Ambrose v. Booker (24 F. Supp. 3d 626, 2014)

OPINION AND ORDER CONDITIONALLY GRANTING PETITIONER’S REQUEST FOR A WRIT OF HA-BEAS CORPUS

THOMAS L. LUDINGTON, District Judge.

A Kent County jury convicted Joseph Ambrose (Ambrose) on two counts of armed robbery, one count of carjacking, and one count of felony-firearm possession in April 2001. But a computer glitch in effect at the time of Ambrose’s trial produced a jury venire with a statistically significant “underrepresentation of minorities.” Ambrose v. Booker, 684 F.3d 638, 641 (6th Cir.2012). So although he was entitled to a jury drawn from a fair cross-section of his community, see Duren v. Missouri, 439 U.S. 357, 359, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), Ambrose did not receive one.

Because Ambrose did not raise a contemporaneous objection to the unconstitutional jury venire, however, any claim that his petit jury was not drawn from a fair cross-section of the community has been procedurally defaulted. Accordingly, before this Court will consider such a claim, Ambrose must demonstrate cause to excuse his default and that he was prejudiced by such error. Lancaster v. Adams, 324 F.3d 423, 437 (6th Cir.2003).

After his direct appeal was denied by the Michigan courts, Ambrose filed a petition for habeas corpus under 28 U.S.C. § 2254, raising his fair cross-section claim. Although Ambrose did not object to his jury venire, this Court found “good cause to excuse his default” because there was no way of knowing about the underlying computer glitch at the time of jury selection. Ambrose, 684 F.3d at 643. This Court also concluded that “prejudice is presumed because the denial of a jury pool comprised of a fair cross-section of the community can only be characterized as a structural error.” Mar. 10, 2011 Order 12 (internal quotation marks, ellipsis, and citations omitted), ECF No. 56. Having concluded that there was cause to excuse Ambrose’s procedural default, and presuming prejudice, the Court considered Am-brose’s fair cross-section claim, which proved meritorious. As a result, the Court conditionally granted Ambrose’s petition for habeas corpus.

The Sixth Circuit reversed and remanded the case, explaining that before this Court may consider Ambrose’s fair cross-section claim — given that he failed to raise a contemporaneous objection to his jury venire — he must demonstrate “actual prejudice” to excuse his procedural default. In other words, prejudice cannot be presumed, and Ambrose must demonstrate “a reasonable probability that ‘a properly selected jury [would] have been less likely to convict’” before the Court can consider the merits of his claim. Ambrose, 684 F.3d at 652 (quoting Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir.1991)). It follows that to demonstrate actual prejudice — so that his fair cross-section claim can be considered- — Ambrose must first satisfy the “particularly challenging charge” of answering the question “what would have happened?” had his jury panel been properly selected. Ambrose, 684 F.3d at 652. Ambrose must then satisfy the three requirements outlined in Duren to succeed on his fair cross-section claim.

Had Ambrose received a proper jury venire, there is a reasonable probability that he would have been tried before a more diverse jury. And there is a reasonable probability that a more diverse jury would have been less likely to convict him. Accordingly, Ambrose’s procedural default is excused and this Court may consider his fair cross-section claim, which has merit. As a result, the Court will — for the second time — conditionally grant his habeas petition.

I

The first hurdle facing Ambrose — placed squarely before him by the Sixth Circuit— is demonstrating that being tried by a jury that was not drawn from a fair cross-section of the community actually prejudiced him.. Until he can demonstrate actual prejudice, this Court is foreclosed from assessing his fair cross-section claim because it was procedurally defaulted.

The Sixth Circuit emphasized that, in determining whether Ambrose suffered actual prejudice because of the unconstitutional jury venire, “[t]he most important aspect to the inquiry is the strength of the case against the defendant.” Id. Accordingly, the Court will detail the facts of Ambrose’s underlying convictions.

A

Ambrose was accused of robbing two men — Spencer Anderson (Anderson) and Lee Morgan. (Morgan) — in Grand Rapids, Michigan, on May 19, 2000. At a preliminary hearing conducted on September 28, 2000, Anderson established that he met Ambrose a year before the robbery at their mutual friend Tashon Suggs’s house, and that he had seen Ambrose at that location numerous times. Prelim. Hr’g Tr. 13, ECF No. 20. Further, Anderson indicated that Morgan and Ambrose had gone to “school together,” so Morgan knew Ambrose as well. Id.

Concerning the robbery itself, Anderson testified that he was driving with Morgan (who is his cousin) to the store around 2:00 p.m. on May 19, 2000. Id. at 6. According to Anderson, Ambrose (who he knew as “PeeWee”) flagged them down as they traveled along Franklin Avenue, “[ajcross from the Social Service Building.” Id. at 7. Anderson pulled over, picked up Am-brose and another man that he did not know, and proceeded to take Ambrose “where he was going.” Id. at 8. Anderson drove down Franklin, “turn[ed] right on Morris ... then turn[ed] left on Thomas,” and finally, “turned into the alley[,]” Am-brose directing all the way. Id. at 8.

Anderson testified that after they entered the alley, Ambrose “pulled out a rifle, a little gun” and told Anderson that “he got to have everything.” Id. at 8. Anderson claimed that he gave Ambrose “[a] hundred dollars,” handing the money to Ambrose “personally,” but not anything else. Id. at 9. He also testified that Morgan handed over “[h]is necklace.” Id. Then Ambrose ordered Anderson and Morgan out of the car, and they complied. The man with Ambrose “grabbed [Anderson’s] necklace” before he and Am-brose made their escape. Id. at 10. Anderson made clear that the “$100 in cash” and the necklace were all that “came off of [his] person.” Id. at 16.

Morgan took the stand after Anderson during the preliminary hearing. Unlike Anderson, he indicated that the day of the robbery the two men were “driving around, really just driving,” saying nothing about a trip to the store. Id. at 18. Indeed, on cross examination, Morgan clarified that he and Anderson were “[j]ust riding around really. No — no destination, really.” Id. at 26. Morgan confirmed that he had seen Ambrose “on a fairly regular basis” wiiile the two of them attended the Youth Career Development Center. Id. at 19-20.

After the preliminary hearing, Ambrose was bound over on two counts of armed robbery, one count of carjacking, and one count of felony-firearm possession. Id. at 37-39.

