challenges been raised on direct appeal, it was likely that petitioner would have been granted a new trial.
The Court recognizes that Kirk is a civil case and that it was decided in 1995, a full year after the petitioner's appeal was decided by the Third Circuit. The Kirk court, however, relied heavily on the teachings of United States v. Ruuska, 883 F.2d 262 (3d Cir. 1989), a criminal case, decided five years before Kirk, in which the Third Circuit held that an impairment of the right to peremptory challenges was per se reversible error. In any event, the government concedes that, in light of Ruuska, the rule announced in Kirk, mandating a reversal per se in cases where a party is forced to "waste" a peremptory challenge as a result of the court's failure to strike a juror for cause, was the controlling rule in criminal cases in the Third Circuit at the time petitioner's direct appeal was decided. Given that petitioner has shown that counsel's conduct caused him prejudice, the Court concludes that the second prong of Strickland is satisfied.
The petitioner, having successfully shown that the failure to appeal the impairment of his right to a full complement of peremptory challenges fell below an objective standard of reasonableness, and that the resulting deficiency prejudiced the outcome of his appeal, the Court concludes that petitioner was denied his Sixth Amendment right to effective assistance of counsel. Therefore, petitioner's request for vacatur and a new trial is granted pursuant to section 2255 of title 28 of the United States Code. An appropriate order follows.
AND NOW, this 24th day of July, 1997, upon consideration of petitioner's petition to vacate, set aside or correct sentence and for a new trial pursuant to 28 U.S.C. § 2255 and supporting memoranda (doc. nos. 95 & 110), and the government's responses thereto (doc. nos. 99, 101 & 111), it is ORDERED that the petitioner's motion is GRANTED petitioner's sentence is hereby vacated and a new trial is ordered.
It is FURTHER ORDERED that the government shall have 70 days to retry the petitioner, unless otherwise ordered by the Court.
AND SO IT IS ORDERED.
EDUARDO C. ROBRENO, J.