holding that our review of a prosecutor’s conduct in a state trial in a federal habeas proceeding is limited to determining whether the prosecution’s conduct “so infect[ed] the trial with unfairness as to make the resulting conviction a denial of due process.” (quoting Greer, 488 U.S. at 765, 107 S.Ct. 3102)
How later courts described this case
- holding that our review of a prosecutor’s conduct in a state trial in a federal habeas proceeding is limited to determining whether the prosecution’s conduct “so infect[ed] the trial with unfairness as to make the resulting conviction a denial of due process.” (quoting Greer, 488 U.S. at 765, 107 S.Ct. 3102)
- finding that two telephone surveys covering a two-year period were of “brief duration and limited sample size,” thereby “undermin[ing] an inference that substantial underrepresen-tation of blacks took place over a significant period of time”
- collecting cases and noting “[cjourts addressing the question of whether a given absolute disparity constitutes ‘substantial underrepresentation’ have held that absolute disparities between 2.0% and 11.5% do not constitute substantial underrepresentation”
- noting that the “mechanism used to create the source lists was facially neutral with respect to race,” as the New Jersey county in question “utilized voter registration and Department of Motor Vehicle lists to create its jury venire”
Written by the judges who cited it.
The opinion
GREENBERG, Circuit Judge,
concurring.
I join in Judge Roth’s opinion for the court and the judgment reached but express one reservation regarding the opinion which may have significant implications for *1240 future eases. 1 The parties have briefed and argued the case on the assumption that if there was a constitutional violation in the selection of the grand jury which indicted Ramseur either by reason of the excusing of particular persons from service on it or because of the overall method of selection of grand juries in Essex County at the time of his indictment, he will be entitled to a new trial. Judge Roth’s opinion agrees with this assumption. Typescript at 13 n. 5.
Nevertheless, this assumption might not be correct. There is no federal constitutional requirement that states try criminal cases, even for murder, only after the defendant is indicted. See Hurtado v. California, 110 U.S. 516 , 4 S.Ct. 111 , 28 L.Ed. 232 (1884); United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 425 (3d Cir.1975). Thus, in New Jersey, indictments are required, unless waived, in criminal cases only as a matter of state law. Of course, since New Jersey uses the indictment system, it may not exclude a potential juror from service on the grand jury on the basis of race. Accordingly, a petitioner tried in a New Jersey court on an indictment returned by a grand jury from which jurors have been excluded on a racial basis is entitled to federal habeas corpus relief, provided that the other prerequisites to relief are satisfied. See Vasquez v. Hillery, 474 U.S. 254 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986).
In Vasquez the Court indicated that the relief granted in a habeas corpus proceeding to a successful petitioner is a “reversal of the conviction.” Id. at 255 , 106 S.Ct. at 619 . Nevertheless, a federal habeas proceeding is a civil action separate from the criminal case so that when a petitioner is successful, the federal court “cannot revise the state court judgment; it can act only on the body of the petitioner.” Fay v. Noia, 372 U.S. 391, 431 , 83 S.Ct. 822, 844 , 9 L.Ed.2d 837 (1963). 2 See also Sedivy v. Richardson, 485 F.2d 1115, 1117 (3d Cir.1973), (“federal habeas corpus [is] an inquiry into ‘detention simpliciter,’ [and] is not a direct review of a state or military court judgment”), cert. denied, 421 U.S. 910 , 95 S.Ct. 1559 , 43 L.Ed.2d 774 (1975). Therefore, a “reversal” of a conviction in a habe-as case does not disturb the judgment of conviction and accordingly it differs from a conventional reversal on a direct appeal.
Thus, a court granting habeas relief will specify what must be done if the petitioner is to be retained in custody. Obviously if an indictment is tainted because the court excluded grand jurors on a racial basis a new indictment will be required for, as indicated in Vasquez , “a conviction cannot be understood to cure the taint attributable to a charging body selected on the basis of race [for] we simply cannot know that the need to indict would have been assessed in the same way by a grand jury properly constituted.” Id. at 264 , 106 S.Ct. at 624 .
But it does not necessarily follow that simply because a conviction cannot cure an earlier defective indictment, a valid indictment for the precise offense of which the petitioner was convicted cannot cure an earlier conviction defective only because the original indictment was flawed. In fact, it would seem logical to hold that if an otherwise valid conviction must be reversed solely because the indictment on which it was predicated was constitutionally defective, when a new indictment is returned for the offense for which the petitioner was convicted, the judgment of conviction which was reversed only in the limited sense that it could not be the basis for holding the petitioner in custody may then be recognized as valid for that purpose.
