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GREEN v. UNITED STATES

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


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

MEMORANDUM

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 attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

 

A motion for such relief may be made at any time.

 

. . . If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

 28 U.S.C. § 2255.

 As a basis for his petition, petitioner claims an infringement or denial of his constitutional right to effective assistance of counsel guaranteed by the Sixth Amendment. U.S. Const. amend. VI. The alleged ineffectiveness was his appellate counsel's failure to appeal the impairment of his right to a full complement of peremptory challenges provided for in Federal Rule of Criminal Procedure 24(b). Rule 24(b) provides in pertinent part: "If the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges." Fed. R. Crim. P. 24(b). Petitioner argues that, by failing to strike juror number 16 for cause, the trial court forced him to use one of his peremptory challenges to remove juror number 16, and effectively reduced petitioner's peremptory challenges from ten to nine.

 A violation of Rule 24(b) claim, because it raises a statutory and not a constitutional claim, ordinarily would not form a basis for relief under section 2255. However, the ineffectiveness of counsel in not raising a statutory claim on appeal can constitute a valid constitutional claim. "Although nonconstitutional issues cannot serve as an independent basis for section 2255 relief, . . . .ineffective assistance of counsel, because it is a constitutional issue, can . . . serve as a valid basis for section 2255 relief." Belford v. United States, 975 F.2d 310, 313 n.1 (7th Cir. 1992).

 A Sixth Amendment claim based on "[a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

  A. The Deficiency Prong of Strickland

 To satisfy the deficiency prong of Strickland, the petitioner must show that "counsel's representation fell below an objective standard of reasonableness" which is "simply reasonableness under prevailing professional norms. . . . considering all the circumstances." Id. at 688.

 

In reviewing counsel's performance, we "must be highly deferential." . . . We "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." . . . Moreover, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"

 Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (quoting Strickland, 466 U.S. at 689-90) (citation omitted). Additionally, the petitioner "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland, 466 U.S. at 690.

 Petitioner here alleges, inter alia, that the omission by counsel which fell below an objective standard of reasonableness was counsel's failure to appeal the impairment of the petitioner's statutory right to a full complement of ten peremptory challenges. "The fact that the nonconstitutional issues were not raised on direct appeal can be used as evidence of ineffective assistance of counsel." Belford, 975 F.2d at 313 n.1.

 The failure to appeal a particular issue does not per se amount to representation falling below an objective standard of reasonableness. For example, counsel may decide to concentrate his fire on the most meritorious claims and forego less likely to succeed or marginal claims in the interest of focus and clarity of advocacy. "Appealing losing issues 'runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions.' [ Jones v. Barnes, 463 U.S. 745, 753, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983)]. Indeed, the 'process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.'" Sistrunk, 96 F.3d at 670 (quoting Smith v. Murray, 477 U.S. 527, 536, 91 L. Ed. 2d 434, 106 S. Ct. 2661(1986)) (internal quotations and citation omitted).

 The instant case, however, does not involve such a tactical decision. Rather, as discussed below, it is clear that petitioner had a high probability of succeeding on the merits of the omitted claim and there is nothing to suggest that the failure to do so was the result of counsel's reasoned judgment. Therefore, counsel's failure to raise this claim on appeal constituted a considerable oversight. "'Where the deficiencies in counsel's performance are severe and cannot be characterized as the product of strategic judgment,' the first prong of Strickland is clearly met." Hull v. Freeman, 932 F.2d 159, 167 (3d Cir. 1991) (quoting United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)).

 The Court concludes that because the petitioner's claim of impairment of the statutory right to a full complement of peremptory challenges was plainly apparent on the trial record, had a high probability of success, and was not foregone on the basis of a tactical decision, the failure to raise it on appeal fell below the objective standards of reasonableness required under Strickland. See, e.g., United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1996) (finding that counsel's failure to investigate possibility of an insanity defense fell below an objective standard of reasonableness); United States v. Headley, 923 F.2d 1079, 1084 (3d Cir. 1991) (finding below an objective standard of reasonableness trial counsel's failure to request a downward adjustment based on the defendant's minor or minimal role in the offense where counsel had been put on notice by the presentence investigation report that such a request "might have been fruitful"); Conhaim v. United States, 1996 U.S. Dist. LEXIS 13374, Civ. A. No. 96-547, 1996 WL 527346 (N.D. N.Y. Sept. 9, 1996) (finding below an objective standard of reasonableness appellate counsel's failure to appeal a violation of defendant's right to address the court at sentencing, pursuant to Federal Rule of Criminal Procedure 32(c)(3)(C)).

 B. The Prejudice Prong of Strickland

 To satisfy the prejudice prong of Strickland, "it is not enough to show that the errors had some conceivable effect on the outcome of the proceeding," rather, the petitioner "must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 693-94. Petitioner alleges that, had his counsel appealed the alleged denial or infringement of petitioner's right to peremptory challenges, there would have been a reasonable probability that petitioner would have been granted a new trial. *fn4"

 It is the rule in the Third Circuit that "compelling a party to use any number of its statutorily-mandated peremptory challenges to strike a juror who should have been removed for cause is tantamount to giving the party less than its full allotment of peremptory challenges." Kirk v. Raymark Industries, Inc., 61 F.3d 147, 157 (3d Cir. 1995), cert. denied, 134 L. Ed. 2d 95, 116 S. Ct. 1015 (1996). This type of impairment or denial of a peremptory challenge, the Third Circuit has concluded, constitutes reversible error per se. Id. at 160. Thus, under Third Circuit jurisprudence, it is clear that, had the impairment of petitioner's statutory right to a full complement of peremptory 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.

 IV. CONCLUSION

 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.

 ORDER

 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.


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