B

Ambrose’s trial proceedings began on April 16, 2001, and lasted through April 19, 2001. The first day — conducted before a jury was even selected — was directed solely to the circumstances of a homicide that occurred on May 29, 2000, ten days after the alleged robbery of Anderson and Morgan. The prosecutor originally sought to introduce evidence concerning the homicide during Ambrose’s trial under Federal Rule of Evidence 404(b). Accordingly, the court examined the evidence so that it could later determine whether the May 29, 2000 homicide was sufficiently similar to the May 19, 2000 robbery to allow for the admission of evidence related to the homicide under Rule 404(b). However, after completing his case in chief, the prosecutor elected to “withdraw” his application for the introduction of the Rule 404(b) evidence, which the court readily allowed. See Trial Tr. vol. IV, at 66-67, ECF No. 16. Because the evidence did not play a role in Ambrose’s trial, and was not considered by the jury, it will not be described here. During the second day, April 17, 2001, a jury was selected.

C

The third day of trial began with opening statements. The State summarized the evidence as it was presented during the preliminary hearing: Anderson and Morgan were driving around “doing a number of chores” when they came across Ambrose, who asked for a ride. Trial Tr. vol. Ill, at 14, ECF No. 17. Anderson and Morgan picked up Ambrose, along with his friend Rickie Hicks, and Ambrose directed Anderson to drive into an alley. According to the prosecutor, Ambrose and Hicks then robbed Anderson and Morgan at gunpoint and made off with cash, jewelry, and the 1992 Ford Taurus Anderson was driving.

Counsel for Ambrose painted a different picture. He asserted that Morgan and Anderson were “the only two individuals who were there” during the incident, but that “their story ha[d] changed” from the first time they talked to the police. Id. at 25. Ambrose’s counsel also indicated that there were “significant discrepancies” between Anderson’s and Morgan’s accounts of the robbery. Id.

After opening statements concluded, the State called Gregory Griffin, a Detective with the Grand Rapids Police Department, as a witness. Id. at 28. But Detective Griffin did little more than set the scene; he established the locations involved in the case and testified that the vehicle Ambrose allegedly stole from Anderson and Morgan was recovered in an area behind a residence in which Ambrose previously lived. Id. at 42.

1

Then Anderson testified. He explained that on the day of the incident, he decided to go to his “cousin Corey’s house” which was “[n]ot even a block” from where he lived with his mother. Id. at 61, 62. Der spite the proximity of the two residences, Anderson drove a car. He had access to his own car and his mother’s 1992 Ford Taurus, but he decided to take his mother’s car instead of his own (which was available and operable), “[b]eeause — well, [his] car was in the driveway and hers was on the street. So, when [he] got up, [he] had just took her car.” Id. at 45, 51. Anderson testified that he droye to Corey’s house and Morgan was already there. Id. at 62.

Anderson indicated that he and Morgan decided to go “get something to eat,” so they got in his mom’s car and drove to Food Town — only three blocks away. Id. After getting something to eat, Anderson and Morgan decided to go to Ms. Tracey’s, a party store. Id. Anderson claimed that there was “no particular reason” for the trip. Id.

After leaving Food Town and driving for-what he estimated was “20 minutes,” Anderson claimed Ambrose (again, who he referred to as PeeWee) “flagged” him down. Id. at 47. Although Ambrose was with “another kid” that Anderson did not know, Anderson was not concerned. Id. at 48, 49. He circled the block and stopped; Ambrose asked for a ride and. Anderson agreed. Id. at 49.

Anderson was under oath when he testified during the September 28, 2000 preliminary hearing. On that date, he unequivocally indicated that he had seen Ambrose at a mutual friend’s house on more than one occasion; in fact, he testified that is where he originally met Ambrose: “[Am-brose] knows a friend of mine, and they used to always hang out at his house. That’s whern [sic] I met him at first.” Prelim. Hr’g Tr. 12. During the trial, however, Anderson indicated that he and Ambrose had no mutual friends and had never visited the same location, only that he had “seen [Ambrose] around.” Trial Tr. vol. Ill, at 49.

Regardless of how well Anderson knew Ambrose, he invited Ambrose and the unknown man to get into the backseat of his mother’s Ford Taurus. Id. Ambrose then directed Anderson to his intended destination — unknown to Anderson at the time— and Anderson complied. Id. at 50. Anderson testified that after they had traveled “two blocks, maybe three,” Am-brose “was telling [him] that [Ambrose] had a gun.” Id. Anderson claims that Ambrose then directed him into an alley, “pull[ed] out a gun,” and said, “Hand us everything.” Id. at 51.

According to Anderson, he turned around and Ambrose was pointing “a machine gun” at him. Id. at 52. Anderson claimed that the weapon was “completely out and visible[,]” that Ambrose had his “arm extended pointing [the gun] toward [Anderson,]” and that the weapon was between 12 and 14 inches long. Id. at 66. Anderson testified that after he saw Am-brose’s gun, he looked at Morgan with a “What’s going on here?” expression and stopped the car in the middle of the alley. Id. at 53. Ambrose asked for Anderson’s wallet, which Anderson claimed had $100 cash in it. Id. at 54. So Anderson held up. his wallet, and the previously unknown man assisting Ambrose — who Anderson identified as Rickie Hicks (Hicks) — collected it while Ambrose held the machine gun. Id.

Anderson testified that Ambrose — gun in hand — ordered him and Morgan out of the car and that they immediately complied. Id. Notably, Anderson indicated that he “got out first” and that “once [Morgan] seen that I was exiting the car, he got out.” Id. at 69. According to Anderson, Hicks then got out of the backseat, grabbed two necklaces from around Anderson’s neck, and got “in the front seat in the driver’s side seat....” Id. at 55. Of course, Anderson claimed Hicks also grabbed a gold necklace from around Morgan’s neck as Morgan was getting out of the car. Then Hicks and Ambrose made off with the loot (the cash, necklaces, and the car). Id.

After Ambrose and Hicks drove away, Anderson and Morgan “ran to Mrs. Guy-ton’s house.” Id. at 56. Mrs. Guyton goes to church with Anderson’s mother, and he testified that she was “a real close family friend....” Id. Anderson used Mrs. Guy-ton’s phone to call the police, and then he left and went home. Id. Police officers then made contact with Anderson at his home about a “half hour” after the incident occurred. Id. Anderson claimed he did not stay at Mrs. Guyton’s house because “she’s elderly and [he] didn’t want her to get involved in this.” Id. at 70.

Anderson was called in to the Grand Rapids Police Department on May 22, 2000. Id. at 58. He told the police he had been robbed by “PeeWee” and identified Ambrose from a photo array. Id. at 59. Approximately two weeks later, Anderson identified Hicks during a lineup in the county jail. Id.