*1241 The Court in Vasquez did not address this possibility nor did it do so in Rose v. Mitchell, 443 U.S. 545 , 99 S.Ct. 2993 , 61 L.Ed.2d 739 (1979), on which it relied in Vasquez , though the Court did indicate that remedies other than reversal to cure the discrimination in the selection of grand jurors “are ineffectual.” Vasquez, 474 U.S. at 262 n. 5, 106 S.Ct. at 623 n. 5. Accordingly, while there can be no doubt that the Court in Vasquez affirmed a judgment of the court of appeals providing that the petitioner was to be released unless retried, the Court did not consider whether the return of a new indictment in itself could justify the holding of the petitioner in custody. Therefore, we should not consider that possibility foreclosed as an inferior federal court should not be quick to hold that the Supreme Court has rejected an argument it never considered. See Biasband v. Rales, 971 F.2d 1034, 1042-43 (3d Cir.1992).
My suggestion that the return of a valid indictment following a conviction might justify the recognition of the state judgment as valid does not introduce a harmless error analysis into eases dealing with racial discrimination in grand jury selection. Quite to the contrary it treats the discrimination as prejudicial and addresses the remedy for it. Furthermore, my suggestion is consistent with the requirement in Vasquez that convictions based on constitutionally invalid indictments must be reversed for I am only dealing with the procedures which follow a reversal.
My suggested analysis is dependent upon the law that there is no federal constitutional right to indictment in state criminal cases for in the absence of such a right it may plausibly be contended that there cannot be a federal right to a valid indictment before the conviction. Arguably the federal constitutional right to a valid indictment would be vindicated fully by an indictment returned after the trial because a post-trial indictment would satisfy the Court’s concern in Vasquez that “we simply cannot know that the need to indict would have been assessed in the same way by a grand jury properly constituted.” Vasquez, 474 U.S. at 264 , 106 S.Ct. at 624 . Obviously, if a grand jury after a trial indicts a defendant then a court will know how it assessed the need to indict.
Of course, I recognize that a state court might feel obliged as a matter of state law to set aside a conviction returned on the basis of an indictment held invalid under federal law. But that would not be a federal court’s concern. See Geschwendt v. Ryan, 967 F.2d 877, 889 (3d Cir.) (in banc), cert. denied, — U.S. -, 113 S.Ct. 472 , 121 L.Ed.2d 379 (1992).
The analysis I am suggesting finds support in our case law in which in proceedings under 28 U.S.C. § 2255 , following federal convictions, we limit remedies for constitutional violations to the problem at hand but go no further. Thus, we recently held in United States v. Day, 969 F.2d 39 (3d Cir.1992), that a petitioner who turned down an advantageous plea offer before trial and later was convicted might be entitled to accept the offer even after trial if he rejected the offer because of constitutionally deficient advice from an ineffective attorney. In Day we quoted from United States v. Morrison, 449 U.S. 361, 364 , 101 S.Ct. 665, 668 , 66 L.Ed.2d 564 (1981), that a remedy for a Sixth Amendment violation “should be tailored to the injury suffered and should not unnecessarily infringe on competing interests.” Earlier in United States v. DeFalco, 644 F.2d 132 (3d Cir.1979) (in banc), we held that absent his waiver to effective assistance of counsel on direct appeal, a petitioner whose conviction had already been affirmed would be entitled to an appeal de novo from his conviction if his attorney on his direct appeal pleaded guilty to criminal charges in the district court before the petitioner’s appeal was decided.
Day and DeFalco are instructive for they respectively involved alleged constitutional violations before and after the trial and in neither case did we suggest that the remedy should be a new trial. Rather, in the words of Morrison , we tailored the remedy “to the injury suffered.” If we did that in federal cases in which we were not concerned with federal-state comity interests, it reasonably can be argued that we *1242 should be at least as reluctant in a federal habeas corpus case following a state conviction to grant a remedy which forever invalidates a conviction as a basis to hold a petitioner in custody when the constitutional flaw arguably can be isolated from the trial. Day may be particularly significant in this regard because if the petitioner in that case was correct in his contentions then he should have never been tried.
In view of the aforesaid I write separately to state my view that it should not be assumed from the court’s opinion in this case that a petitioner successfully challenging the composition of the grand jury on the ground that jurors were excluded from it on a racial basis necessarily is entitled to a new trial. I regard the question as open as it does not have to be decided here.
. While Ramseur’s case has failed on the facts, in view of the system used for grand jury selection in Essex County when he was indicted it is possible that some other petitioner will be able to make a showing that in his or her case grand jurors were excused on a racial basis.
. Fay v. Noia was overruled on other grounds in Coleman v. Thompson, — U.S. -, -, 111 S.Ct. 2546, 2562 , 115 L.Ed.2d 640 (1991). But in Coleman the Court reaffirmed Fay v. Noia on the point for which I cite it as the Court indicated that when a federal court reviews a state prisoner’s habeas petition it “does not review a judgment, but the lawfulness of the petitioner’s custody simpliciter.” Id. at -, 111 S.Ct. at 2554 .