DONNIS GLEN HUMPHREY, PETITIONER V. UNITED STATES OF AMERICA No. 89-7605 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals affirming petitioner's conviction on direct appeal is reported at 808 F.2d 561. The opinion affirming the denial of collateral relief, Pet. App., is reported at 896 F.2d 1066. JURISDICTION The judgment of the court of appeals was entered on February 27, 1990. The petition for a writ of certiorari was filed on May 23, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner was entitled to a hearing on his claim, first asserted in a motion to vacate his sentence, that the place of his trial had been deliberately chosen by the government to limit the number of blacks willing to serve on the jury. STATEMENT After a jury trial in the United States District Court for the Southern District of Illinois, petitioner was convicted of kidnapping, conspiracy to transport a person in interstate commerce for immoral purposes, and the completed substantive Mann Act offense, in violation of 18 U.S.C. 1201(a)(1), 371, and 2421. Petitioner was sentenced to concurrent terms of 40 years' imprisonment on the kidnapping charge and 5 years' imprisonment on each of the other two counts. 1. The evidence is recited in the opinion of the Seventh Circuit on direct appeal. United States v. Jones, 808 F.2d 561 (7th Cir. 1986). It showed that early in the morning of July 6, 1983, two men abducted a woman outside a restaurant in St. Louis, Missouri, and forced her into a car occupied by two other men. The men drove to East St. Louis, Illinois, and stopped by a railroad building. They pulled the victim from the car, dragged her up an embankment, and stripped her of her clothing. One man attempted to force the victim to commit an act of oral sex. Another attempted to rape her. The men fled in their car when a railroad policeman arrived on the scene. One of the men left behind his trousers, undershorts, and an identification card bearing the name Erick Mitchell. Id. at 563-564. The railroad policeman radioed for help. He broadcast the car's description and license number. Shortly thereafter, St. Louis police stopped the car. Petitioner was one of four men found in the car. Another man, Erick Mitchell, was naked from the waist down. The victim, en route to the hospital, stopped and identified the four men as her attackers. 808 F.2d at 564. 2. Petitioner and his companions were charged in Missouri state court with forcible rape, attempted rape, and kidnapping. A federal complaint charging kidnapping was also lodged, but it was dismissed while the four men were being tried in the state court. The state trial ended in an acquittal. 808 F.2d at 564. The United States Attorney obtained approval to reinstate the federal charges and the four men were subsequently indicted in the Southern District of Illinois. Three separate trials were held in the Alton division of that district. Mitchell was tried first and convicted. Bryant Jones was separately tried and also convicted. Finally, petitioner and Curtis Young were tried jointly and convicted. 808 F.2d at 564. 3. The direct appeals of petitioner, Jones, and Young were consolidated. They raised several issues, some of constitutional dimension (e.g., double jeopardy, speedy trial, and ineffective assistance of counsel). All of the claims were rejected and the convictions were affirmed. United States v. Jones, 808 F.2d 561 (7th Cir. 1986). 4. Seven months after the affirmance of his conviction, petitioner filed with the district court a motion to vacate pursuant to 28 U.S.C. 2255. The district court's disposition of that motion is the subject of the present petition. Petitioner, who is black, alleged for the first time that by choosing to try him in Alton, Illinois rather than East St. Louis, the government denied him equal protection and his right to trial by a jury representing a fair cross-section of the community. The government did so, petitioner argued, because the population of East St. Louis was 95% black whereas the population of Alton was 80% white. Petitioner claimed that as a result he and his companions were tried by all-white juries. Petitioner also alleged that the government had wrongly exercised its peremptory challenges to strike blacks from the petit jury. In response, the government pointed out that (1) Alton and East St. Louis are both divisions of the Southern District of Illinois, and the government had no role in deciding where the trial was conducted; (2) the composition of the jury would have been the same whether the case were tried in East St. Louis or Alton, since the venire was selected from a common master wheel; (3) petitioner had made no