Notably, during cross examination, Am-brose’s attorney asked Anderson if he was aware of what a “drug rental” was. See id. at 72. Counsel explained that a drug rental involves one person loaning their car to another person in exchange for drugs. Id. Anderson denied ever having heard of such a practice, and emphasized that such an exchange is not why Ambrose had his mother’s car (as opposed to an armed robbery and carjacking). Id.

2

Morgan took the stand directly after Anderson and gave his account of May 19, 2000. Contrary to what Anderson said— but consistent with his preliminary examination testimony — Morgan testified that he and Anderson had no destination in mind while driving around prior to encountering Ambrose: “It was like a sunny day outside, so we had really no destination.” Id. at 77. According to Morgan, and again contrary to Anderson’s testimony, the two men had been driving around for up to an hour before Ambrose flagged them down. Id. at 90. While Anderson claimed that he and Morgan stopped for some food, Morgan testified that the two did not stop anywhere:

Q: During the time you left your cousin’s house until you were flagged down by PeeWee, did you and Spencer [ (Anderson) ] stop anywhere?

A: No, sir.

Q: You’re sure of that?

A: Yes, sir.

Id. at 90-91.

Morgan related that he and Anderson were cruising around until he heard “PeeWee” — Ambrose—“scream, ‘Hey, Spencer,’ or something like that.” Id. at 78. Morgan indicated that “at first [he] like waved, but then [he] had told Spencer that [Ambrose] was calling him.” Id. at 79. Then, just as Anderson described, Morgan claimed they circled the block and stopped for Ambrose. Morgan said Ambrose asked for a ride “to a store or something like that” and then got into the backseat with “Rickie Hicks” (whom Morgan did not know at the time). Id. Although he did not know Hicks, Morgan “knew who [Am-brose] was.” Id. at 80.

According to Morgan, Ambrose directed Anderson to drive into an alley, and then Morgan could hear noises “[l]ike metal something.” Id. at 81. Morgan represented that Ambrose then said, “Give me everything I need, all of that.” Id. Morgan claimed Anderson attempted to “plead” with Ambrose, saying “Oh, no. We better than that. Like, we supposed to be like close or whatever.” Id. But, according to Morgan, Ambrose simply responded, “I need everything.” Id. Although Anderson claimed Ambrose’s gun was over a foot long, Morgan never saw it:

Q: Did you actually see [Ambrose] aim the automatic weapon at you?

A: No. Spencer seen it. I never saw it. From where he was located behind me, I heard the noises and kind of assumed it was a gun.

Id. at 82.

Morgan testified that, at Ambrose’s direction, Hicks checked the two victims for valuables. According to Morgan, Hicks took Anderson’s wallet and chains, and his chain, before driving off. Unlike Anderson, however, Morgan testified that he got out of the car first after he and Anderson were ordered out: “[Ambrose] orders us to get out the car. He orders us to step out the car and I step out first. And, while I’m stepping out in front and looking like over to Spencer to make sure he don’t end up shot or something, because he kind of took longer than me to get out the car.” Id. at 83. Indeed, Morgan was “sure” he exited the car before Anderson. Id. at 96-97. Like Anderson, Morgan testified that Hicks then got in the driver’s seat while Ambrose remained in the back, and the two men drove away. Id. at 83.

Morgan recalled that he and Anderson then ran to Mrs. Guyton’s to call the police, but Morgan’s and Anderson’s accounts of the subsequent events differ yet again. While Anderson testified that he went back to his house alone, Morgan claims to have gone with Anderson “and then that’s when the police arrived and took the report.” Id. at 84.

During cross examination, Ambrose’s counsel also asked Morgan if he knew what a “drug rental” was, and once again Morgan’s testimony differed dramatically from Anderson’s:

Q: Do you know what a drug rental is?

A: Yes, sir.

Q: What is that?

A: A drug rental?

Q: A drug rental, yeah.

A: Well, my — you probably give drugs to get something from somebody or—

Q: Okay.

A: —somebody give you drugs to get something from you.

Q: And certainly you’ve heard or understand that sometimes people will allow somebody to use their vehicle' for a short period of times [sic] so they can get some drugs?

A: Yeah, but that didn’t happen in this case, sir.

Q: Okay. But that is what — 'that’s at least part of what a drug rental is, would you agree?

A: Yes, sir.

Q: Okay. Does Spencer know what that is, do you know?

A: He should.

Id. at 91.

3

Morgan and Anderson were the only two witnesses who possessed first-hand knowledge of the events in the alleyway with Ambrose and Hicks. Indeed, Morgan and Anderson were the only two witnesses who claimed anything did happen in that alley.

After Morgan testified, the State called Mary Jane Williamson, an employee with the Grand Rapids Public Schools. Id. at 112. She simply established that Ambrose and Morgan went to Youth Development School together and were in the same class during the 1996-97 school year. Id. at 120. In fact, Ambrose’s attorney had “no questions” for Ms. Williamson. Id. at 121.

The State next called Carol Stahl as a witness, an Officer with the Grand Rapids Police Department. Id. at 122. Officer Stahl spoke with both Anderson and Morgan after the incident, at approximately 2:30 p.m. Id. at 124. She established that Anderson and Morgan said one of the suspects was Ambrose, who they referred to as “PeeWee.” Id. at 125. According to Officer Stahl’s memory, both Anderson and Morgan told her that after the robbery, Ambrose “got in the passenger side front” of the car before Hicks drove away. 135-36. She documented the statement in her report. Id. at 136.

Officer Stahl indicated in her report that she was unable to locate the alley Anderson and Morgan claimed to have been robbed in, although she “had them try and locate the location ... on the map.” Id. at 134. She also testified that either Morgan or Anderson represented that a phone was taken during the robbery. Id. at 136.

After Officer Stahl, the State called Harvey Barker, another Officer with the Grand Rapids Police Department. Id. at 141. Officer Barker found the Ford Taurus that Anderson was driving just after 12:00 a.m. the morning of May 20, 2000. Id. at 141-42. He recalls finding a cellphone in the vehicle, along with a cellphone cord, and Anderson’s wallet and I.D. Id. at 143. Officer Barker also found a gold ring, a silver ring, and a watch on the seats in the vehicle. Id. at 144. At least the silver ring was in plain view. Id. at 155. Aside from describing how he contacted crime scene technicians to examine the car, Officer Barker had little else to add.

