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GREEN v. UNITED STATES

July 24, 1997

MARK GREEN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.


EDUARDO C. ROBRENO, J.


The opinion of the court was delivered by: ROBRENO

EDUARDO C. ROBRENO

 JULY 24, 1997

 I. INTRODUCTION

 On February 11, 1993, petitioner was convicted by a jury of threatening a federal law enforcement official. The Third Circuit Court of Appeals affirmed the conviction and sentence. *fn1" Petitioner now moves to vacate his sentence and for a new trial claiming that the ineffectiveness of his counsel *fn2" violated his Sixth Amendment rights.

 Petitioner argues that under the Federal Rules of Criminal Procedure he was entitled to ten peremptory challenges. He contends that the trial court's failure to grant the petitioner's motion to strike a juror, who both parties agreed should be stricken for cause, forced him to use one of his ten peremptory challenges to remove that juror. Petitioner argues that by being required to "waste" one of his ten challenges in removing a juror who the Court should have removed for cause, his right to a full complement of ten peremptory challenges was impaired. Petitioner concludes that his appellate counsel's failure to raise on direct appeal the impairment of petitioner's right to a full complement of peremptory challenges constituted ineffective assistance of counsel. The Court agrees and, for the reasons that follow, will grant the petitioner's request for vacatur and a new trial.

 II. BACKGROUND

 During voir dire, juror number 16 advised the Court that he had a son who was a police officer with the Philadelphia Police Department, Trial Transcript of Feb. 9, 1993 at 1-70, that his son had been shot at while on duty and had his arm dislocated, Id. at 1-111, that for these reasons he would have difficulty being fair, objective and impartial, Id. at 1-82, 1-111 to 1-112, and that he felt he "would be on the side of the police officers completely." Id. at 1-111. Petitioner's counsel moved to strike juror number 16 for cause. Counsel for the government did not object. Id. at 1-120 to 1-121. The trial court, while initially indicating that it intended to excuse juror number 16, ultimately failed to include juror number 16 among the jurors who were excused for cause. Id. at 1-121, 1-123. *fn3"

 During jury selection, petitioner used all ten of the peremptory challenges afforded to him under Federal Rule of Criminal Procedure 24(b). One of the peremptory challenges was used to strike juror number 16. See Minute Sheet of Feb. 9, 1993 and Attached Impanelled Jury Strike List (doc. no. 45).

 After the jury returned a guilty verdict, petitioner filed a timely notice of appeal. Trial counsel was appointed to represent petitioner in his appeal. On appeal, petitioner's counsel did not contend that the trial court's failure to strike juror number 16 for cause had forced him to waste a peremptory challenge, thus impairing his right to the exercise of a full complement of ten peremptory challenges, as provided for in Federal Rule of Criminal Procedure 24(b).

 III. DISCUSSION

 A prisoner in custody under a sentence of a federal court may petition for relief of that sentence based on violation of a constitutional right, or a violation of federal law involving a "fundamental defect which inherently results in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428-29, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962). Section 2255 of title 28 of the United States Code provides in pertinent part:

 
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral ...

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