The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
Melvin Geralds petitions for three separate writs of habeas corpus, attacking two convictions for robbery, grand larceny and assault. The history of these proceedings has been somewhat confused, to say the least, but all three writs have now been consolidated and are before us for decision.
The first conviction was for the robbery of the Azzarone Construction Corporation on May 23, 1963. Petitioner was indicted, convicted by a petit jury and sentenced by the Nassau County Court on May 7, 1965.
The second conviction was for a subsequent robbery of Mary Sperling and Ida Hartley occurring on May 15, 1964. Petitioner was again indicted, convicted by a petit jury and sentenced by the Nassau County Court on May 7, 1965, the same day as his sentence on the first conviction. The sentences were to run concurrently, and petitioner is presently serving both at Sing Sing Prison, in Ossining, New York.
Petitioner challenges both convictions on the same grounds. First, he asserts that the Nassau County selection system for both the grand and petit juries involved deliberately discriminated against Negroes, laborers, blue collar workers, members of the lower economic class and those owning less than $250 in property, and, second, he claims that the pre-trial identifications were unnecessarily suggestive and, therefore, tainted the incourt identifications.
We have previously denied petitioner's claim of the use of impermissible pretrial identification procedures as to the first conviction. United States ex rel. Geralds v. Deegan, 292 F. Supp. 968 (S.D.N.Y.1968). We have also previously denied his jury selection claim as to the second conviction by an unreported decision dated January 13, 1969, filed in 68 Civ. 4333. However, we have not yet considered petitioner's claim of discriminatory jury selection as to the first conviction, nor his claim of impermissible pre-trial identification procedures as to the second.
The Court of Appeals remanded the matter to us "for consideration of the identification and jury selection issues and such hearing as the district court may deem necessary." The remand apparently related only to the second conviction, but since the claim of discriminatory jury selection is identical as to both convictions and also identical to the claim of discriminatory jury selection raised in the petition for a writ of habeas corpus referred to us by Judge Motley (68 Civ. 4813), we will consider that question on all three petitions for a writ of habeas corpus.
Petitioner claims that during the years 1963 to 1965, when he was indicted and convicted in both cases, the Nassau County grand and petit juries determining his fate, were selected in a manner that discriminated against Negroes, laborers, blue collar workers, members of the lower economic class and persons possessing less than $250 in property.
The same claim was made in the state court by petitioner's challenge to the array immediately before his trial for the second robbery. An evidentiary hearing was held on March 8, 1965, and the court found against petitioner.
Joseph B. Dowler, Nassau County jury commissioner since 1958, testified at the state court hearing and also upon a post-conviction hearing held before this court on September 2, 1969. He explained the grand and petit jury selection process used in Nassau County during the years in question.
Names of prospective jurors were selected at random from voter registration lists, tax assessment rolls and the Nassau County telephone book. The lists contained no indication of race, occupation or social position. Proportionate geographic representation throughout the county was obtained by dividing the county into 100 communities and calling a number of persons proportionate to the communities' percentage of the county's total population.
Persons selected were notified by mail and instructed to appear at the commissioner's office, where they were given a questionnaire containing 20 questions, one of which inquired about the amount of property owned.
Based on their answers and a short interview, persons were either rejected or accepted for petit jury service. The names of all persons accepted were placed on cards and drawn from a drum to fill panels for various courts of Nassau County.
The commissioner testified that he had no way of knowing precisely how many Negroes were called for jury duty or how many actually served, but his best recollection was that "thousands" were called and served, and there was no evidence to the contrary.
The names of prospective grand jurors were selected from the names contained on the active petit jury list. Those selected were given a questionnaire to answer, and the only challenged questions are 7 through 12 concerning occupation, employer, place of employment, length of service and ...