United States ex rel. Torres v. Mancusi

• Decision Date: 26 May 1970
• Docket Number: Docket 33641.,No. 295,295
• Citation: 427 F.2d 168
• Parties: UNITED STATES ex rel. Frank R. TORRES, Petitioner-Appellant, v. Vincent R. MANCUSI, Warden, Attica State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

427 F.2d 168 (1970)

UNITED STATES ex rel. Frank R. TORRES, Petitioner-Appellant, v. Vincent R. MANCUSI, Warden, Attica State Prison, Respondent-Appellee.

No. 295, Docket 33641.

United States Court of Appeals, Second Circuit.

Argued December 2, 1969.

Decided May 26, 1970.

Paul Windels, Jr., Francis E. Koch, Windels, Merritt & Ingraham, New York City, of counsel, for petitioner-appellant.

Arlene R. Silverman, Deputy Asst. Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen. of New York, for respondent-appellee.

Before WATERMAN, HAYS and FEINBERG, Circuit Judges.

PER CURIAM.

The appellant in this case, Frank R. Torres, was convicted by a special jury in the New York Supreme Court, New York County, of the crimes of murder in the second degree and assault in the first degree. Having exhausted his state remedies, he now seeks federal habeas corpus, alleging that his conviction should be held invalid on grounds that the use of a special or "blue-ribbon" jury in his case violated the due process and equal protection clauses of the Fourteenth Amendment to the Constitution. Through his assigned counsel he argues that the special jury did not represent a cross section of the community but contained more than an average number of educated and well-to-do persons. Therefore, Torres argues, the special jury was less well equipped than a general jury would have been to pass judgment upon his offense, which he represents was a crime of passion committed by a man of underprivileged background, frail in health, of low intelligence, and who had been working at poorly paid menial jobs. This argument was rejected by the court below, and we affirm on the authority of United States ex rel. Fein v. Deegan, 410 F.2d 13, 22 (2 Cir. 1969), where we recently disposed of exactly the same contentions raised here. There we stated:

"The * * * question presented by this appeal involves a double-barreled attack on the special jury convened by the trial court under the New York blue ribbon jury statute, former New York Judiciary Law § 749-aa, repealed, 1965 New York Laws ch. 778, § 3. First Fein urges that New York\'s blue ribbon jury statute was unconstitutional because it resulted in a significant overrepresentation of persons from higher income groups with a corresponding underrepresentation of those from lower income groups. The argument that Fein was thus convicted by an unrepresentative jury presents difficult issues. The analogy is drawn to Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), and Jones v. Georgia, 289 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967),

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