D

The fourth — and final — day of Am-brose’s trial began with the State calling Dean Garrison as a witness. Mr. Garrison is employed by the Grand Rapids Police Department as a crime scene technician in the Forensic Services Unit. Trial Tr. vol. IV, at 5. On May 20, 2000, he was called to the location of the allegedly stolen Ford Taurus to “fingerprint” and “examine” the vehicle. Id. Mr. Garrison recalled seeing a “necklace ... in the driver’s seat area somewhere.” Id. at 6. Mr. Garrison also laid the foundation for the introduction of a fingerprint that he was able to lift from the car. Id. at 6-7.

The State then called William Wolz, a latent print examiner with the Grand Rapids Police Department. Id. at 18. Mr. Wolz’s position basically entails “tak[ing] the fingerprints that are collected at crime scenes and comparting] them under a magnifying glass to known prints [to] hopefully make a match.” Id. at 19. Mr. Wolz examined the print collected by Mr. Garrison, but it was “not usable.” Id. at 22. Why Mr. Garrison’s and Mr. Wolz’s testimony was offered is unclear, other than possibly to demonstrate to the jury that the government had attempted — unsuccessfully — to recover and identify fingerprints located on the 1992 Ford Taurus.

The third witness called on the last day of trial was Lena Guyton, the woman who allowed Anderson and Morgan to use her telephone to call the police. Ms. Guyton testified that Anderson and Morgan came to her house and asked to use her phone. Id. at 32. She agreed, but “didn’t hear who [Anderson] called. [She] didn’t try to listen ... but [she knows Anderson] said he was gonna call the police and [she knows] that later on the police did come but [Anderson] had left.” Id. After no questions were asked on cross examination, Ms. Guyton was excused.

The State also called Anderson’s mother, Doris Littles, to testify in the case. Ms. Littles was working the day of the incident, and she could not remember if she “called home” or if she got “a message at work to call home,” but for whatever reason she did call, talked to Anderson, and he informed her that “somebody had took the car and that he had just got through talking to the police officers.” Id. at 37. Ms. Littles testified that when she recovered the car she was “just really ... surprised it wasn’t all tore up or anything.” Id. According to Ms. Littles; the “only” thing that was “out of the ordinary” with the car was what the police themselves did while examining it. Id. at 38.

The phone found in the car was not Ms. Littles. Id. She did not “know anything” ■ about the silver and gold rings found in the car. Id. Finally, she did not know anything about “a chain or necklace that was found” in the car. Id. at 39. Ms. Littles was then excused.

The State then recalled Anderson. He established that the phone recovered in the car was his, id. at 41, but that he never got a chance to examine the rings or the watch or the necklace that were found to determine “whether they belonged] to [his] sisters or to anybody[,]” id. at 43. The State also recalled Detective Griffin. He indicated that “Mr. Anderson came into the police department and [Detective Griffin] conducted an interview with him. [Anderson] provided a nickname of Pee ■Wee and gave the location of where he believed Pee Wee to live.” Id. at 44. On cross examination, Ambrose’s counsel established that Detective Griffin never attempted to discuss with Anderson the rings, watch, and necklace discovered in his mother’s car. .Id. at 56-57.

After Detective Griffin finished testifying for the second time, the State rested its case in chief. Id. at 67. The defense did not attempt to offer any evidence and also rested. Id. at 69. Counsel then moved into closing arguments. The State asserted,^ as it had throughout the case, that the evidence supported the charges— that Ambrose had robbed Anderson and Morgan at gunpoint and then taken Anderson’s car. The defense, on the other hand, emphasized the differences between Morgan’s and Anderson’s testimony and suggested that this had been a “drug rental” gone awry. Id. at 81-84. Counsel said that “[w]hatever Mr. Anderson and Mr. Morgan were up to that day, at some point they became separated from the car and [Anderson] knew he had to account to his mother for what happened to that car and this is the story they came up with.” Id. at 91.

E

At the conclusion of the trial, the jury-convicted Ambrose on two counts of armed robbery, one count of carjacking, and one count of felony-firearm possession. On June 19, 2001, he was sentenced to two years’ imprisonment “[o]n the charge of possession of a firearm in the commission of a felony”; ten to fifty years on the carjacking charge, to run consecutive to the two years for felony firearm; and fifteen to sixty years on each of the armed robbery charges, to “run concurrent with the carjacking sentence and consecutive” to the two years for felony-firearm possession. Sent. Tr. 6, ECF No. 15.

Ambrose sought leave to appeal his convictions and sentence; however, his appointed counsel withdrew and the Michigan Court of Appeals determined that any appeal would be frivolous. Ambrose, 684 F.3d at 640. Ambrose did not appeal to the Michigan Supreme Court. Id.

II

The unusual event that is the basis of Ambrose’s habeas petition has been well documented, both by this Court and by the Sixth Circuit. See Ambrose v. Booker, 781 F.Supp.2d 532, 537-40 (E.D.Mich.2011); Ambrose, 684 F.3d at 640-43. So only a general explanation will be set forth here.

On July 30, 2002, the Grand Rapids Press reported that a computer glitch had impacted Kent Qounty’s system for selecting jury venires. Id. at 640. The problem was noticed in 2002 when a local high school teacher, Wayne Bentley, completed a study of minority representation on Kent County juries. Id. at 641. Kent 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.” Id. “The chief judge of the Kent County Circuit Court, George Buth, stated, ‘There has been a mistake — a big mistake.’ ” Id.

In light of these discoveries, Ambrose initiated post-conviction proceedings in Michigan state court claiming that he was denied his right to be tried by a jury drawn from a fair cross-section of the community and requesting relief from his judgment and sentence. Id. The Michigan trial court denied relief because, among other things, Ambrose did not object to the venire before his jury was empanelled. Id. The Michigan Court of Appeals denied leave to appeal, as did the Michigan Supreme Court. See People v. Ambrose, 474 Mich. 931, 706 N.W.2d 16 (2005).

Ambrose then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. As indicated previously, because he did not raise a contemporaneous objection tc his jury venire at trial, Ambrose was required to demonstrate cause and actual prejudice to excuse his procedural default. This Court concluded that Am-brose had shown good cause to excuse his failure to object “because he could not have known of the [computer] glitch.” Ambrose, 684 F.3d at 643. The Court also found that the number of African Americans in Ambrose’s jury pool was not “fair and reasonable in relation to the number of such persons in the community.” Id. (citation omitted). The Court considered the error to be structural so prejudice was presumed, as structural errors “defy analysis by ‘harmless-error’ standards because they affect the framework within which the trial proceeds, and are not simply an error in the trial process itself.” Ambrose, 781 F.Supp.2d at 541-42 (citations omitted).

