Alburquerque v. Bara

• Decision Date: 31 July 1980
• Docket Number: No. 967,D,967
• Citation: 628 F.2d 767
• Parties: Hector ALBURQUERQUE, Petitioner-Appellant, v. Raymond BARA, Superintendent of Queensboro Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents-Appellees. ocket 80-2023.
• Court: U.S. Court of Appeals — Second Circuit

Page 767

628 F.2d 767

Hector ALBURQUERQUE, Petitioner-Appellant, v. Raymond BARA, Superintendent of Queensboro Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents-Appellees.

No. 967, Docket 80-2023.

United States Court of Appeals Second Circuit.

Argued March 26, 1980.

Decided July 31, 1980.

Oren Root, Jr., The Legal Aid Society, New York City (William E. Hellerstein, The Legal Aid Society, New York City, of counsel), for petitioner-appellant.

Clement H. Berne, Asst. Atty. Gen., of the State of New York, New York City (Robert Abrams, Atty. Gen., of the State of New York, George D. Zuckerman, Asst. Sol. Gen., of the State of New York, New York City, of counsel), for respondents-appellees.

Before KAUFMAN and MESKILL, Circuit Judges, and BRIEANT, ^* District Judge.

MESKILL, Circuit Judge:

Hector Alburquerque appeals from a judgment entered in the United States District Court for the Eastern District of New York (Platt, J.) dismissing his petition for a writ of habeas corpus. Alburquerque had sought release from New York State custody following his conviction for robbery in the first degree on the ground that the exemption of women from jury service as provided under a then operative state statute denied him his right to a representative venire as guaranteed under the Sixth and Fourteenth Amendments to the Constitution. After Alburquerque's quest for relief had travelled the tortuous path detailed below, Judge Platt dismissed the petition finding that Alburquerque had not adequately raised the objection before trial as required under a procedural provision of state law and that habeas corpus relief was therefore barred under the holding of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). We disagree with that conclusion and, for the reasons set forth below, vacate the judgment and remand to the district court for findings of fact and conclusions of law on the merits of Alburquerque's claim.

I.

(FACTUAL BACKGROUND)

Prior to commencement of his trial in Supreme Court, Queens County, Alburquerque in accordance with New York Criminal Procedure Law § 270.10 (McKinney) ¹ interposed a timely, written challenge to the composition of his prospective jury panel. In essence, he asserted that the array from which his panel would be drawn was not fairly representative of the community as a whole because women, though summoned and required to appear for jury duty, were permitted under a then operative provision of state law ² to claim an exemption. This procedure, in Alburquerque's view, necessarily resulted in the substantial underrepresentation of women in the array and violated the Sixth Amendment guarantee of a properly selected jury, a right which had been elucidated only two weeks earlier in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). In striking down a Louisiana statute exempting all women from jury service, that decision held that methods of constituting venires which, to a significant degree, resulted in the systematic exclusion of distinct groups were repugnant to the constitutional right to jury panels drawn from a fair cross-section of the community. The Supreme Court subsequently decreed that a prima facie violation of the fair cross-section requirement had been established where a petitioner demonstrated that due to systematic exclusion in the jury selection process, a jury venire composed of only 15 percent women was chosen from a community where 54 percent of the population was female. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

At the ensuing pretrial hearing Alburquerque orally elaborated upon this contention. Because of its bearing upon the waiver issue, we set forth at some length the relevant portions of the colloquy among Alburquerque's counsel, the assistant district attorney and the court:

(THE COURT): I gather that this is a challenge to the panel, jury panel, on the ground that there's not a fair cross section of the community in that eligible women are grossly under-represented therein.

Now what do you want to say?

(DEFENSE COUNSEL): I would like to say first sir, in support of that motion, the panel that is going to eventually try these defendants; while they are not before the Court now, they are composed of jurors who have I believe concededly been picked according to the New York State law which grants a blanket exemption to women who choose to take that exemption, and that a woman, for no other reason aside from her sex, has absolute right to it.

I think that controverts the recent Supreme Court case, Taylor vs Louisiana, where the Louisiana Statute, although in the reverse where the concept in Louisiana was that all women were not called for jury duty unless they specifically requested to be called; the results were the same.

