APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 74-2217).
Van Dusen, Hunter and Weis, Circuit Judges.
VAN DUSEN, Circuit Judge.
This is an appeal from an April 15, 1975, district court order, denying a motion of a convicted defendant, pursuant to 28 U.S.C. § 2255, to vacate and set aside a judgment and commitment after a jury verdict of guilty of bank robbery, in violation of 18 U.S.C. § 2113. On direct appeal of defendant's conviction, this court had affirmed the district court judgment in United States v. Savage, 470 F.2d 948 (3d Cir. 1972),*fn1 cert. denied, 412 U.S. 930, 37 L. Ed. 2d 158, 93 S. Ct. 2759 (1973).
Initially, Savage's petition for relief under 28 U.S.C. § 2255 had named "Hon. John B. Hannum" as respondent, and the district court denied the application to proceed in forma pauperis in September 1974. However, the United States was substituted as respondent by a November 8, 1974, district court order, filed on November 11 and subsequently served on the United States.*fn2 The record makes clear that although the final April 15, 1975, district court order denied the petition for reconsideration, the district court had considered the petition for relief under 28 U.S.C. § 2255 on the merits, thereby treating the application to proceed in forma pauperis in the district court as if it had been granted. Neither party objected in this court to treatment of the application to proceed in forma pauperis in the district court as if it had been granted.
A panel of this court, on November 4, 1975,*fn3 granted a motion filed by petitioner for leave to proceed in forma pauperis in this court and directed that counsel be appointed for Savage pursuant to 18 U.S.C. § 3006A(g).
After careful consideration of Savage's contentions, we have concluded that the April 15, 1975, district court order should be modified to provide that the motion to vacate sentence, rather than the application to proceed in forma pauperis, is "denied" and, as so modified, that order should be affirmed.
I. ALLEGED DENIAL OF CONSTITUTIONAL AND STATUTORY RIGHT TO TRIAL BY JURY DUE TO AN IMPROPER JURY SELECTION SYSTEM.
Savage contends, in accordance with the following paragraph of his petition, that the selection of jurors' names for the qualified jury wheel, as provided in the September 23, 1968, order of the United States District Court for the Eastern District of Pennsylvania, approved by the Reviewing Panel, in accordance with 28 U.S.C. § 1863,*fn4 denied him his constitutional and statutory right to trial by jury (5a):
"Petitioner attacks the Petit Jury ensemble because members of the Black race, of which he is a member, were improperly excluded from the list of prospective jurors and from the jury itself, thus depriving him of his Constitutional Rights. The Petit Jury list contained 195 names of whom 11 were Black, or approximately 6%. The panel as selected by the clerk contained 32 names, 4 of whom were Black. It is submitted that the Petit Jury list for the U.S. Eastern District Court embodies the eastern part of the State of Pennsylvania, and the prospective jurors come from that general area without any emphasis on a specific area. However, where as here, the Petitioner is Black; from the City of Philadelphia; the bank is located in the City of Philadelphia; it is respectfully submitted that the Petit Jury list should and must draw a larger percentage of prospective jurors from the City of Philadelphia and its Black population so as to give Petitioner a more representative background of his peers to judge him."
On the basis of the petitioner's allegations, 12 1/2% (4 of 32) of the panel from which the jury was selected were members of "the Black race." As pointed out in United States v. Lewis, 472 F.2d 252, 255 (3d Cir. 1973):
"The defendant had the right to a jury ' selected at random from a fair cross section of the community.' However, he had no right to be tried by a particular jury which was itself 'a fair cross section of the community "; nor did he have a right to a jury selected at random from the fair est cross section of the community. Thus, the defendant must establish that the voter registration lists from which the selection of his jury was made did not represent 'a fair cross section of the community.'" (Emphasis in original; footnote omitted.)
Savage, as the defendant in Lewis, suggests that other sources of names than those provided by the voter registration list would secure a fairer cross-section of the county in the district where he committed the crime (see pages 17 ff. of petitioner's brief, relying on data collected by "a professional statistician" after November 4, 1975).*fn5 He seeks an evidentiary hearing "to raise and discuss" apparently the applicable figures for 1970, even though he concedes that the data which he cites "refer to the master and qualified jury wheels in use in 1975."*fn6 It is contended that:
"Further study of the figures may show that not only was there a general under-representation of young people in the jury pool, but that in particular there was a substantial under-representation of young black persons in the jury pool, and that young black persons constitute a 'cognizable group' for ...