Appeal by state officials from a judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge, now Chief Judge, conditionally granting writ of habeas corpus to petitioner Roman on the ground that state prosecutor's racially discriminatory use of peremptory challenges violated Sixth Amendment, see 608 F. Supp. 629 (1985). Appeal by petitioner Schreiber from a judgment of the same court, Gerard L. Goettel, Judge, denying similar petition, see 619 F. Supp. 1433 (1985). The judgment in Roman v. Abrams, No. 85-2191, is reversed. The judgment in Schreiber v. Salamack, No. 85-2343, is affirmed.
Before: NEWMAN, KEARSE, and ALTIMARI, Circuit Judges.*fn*
These appeals, consolidated for argument, present questions concerning the propriety of a state prosecutor's use of peremptory challenges to exclude. White persons from the petit jury before which petitioners Michael Roman and Harold Schreiber, who are White, were jointly tried. In No. 85-2191, respondent New York Attorney General Robert Abrams appeals from a judgment of the United States District Court for the Southern District of New York, entered after an evidentiary hearing before Charles L. Brieant, Jr., Judge, now Chief Judge, conditionally granting the petition of Roman for a writ of habeas corpus setting aside his state court conviction for conspiracy to commit arson on the ground that the prosecutor's racially discriminatory use of peremptory challenges violated Roman's rights under the Sixth Amendment to the Constitution. In No. 85-2343, Schreiber appeals from a judgment of the same court, Gerard L. Goettel, Judge, denying his similar petition for habeas corpus. Both district court judgments were entered after this Court decided McCray v. Abrams, 750 F.2d 1113 (2d Cir. 1984) ("McCray"), vacated and remanded, 106 S. Ct. 3289, 478 U. S. 1001, 92 L. Ed. 2d 705 (1986), appeal dismissed, No. 84-2026 (2d Cir. Oct. 23, 1986), but before the Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) ("Batson"), and its remand in McCray. In granting Roman's petition, Chief Judge Brieant concluded that McCray required that the prosecutor's actions be held to violate Roman's Sixth Amendment right to a fair trial. In denying Schreiber's petition, Judge Goettel ruled that the principles announced in McCray are inapplicable to alleged discriminatory exclusions of White prospective jurors in trials of White defendants.
On appeal, respondents Abrams and Dominick Salamack (collectively the "State"), seek, respectively, the reversal of the judgment in favor of Roman and the affirmance of the judgment against Schreiber, contending principally (1) that Supreme Court cases decided after McCray have effectively overruled McCray's Sixth Amendment analysis, (2) that McCray may not be applied retroactively to set aside a judgment of conviction entered before McCray was decided, (3) that White persons do not constitute a "cognizable group" for Sixth Amendment purposes, and (4) that because of the actual composition of the jury, petitioner's convictions should not be set aside. For the reasons below, we reject the State's first three contentions but find merit in the fourth. We conclude also that Schreiber's petition should have been dismissed on grounds of procedural default. Accordingly, we reverse the judgment entered in favor of Roman and affirm the judgment against Schreiber.
In July 1980, Ernest Brooks, a 24-year-old Black man with an extensive criminal record, was arrested and charged with burglary. In exchange for leniency on charges then pending against him, Brooks disclosed to the arresting authorities that he was a participant in an ongoing conspiracy with Roman and Schreiber, who were business partners, to blow up the Hunts Point Taxi Exchange in Bronx County, New York (the "Exchange"), a building owned by Schreiber, and agreed to cooperate in the investigation of the conspiracy. During the following month, Brooks surreptitiously taped several of his conversations with Roman. These conversations implicated Roman and "Harold" in a plan to seal certain of the Exchange's ventilation openings and then cause a gas explosion in the building. In August 1980, Roman and Schreiber were arrested and charged with conspiracy to commit arson.
A. State Court Proceedings
Petitioners were tried jointly in the state Supreme Court for Bronx County in 1981 before a jury of 12. As described in greater detail in Part I.B.1. below, throughout the jury selection process defense counsel argued to the court that the prosecutor was using the state's peremptory challenges in a discriminatory manner, seeking to eliminate Whites from the jury in violation of petitioners' Sixth Amendment rights to be tried by a jury reflecting a fair cross section of the community. The jury that was eventually empaneled consisted of three White persons and nine persons who were Black or dark-skinned Hispanics.
The proof at trial consisted principally of Brooks's testimony, excerpts from his taped conversations with Roman, and evidence that Schreiber had let his property tax payments fall into arrears and had recently increased the property's insurance coverage. The defense introduced testimony that talk of blowing up the building was a standing joke among Exchange employees. The jury convicted petitioners of conspiracy to commit arson in the fourth degree. Each was sentenced to an indeterminate term of imprisonment of two-to-four years. Each petitioner appealed his conviction.
Roman's appeal to the Appellate Division pursued the contention that the prosecutor's discriminatory use of peremptory challenges had violated the Sixth Amendment. This conviction was affirmed without opinion on December 4, 1984, People v. Roman, 106 A.D.2d 261, 484 N.Y.S.2d 389 (1st Dep't 1984), and leave to appeal to the New York Court of Appeals was denied in 1985, 64 N.Y.2d 785 (1985).