Upon review, the Sixth Circuit agreed that Ambrose had demonstrated sufficient cause to excuse his “failure to object.” Ambrose, 684 F.3d at 649. The Sixth Circuit did nqt agree, however, that the unconstitutional jury venire — a structural error — necessitated a presumption of prejudice. The court noted, on the contrary, that the Sixth Circuit has “declined to presume prejudice for the purposes of procedural default when considering structural error claims,” although the issue had yet to be addressed “in the context of a fair cross-section claim.” Id. Instead of presuming prejudice, the court expressly concluded that “a petitioner must show that he was actually prejudiced regardless of the nature of the underlying constitutional claim.’ Id. (emphasis added).

Accordingly, the Sixth Circuit presented Ambrose a daunting challenge. To excuse his failure to object to the unconstitutional jury venire at trial — by demonstrating actual prejudice — he must satisfy the “particularly challenging charge” of answering the question “what would have happened?” had he been tried before a properly selected jury. Id. at 652. Specifically, Ambrose must demonstrate “a reasonable probability that a properly selected jury would have been less likely to convict.” Id. (brackets, internal quotation marks, and citation omitted). The Sixth Circuit directed that this Court decide the issue “with a careful look at the transcripts involved” because “[t]he most important aspect to the inquiry is the strength of the case against the defendant.” Id. In a corresponding footnote, however, the court went on to note that race is not irrelevant: “This is not to say that the race of the jurors, defendant, and victim must be ignored.” Id. at 652 n. 4.

Ill

With this guidance, the Court endeavored to determine whether a properly selected jury — one drawn from a fair cross-section of Ambrose’s community — would have been less likely to convict him than the jury actually empanelled. If this is the case, actual prejudice exists such that Am-brose’s procedural default must be excused. The Court will then address his fair cross-section claim. If Ambrose fails to demonstrate actual prejudice, because a jury drawn from a fair cross-section of the community would not be less likely to convict him, his default will not be excused and his habeas petition must be denied.

A

The parties were first directed to file supplemental briefs addressing whether Ambrose can demonstrate that a properly-selected jury would have been less likely to convict him. See June 3, 2013 Order 2, ECF No. 83. Ambrose filed his first supplemental brief on June 20, 2013. See Pet’r’s First Supp. Br., ECF No. 84. He argues that he “can easily establish a ‘reasonable probability’ that a more diverse jury would have been ‘less likely to convict’ ” for two reasons: (1) “African-Americans are ‘less likely to convict’ and (2) “this case involved evidence and a defense theory that depended heavily on the jury’s ability to understand and appreciate the sometimes unlikely ways in which inner city drug crimes take place.” Id. at 3. Relying primarily on the former argument, Ambrose contends that “reliable empirical evidence demonstrates that African Americans are ‘less likely to convict’ as a categorical matter, and that the Sixth Circuit’s ‘actual prejudice’ standard is therefore satisfied in every single case.” Id. at 5-6.

To substantiate this claim, Ambrose offered the testimony of “Samuel Sommers, Ph.D., the nation’s foremost expert in the fields that are inherently implicated by the Sixth Circuit’s standard: ‘the influence of race on social perception and judgment,’ ‘the relationship between race and legal decision-making,’ and ‘the psychology of intergroup relations and racial bias.’ ” Id. at 6. According to Ambrose, Dr. Sommers concluded that “[ejmpirical analysis of actual juries has demonstrated that increasing the number of African American jurors on a jury creates a reasonable and statistically significant probability that a jury would be less likely to convict.” Id. (citation omitted).

The State responded to Ambrose’s first supplemental brief by filing its own first supplemental brief on July 11, 2013. Resp’t’s First Supp. Br., ECF No. 85. The State described the applicable legal landscape, and then argued that “the evidence against Ambrose was very strong[,j” so much so that Ambrose “cannot demonstrate ... that a reasonable . probability exists that a properly selected jury would have been less likely to convict.” Id. at 14. The State also represents that “there was absolutely no evidence presented at trial supporting a defense that no robbery occurred and that the victim gave his car to Ambrose to satisfy a drug debt.” Id. at 15. Thus, according to the State, “[i]f there was no evidence that such a drug rental occurred here, it would make no difference to' a jury familiar with such a concept [rather] than a jury that was not.” Id. Further, the State indicates that the jury’s determination as to the witnesses’ credibility is controlling, and that the “jury in this case spoke loud and clear through its verdict — it found the victims to be credible and did not believe that Anderson gave the car to Ambrose as a ‘drug rental.’ ” Id. at 16.

The State also takes issue with Dr. Som-mers and his conclusions. First, it argues that Dr. Sommers’s affidavit should be rejected because “it is not a part of the record in this case.” Id. at 18. Moreover, the State asserts that Dr. Sommers’s conclusions cannot be relied upon because they “conflict with the Sixth Circuit’s decision in this case.” Id. at 22.

B

The Court conducted an eviden-tiary'hearing on September 16, 2013, during which Ambrose called Dr. Sommers as an expert witness. Dr. Sommers essentially testified that a more diverse jury would have been less likely to convict Am-brose because African-American jurors are statistically less likely to convict than their Caucasian counterparts.

Dr. Sommers is an Associate Professor of Psychology at Tufts University in Massachusetts. Sept. 16, 2013 Hr’g Tr. 16, ECF No. 92. He explained that, among other things, his research focuses on how race affects the decisions people make: “Pm a Social Psychologist and my particular research area involves interracial perception and interaction and judgment and decision making. So how people make decisions, have conversations, see the world around them and how those processes are influenced by questions related to race and other demographics.” Id. at 16-17. Specifically, Dr. Sommers established that his particular area of expertise involves the interaction between race, decision-making, and the legal system:

I have a particular interest and expertise in the legal system so studying how these issues play themselves out among jurors making decisions, attorneys during jury selection, eyewitness memory and so forth. And so race and perception and judgment in the legal domain would be the short way to answer that.

Id. at 17. As a result of his interest in how race affects juries and their decisions, Dr. Sommers has “published a dozen — a couple dozen studies on issues related to race and jury decision making, race and jury selection, race and jury deliberations, as well as more general investigations of diversity and how diversity influences groups and group processes.” Id.

