               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0136n.06

                                       Case No. 11-2531                             FILED
                                                                               Feb 18, 2014
                         UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


CURTIS PARKS,                                      )
                                                   )
       Petitioner-Appellant,                       )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE EASTERN DISTRICT OF
PAUL KLEE,                                         )      MICHIGAN
                                                   )
       Respondent-Appellee.                        )
                                                   )
                                                   )


       BEFORE: MOORE, GIBBONS and SUTTON, Circuit Judges.


       PER CURIAM. For sixteen months in 2001 and 2002, a software glitch affected the

Kent County, Michigan jury selection system. In Ambrose v. Booker, 684 F.3d 638 (6th Cir.

2012), this court addressed three habeas petitioners’ claims that the computer glitch led to a

violation of their Sixth Amendment right to a jury drawn from a fair cross section of the

community. We held that the normal requirement of cause and prejudice to excuse a procedural

default on habeas review applied to these claims. Id. at 649. After finding that the petitioners

could demonstrate cause, we remanded to allow the district court to develop a record as to

whether the petitioners suffered prejudice from the alleged fair cross-section violations. Id. at

652.
Case No. 11-2531
Parks v. Klee
       Curtis Parks raised the same procedurally defaulted fair cross section claim as the

Ambrose petitioners in his habeas petition based on the same computer glitch. The district court

found cause to excuse the default, presumed prejudice and denied his petition on the merits. He

appealed, and at his request we held his appeal in abeyance awaiting the decision in Ambrose.

As in that case, because the district court presumed prejudice and “did not address actual

prejudice, a remand is necessary.” Id.

       Parks’ appeal also challenges the district court’s denial of relief on his ineffective

assistance of counsel claim related to his counsel’s failure to raise a Batson challenge at trial. In

light of the remand on the fair cross section claim, we need not go into detail about the appellate

arguments on this issue. We will note that, in the course of resolving this complicated case, the

district court appears to have overlooked the existence in the record of the voir dire transcript

from Parks’ state court trial. In view of this reality, we will vacate this portion of the district

court’s decision as well, and the court is free on remand to consider any arguments Parks may

wish to raise.

       The district court’s orders on Parks’ fair cross section and ineffective assistance claims

are vacated, and the case is remanded for further proceedings consistent with this opinion.




                                                 2
