UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
argued: September 9, 1976.
MR. TYRONE X. SAVAGE, APPELLANT
UNITED STATES OF AMERICA
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.
Author: Van Dusen
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 purposes of petitioner's constitutional and statutory rights as discussed herein."*fn7
Based on the holding in Lewis, supra at 255, we have concluded that petitioner has failed to sustain his burden on this issue.*fn8 See also Smith v. United States, 456 F.2d 121, 122 (3d Cir. 1972); Evans v. United States, 435 F.2d 708 (3d Cir.), cert. denied, 401 U.S. 1014, 28 L. Ed. 2d 551, 91 S. Ct. 1263 (1970). We find no violation of petitioner's constitutional or statutory rights in the Jury Selection Plan of the United States District Court for the Eastern District of Pennsylvania as it operated in this case in 1970.
II. ALLEGED DENIAL OF A REQUEST OF PETITIONER'S COUNSEL TO INQUIRE DURING THE VOIR DIRE EXAMINATION AS TO POSSIBLE RACIAL PREJUDICE OF THE PROSPECTIVE JURY PANEL.
The record in this case discloses that after the jury panel had been questioned by the trial judge, he asked counsel "if there are any other questions that either of you might have" (N.T. 158 of Document 37 in E.D. Pa. Crim. No. 70-162, proceedings on 10/9/70). The counsel for defendant had furnished to the trial judge a two-page typed list of suggested questions numbered from 1 to 18, with the following question written in longhand on page 2 after question 18:
"Would the fact that the defendant is black affect your ability to reach a just and fair verdict in this case?"
Counsel for defendant responded to the court's question by requesting that the panel be asked questions Nos. 5, 10, 12-14, 16 and 17 from the typed list. The trial judge denied all the requests except for No. 17, and one potential juror was excused after this question was read to the jury (N.T. 162). Court then recessed for lunch. After lunch counsel exercised their challenges (N.T. 169-172), the jury was sworn (N.T. 172), and the trial judge gave the jury certain preliminary instructions (N.T. 172-79).
There was no request at any time on the record that the trial judge ask the jury the handwritten question appearing on defense counsel's list of potential questions for jurors. No affidavit has been filed by trial counsel that the court was requested to ask the jury this question, even though such counsel made available to the prosecutor prior to January 10, 1975, the list of 18 typed questions and one handwritten question referred to above, in addition to signing a sworn statement (62a) that this list was the document he used at trial to the best of his recollection. See Document 6 in Savage v. United States, Civil No. 74-2217 (E.D. Pa.).*fn9
Under these circumstances, the court rejects the contention of the present counsel for petitioner that "the essential demands of fairness and the exercise of the supervisory power of the Supreme Court and of this Court require that an evidentiary hearing be held on the allegation that the district judge improperly denied the request of petitioner's court-appointed trial counsel to inquire as to possible racial prejudice of the prospective jury panel during the voir dire examination" (page 1 of petitioner's Supplemental Brief). Able counsel for petitioner has not been able to call our attention to any case where it has been held that a hearing should be required more than three years after the exhaustion of all direct appeals, without any showing that such a request was made to the trial judge prior to or during the trial. It has been consistently recognized that, although it is reversible error for a trial judge to refuse a request to interrogate jurors as to possible racial prejudice, where counsel remains silent when he has the opportunity to make such a request, an objection to the failure to ask the jury a question concerning possible racial prejudice made after the jury trial is too late. See United States v. Leftwich, 461 F.2d 586, 589 (3d Cir. 1972).*fn10 In Ristaino v. Ross, 424 U.S. 589, 597 at note 9, 47 L. Ed. 2d 258, 96 S. Ct. 1017 (1976), relied on by petitioner, the Court made clear that such questions should be asked "if requested by defendant," using this language:
"Although we hold that voir dire questioning directed to racial prejudice was not constitutionally required, the wiser course generally is to propound appropriate questions designed to identify racial prejudice if requested by the defendant." (Emphasis supplied.)
As noted above, no request for questioning the jurors on this subject was made until this action was commenced in August 1974, more than three years after the trial.
For the foregoing reasons, the district court's April 15, 1975, order will be modified*fn11 to read:
" AND Now, this 15th day of April, 1975, Tyrone X. Savage is permitted to proceed in forma pauperis nunc pro tunc as of November 8, 1974, and his application to vacate sentence pursuant to 28 U.S.C. § 2255 is denied."
and, as so modified, the district court order of April 15, 1975, will be affirmed.