Now I might further add, Your Honor, that I don't believe it truly matters what type of panel is brought over here this morning. I would submit to Your Honor that even if eighty percent of the panel that's brought over here this morning were women, the panel would still be defective in that the women who would be brought over would be women who had specifically refused their exemption and who are acting in the role of professional jurors.

(ASSISTANT DISTRICT ATTORNEY): Your Honor, we would take a position that the panel that is going to be before you is constitutionally drawn within the mandate of the Taylor case.

It's pointed out that unlike Louisiana, where women did not have to claim an exemption, in this state women do have to affirmatively claim an exemption.

I would also point out that counsel, in his moving papers, neither counsel points out any facts which would indicate that this panel is going to be affirmatively grossly under-represented by women in this case.

(THE COURT): Well, the Court understands that the basis for the application is predicated on the recent United States Supreme Court decision in Louisiana.

Well, the Court takes the position that the law that was declared unconstitutional regarding the women jurors in Louisiana, is a different statute to that which we have in New York.

In other words, there is a difference between the Louisiana Code of Criminal Procedure provision and the provisions in our Judiciary Law, which is Section 599, Subdivision 7.

And our statute does not automatically prevent women from serving. It provides that a woman is entitled to exemption from service upon claiming exemption therefrom.

That statute is different than the Louisiana matter, where a woman would not be selected for jury service unless she made an affirmative declaration of her desire to so do.

And accordingly, the Court takes the position that the constitution of the panel that's coming over is proper and legal, and the application is denied, with exception to each defendant.

After the panel entered the courtroom, the trial judge, at the behest of Alburquerque's counsel, noted that of 70 prospective jurors, seven were women. The objection was renewed in light of this statistic, but was again denied.

The case was tried and Alburquerque, together with a co-defendant who is not a party to this proceeding, was adjudged guilty of robbery in the first degree. Alburquerque appealed to the Appellate Division, Second Department, where he argued, inter alia, that the trial court erred in denying his objection to the composition of the jury panel without affording him a suitable opportunity to air his claim. The Appellate Division affirmed the conviction without opinion, People v. Alburquerque, 61 App.Div.2d 1141, 402 N.Y.S.2d 699 (2d Dept. 1978), and the Court of Appeals denied leave to appeal, People v. Alburquerque, 44 N.Y.2d 853, 406 N.Y.S.2d 1030, 378 N.E.2d 128 (1978).

While still in state custody on Long Island, Alburquerque filed a petition for a writ of habeas corpus in the court below premised solely upon the alleged deprivation of Sixth and Fourteenth Amendment rights resulting from the availability to women of an exemption from service under the New York jury selection statute. Although Alburquerque's objection had been raised in writing and prior to trial, respondents urged that because Alburquerque had not at that time submitted detailed figures and statistics regarding the number of women willing to serve on juries, he had failed to comply with Criminal Procedure Law § 270.10(2)'s requirement that ". . . the facts constituting the ground of challenge . . ." be set forth. Consequently, respondents argued that relief was barred under the doctrine of Wainwright v. Sykes, supra. ³ Alternatively, respondents asserted that owing to Alburquerque's failure to submit such data to the state trial judge, he had not raised a challenge of constitutional dimension, that the state courts had not been presented an opportunity to rule upon the matter and that consequently, Alburquerque had not exhausted his state remedies.

Recognizing the expertise of the state courts in deciding whether their own statutes have been sufficiently followed and in view of the silence of the state appellate courts on the subject, Judge Platt attempted to fashion a procedure whereby the local courts would render a determination on the limited issue of Alburquerque's waiver of objection to the composition of his jury panel. While retaining jurisdiction over the case, the district judge invited the state courts to make an express finding on the issue of Alburquerque's compliance with the pretrial objection provision of Criminal Procedure Law § 270.10. In effect, the issue was remanded to the state courts with a request to rule explicitly on "the question of whether petitioner has waived as a matter of state law his right to a hearing on the issue of whether the procedure employed to select a jury . . . comported with the applicable constitutional requirement . . . ." In the event it was concluded that there was no waiver of objection, the ...