United States District Court, Northern District of Illinois, E.D
June 5, 1984
UNITED STATES OF AMERICA EX REL. EARL ALLEN, PETITIONER,
DR. STEPHEN L. HARDY, RESPONDENT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Earl Allen ("Allen") originally advanced four grounds for
relief in his 28 U.S.C. § 2254 petition for a writ of habeas
corpus. In a series of three opinions*fn1 this Court disposed
of all four claims and dismissed Allen's petition. Opinion II,
577 F. Supp. at 985 n. 1 decided Allen had waived or abandoned
his Sixth Amendment*fn2 claim (asserting a theory found
persuasive in McCray v. Abrams, 576 F. Supp. 1244 (E.D.N.Y.
1983)). That determination was reaffirmed in Opinion III, 583
F. Supp at 564.
Allen now moves for reconsideration of the "waived or
abandoned" conclusion, urging this Court to consider his Sixth
Amendment claim on the merits. Although still of the view the
claim was waived or abandoned, this Court has opted to
consider the merits anyway. Allen's Sixth Amendment claim is
Allen contends a defendant's Sixth Amendment right to an
impartial jury is violated if the prosecution uses its
peremptory challenges to exclude prospective jurors who belong
to a cognizable class.*fn3 Opinion III, 583 F. Supp. at
563-64, had held Allen's failure at trial even to attempt an
offer of proof showing the systematic exclusion of jurors over
time failed the "cause-and-prejudice" test of Wainwright v.
Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) as to
Allen's Equal Protection Clause claim. Because of its waiver
conclusion, this Court did not reach that issue (or any other
merits issue) as to Allen's Sixth Amendment claim.
Now Allen asserts such a showing of systematic exclusion is
unnecessary to preserve a Sixth Amendment claim. Rather he
argues this Court should find a prima facie violation of the
Sixth Amendment in the use of peremptory challenges at his own
single trial. That prima facie case could then be rebutted by
the prosecution's statement of non-discriminatory reasons for
its action. See McCray v. New York, ___ U.S. ___, 103 S.Ct.
2438, 2441-43, 77 L.Ed.2d 1322 (Marshall, J. dissenting from
denial of certiorari); McCray v. Abrams, 576 F. Supp. at 1249.
Peremptory Challenges and the Sixth Amendment
Allen's position is a difficult one, given the test
prescribed by the Supreme Court for evaluating Sixth Amendment
claims. Apodaca v. Oregon, 406 U.S. 404, 413, 92 S.Ct. 1628,
1634, 32 L.Ed.2d 184 (1972) taught the Sixth Amendment has not
been breached merely because no members of a defendant's race
are present on his or her petit jury. Instead the defendant
must prove his or her race has been "systematically excluded."
That principle was reaffirmed in Taylor v. Louisiana,
419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975) (exclusion
of women from the venire violated the principle the jury must
be selected from a "fair cross-section" of the community). Then
Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58
L.Ed.2d 579 (1979) further defined the principle,
setting out the elements a defendant must show to establish a
prima facie violation of the Sixth Amendment's fair
(1) that the group alleged to be excluded is a
"distinctive" group in the community; (2) that
the representation of this group in venires from
which juries are selected is not fair and
reasonable in relation to the number of such
persons in the community; and (3) that this
underrepresentation is due to systematic
exclusion of the group in the jury-selection
To establish such "systematic exclusion" Duren presented
evidence (id. at 366, 99 S.Ct. at 669):
His undisputed demonstration that a large
discrepancy occurred not just occasionally, but
in every weekly venire for a period of nearly a
year manifestly indicates that the cause of the
underrepresentation was systematic — that is,
inherent in the particular jury-selection process
And just last month the Court refused to reexamine the
"systematic exclusion" principle as it impacts on a
defendant's Sixth Amendment right to an impartial jury.
Williams v. Illinois, ___ U.S. ___, 104 S.Ct. 2364
, 80 L.Ed.2d
836 (1984) (Marshall, J., dissenting from denial of certiorari
with Brennan, J., joining him).
Allen thus confronts at least three major obstacles:
1. Some courts have expressed doubt that the
Sixth Amendment's fair-cross-section requirement
even extends to the jury actually chosen in an
individual case (as distinct from the entire
venire). Willis v. Zant, 720 F.2d 1212, 1219 n. 14
(11th Cir. 1983); United States v. Childress,
715 F.2d 1313, 1319-20 (8th Cir. 1983) (en banc), cert.
denied, ___ U.S. ___, 104 S.Ct. 744, 79 L.Ed.2d 202
(1984); see Smith v. Balkcom, 660 F.2d 573, 583 n.
