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The Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. ("the Act"), declares that "all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes." Id. at § 1861. Section 1867(a) of the Act states that a criminal defendant who believes that right is being violated "may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury." Id. at § 1867(a). The motion must be made either before voir dire begins or within seven days after the defendant discovered or could have discovered, through diligence, the grounds for the motion, whichever is earlier. Id. It must contain a "sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this title." Id. at § 1867(d).

Most importantly for our disposition of Defendant's petition, the Act states that both parties "shall be allowed to inspect, reproduce, and copy such records or papers [used by the jury commission or clerk in connection with the jury selection process] at all reasonable times during the preparation and pendency of such a motion." Id. at § 1867(f) (emphasis added). In Test v. United States, 420 U.S. 28 (1975), the Supreme Court said that § 1867(f) "makes clear that a litigant has essentially an unqualified right to inspect jury lists." Id. at 30.

Defendant does not deny that, both at trial and on direct appeal, he failed to make any motions under the Act. Thus, normally we would consider his argument waived; in this case, however, Defendant argues that his failure to raise the issue was due to ineffective assistance of counsel--which, per our decision in United States v. Galloway, 56 F.3d 1239, 1242-43 (10th Cir. 1995), is properly raised on collateral attack. In a sworn affidavit attached to his initial § 2255 brief to the district court, Defendant stated that both his jury venire and petit jury contained only white people. He also stated that Stanley Parsons, his trial and appellate counsel, failed to make any motions under the Act despite Defendant's repeated requests that he do so. Defendant thus blamed Parsons's ineffective assistance for his failure to challenge the jury's composition or the manner in which the jury was selected:

I did not know how to file an [sic] motion attacking this discrimination in my petit jury ro [sic] how to review past grand and petit jury pools and panels, [sic] Mr. Parsons did not even try to protect my rights under the Fifth and Sixth Amendment [sic] to the United States Constitutio [sic] in this matter. Through no fault of my own this issue was not properly brought before the district court nor to the appeals court.

(Affidavit of Keith L. Orange, September 20, 2001, attached as Exhibit F to Defendant's § 2255 brief to the district court.)

Defendant's affidavit stated that there were no minorities in his jury venire or on his petit jury. That allegation, as to which the rest of the record is silent but which was not challenged by the government, raises at least the possibility that the exclusion of minorities from those juries might be unconstitutional. Parsons's decision not to investigate that possibility could, as Defendant argues, constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). The record before us, however, is insufficient to make such a determination. Accordingly, we remand Defendant's case to the district court with orders to conduct an inquiry into Defendant's ineffective assistance claim and issue findings and conclusions as to the claim.

The district court's inquiry should proceed as follows. It should first determine whether Parsons's failure to challenge the composition of Defendant's jury was a strategic decision, to which we give "considerable deference." Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002). If the district court finds that Parsons's decision was not strategic, it should then investigate the merits of Defendant's jury composition claim to determine whether he can show deficient performance by his counsel and prejudice sufficient to establish an ineffective counsel claim. To that end, it should allow Defendant access to the Western District of Oklahoma's jury selection records, to which the Jury Selection and Service Act would have entitled him had a timely request been made. See 28 U.S.C. § 1867(f).⁽²⁾

For the foregoing reasons, we GRANT Defendant's Petition for Rehearing and REMAND his case to the district court for proceedings consistent with this Order.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge

02-6112, United States v. Orange

O'BRIEN, Circuit Judge, dissent.

The panel decision of October 18, 2002, did not "overlook or misconstrue" a significant issue, so a rehearing was unnecessary. 10th Cir. R. 40.1(A). Applying accepted standards, Mr. Orange did not suffer ineffective assistance of counsel. I respectfully dissent and do not join the remand order.

The Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1878 (2002), requires each United States District Court to establish a written plan for the selection of grand and petit jurors. It specifies that jurors be randomly selected from a pool of citizens identified by either the voter registration rolls or lists of actual voters. The chosen pool must be supplemented only if necessary to insure a fair cross section of the district community. The Act requires that all citizens have an opportunity to serve and prohibits exclusion from service on account of race, color, religion, sex, national origin, or economic status. 28 U.S.C. §§ 1861-1862, 1863(a)&(b)(2).

