The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge
Michael McCray brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, who is black, claims that the prosecutor at his state court trial used her peremptory challenges in a racially discriminatory way and that his conviction by a jury so chosen violates his rights under the sixth and fourteenth amendments to the United States Constitution.
Petitioner, whose sentence has been stayed by an order of this court pending the decision on his petition, was convicted of Robbery, First Degree and Robbery, Second Degree in the Supreme Court of the State of New York, Kings County, on April 28, 1980. This was petitioner's second trial, the first having ended in a mistrial when the jury was unable to agree on a verdict. Allegedly, the vote at the first trial was nine to three in favor of conviction; according to the affidavit of petitioner's trial counsel, the three voting for acquittal were the only blacks on the jury.
It is undisputed that at the second trial the prosecutor used seven peremptory challenges against blacks, one against a Hispanic, and three against whites. Petitioner contends that the eight minority jurors thus challenged were the only ones on the jury panel and that the resulting jury was composed entirely of whites. Respondent asserts that the prosecutor may have challenged not three whites but four and that one black juror was selected as an alternate. The trial judge could not recall whether there were any black jurors. The record does not resolve these disputes; nor, as respondent's affidavit points out, does it reveal how many blacks or Hispanics were in the jury panel, how many defense counsel excluded by his own preemptory challenges, or how many either side excluded for cause.
In any event, defense counsel moved in the course of jury selection for a mistrial or in the alternative for a hearing to inquire into the prosecutor's use of her peremptory challenges. He accused the prosecutor of systematically excluding blacks and Hispanics from the jury, and noted that one of the blacks so excluded had stated during voir dire that a relative or close friend was a victim of a crime. According to the trial court's opinion denying these motions, People v. McCray, 104 Misc. 2d 782, 429 N.Y.S.2d 158, 159 (N.Y. Sup. Ct., Kings Co. 1980), the prosecutor denied excusing jurors on the ground of race. The trial court denied defendant's motion, on the same ground, to set aside the verdict, and the Appellate Division affirmed without opinion.
The New York Court of Appeals affirmed the conviction in a 4-3 decision, 57 N.Y.2d 542, 457 N.Y.S.2d 441, 443 N.E.2d 915 (1982). That court relied upon Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965) in rejecting petitioner's federal claims under the sixth and fourteenth amendments and refused to construe the analogous provisions of New York's Constitution more expansively.
The Supreme Court denied McCray's petition for a writ of certiorari on May 31, 1983, McCray v. New York, 461 U.S. 961, 103 S. Ct. 2438, 77 L. Ed. 2d 1322 (1983). Justices Marshall and Brennan dissented in an opinion of Justice Marshall. Id. at 2439. Justices Stevens, Blackmun and Powell voted to deny certiorari but stated in an opinion of Justice Stevens that they did not disagree with Justice Marshall's appraisal of the "importance of the underlying issue -- whether the Constitution prohibits the use of peremptory challenges to exclude members of a particular group from the jury, based on the prosecutor's assumption that they will be biased in favor of other members of the same group." Id. at 2438. However, they believed that "further consideration of the substantive and procedural ramifications of the problem by other courts" would enable the Supreme Court "to deal with the issue more wisely at a later date." Id. Justice Stevens' opinion noted that "there is presently no conflict of decision within the federal system" and that the problems of judicial review of peremptory challenges were being addressed by the courts of the two states whose supreme courts have held state constitutional rights to be violated by discriminatory use of peremptory challenges. Id. at 2439, citing People v. Wheeler, 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (1978) and Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170 (1979). The opinion concluded that "it is a sound exercise of discretion for the Court to allow the various States to serve as laboratories in which the issue receives further study before it is addressed by this Court." 103 S. Ct. at 2439.
Petitioner moved the New York Court of Appeals for reargument in light of the Supreme Court's disposition of his case. The court denied the motion without opinion on July 12, 1983.McCray then filed this petition for relief pursuant to 28 U.S.C. § 2254.
If Swain v. Alabama, supra, is good law, petitioner's argument fails. But both petitioner and respondent urge the court to reconsider that case and to conclude that the sixth and fourteenth amendments prohibit the use of peremptory challenges to exclude potential jurors solely on the basis of race. Respondent opposes granting the writ, however, on the ground that on the record in this case petitioner did not make a showing sufficient to warrant a mistrial or a hearing on his claim that the prosecutor's use of peremptory challenges was racially motivated.
It is unusual, to say the least, for a district court to reexamine a Supreme Court case squarely on point. Moreover, the expressed willingness of five Justices to reconsider the Swain decision was perhaps not intended to apply to a collateral attack on the very conviction the Court was addressing. But surely there is some invitation implicit in Justice Stevens' opinion for the lower courts to engage in such reconsideration, and that invitation was not restricted to the state courts, as is evidenced by the opinion's reference to the absence of a "conflict of decision within the federal system" as a reason for postponing the Supreme Court's consideration of the issue. In the light of that language and of the position fo respondent, this court concludes that it should address itself to the merits of the Swain decision.
The defendant in the Swain case was black and was convicted by an all-white jury. He contended that the historic underrepresentation of blacks on jury panels in the county and the prosecutor's use of peremptory challenges to eliminate the blacks who were on the panel in his case constituted racial discrimination in violation of the equal protection clause of the fourteenth amendment. While acknowledging the settled principle that total exclusion of blacks from jury panels, or token inclusion, is forbidden, the Court rejected the defendant's argument and suggested that suspected group affinity was an acceptable basis for the use of peremptory challenges. The Court noted, without disapproval, that such challenges are "frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty." 380 U.S. at 220-21.
The Court established a presumption "that the prosecutor is using the State's challenges to obtain a fair and impartial jury" so weighty that it could not be "overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes." "Any other result," the majority believed, ...