26 (5th Cir. 1981).
2. Even assuming that it does, Grigsby v. Mabry,
569 F. Supp. 1273, 1285-86 (E.D.Ark. 1983), Allen
swims against the tide in urging a standard other
than Duren's "systematic exclusion" test. Courts
have consistently refused to apply a different one.
United States v. Cotton, 721 F.2d 350, 352-53 (11th
Cir. 1983), cert. denied, 104 S.Ct. 1614
(1984); Willis, 720 F.2d at 1217-21; Childress, 715
F.2d at 1320-21; United States v. Whitfield,
715 F.2d 145, 146-47 (4th Cir. 1983); United States v.
Canel, 708 F.2d 894, 898 (3d Cir.), cert. denied,
___ U.S. ___, 104 S.Ct. 165-66, 78 L.Ed.2d 151
(1983); United States v. Jenkins, 701 F.2d 850,
859-60 (10th Cir. 1983); see Weathersby v. Morris,
708 F.2d 1493, 1496-97 & n. 2 (9th Cir. 1983),
cert. denied, ___ U.S. ___, 104 S.Ct. 719, 79
L.Ed.2d 181 (1984).
3. To find a prima facie Sixth Amendment
violation based solely on the prosecution's use
of peremptory challenges to exclude minorities in
Allen's own case would run directly counter to
the Apodaca-Taylor principle that the defendant is
not entitled to a jury of any particular
composition, but only to a jury selected from a
fair cross-section of the community.
Those obstacles are insurmountable — at least in the present
state of the law.
Perhaps the law should have developed otherwise. Perhaps
"systematic exclusion" should mean "systematic" in just one
case — that is, the single prosecutor's systematic efforts in
a single jury selection ("systematic" as distinguished from
"systemic"). Perhaps the Supreme Court, the ultimate lawmaker
in constitutional areas, will come to change its view. But
given the Court's consistent refusal to reconsider the
"systematic exclusion" test as defined in Duren, this Court (as
the Childress court said) is bound to adhere to that criterion.
That makes relevant to Allen's Sixth Amendment claim (as it was
to his equal protection claim) the entire discussion in
Opinions II and III.
Allen's Sixth Amendment claim stands on the same footing,
and is thus barred for the same reason, as his Fourteenth
due process claim (Opinions II and III). Allen's motion to
reconsider is denied.
Just over two weeks ago this Court issued its June 5, 1984
memorandum opinion and order in this case, dealing with the
need for a showing of "systematic exclusion" of prospective
jurors of a cognizable class (say blacks or other minorities)
to support a Sixth Amendment claim. Now our Court of Appeals
has (in the context of a federal criminal appeal, United States
v. Clark, 737 F.2d 679, 682 (7th Cir. 1984) (citations
omitted)) described the continuing force of Swain v. Alabama,
380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965):
The Supreme Court held some years ago that it is
not a denial of the equal protection of the laws
for a prosecutor to base peremptory challenges on
racial grounds, provided that he is not doing so
in pursuance of a systematic policy of racial
exclusion from juries — provided in other words
that there is no pattern larger than the single
case. Swain. . . . Although Swain arose under the
Fourteenth rather than the Sixth Amendment, and
although subsequent decisions, such as Taylor v.
Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d
690 (1975), have held that racial discrimination in
jury selection violates the Sixth Amendment, most
courts have concluded that Swain is still good law
fully applicable to federal as well as state
trials. . . . Although there is some contrary
authority . . . several practical considerations
support the majority approach.
And in a just-published (though previously issued) opinion in
a habeas case challenging a state court conviction, United
States ex rel. Palmer v. DeRobertis, 738 F.2d 168, ___ - ___
(7th Cir. 1984), our Court of Appeals specifically followed
"Swain and its progeny," rejecting the invitation for
reexamination of Swain contained in the dissent in McCray v.
New York, ___ U.S. ___, 103 S.Ct. 2438, 2443, 77 L.Ed.2d 1322
Though Clark pointed out the Court was not there called on to
decide "whether it is ever permissible to challenge, as
racially motivated, the exercise (not pursuant to a systematic
policy of racial exclusion) of a peremptory challenge" (At
682), both Clark and Palmer should be read in conjunction with
this Court's June 5 opinion.