Criminal: Challenge to Unconstitutionality of Grand Jury Waived

After Petitioner had pled guilty to cocaine possession, he moved to vacate his sentence under 28 U.S.C.§2255, claiming that the method employed to select the grand jury that had indicted him was unconstitutional. Petitioner's challenge was based on United States v Ovalle, 136 F3d 1092 (6th Cir 1998), which had found that the Jury Selection Plan employed by the United States District Court for the Eastern District of Michigan was invalid in that it sought to achieve a prescribed percentage of African American potential grand jurors consistent with the African American population in the district. The district court denied the motion on the grounds that Petitioner had waived his challenge to the grand jury selection process by failing to object before pleading guilty. Petitioner's contention that his failure to object was excused by the ineffective assistance of counsel was also rejected. The district court reasoned that ordering a reconstituted grand jury would only have delayed Petitioner's admission to the crime, and therefore Petitioner's counsel's failure to object to the process used to select the grand jury did not demonstrate deficient performance of counsel. In addition, Petitioner, an African American, had not demonstrated that the selection of the grand jury from a jury pool that increased the number of African American potential jurors somehow prejudiced him.

Anthony Foster v United States of America, Civ. No. 98-71372, E.D. Mich., 09/24/98, Diggs Taylor, J. (dkt #52 (D-1) – 9 pages) This article was prepared by Mark A. Goldsmith, a partner in our Litigation Department, and will appear in the January 1999 edition of the Michigan Bar Journal.