694.

Therefore, Parks is not entitled to habeas relief pursuant to his Batson/Strickland claim.

                                                II.

        As for Parks’ fair cross-section claim, there is no dispute that Parks’ claim that his jury

pool was not drawn from a fair cross-section of his community was meritorious. Like other

defendants who were subject to the Kent County computer glitch, Parks’ claim is not that his

particular venire was unfair, but that the pool from which the jury was drawn was unfair. See

Ambrose, 684 F.3d at 645. “The Sixth Amendment secures to criminal defendants the right to be

tried by an impartial jury drawn from sources reflecting a fair cross section of the community.”

Berghuis v. Smith, 559 U.S. 314, 319 (2010) (emphasis added). By going to trial, Parks put his

trust in the fairness of the procedures of the 17th Judicial Circuit Court (Kent County, Michigan).

The Kent County Court’s systematic exclusion of minority jurors abused Parks’ trust and failed to

safeguard that which every criminal defendant is guaranteed by the Sixth Amendment: a jury

drawn from a source representing a fair cross-section of the community. U.S. Const. Amend VI;

Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (“We accept the fair-cross-section requirement as

fundamental to the jury trial guaranteed by the Sixth Amendment.”); Brown v. Allen, 344 U.S. 443,

474 (1953) (“Our duty to protect the federal constitutional rights of all [requires that] the source

[of jurors] reasonably reflects a cross-section of the population suitable in character and

intelligence for that civic duty.”).




                                                26
Case No. 18-2106, Parks v. Chapman


         Moreover, it is clear that Parks’ procedural default should be excused because the Kent

County computer glitch, which caused the systematic underrepresentation of African-Americans

in jury pools from 2001 to 2002,12 was not discovered until after his conviction. I agree with the

majority, however, that Weaver v. Massachusetts, 137 S. Ct. 1899 (2017), does not relieve Parks’

burden of showing prejudice,13 and that he remains bound by our holding in Ambrose, applying

the actual prejudice standard. 684 F.3d at 640. Therefore, like his Batson/Strickland claim,

because Parks has not shown actual prejudice, he is not entitled to relief.




         12
            Research from the Kent County Jury Management System Report indicates that the absolute disparity (the
difference between the percentage of jury-eligible African-Americans in the County and in the jury pool) was 3.45%
(African-Americans made up approximately 8.24% of the County compared to their actual jury pool representation of
4.79%) and the comparative disparity (the absolute disparity relative to the percentage of jury-eligible African-
Americans in the County) was 42% (3.45% divided by 8.24%). Ambrose, 684 F.3d at 642-43.
         13
             Parks points out that the Supreme Court was clear that their holding applies “only in the context of trial
counsel’s failure to object to the closure of the courtroom during jury selection[,]” Weaver, 137 S. Ct. at 1907, and
that the Court left open the possibility that there may be situations in which a more egregious error requires automatic
reversal, or, at least, a minimal showing of actual prejudice despite being procedurally defaulted. Id. at 1913. Parks
argues that his claim differs from Weaver’s in two material aspects and, therefore, falls into the category of claims
which require automatic reversal. First, Parks’ claim is procedurally defaulted, not due to trial counsel’s error, but
because the error was not revealed until the publication of the Grand Rapids Press report long after the trial. Second,
the error here is more egregious. Parks’ claim is based on the violation of his right to a jury pool drawn from a fair
cross-section of the community—an error involving a greater level of fundamental unfairness than in Weaver.
         I agree with Parks that the circumstances surrounding the procedural default and error in Weaver do not
implicate the same level of fundamental unfairness he faces here. “The purpose of a jury is to guard against the
exercise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the
overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased
response of a judge.” Taylor, 419 U.S. at530 (citing Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968)). A jury
drawn from only certain segments of the community fails to provide the impartiality necessary to sustain a judicial
system based on trial by jury. It is every trial court’s constitutional duty to ensure this impartiality.
          Unfortunately for Parks, the Supreme Court was clear that Weaver’s scope is limited: “[T]his opinion does
not address whether [a particular structural error causing fundamental unfairness] should be [assessed] different[ly] if
the errors were raised . . . in an ineffective-assistance claim on collateral review.” Weaver, 137 S. Ct. at 1912. Despite
Parks’ arguments to the contrary, Weaver declined to address the proper standard when faced with a claim such as his
or the petitioners’ in Ambrose. We are therefore bound by precedent to conclude that Parks must show actual
prejudice. There may be substantial merit to the application of Weaver’s fundamental error analysis to Parks’ fair
cross-section claim, but a panel of this court cannot overrule Ambrose. This requires an inconsistent decision of the
Supreme Court—which Weaver is not—or a decision of the en banc court. See Brumbach v. United States, 929 F.3d
791, 795 (6th Cir. 2019); Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).


                                                           27
