                            In the

    United States Court of Appeals
               For the Seventh Circuit

No. 08-2766

JEFFREY W HITE,
                                            Petitioner-Appellant,
                                v.

D ONALD G AETZ, Acting Warden,
                                            Respondent-Appellee.


            Appeal from the United States District Court
                   for the Central District of Illinois.
           No. 07-2112—Michael P. McCuskey, Chief Judge.


     A RGUED O CTOBER 5, 2009—D ECIDED D ECEMBER 21, 2009




 Before E VANS and SYKES, Circuit Judges, and SIMON,
District Judge. 1
  S IMON, District Judge. When a trial judge looks out
over the courtroom and sees no one sitting there, it pres-
ents a practical problem when he or she is trying to com-



1
   The Honorable Philip P. Simon of the United States District
Court for the Northern District of Indiana, sitting by designa-
tion.
2                                                No. 08-2766

plete jury selection. Illinois deals with this problem with
a “bystander” venire statute which authorizes the judge
to order the local sheriff to round up people and bring
them to court so that jury selection can be completed.
This process was used to select the final juror in the trial
of Jeffrey White in which he was convicted of first degree
murder. In this appeal from the denial of a habeas corpus
petition brought pursuant to 28 U.S.C. §2254, White
claims that the way in which the bystander venire was
selected violated his constitutional right to have his jury
selected from a fair cross section of the community. He
seeks a new trial. The district judge denied the petition,
and we affirm.
   During jury selection of White’s trial, after ten jurors
had been seated, the pool of prospective jurors was ex-
hausted. One of the two remaining slots was eventually
filled by a member of the original jury pool and the selec-
tion of that juror is not in dispute in this appeal. But in
order to fill the final seat the trial judge invoked Illinois’
standby juror statute which provides:
    When by reason of challenge in the selection of a
    jury for the trial of any cause, or by reason of the
    sudden sickness or absence of any juror for any
    cause, the regular panel is exhausted, the court may
    direct the sheriff to summon a sufficient number of
    persons having the qualifications of jurors to fill the
    panel for the pending trial, but upon objection by
    either party to the cause to the sheriff summoning
    a sufficient number of persons to fill the panel, the
    court shall appoint a special bailiff to summon
    such person . . . .
No. 08-2766                                                    3

705 Ill. Comp. Stat. 305/13. Under the authority of this
statute, the judge directed the sheriff’s office to recruit
additional jurors. The process that the sheriff used was
to call up various county supervisors and ask them
to supply people to fill out the venire. White’s counsel
objected, but the court responded that it was up to the
sheriff to determine who would be summoned. Although
White’s counsel objected to the process, he did not make
a request that a special bailiff be appointed, as is
permitted by the statute, until after the jury was already
selected and the trial was about to begin.
  The first bystander juror was excused for cause after
stating that she worked for the sheriff in his records
department, and that she knew the prosecutors in
charge of White’s trial and handled some paperwork for
White’s case.2 The next standby juror questioned was an
individual named Amy Carter. Ms. Carter was a recep-
tionist at the Decatur Public Building Commission. To
summon her, the sheriff’s office called her boss asking
for people who might be interested in serving on a jury.
Her boss then asked Ms. Carter if she was willing to
serve, and she said that she was. After a full voir dire


2
  Some of these facts come from the state court trial transcript.
White filed a motion, objected to by the State, asking that we
take judicial notice of the state court trial transcript. That
motion is G RANTED . We agree that judicial notice is appro-
priate because White relied on the transcripts in his habeas
petition before the district court, the Illinois Appellate Court
relied on them after both parties cited them in their briefs, and
they would assist this Court. See Fed. Rule App. P. 10(e)(2).
4                                             No. 08-2766

