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October 18, 1985

DOMINCIK R. SALAMACK, Superintendent, Edgecombe Correctional Facility, Respondent.

The opinion of the court was delivered by: GOETTEL


 This habeas corpus petition presents several questions, one more interesting than those typically raised following a state felony conviction. The petitioner asserts that he was denied a fair trial because of the prosecutor's discriminatory use of peremptory challenges during jury selection. Despite this controversial issue, we conclude that the petition must be denied.


 On December 18, 1981, the petitioner was convicted by a jury in Bronx County of conspiracy in the fourth degree for planning to destroy a building used by his business. He was sentenced as a second felony offender to an indeterminate term of imprisonment of two to four years, which he is still serving. The conviction was unanimously affirmed by the Appellate Division, without opinion, and the Court of Appeals denied leave to appeal. The petitioner moved to set aside the sentence; that motion was denied.

 On May 31, 1984, the petitioner again moved to vacate his conviction, this time raising a new issue. He asserted that his constitutional rights had been violated by the prosecutor's alleged use of peremptory challenges to systematically exclude white persons from the jury. He based his argument upon McCray v. Abrams, 576 F. Supp. 1244 (E.D.N.Y. 1983), aff'd in part and vacated in part, 750 F.2d 1113 (2d Cir. 1984). The People asserted that the motion was procedurally barred for failure to raise this issue on appeal. On July 12, 1984, the State Supreme Court denied the motion to vacate conviction, without opinion. Leave to appeal to the Appellate Division was later denied.

 A. The Instant Petition

 1. Sufficiency of the Evidence Claim

 The petitioner raises several issues in this federal habeas corpus petition. The first is that the evidence at trial was legally insufficient to enable a rational trier of facts to have found guilt beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307 (1979). This can be dealt with summarily. The principal witness for the prosecution was the prospective "torch." The petitioner argues that the witness was of such questionable veracity that his testimony should have been rejected by the jury. But, credibility of a witness is a matter for the finder of fact. While the petitioner claims that the witness was an accomplice and that his testimony was not corroborated as required by New York law, People v. Daniels, 37 N.Y.2d 624, 630, 376 N.Y.S.2d 436, 440, 339 N.E.2d 139 (1975), that clearly was not the case. The witness was wired with a recorder on which the petitioner's co-defendant can be heard planning the destruction of the building. On these tapes, the witness described at length the defendant's instructions to him concerning the plan to destroy the building and the insurance benefits he might receive. In addition, a wealth of other facts supported the prosecution's case, including a large amount of back taxes owed, a recent increase in the amount of insurance (which brought the insurance above the secured loans against the premises), and other physical evidence concerning the sealed condition of the building intended to promote its destruction.

 The petitioner makes other unconvincing arguments, such as the fact that the replacement cost of the building exceeded the insurance (not an unusual situation) and that a real estate agent testified that the building might have been sold for more than its insured value. These are not factors that would have prevented any rational juror from returning a verdict of guilty beyond a reasonable doubt in light of the other evidence.

 2. Peremptory Challenge Claim

 The interesting question in this petition is the attack on the prosecutor's use of peremptory challenges to strike prospective white jurors. As the petitioner puts it:

A white 65 year old Jewish business-man from Freeport, Long Island, was on trial for conspiracy to blow up his commercial building in the South Bronx. The People's key witness was a black junkie who was purported to have been hired to do away with the subject building for a mere $ 1500. By the prosecutor's own remarks, one must conclude that the reasons he excluded whites from the jury was because he was afraid whites would have been unable to identify racially with the witness.

 Petitioner's Memorandum of Law at 27-28. At trial, the petitioner objected to the prosecutor's use of his peremptory challenges primarily against white jurors. The petitioner did not, however, pursue this argument on appeal. His co-defendant did appeal on this issue, but was unsuccessful.

 The respondent argues that the petitioner has waived his right to habeas corpus review of this question because he bypassed the state appellate procedures and failed to show cause for his procedural default and prejudice resulting from the alleged violation. See Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72 (1977). The petitioner replies that, until the federal courts in this circuit changed the law (which occurred long after his appeal had been denied), appealing the peremptory challenge issue appeared pointless. This, he asserts, justifies any alleged bypass of state procedures because "where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures." Reed v. Ross, 468 U.S. 1, 104 S. Ct. 2901, 2910, 82 L. Ed. 2d 1 (1984). The petitioner also notes that, since the State Supreme Court did not indicate why it denied his renewed motion to vacate the conviction, we cannot be sure the decision was based upon a procedural bypass. *fn1"

 The respondent further argues that the co-defendant raised the peremptory challenge issue on his state appeal while this petitioner did not. The co-defendant's appeal was denied. See People v. Roman, 106 A.D.2d 261, 484 N.Y.S.2d 389 (1st Dep't 1984) (affirmance of conviction, without opinion). This argument does more to support the petition than oppose it, since it demonstrates that the state courts have "had a chance to mend their own fences and avoid federal intrusion Engle v. Isaac, supra, 456 U.S. at 129.

 An additional equitable, if not legal, argument is that the co-defendant successfully attacked his conviction in the federal court. Roman v. Abrams, 608 F. Supp. 629 (S.D.N.Y. 1985). Judge Brieant granted that petition on May 15, 1985, based on the Second Circuit's recent decision in McCray v. Abrams, 750 F.2d 1113 (2d Cir. 1984), rehearing en banc denied, 756 F.2d 277 (2d Cir.), petition for cert. filed, 53 U.S.L.W. 3671 (March 4, 1985) (No. 84-1426).

 Under all these circumstances, we are reluctant to dismiss this petition on the basis of procedural bypass and the failure to give the state courts an adequate opportunity to consider the issue. ...

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