Schreiber filed an extensive brief in the Appellate Division in March 1983, in which he alleged several errors but did not challenge the prosecutor's use of peremptory challenges. The Appellate Division affirmed Schreiber's conviction without opinion, People v. Schreiber, 95 A.D.2d 673 (1st Dep't 1983), and leave to appeal was denied in 1983, 60 N.Y.2d 618 (1983).
In May 1984, after entry of the United States District Court decision that was later affirmed in McCray, see McCray v. Abrams, 576 F. Supp. 1244 (E. D. N. Y. 1983), Schreiber moved to vacate his judgment of conviction pursuant to N.Y. Crim. Proc. Law § 440.10 (McKinney 1983), alleging, inter alia, that his "constitutional rights according to the Sixth and Fourteenth Amendments were vulgarly violated by the prosecutor's game of using the majority of the People's peremptory challenges to purposely and systematically exclude white persons from the jury." The State opposed the motion not only on its merits but also on procedural grounds. Pointing out that Schreiber had failed to argue his peremptory-challenge point to the Appellate Division on direct appeal, the State argued that this collateral attack was barred by § 440.10(2)(c), which required the court to "deny a motion to vacate a judgment when . . . no such appellate review occurred owing to the defendant's . . . . unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him." The court denied Schreiber's motion without opinion, and the Appellate Division denied leave to appeal.
In early 1985, following this Court's December 4, 1984 decision in McCray, each petitioner fled his present habeas petition in the district court pursuant to 28 U.S.C. § 2254 (1982), contending principally that the State's discriminatory use of its peremptory challenges had violated his Sixth Amendment right to be tried before a jury reflecting a fair cross section of the community. Despite the relationship between the cases, the petitions were assigned to different judges.
B. Roman's Habeas Petition
Roman's petition came before Chief Judge Brieant, who stayed execution of Roman's judgment of conviction, continued his release on bail, and scheduled an evidentiary hearing on the Sixth Amendment claim. At the hearing, the court received in evidence the minutes of the jury selection proceedings, inter alia, and hard testimony from Donald Levin, the assistant district attorney ("ADA") who had conducted the jury voir dire, and from a number of other witnesses as to the racial composition of the population of Bronx County and of jury panels in that county.
1. The Evidence on Jury Selection
The historical facts as to the selection of the jury, as found by Chief Judge Brieant, are not substantially in dispute. In accordance with New York procedure, each side was entitled to 15 peremptory challenges. Challenges to prospective jurors were exercised in rounds, with the prosecutor acting first in each round. Persons not excluded after the round in which they were first seated in the jury box were thereafter immune from challenge. See N.Y. Crim. Proc. Law §§ 270.15, 270.25 (McKinney 1971).
In the first round of selection, the State challenged six persons peremptorily. Defense counsel objected on the ground that the prosecutor had "systematically excluded every white juror seated in the box." When the prosecutor responded that two of the challenged jurors were Hispanic, the defense stated that they were "light-skinned." The court did not, at this point, require that prosecutor to state any reasons for his peremptory challenges. After defense counsel had challenged four of the remaining prospective jurors, there remained two unchallenged jurors; these two were permanently seated; neither was White.
In the second round, the prosecutor peremptorily challenged three prospective jurors, two of whom were White. Defense counsel again objected and then peremptorily challenged three prospective jurors, including the only remaining White. Defense counsel stated that they had challenged the remaining White juror because she was "virtually illiterate." The court stated that thereafter both sides would be required to state for the record the reasons for their peremptory challenges. Defense counsel persuaded the court, however, that defendants should not be subject to such a requirement.
During the following three rounds, seven new prospective jurors were challenged peremptorily; one non-White by the prosecution, and six, including one White, by the defense. After the fifth round, nine jurors, two of whom were White, had been permanently seated.
In the sixth selection round the prosecutor peremptorily challenged two of the three new prospective jurors. Defense counsel noted that both challenged jurors were White, and argued that the prosecution was engaged in a "pattern of racial discrimination." The trial court asked the prosecutor to place his reasons for these challenges on the record. The prosecutor promptly withdrew one of his challenges and explained that he felt the other challenged juror could not be fair and impartial to his witnesses "[b]ased on the fact in terms of age distinction, in terms of her lifestyle as opposed to the People's main witness' lifestyle which has already been made known to the Court, has a long history of criminal involvement." (Minutes of the Jury Selection Proceedings ("Minutes") at 103.)
At the start of the seventh round, one seat remained to be filled. A White prospective juror was called and was challenged peremptorily by the prosecution. Upon defense counsel's request, the trial court directed the prosecutor to state his reason for the challenge:
THE COURT: [M]ake your explanation for the record. That is all. They're preserving their record. They have a right to do that.
MR. LEVIN: I believe based on his background.
THE COURT: That is all. All right. As a computer operator.
In the eighth round, neither side challenged the prospective juror called to fill the last seat, and the jury was empaneled. It consisted of three Whites and nine persons who were Black or Hispanic. Neither side had used all of its peremptory challenges. The prosecution had used 12 of its 15 peremptory challenges; eight of these had been used to remove Whites. Petitioners had used 13 of their 15 peremptory challenges; two of these had been used to remove Whites.
At the hearing before Chief Judge Brieant, Levin testified as follows with respect to the general reasons for his peremptory challenges:
I was looking for a jury that would call the shots and be informed about the arson situation in the Bronx . . . ...