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UNITED STATES EX REL. ALLEN v. HARDY

June 5, 1984

UNITED STATES OF AMERICA EX REL. EARL ALLEN, PETITIONER,
v.
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 rejected.

Allen's Claim

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 cross-section requirement:

  (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
  process.

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
  utilized.

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 ...

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