contemporaneous objection on the ground that the peremptory challenges were improperly exercised, and the absence of an objection barred relief under Batson v. Kentucky, 476 U.S. 79 (1986), the case relied upon by petitioner in his peremptory challenge argument and decided while petitioner's appeal was pending. The district court denied relief without a hearing. Pet. App. It agreed with the government that the Constitution had not been violated because petitioner's case was randomly assigned by the court clerk to Alton; the government had no influence over the choice of venue. Furthermore, the assignment had no bearing upon the composition of the jury. The district court rejected petitioner's Batson claim because he failed to make a timely objection. Nor did petitioner make a prima facie showing of purposeful discrimination to satisfy the pre-Batson standard of Swain v. Alabama, 380 U.S. 202 (1965). After the district court's order had issued, the government examined petitioner's trial record more closely and discovered that it had exercised only a single peremptory challenge during jury selection, and that challenge was not directed against a black member of the venire. Upon being informed of this discovery, the district court issued an order supplementing the record to reflect the fact that the government had not challenged any black jurors in petitioner's trial. As a consequence, petitioner abandoned his Batson argument on appeal of the denial of his Section 2255 motion. See Pet. App. 1068 n. 3. Petitioner nonetheless persisted in his other jury selection attacks and added that he should have been accorded a hearing to press his arguments. The court of appeals rejected petitioner's claims and affirmed the district court's denial of relief. Pet. App. 1067-1070. ARGUMENT Petitioner claims entitlement to a hearing. The governing statute, 28 U.S.C. 2255, provides that a hearing need not be conducted if the motion, files, and records conclusively show that the movant is not entitled to relief. See Sanders v. United States, 373 U.S. 1, 6 (1963). The courts below properly found that petitioner is not entitled to a hearing. 1. As a prerequisite to a hearing, petitioner had an obligation to show cause for not asserting the jury selection claim on direct appeal and actual prejudice from the errors of which he complains. United States v. Frady, 456 U.S. 152, 168 (1982). Petitioner has failed even to allege cause and prejudice in his petition to this Court. 2. Moreover, petitioner's allegations of systematic exclusion of black jurors in his own trial and the trial of his companions is totally undocumented or otherwise supported by any meaningful analyses. He has offered nothing to counter the findings below that the government had no part in the determination of the locus of his trial and that the composition of the venire would have been substantially the same whether he were tried in Alton or East St. Louis. He has failed to show that the representation of blacks in venires in general is not fair and reasonable in relation to their numbers in the community, and he has not shown that whatever under-representation exists can be attributed to systematic exclusion in the jury selection process. Thus, petitioner has not presented any claims that remotely suggest the presence of data likely to support two of the three factors required to be shown in order to establish a prima facie violation of the constitutional requirement that a jury be chosen from a fair cross-section of the community. Duren v. Missouri, 439 U.S. 357, 364 (1979). Petitioner argues that, to establish systematic exclusion, all that he need do is show that the number of blacks who report for jury duty in Alton is significantly less than the number who appear in East St. Louis. Pet. 8. Petitioner fails to satisfy even his own relaxed standard, however, because he does not establish (or indicate that he can establish) any such disparity in fact. Tellingly, petitioner offers no studies suggesting that a significant number of blacks refrain from serving on juries in Alton, or that the criteria for excusing jurors from service are different in Alton, thereby causing so many blacks to be excused as to result in a constitutional infirmity in the jury selection process. The district court's time and resources need not be expended to provide petitioner an opportunity to pursue further his unsupported conjecture. Aleman v. United States, 878 F.2d 1009, 1012-1013 (7th Cir. 1989); Coleman v. McCormick, 874 F.2d 1280, 1284-1285 (9th Cir.), cert. denied, 110 S. Ct. 349 (1989). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General MERVYN HAMBURG Attorney OCTOBER 1990