Dr. Sommers testified that he was familiar with the Sixth Circuit’s decision in Ambrose v. Booker, and further, that he understood Ambrose was tasked with demonstrating “a reasonable probability that the jury in this case would have been less likely to convict had it been more diverse.” Id. at 18-19. Dr. Sommers expressed his opinion that the question Am-brose now confronts is “the sort of question ... social science can assist courts with understanding.” Id. at 19. Dr. Som-mers then concluded that — based on his expertise, the “relevant literature,” and other empirical studies — a “more diverse” jury would have been “less likely to convict” Joseph Ambrose. Id.

1

Dr. Sommers described the body of research that informed his opinions. He explained that the research studies he was relying on “involve analyses of real juries that have rendered decisions in actual cases” and “controlled experiments involving mock juries.” Id. His conclusions were further “informed by the more general research literature on how diverse settings affect the way people — the groups function and that people make decisions.” Id. at 19-20.

Although Dr. Sommers acknowledged that mock juries and real juries are very different, he indicated that “approaeh[ing] any question from multiple research perspectives” is ideal because “if you use multiple research designs and produce converging findings from those multiple research designs, you’re even more confident at that point in the reliability of the conclusions you’re drawing.” Id. at 20.

Dr. Sommers went on to testify that the research studies he was relying upon “are peer-reviewed research studies.” Id. at 21. He explained that “social scientists[ ] give greater credibility to articles that have been peer-reviewed[,]” and also outlined what the peer-review process entails:

So a peer-review process is one by which articles are, submissions — manuscripts submitted for publication are sent out to reviewers in the field who write reviews of the paper, recommendations to the editor, as to whether to accept them or not. And so articles that are published in peer-reviewed journals go through that process. Often, multiple iterations of that process, often ending in negative outcomes for the papers but to be published, a paper will go through at least one round if not more rounds of reviews before the experts who are reviewing it recommends to the editor that it be accepted for publication in that journal.

Id. at 22.

2

After establishing that the articles he was “relying most heavily on in [his] analysis” were peer-reviewed studies, id. at 21, Dr. Sommers testified specifically about three of those articles. The first was “the Williams and Burek study.” Id. at 22. Dr. Sommers indicated that the Williams and Burek study (W & B Study) is “a study in which the researchers examined a series of actual trials from multiple jurisdictions and looked at the extent to which the percentage of White jurors on the jury predicted the outcome of the trials, predicted jury verdicts in those cases.” Id. at 22-23. According to Dr. Sommers, the researchers found that “the greater the percentage of White jurors on those juries, the more likely the jury was to convict,” even when “controlling for a variety of other factors that might influence the processes as well, factors including the location of the trial, the type of attorney, the strength of the evidence, and so forth.” Id. at 23. Dr. Sommers clarified- that the W & B Study involved “actual juries” and “actual cases.” Id.

He then took the opportunity to explain one of the 'limitations of research studies addressing real-life juries. Dr. Sommers explained that “the real world is messy and real jury decisions like other real world data, they are messy.” Id. at 23. For this reason, attempting to “draw comparisons between these trials that have occurred in the real world” is difficult because “there could be alternate explanations” to account for a given result. Id. at 23-24. To ensure “that there are not alternate explanations that wholly account for ... apparent disparity” between jury decisions, Dr. -Sommers and other researchers “try to control for these dozens and dozens of variables that could be explaining or helping account for the effects that you’re reporting in the outcome of the study.” Id. at 24. However, Dr. Sommers indicated that while “it [is] challenging to take all these different trials and put them together and learn something about the cases,” he believes that when the data is aggregated, “we learn a lot about the general tendencies that we can then apply to these kind of situations.” Id. at 24, 25.

Dr. Sommers next discussed “the Bowers Study.” He indicated that the Bowers Study “presents some original empirical data” and also “reviews a series of other research studies that have been done looking at questions related to juror race and juror racial composition.” Id. at 27. The key finding from the Bowers Study, Dr. Sommers explained, was “that the greater percentage of White jurors on the jury, the more likely the jury was to convict.” Id. This conclusion remained true regardless of the defendant’s race. Id. at 29. The Bowers Study also concluded that “the greater the percentage of White jurors in capital trials, the more likely the jury is to recommend a sentence of death.” Id. at 28. Like the W & B Study, the Bowers Study involved real juries. Id. at 29.

3

Dr. Sommers then discussed one additional study he was relying upon that involved mock juries rather than real juries. It was a 2006 study that he conducted (Sommers 2006 Study) in Washtenaw County, Michigan. During the experiment, jury-eligible citizens were divided into two types of juries: “half of the mock juries were all White and half of the mock juries were racially diverse ... we used six-person mock juries and the racially diverse juries were four White and two African-American jurors.” Id. at 30. These mock juries watched “the same trial video ... of an African-American defendant in a sexual assault case. They all watched the exact same trial.” Id. Dr. Sommers videotaped jury deliberations and “compared the sort of personal ques-. tionnaire judgments of the individual jurors” and also “looked at the different deliberations of the racially diverse versus racially homogeneous juries discussing the exact same case.” Id.

Dr. Sommers summarized the key findings from the Sommers 2006 Study as follows: “So we found in that study first that Black jurors in the study were less likely to vote to convict the defendant than were White jurors so that’s a finding consistent with what had been reported in those studies of actual juries.” Id. at 32-33.

Dr. Sommers’s 2006 Study also revealed — what he found to be the most interesting — that “White jurors — behaved very differently in racially diverse jury settings than they did in all White jury settings.” Id. at 33. Dr. Sommers explained why he believes this is the case:

I think the findings are consistent with other research in the literature that suggests that quite often in this day and age, among, at least many White individuals, you see a motivation to be fair, to try to avoid bias and to try to be as egalitarian as possible in making decisions like this. And the results that we find in that study are, I think, consistent with that notion.

And so if you were to run a study like that in a — with a different participant sample, whether a different part of the country or in a different time period, and you were to have a sample that didn’t share that motivation, that was very comfortable with overt explicit racism, you’d probably find a different pattern of results.

Id. at 31. Dr. Sommers testified that “the White jurors who knew they were going to be in a racially diverse jury were less likely to think the defendant was guilty before the deliberations even began. Then the deliberations themselves ... looked different.” Id. Specifically, “the diverse juries raise a wider range of facts from the case in their deliberations. They make fewer factually incorrect statements regarding the facts from the case itself. They are ... more likely to discuss issues, controversial and uncontroversial issues related to race....” Id.

