Appeal from an order denying a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, entered in the United States District Court for the Northern District of New York, by Edmund Port, Judge.
Smith and Feinberg, Circuit Judges, and Ward, District Judge.
This is an appeal from the denial, without a hearing, of a petition by a state prisoner for a writ of habeas corpus in the United States District Court for the Northern District of New York, Edmund Port, Judge. For the reasons hereinafter stated, we remand to the district court for further proceedings consistent with this opinion.
Appellant Allen M. Anderson was convicted, after a jury trial, in Albany County Court of two counts of assault in the second degree, and was sentenced on March 8, 1973 to a five-year term of imprisonment on each count, the sentences to run concurrently. Prior to trial, appellant challenged the jury panel on the grounds that "black persons, culturally different, and persons of lower economic status as well as persons of lower ages have been systematically excluded and are substantially under-represented in said panel."
The state trial judge conducted a brief hearing at which the Commissioner of Jurors of Albany County ("the Commissioner") testified to the procedures used by him in obtaining names of persons qualified to serve on juries in the county. He stated that the names of prospective jurors were taken at random from the election district books, the city directory and the telephone directory and that those selected were sent questionnaires to be returned to determine eligibility to serve. The Commissioner acknowledged that fewer black persons served on juries than one might expect and testified that he had tried to remedy this underrepresentation of black persons by sending a greater number of questionnaires to wards in the county which he knew to be populated by blacks. However, he indicated that the rate of return from the black community was poor and that many of the questionnaires returned requested exemption from service. During the course of examination of the Commissioner, appellant's counsel asked the following question and received the following response:
Q. . . . Are people who are students automatically excluded from jury selection?
A. They are automatically -- we put them off, we exempt them for the time being, until they are out of school, because some of them put on the back that they are in school and they won't be home until a certain time, and we can't promise them then that they can be on the jury.
Despite the ambiguity of this answer, appellant's counsel did not pursue this line of inquiry, focusing instead on the efforts made to increase the representation of black persons on juries.
The second witness called by the appellant testified, as a statistics expert, to the statistical underrepresentation of blacks. No other evidence was presented by appellant.
The trial judge denied appellant's challenge to the jury panel, finding that intentional and systematic discrimination had not been proven. The trial and conviction followed. An appeal was taken to the Appellate Division of the State Supreme Court, which affirmed the judgment of conviction. People v. Anderson, 42 A.D.2d 1007, 348 N.Y.S.2d 227 (3d Dep't 1973).
The Appellate Division, upon its review of the hearing record, concluded that appellant had failed to prove that "a distinct attitudinal class of persons was systematically excluded or that he was prejudiced in any manner by the panel that was drawn." 348 N.Y.S.2d at 228 (citations omitted). Leave to appeal to the New York Court of Appeals was denied. Thereafter, this petition for a writ of habeas corpus was filed.
The petitioner presents three claims: First, that the record revealed that students over the age of twenty-one were systematically excluded from jury service in violation of the Sixth and Fourteenth Amendments. Second, that the underrepresentation of black persons on the panel from which appellant's jury was chosen, likewise, violated his constitutional rights. Third, that the Commissioner's failure to follow the state statutory procedure for choosing jurors deprived him of equal protection of the law.
Judge Port held that with respect to the third claim, appellant had failed to exhaust his state remedies. As to the remaining contentions, Judge Port held that appellant had had a full and fair hearing in the state court and had failed to overcome the statutory presumption of ...