Seemingly, the presumptive preference for those who vote or register to vote recognizes that citizens who expend some effort to participate in the most fundamental process of representative government are probably willing and best equipped to perform yet another task that reflects our values and profoundly influences our legal system. Unless barriers to registration exist (not alleged or evident here), every citizen willing to exert minimal effort is afforded an opportunity to be considered for jury service.

Threshold decisions about populating the pool of potential jurors, as well as other elements of the jury plan, have been left to the chief judge of the district or a judge designee, subject to review and approval by the members of the judicial council of the circuit. The plan for the Western District of Oklahoma, duly approved by the Judicial Council for the Tenth Circuit, uses voter registration rolls. It is entitled to a presumption of legality and regularity. Nevertheless, civil and criminal litigants are permitted to challenge the selection process for grand or petit juries, but they must show a substantial failure to comply with the statute, and they must promptly pursue their statutory remedies, which are exclusive. 28 U.S.C. § 1867.

Mr. Orange was tried to and convicted by a jury for conspiring to file and filing false claims for income tax refunds. He committed the crimes while incarcerated in an Oklahoma prison. Neither before nor during his trial did he challenge the jury selection process. His conviction was affirmed by this Court. United States v. Orange, 215 F.3d 1338 (10th Cir. 2000)(unpublished table decision), cert. denied, 531 U.S. 939 (2000). He is time barred from raising jury selection issues in a collateral attack years after his conviction. Understanding that limitation, Mr. Orange argues he did not enjoy effective assistance of counsel because his trial attorney failed or refused his request to challenge the jury selection system. He must show his counsel's performance was deficient (fell below an objective standard of reasonableness under prevailing professional norms), and he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984). If he is unable to make a sufficient showing on either the performance or prejudice component his complaint fails. Hale v. Gibson, 227 F.3d 1298, 1314 (10th Cir. 2000) (citing Strickland, 466 U.S. at 697). Moreover, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.

As is true with many pro se petitioners, Mr. Orange has repeatedly and clearly stated what he views as unfair ­ he is a black man convicted by an all white jury. But his identification of legal errors is less clear. He complains that the jury venire (and, necessarily, his trial jury) was all white in spite of census data showing a significant minority population in the counties comprising the Western District of Oklahoma. He does not allege a problem in the mechanics of placing names in the master or qualified jury wheels, nor does he allege that the process of drawing names from either of the wheels was improperly executed. Instead, he complains that the list from which the master jury wheel was populated (registered voters) should have been augmented with another list of names, e.g., driver's licenses, as is sometimes done in other districts. We accept as true his affidavit stating that he asked his attorney to investigate the jury selection system and object to the racial composition of the venire; his attorney promised to look into his concerns; and his attorney made no objections. But that does not end the inquiry.

While "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," a decision not to investigate must be assessed under all the circumstances applying a "heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. Counsel is not required to take every position, make every argument, or file every motion requested by a client. United States v. Boigergrain, 155 F.3d 1181, 1187 (10th Cir. 1998); United States v. Afflerbach, 754 F.2d 866, 870 (10th Cir. 1985). So, counsel's failure to act on the request to investigate the jury selection system is not, of itself, ineffective assistance; rather, it must be evaluated against a backdrop of precedent and reason.

Generally the law does not afford relief upon Mr. Orange's generalized complaint that the venire was white. "[A] defendant has no right to a petit jury composed in whole or in part of persons of his known race." Beachum v. Tansy, 903 F.2d 1321, 1331 (10th Cir. 1990) (quoting Batson v. Kentucky, 476 U.S. 79 (1986)). "[A] defendant does not . . . have a right to a jury of 'any particular composition' and the jury actually chosen does not have to 'mirror the community.'" United States v. Gault, 141 F.3d 1399, 1402 (10th Cir. 1998) (quoting Taylor v. Louisiana, 419 U.S. 522, 538 (1975)).

