The opinion of the court was delivered by: Judge Conner
On October 19, 2006, an evidentiary hearing was held on the sole issue of whether trial counsel was ineffective for failing to object to an all-white jury panel summoned for petitioner Rodney Rodgers' ("Rodgers") criminal trial because it did not represent a fair cross-section of the community. Rodgers appeared with court-appointed counsel. Based on the evidence presented, the court concludes that Rodgers' claim is without merit and will deny habeas relief.
This court has previously determined that the state courts did not reach the merits of Rodgers' ineffective assistance of counsel claim. (Doc. 13, p. 9). Consequently, the deferential standards provided by the Anti-terrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1217 ("AEDPA") do not apply.*fn1 See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). "In such an instance, the federal habeas court must conduct a de novo review over pure legal questions and mixed question of law and fact, as a court would have done prior to the enactment of the AEDPA. See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). However, the state court's factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence. See 28 U.S.C. § 2254(e)(1)." Id.
In December 1999, Rodgers was arrested and charged with criminal homicide, criminal attempt to commit homicide and aggravated assault in the County of York, Pennsylvania. (Notes of Testimony ("N.T.") 4). In the summer of 2000, Attorney Susanne Smith, who at the time was the First Assistant Public Defender for York County, was appointed to represent him. (N.T. 30). In preparation for trial, Attorney Smith met with Rodgers numerous times and they discussed strategy. (N.T. 7, 31). He gave her the names of potential witnesses and an investigator assisted her in locating the witnesses. (N.T. 31). She met with various witnesses, spoke to his family, and visited the scene of the crime. (N.T. 31).
Although Rodgers claims to have had concerns about the racial composition of York County juries, he did not express his concern to Attorney Smith because he "didn't know what to say back then, " "didn't know the law," and "didn't know how to properly format an affable sentence for something to that effect." (N.T. 8, 9). However, on the day of jury selection, upon seeing the all-white jury pool enter the courtroom, Rodgers became immediately concerned.*fn2 He states that he expressed his concern that the jury was not a jury of his peers, but Attorney Smith informed him that there was nothing that could be done and that this is the pool from which the jury would be selected. (N.T. 13). Attorney Smith testified that she has no specific recollection of such an exchange but that she "would have told him that the makeup of York County is a majority of white and very rarely are we seeing non-white participants on the jury panel." (N.T. 38). She would have further informed him that a "jury of your peers is not necessarily a jury of minority members. It would be people who live in York County who indicate they can be fair and impartial." (N.T. 45-46).
Attorney Smith also testified that she did not feel the lack of minorities on the panel was an issue because the jurors felt that they could be fair and impartial. She posed the following questions to the jurors:
He's a black male. Is there anyone who believes they cannot be fair and impartial?
Mr. Rodgers wants me to be clear on that, he has Puerto Rican in his background and I believe Native American Indian in his background. Based on that is there anyone that believes they cannot be fair and impartial because of race?
(N.T. 46). No one responded that they could not be fair and impartial because of race, and there were no indicators, such as body language or facial expressions, that would have caused her to delve further into the issue. (N.T. 48-50). "[W]e asked them if they could be fair and impartial. They indicated they could despite Mr. Rodgers' race, and being Mr. Rodgers and both Mr. Edwards [the victim] being a minority race, they should be viewed the same by the jury." (N.T. 45). When asked whether the outcome may have been different if she objected to the panel, Attorney Smith replied "No" because the "panel was a typical panel in York County." (N.T. 40).
To further expound on the make-up of jury panels in York County, J. Robert Chuk, who has been employed as the district court administrator for York County since September 1994, was called upon to testify. (N.T. 57). Mr. Chuk is responsible for the method utilized to compose jury panels. (N.T. 57). In 2000, the approved method required the information services department to compile a random list of prospective jurors from the voter registration roles, per capita tax roles, and York area earned income tax roles and to send those individuals questionnaires. (N.T. 57-58, 66-67). Based on the returned questionnaires, a determination was then made regarding eligibility to serve and a master list was created. (N.T. 71). From the master list, information services would then randomly draw the needed number of jurors to summon on any given week. (N.T. 68).
There is no statistical data kept by the county concerning participation in jury panels. Chuk testified that "We don't track information as to minorities that participate. The only way that we know that an individual might be in a minority is when they actually appear on their day to be part of a pool and we can observe who is present in the jury room. Other than that we don't statistically know what our numbers really will be in terms of minorities." (N.T. 59.) Based upon this method of observation, Chuk estimated that minorities comprised one to three percent of the jury panels at the time Rodgers was tried. (N.T. 61).
In 2005, in addition to the voter registration and tax roles, York County began using drivers' license lists to select prospective jurors. According to Mr. Chuk, the addition of drivers' licenses appears to have increased the percentage of minorities. Specifically he states that "[a]necdotally several terms ago I took a look at the pool, I made an informal count, and it worked out to be somewhere in the neighborhood of 5 to 6 percent, which I believe is about the appropriate number of black and Hispanic, which are the primary minorities in York County. . . . So I felt we had met probably the number that ...