In a nutshell, Dr. Sommers explained the effect mixed groups have on decision-making as follows:

I mean, I think anyone who has ever used the phrase “in mixed company” understands what that means and often, it might refer to sex rather than race, but the idea that people might say or think or be concerned about different factors in a homogeneous setting versus a heterogeneous setting, the data seems to suggest that for the White — for White individuals, in this day and age, again, particularly people who are motivated to be egalitarian and to be fair-minded, that being in a diverse setting can be a sort of a red flag that reminds you to think about bias, to avoid bias, to make sure you’re thinking things through carefully.

Id. at 34. As far as juries go, Dr. Som-mers indicated that “the data tells us racial composition tends to predict jury outcomes.” Id. at 32.

Dr. Sommers also discussed the possibility that a more diverse jury would have been more accepting of Ambrose’s defense theory — the proposed drug rental:

Q: And the concept of a drug rental which really was one of the sort of leading themes of the trial ... does your research shed any light on whether ... assuming that it came up in the jury room, whether a diverse jury would have treated that topic differently than a White jury, a purely White jury?

A: ... What I can say is that the research literature indicates a general finding that when you see a particular viewpoint or life experience or attitude on an issue that seems to vary by demographic, that when you change the demographic, that demographic on the jury, and make that demographic more likely to be on that jury, you also increase the likelihood that that perspective or viewpoint or life experience is shared during those deliberations.

Id. at 48-49.

As he did with studies involving real juries, Dr. Sommers touched on some of the limitations inherent to mock-jury studies. He indicated that one of these limitations is that mock-jury studies have “less external validity than would a study of real juries where you know you’re actually studying the juries and the jurisdiction you care about and the time frame you care about.” Id. at 74. External validity — or how closely an experiment “compares to the real world” — is more limited in mock-jury studies than in live-jury studies. Id.

In the end, Dr. Sommers expressed his opinion — to a reasonable degree of scientific certainty — ¡that a more diverse jury would have been less likely to convict Am-brose. Id. at 49 (“the data support the conclusion that a more diverse jury would have been less likely to convict.”).

4

On cross examination, the State asked Dr. Sommers a variety of questions about a number of the research studies that he was relying upon and other studies that he had conducted. The State noted that the W & B Study “acknowledged the limitations of mock jury research” because “there are mixed results from mock jury research.” Id. at 81. Sommers confirmed that the difficulties raised by mock-jury studies include problems with “external validity and realism.” Id.

The State asked Dr. Sommers to confirm that the W & B Study indicated that “Whites were slight — only slightly more likely to convict an African-American[,]” and Dr. Sommers replied, “Yes, slightly but statistically significantly....” Id. at 83. Dr. Sommers also indicated he was aware “of an in-group/out-group mirror effect, if you will, with Black jurors being more lenient towards Black defendants and harsher towards White defendants and White jurors doing the reverse.” Id. at 94.

Dr. Sommers did acknowledge that the “weight of the evidence may play the largest role in conviction decisions.” Id. at 83-84. According to him, “the research is pretty clear on that point.” Id. at 84. Nevertheless, Dr. Sommers maintained his opinion that although “region of the country, the type of attorney” and “[t]he strength of the evidence” all have an effect on the outcome of a trial, “controlling for those factors, the jury’s racial composition has a small but statistically significant effect.” Id.

The State questioned Dr. Sommers about giving jurors jury instructions as an attempt to cure racial bias. Dr. Sommers acknowledged that “instructing the jury that they should not let any biases prejudice them” can “affect” the biases they display; indeed, “in some of the studies” Dr. Sommers found that so instructing the jury eliminated “significant evidence of racial bias in White juries.” Id. at 90. But Dr. Sommers countered that in the live-jury studies, “presumably those actual juries were given those instructions,” and yet observable “disparities emerge[d]” anyway. Id. This phenomenon, according to Dr. Sommers, “might imply the instruction alone is not enough to completely eliminate [racial bias] effects.... ” Id. at 90-91.

The State also raised - an interesting point near the end of its cross examination of Dr. Sommers, indicating that “even supposing that an African-American juror would make a difference on any given case, that person would have to make it onto the petit jury.” Id. at 92. Dr. Sommers agreed that it “seem[ed] like a fairly reasonable proposition.” Id. Dr. Sommers also indicated that because “African-American jurors like everybody else are a diverse group of people” with “[d]ifferent background experiences,” “[d]ifferent education experiences,” and “[d]ifferent social experiences,” there is “no way” to offer a certain, absolute statement such as “any one person ... would have made a difference on any particular case.” Id. at 101.

C

At the end of the September 16, 2013 evidentiary hearing, the Court directed the parties to file one additional round of supplemental briefing after a transcript of the hearing was available. Ambrose filed his second supplemental brief on November 4, 2013. ■ He argues that Dr. Sommers’s testimony is reliable and should be considered, and that it demonstrates that “more diverse juries are less likely to convict.” Pet’r’s Second Supp. Br. 6, EOF No. 94. But even if Dr. Sommers’s testimony is not considered, Ambrose argues that “the prosecution’s evidence is conflicted in several respects and was subject to productive cross-examination.” Id. at 12. Because Anderson’s and Morgan’s testimony “suggests] their- dishonesty about whether or not they lent Mr. Ambrose their vehicle in exchange for drugs[,]” Ambrose reckons that “[t]here is at least a reasonable probability that a more diverse jury would have' viewed their testimony with greater skepticism, and therefore been less likely to convict.” Id.

The State filed its second supplemental brief on November 15, 2013. It maintains that “[b]ecause the evidence against Am-brose was overwhelming,” he cannot meet his burden of demonstrating “actual prejudice” to excuse his procedurally-defaulted fair cross-section claim. Resp’t’s Second Supp. Br. 2, ECF No. 95. It also argues that “[t]his Court need not consider the testimony of Professor Samuel R. Som-mers in assessing actual prejudice under the Sixth Circuit’s opinion.” Id.

Notably, the State also introduced a new argument, contending that even if Am-brose’s jury venire had been properly selected, “as a matter of probability, the petit jury would have been identical.” Id. at 23. This suggestion is initially premised on the statistical analysis of Dr. Edward Rothman, who found that the Kent County computer glitch only resulted “in a loss of one prospective African-American juror” out of a venire of 40 potentials. Id. at 23 n. 6. The State goes on to argue that because each venire member “has only a 30% chance of being selected for a petit jury (12 slots for 40 prospective jurors),” the “the loss of one prospective juror in the venire would not likely affect the actual composition of the petit jury. In brief, it is more likely than not that the petit jury would have been identical.” Id.

