406 F.2d 50 (5th Cir. 1969), 26179, Salisbury v. Grimes

Docket Nº:26179.
Citation:406 F.2d 50
Party Name:Henry Cook SALISBURY, Appellant, v. T. Ralph GRIMES, Sheriff of Fulton County, Georgia, Appellee.
Case Date:January 14, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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406 F.2d 50 (5th Cir. 1969)

Henry Cook SALISBURY, Appellant,

v.

T. Ralph GRIMES, Sheriff of Fulton County, Georgia, Appellee.

No. 26179.

United States Court of Appeals, Fifth Circuit.

January 14, 1969

Hoke Smith, William V. Hall, Jr., Atlanta, Ga., for appellant.

Lewis R. Slaton, Sol. Gen., J. Robert Sparks, J. Walter LeCraw, Tony H. Hight, Asst. Sols. Gen., Atlanta, Ga., for appellee.

Before BELL and COLEMAN, Circuit Judges, and BOYLE, District Judge.

COLEMAN, Circuit Judge:

This appeal is from the denial of federal habeas corpus relief to a prisoner, of the white race, convicted in the Georgia courts of armed robbery. We affirm.

Three separate juries have found Salisbury guilty as charged. The first conviction was reversed by the Georgia Supreme Court for an error in the trial instructions and because the prosecutor, in effect, commented on the failure of the defendant to testify, 221 Ga. 718, 146 S.E.2d 776. The second conviction was reversed for an erroneous restriction of the defendant's proof, 222 Ga. 549, 150 S.E.2d 819. The third conviction was affirmed, 223 Ga. 414, 156 S.E.2d 48. In none of these appeals did the defendant raise any challenge to the validity of the

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grand jury which indicted him or to the sentence imposed upon him.

In Georgia, the punishment of convicted felons is fixed by the trial jury within the limits prescribed by law, Ga.Code Ann., § 27-2502. The first jury fixed the penalty at ten years imprisonment, the second at twenty years, and the third at thirteen years. In the imposition of the thirteen year sentence the trial judge expressly ordered that credit be given for time spent in jail pending appeal.

Salisbury then unsuccessfully resorted to habeas corpus in the state courts, salisbury v. Grimes, 223 Ga. 776, 158 S.E.2d 412.

There, as here, he contended that his conviction and sentence violated the Fourtenth Amendment for two reasons:

First, that the grand jury that returned the indictment against the petitioner was drawn from a grand jury box illegally made up because of the use of a jury list from which Negro citizens had been systematically excluded or disproportionately included, and completing said jury box by the use of tax returns wherein taxpayers were segregated by race. The jury box was in fact disproportionate;

Second, that the thirteen year sentence was...

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