of Ms. Carter by both the trial judge and the parties, she
was accepted as a juror by both sides. White neither
challenged her for cause nor used one of his remaining
available peremptory challenges to dismiss her, and
there is absolutely nothing to suggest that Ms. Carter
was biased in any way.
  Before addressing White’s claim, we will briefly review
the facts which landed White in this mess. They read like
a script from Quentin Tarentino. White and two others
were hired by Corliss McSpadden to drive to Arizona
to pick up a load of marijuana—50 pounds in all.
McSpadden gave White money to buy the marijuana, but
problems arose when White decided to steal the load
instead of delivering it to McSpadden. Guys who deal
in large quantities of drugs don’t like being ripped off,
and McSpadden was no different. He confronted White,
pistol whipped him, ran over his cohort with a car and
issued a death threat to White. At one point, White
was actually kidnapped at gunpoint and threatened with
death by two of McSpadden’s buddies, Travis Williams
and Andrew Murphy. White escaped, but he became
convinced that Williams and Murphy were working
for McSpadden and doing his dirty work in collecting
on the drug debt. All of which prompted White to start
carrying a gun.
  Shortly after the kidnapping, White encountered
Murphy for a second time at a county courthouse, and
Murphy threatened him again. According to White, he left
the courthouse but later returned with a friend and they
proceeded to follow Murphy in his car. As fate would
No. 08-2766                                              5

have it, Murphy was heading to the home of Travis
Williams, the other kidnapper. When White arrived at
Williams’ house, Williams and Murphy were out front.
White, who was in the passenger’s seat, reached out of
the window and pointed a gun back over the roof of the
car and shot towards Murphy and Williams. One of
the bullets struck Williams in the head and killed him.
White was arrested a few days later and eventually
confessed to shooting Williams. He stated that he shot
at Williams and Murphy out of fear. White claimed that
he was just trying to scare them and that he did not
mean to shoot anybody.
   The jury convicted White of first degree murder and
he was sentenced to twenty-eight years of imprisonment.
The Illinois Appellate Court affirmed the judgment.
People v. White, 819 N.E.2d 1239 (Ill. App. Ct. 2004). The
principal arguments on appeal concerned the manner
in which the bystander jurors were selected. First, White
argued that the sheriff was not correctly appointed to
summon the bystander jurors. The court made quick
work of that argument finding that the Illinois statute
authorized the sheriff to summon additional jurors. Id.
at 1245. White then argued that a special bailiff should
have been appointed to find bystander jurors, but the
court found that his request for a special bailiff—coming
after the jury had already been selected—was too late.
Finally, the court found that the trial court did not abuse
its discretion in finding that the sheriff’s method of sum-
moning jurors was within the discretion given to the
sheriff under the statute. Id. at 1245-47. White filed a
petition for leave to appeal to the Illinois Supreme Court,
but the petition was denied.
6                                                No. 08-2766

  White then filed a pro se post-conviction petition, which
the Circuit Court of Macon County denied as “frivolous
and patently without merit.” (A. 109). The Illinois Appel-
late Court affirmed, and the Illinois Supreme Court later
denied White’s petition for leave to appeal. White next
moved on to federal court where he filed a pro se
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 in the Central District of Illinois. He raised five
issues. The district court denied the petition, and this
court granted a certificate of appealability limited to the
issue of whether White’s Sixth Amendment right to a
fair and impartial jury was violated by the manner in
which the sheriff summoned the bystander jurors. (A.
235). The district judge reasoned that there was no Sixth
Amendment violation by having the sheriff select the
bystander jurors since the sheriff was not involved in
White’s investigation and the county supervisors whom
he called upon to get the bystander jurors had no
interest in the prosecution.
  The first issue is whether White fairly presented his
federal constitutional claim regarding the selection of the
standby venire to the state courts. A federal constitu-
tional claim is procedurally barred if a petitioner fails to
fairly present that claim in one complete round of state
court review. Baldwin v. Reese, 541 U.S. 27, 29, 30-31 (2004).
To determine whether a petitioner fairly presented a
claim before the state courts, this Court looks to
whether the petitioner: (1) relied on relevant federal cases
applying constitutional analysis; (2) relied on state cases
applying federal constitutional analysis to a similar
factual situation; (3) asserted the claim in terms so par-
No. 08-2766                                                7

