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 ...