IV

As previously indicated, before his fair cross-section claim can be addressed on the merits, Ambrose must demonstrate cause and actual prejudice to excuse his procedural default (failing to raise a contemporaneous objection to the unconstitutional jury venire). See Ambrose, 684 F.3d at 645, 649. The Sixth Circuit explained that Ambrose has already demonstrated cause such that his “failure to object must be excused.” Id. at 649. Thus, to excuse his default entirely, Ambrose must demonstrate actual prejudice.

A

As the Sixth Circuit framed the question, actual prejudice involves “determining whether there was a reasonable probability that a properly selected jury would have been less likely to convict” Ambrose. Id. at 652 (internal quotation marks, brackets, and citation omitted). Although this prejudice standard is the precise standard utilized by the State, see Resp’t’s Second Supp. Br. 17 (“Ambrose cannot demonstrate that a reasonable probability exists that a properly selected jury would have been less likely to convict.”), the State also argues that the prejudice standard outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) should govern Ambrose’s claims. See id. at 694, 104 S.Ct. 2052 (requiring petitioner to demonstrate that but for counsel’s errors, “the result of the proceeding would have been different.”). So it appears that the State believes Am-brose must do more than demonstrate a reasonable probability that a properly selected jury would have been less likely to convict; rather,. under Strickland, he would have to demonstrate a reasonable probability that — with a properly selected jury — “the result of the proceeding would have been different.”

In another habeas case involving the Kent County computer glitch, Garcia-Dorantes v. Warren, 978 F.Supp.2d 815 (E.D.Mich.2013), the court discussed the Sixth Circuit’s prejudice requirement in a similar fashion, first indicating that a petitioner such as Ambrose must demonstrate “there is a reasonable probability that a different jury would have reached a different result[,]” but granting the habeas petition after concluding “that there is a reasonable probability that a fairly selected jury would have been less likely to convict ....” Id. at 824 (emphasis added).

The discrepancy stems, in part, from the Ambrose opinion itself. When describing the prejudice standard to be applied by this Court, and others facing the difficult question presented here, the Sixth Circuit cited to an Eleventh Circuit case involving a petitioner’s claim “that his counsel was ineffective for failing to object to Alabama’s systematic exclusion of African-American jurors from grand and petit juries.” Ambrose, 684 F.3d at 652 (citing Hollis, 941 F.2d at 1480). The Sixth Circuit then explained that to excuse the default in Hollis, the Eleventh Circuit required the petitioner to demonstrate “actual prejudice, which involved determining whether there was a reasonable probability that a properly selected jury would have been less likely to convict.” Ambrose, 684 F.3d at 652 (internal quotation marks, brackets, and citation omitted). The court went on to indicate that “[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.” Id. So when the Sixth Circuit referred to “this standard,” did it mean Strickland’s standard for prejudice (a reasonable probability that a proper jury would change the result of Ambrose’s trial), or the standard for prejudice the court lifted from Hollis (a reasonable probability that a proper jury would have been less likely to convict Ambrose)?

Contrary to the State’s suggestion, the Strickland standard for prejudice does riot apply here; Ambrose is not presenting a claim based on the ineffective assistance of counsel. So Ambrose need not demonstrate a reasonable probability that a properly selected jury would not have convicted him, he need only show a reasonable probability that a properly selected jury would have been less likely to convict. Had the Sixth Circuit believed Ambrose must demonstrate that a properly selected jury would not have convicted him — -because he is bound by Strickland’s standard for actual prejudice — it would have said so. It did not.

Thus, when the court indicated that “[ajlthough the instant petitions do not involve a Strickland claim, this standard is appropriate^’ id., it is reasonable to assume the court was referring to the standard it outlined, based upon Hollis, only one paragraph before — not the Strickland standard itself. The reference to Strickland is better understood as indicating that although Hollis involved a Strickland claim, the prejudice standard set forth in Hollis (less likely to convict) is still applicable to this case, which does not include an ineffective assistance of counsel claim.

B

Having concluded that, to demonstrate prejudice, Ambrose must show only that a properly selected jury would have been less likely to convict him, the Court moves directly to that question. For two independent, reasons, Ambrose has satisfied his burden of showing actual prejudice to excuse his procedural default.

1

First, based upon the evidence from Dr. Sommers, the Court concludes that a properly selected jury would have been less likely to find Ambrose guilty of his charges. For, as Dr. Sommers testified, more diverse juries are statistically less likely to convict.

i

It is important to emphasize that the Sixth Amendment only demands that “the jury venire represent a ‘fair cross-section’ of the community!,]” United States v. Suggs, 531 Fed.Appx. 609, 618 (6th Cir.2013) (collecting cases) (emphasis added), it does not require that the petit jury selected from each venire also represent a fair cross-section of the community. See, e.g., Ambrose, 684 F.3d at 645 (citing United States v. Biaggi, 909 F.2d 662, 678 (2d Cir.1990)). For this reason, the court in Garda-Dorantes chose not to consider Dr. Sommers’s testimony, indicating that “even if the Court credits the petitioner’s showing on this point as true” — that juries with more minority members are less likely to convict — “it is irrelevant to the question of actual prejudice.” 978 F.Supp.2d at 824. The Garcia-Dorantes court’s conclusion was based on the fact that more minority members in a jury venire will not assure their presence on the petit jury itself, and as such “[a] properly selected jury could well have been all white, with no minority members at all.” Id. Accordingly, the court did not factor in Dr. Som-mers’s testimony, or the underlying evidence in support, that more diverse juries are less likely to convict categorically.

Seizing on this result, the State argues that even if Ambrose’s jury venire had represented a fair cross-section of the community, “as a matter of probability, the petit jury would have been identical.” Resp’t’s Second Supp. Br. 23. The State anchors its argument with the statistical analysis of Dr. Edward B. Rothman, Director for the Center of Statistical Consultation and Research at the University of Michigan. See Rothman Report, attached as Pet’r’s Evid. Hr’g Ex., ECF No. 45.

In his report, Dr. Rothman indicated that he had been asked to “estimate the discrepancy between the percentage of African Americans over the age of 18 in Kent County, Michigan according to the 2000 census and the estimate of the percentage of African Americans in the jury pool for the same location during the period of April 2001 through August 2002.” Id. at 1. This “discrepancy” — the difference between the number of potential African-American jurors in Kent County and the number of potential African-American ju