ticular as to call to mind a specific constitutional right;
and (4) alleged a pattern of facts that is well within the
mainstream of federal constitutional litigation. Ellsworth
v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001). Our task
is to determine in practical terms whether the state
courts were sufficiently alerted to the nature of White’s
federal constitutional claim. Id.
  White’s arguments before the Illinois Appellate Court
and in the Illinois Supreme Court dealt exclusively
with the application of the Illinois bystander statute. White
did not rely on any federal constitutional provision and
cited to no cases employing a constitutional analysis.
Nor did he rely on any state cases applying a federal
constitutional analysis to a similar factual situation. So
the first two factors in deciding whether his claim was
fairly presented to the state courts weigh heavily
against White. And this much he agrees. (Appellant’s
Br. at 27.)
  As to the third factor, White’s claims do not bring to
mind a “specific constitutional right.” White contends
rather broadly that his claims bring to mind Sixth Amend-
ment and Due Process concerns. But he provides no
persuasive authority to support that assertion. And
White’s prior briefing in the Illinois courts contains no
references to federal case law, federal statutes, or any
part of the United States Constitution. The focus of
White’s arguments before the Illinois courts was on the
alleged improper application of the Illinois bystander
statute, not on White’s Sixth Amendment and Due
Process rights. Thus, his arguments prior to his appeal
8                                               No. 08-2766

to the Central District of Illinois did not invoke federal
law. While White did mention his “right to a fair trial
before an impartial jury,” he failed to explicitly invoke
the federal right he now seeks vindicated—the right to
have a venire that is chosen from a fair cross section
of the community. Instead, that reference was to his
claim under the Illinois bystander statute. Under these
circumstances, an innocuous reference to a “right to an
impartial jury” does not call to mind the federal right to
have a venire selected from a fair cross section of the
community. See Baldwin, 541 U.S. at 33 (a mere reference
to “ineffective assistance of both trial court and
appellate court counsel” did not properly invoke
federal law because a state claim could arise with the
same language).
  As to the fourth factor, White has not alleged a pattern
of facts that is well within the mainstream of federal
constitutional litigation. White cites to a series of
Supreme Court cases in an attempt to show that his case
is in the mainstream of constitutional litigation. See
Duren v. Missouri, 439 U.S. 357 (1979); Castaneda v.
Partida, 430 U.S. 482 (1977); Taylor v. Louisiana, 419 U.S.
522 (1975). But these are in no way similar to the facts
of this case. Duren and Taylor held that the systematic
exclusion of women from a venire violated the fair cross
section requirement of the Sixth Amendment. And
Casteneda held that a system that selected jurors in a way
that discriminated against Mexican-Americans was
likewise unconstitutional. These facts are completely
different from the facts of this case where the sheriff—in
trying to fulfill his obligation under the Illinois bystander
No. 08-2766                                              9

venire statute—called upon government employees to
round out a small portion of the venire. There was no
systematic exclusion of anyone here, but instead the
inclusion of governmental employees. So this pattern
of facts is not within the mainstream of constitutional
litigation as set out in cases like Duren, Taylor, and
Casteneda.
  In sum, White did not fairly present his constitutional
claim to the Illinois courts. His beef in the state courts
was with the manner in which the Illinois bystander
statute was handled by the sheriff. He cited no federal
constitutional cases, and there was nothing about his
arguments in the state courts that would call to mind
the specific constitutional right that he now says was
violated. For these reasons, his claim is procedurally
barred.
   Even if we were to look past the procedural bar, White’s
claim fails. Under 28 U.S.C. § 2254(d), a writ of habeas
corpus can be granted only if the state court adjudica-
tion “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in
light of the evidence presented in the State court pro-
ceeding.” Id. The United States Supreme Court has never
held that a procedure to create a standby venire violates
the defendant’s constitutional rights. So the opinion of
the Illinois appellate court was neither contrary to,
nor involved an unreasonable application of, Supreme
10                                             No. 08-2766

