United States Court of Appeals, Eighth Circuit.August 1, 1980626 F.2d 75 (Approx. 4 pages)
626 F.2d 75
United States Court of Appeals,
Eighth Circuit.
UNITED STATES of America, Appellee,
v.
Merle O. GREENE, Jr., Appellant.
No. 80-1474.
Submitted July 24, 1980.Decided Aug. 1, 1980.
Attorneys and Law Firms
*76 Merle O. Greene, Jr., pro se.
Ronald S. Reed, Jr., U.S. Atty., and Kenneth Josephson, Asst. U.S. Atty., Kansas City, Mo., for appellee.
Before LAY, Chief Judge, and BRIGHT and HENLEY, Circuit Judges.
Opinion
PER CURIAM.
Merle O. Greene, Jr. appeals pro se from an order of the district court denying his petition to vacate sentence under 28 U.S.C. s 2255. Greene's petition claimed that the prosecutor, by exercising peremptory challenges against all black persons on the prospective jury panel, deprived him as a black person of due process and equal protection of the laws. The district court denied relief and Greene appeals.1 We affirm.
The issue raised by Greene is an important one in the administration of justice. The record, consisting of affidavits presented to the district judge in the section 2255 proceeding, shows that a panel of twenty-eight veniremen were present in the courtroom as prospective jurors for the trial, five of whom were black; that sixteen were excused through peremptory challenges; and that the Assistant United States Attorney, Mr. Kenneth Josephson, as prosecutor, struck six of those prospective jurors including all five black persons. As a result, no black person served on the jury.
On this appeal, the record shows no more than that the prosecutor in this case struck six jurors, five of whom were black. The record does not reveal whether the prosecutor made these strikes for a permissible or an impermissible reason. The prosecutor's conduct ordinarily will be presumed proper. United States v. Nelson, supra, 529 F.2d at 43.
Should the prosecutors' practices, as revealed here and in Carter, continue, we are sure that the district judges in the Western District of Missouri will take appropriate action. We believe trial judges in the exercise of their supervisory powers over the trial of criminal cases possess the power to require the prosecutor to discharge his duties in a fair, even, and constitutional manner, and thus ensure that no potential juror is denied the privilege of serving upon a jury solely because of his race. (United States v. Nelson, supra, 529 F.2d at 43 (citation omitted).)
The comment emphasizes that an attack on the jury selection process should be addressed to the trial judge before or during the trial. The trial judge possesses adequate power to take action to correct any constitutional or other deficiency in the jury selection process. We do not here decide that section 2255 provides no avenue of relief for a convicted defendant. We observe only that this procedure is an unlikely route because of the nature of the proof required to show a constitutional violation and, as already noted, because that proof ordinarily should be brought to the attention of the trial judge who can, in a proper case, provide an adequate and timely remedy.
Because the appellant in this case failed in his proof of an alleged constitutional violation, we affirm the denial of his section 2255 petition.