With respect to Mr. Orange's only specific complaint that could arguably have legal support ­ the voter registration list should have been supplemented with a list of other names ­ cases from this and other circuits, both before and after his trial, have approved the use of voter registration lists exclusively to populate the master jury wheel. United States v. Gault, 141 F.3d 1399 (10th Cir. 1998); Truesdale v. Moore, 142 F.3d 749 (4th Cir. 1998); United States v. Rising, 867 F.2d 1255 (10th Cir. 1989); United States v. Afflerbach, 754 F.2d 866 (10th Cir. 1985); United States v. Yazzie, 660 F.2d 422 (10th Cir. 1981); United States v. Test, 550 F.2d 577 (10th Cir. 1976).

While a criminal defendant has an unqualified right to "put the government to its proofs," that unqualified right does extend to every aspect of the criminal process. Counsel is not required to sift through voluminous jury records every time a client wants to challenge the jury process. United States v. Davis, 939 F.Supp 810, 817 (D. Kan. 1996), aff'd, United States v. Davis, 149 F.3d 1192 (10th Cir. 1998) (unpublished table decision); Gustave v. United States, 627 F.2d 901, 906 (9th Cir. 1980). There are evaluative components which, of necessity, must be left to the discretion of counsel, viz whether the request is made for legal, rather than political purposes; is made simply to encumber the trial; has a basis in fact or is purely subjective; is warranted by existing law or a non-frivolous argument for an extension or modification of existing law. Nothing in the trial record has been brought to our attention that would objectively indicate an irregularity in the jury selection process.

It is tempting to simply accept Mr. Orange's subjective view and require the district court to hold yet another hearing to inquire into counsel's performance. Doing so reverses the district court's decision to deny an evidentiary hearing, a decision we customarily review for an abuse of discretion. United States v. Gines, 964 F.2d 972, 977 (10th Cir. 1992). I see no abuse of discretion. Trial counsel had to evaluate Mr. Orange's request against what must have seemed like a solar wind of counter indicating factors: 1) the decision to use only voter registration rolls was made by the chief judge of the district, approved by the Judicial Counsel for the Tenth Circuit and presumed legitimate; 2) use of voter lists exclusively had been approved in other cases by this Court and others; 3) the statute requires a substantial showing of failure to comply with the statutes; and 4) nothing was suggested to support the subjective complaints.⁽¹⁾

The utility of spending substantial trial preparation time investigating issues collateral to guilt or innocence should, rationally, withstand at least minimal cost-benefit analysis. That analysis is for counsel, who is strongly presumed to be competent and exercise professional judgment. Retrospective review does not require trial counsel to have been absolutely correct, merely reasonable under the circumstances. Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000); see also Strickland, 466 U.S. at 689-90. The panel majority seems to reverse the test, accepting Mr. Orange's subjective, post hoc rationale, ignoring objective factors to the contrary, and obviating the presumption of attorney competence and professional judgment. I cannot join in that approach. Trial counsel was not deficient in these circumstances and the system ought not be burdened with another hearing that will do little more than accentuate what is already obvious.

^*.Defendant also requested a rehearing en banc. The suggestion for rehearing en banc was transmitted to all of the judges of this Court who are in regular service, as required by Fed. R. App. P. 35. As no member of the panel and no judge in regular active service on the court requested that the court be polled, the suggestion is denied.

^2.In its disposition of Defendant's § 2255 motion, the district court wrongly assumed that because the Tenth Circuit has upheld the use of voter registration lists to select juries in other districts, the use of such lists is automatically valid in the Western District as well. (Slip Op. at 4-5.) That assumption is incorrect. Although we have previously approved the use of voter registration lists in other districts, see, e.g., United States v. Gault, 141 F.3d 1399, 1401­03 (10th Cir. 1998), it does not follow that the use of such lists in the Western District is automatically valid if it systematically underrepresents minorities in that district. If such underrepresentation occurs, the district must supplement its jury selection system with another method or methods that would remedy the underrepresentation. See 28 U.S.C. § 1863(b)(2) (stating that, in addition to using voter registration lists, a plan for selecting prospective jurors "shall prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights secured by sections 1861 and 1862 of this title") (emphasis added).

^1.In his 28 U.S.C. § 2255 proceeding, Mr. Orange submitted census data of a general nature not specifically relating to citizens of juror age. Even if he suggested such marginal facts to counsel at the time of trial, it is notably absent from his affidavit.

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