Court precedent. See Wright v. Van Patten, 552 U.S. 120,
125 (2008).
  White attempts to clear this hurdle by directing our
attention to two of the Supreme Court cases discussed
above—Duren v. Missouri, 439 U.S. 357 (1979) and Taylor v.
Louisiana, 419 U.S. 522 (1975). But neither of these
cases even come close to holding that the process used
here to select the standby venire violates the Sixth Amend-
ment. Again, Duren and Taylor involved the systematic
exclusion of women from a venire. White contends that
those cases are analogous because government em-
ployees—the group that was selected by the sheriff to be
in the venire—are a distinctive group that is auto-
matically biased in favor of the government, resulting in
an unrepresentative and unfair venire. But White cites
no authority for his broad contention that government
employees are always biased in favor of the govern-
ment, and it’s difficult to see why that would necessarily
be the case. In fact, there is nothing to suggest that
Ms. Carter, the one juror who was selected from the
standby venire, was biased. She was not challenged for
cause by either side nor did White use one of his
remaining peremptory challenges to strike her from the
jury. So the comparison of this case to cases like
Duren and Taylor is not very apt. Those cases address the
systematic exclusion of a group of people (women) which
led to a venire that was not representative of society. By
contrast this case involved the systematic inclusion of a
group of people (government workers) to fill out a
small portion of the venire that did not result in a venire
unrepresentative of society.
No. 08-2766                                               11

  Neither Duren nor Taylor (nor any other Supreme
Court case cited by White) address the question presented
here—whether a violation of the fair-cross-section re-
quirement may be based on the misapplication of a by-
stander venire statute. So the state court’s decision to
reject White’s jury selection claim was neither contrary
to, nor an unreasonable application of, clearly established
Supreme Court precedent.
  White also points us to two cases from the Eighth Circuit
to support his constitutional argument. See Anderson v.
Fey, 715 F.2d 1304 (8th Cir. 1983); Henson v. Wyrick, 634
F.2d 1080 (8th Cir. 1980). Anderson involved a situation
where a sheriff who had handled the criminal investi-
gation selected the bystander jurors; and Henson involved
a sheriff who chose only his acquaintances for the
venire. Both courts held that where the sheriff partici-
pates in the investigation and selects bystander jurors
based on subjective criteria, the defendant’s right to a
fair trial is violated.
  There are a number of problems with White’s reliance
on Anderson and Henson. First, both were decided prior
to the Antiterrorism and Effective Death Penalty Act
(AEDPA) of 1996. As discussed above, the AEDPA
requires White to establish that the state court opinion
was contrary to clearly established federal law, as deter-
mined by the Supreme Court of the United States. 28 U.S.C.
§ 2254(d)(1). Wright, 552 U.S. at 125; Carey v. Musladin,
549 U.S. 70, 77 (2006); Lieberman v. Thomas, 505 F.3d 665,
672 (7th Cir. 2007); Schaff v. Snyder, 190 F.3d 513, 530 (7th
Cir. 1999) (declining to consider Second Circuit precedent
12                                              No. 08-2766

because a “habeas petitioner must support his claim
with a Supreme Court decision that clearly establishes
the proposition essential to his position”).
  But even if Hensen and Anderson were somehow binding
on us, they are distinguishable in any event. The
sheriff who selected the bystanders in those cases had
an interest in the outcome of the proceedings. The sheriff’s
office was the investigating agency in those cases, and in
Henson the sheriff actually sought out his acquaintances
to be in the jury pool. There was no such bias here. As the
district court pointed out, the sheriff was not involved
with the investigation, and there were no facts showing
that the sheriff was biased when he recruited the
standby venire. White claims that the sheriff was “inher-
ently biased” against him because he is the chief law
enforcement officer in the county. But when the sheriff
does not participate in the investigation of the crime, his
institutional interest becomes more attenuated. O’Neal
v. Delo, 44 F.3d 655, 662 (8th Cir. 1995); Holt v. Wyrick,
649 F.2d 543, 546 (8th Cir. 1981).
  In sum, the sheriff exercised his responsibility under
the Illinois bystander statute by rounding out a small
portion of the venire—enough to select the final juror—by
calling upon supervisors in government offices to
furnish potential jurors. The juror who was ultimately
selected had no interest in the case and was in no way
biased. White has failed to point us to any Supreme
Court cases that hold that the sheriff’s selection of a
small portion of the venire makes the entirety of the
venire not a fair cross section of society. And the Eighth
No. 08-2766                                          13

Circuit cases that he relies on are all distinguishable.
White’s right to an impartial jury selected from a rep-
resentative cross section of the community was not vio-
lated.
 We A FFIRM the judgment of the district court.




                        12-21-09
