Ross v. Hopper

Decision Date10 May 1982
Docket NumberCiv. A. No. CV 478-162.
Citation538 F. Supp. 105
PartiesWillie X. ROSS, Petitioner, v. Joe S. HOPPER, Warden, Respondent.
CourtU.S. District Court — Southern District of Georgia

C. B. King, Albany, Ga., John Charles Boger, New York City, for petitioner.

Arthur K. Bolton, Atty. Gen., Atlanta, Ga., for respondent.

ORDER

BOWEN, District Judge.

In a memorandum and opinion dated April 1, 1982, the Court denied petitioner habeas corpus relief. Petitioner has filed a timely motion pursuant to Rules 52(b) and 59, Fed.R.Civ.P., for an order to alter or amend the Court's decision. In support of his motion, petitioner, by counsel, raises two issues. First, petitioner argues that his challenge to the composition of his grand and traverse juries in this Court is not precluded by the Supreme Court's decision in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Petitioner cites the case of Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), in support of his position. Second, petitioner contends that "newly available evidence developed by independent social scientific researchers which strongly supports petitioner's claims should be heard and weighed by the Court in determining whether Georgia is imposing death sentences in an arbitrary and capricious manner." After careful consideration the Court finds that it is necessary to amend its memorandum and order concerning petitioner's first argument; the Court, however, finds petitioner's second contention to be totally without merit.

PETITIONER'S JURY CHALLENGE

Upon reconsideration, the Court finds that the Georgia courts did not apply a state procedural rule in denying petitioner's challenge to the composition of his grand and traverse juries. Since the Georgia courts did not impose a procedural default on petitioner, no principle of comity bars this Court from considering, as did the courts of Georgia, the merits of petitioner's jury claim. See Ulster County Court v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979). To the extent that the Court's memorandum and opinion of April 1, 1982, held that this Court was barred from considering petitioner's jury claim by the Supreme Court's decision in Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) or Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), that order is hereby vacated. This amendment of the Court's order does not mean, however, that petitioner is entitled to an evidentiary hearing on this issue. The Court simply finds that it is necessary to modify its decision by substituting the following analysis in lieu of the Court's previous analysis based on the doctrine of procedural default.

As petitioner notes in his current motion, the Superior Court of Tattnall County dismissed petitioner's jury claim by stating that "on the habeas hearing, Petitioner offered no evidence in support of this allegation. Therefore, this Court finds that Petitioner has failed in his burden to establish a factual basis for this allegation." Subsequently, when petitioner appealed the Tattnall County court's decision, the Georgia Supreme Court summarily discounted petitioner's argument. Ross v. Hopper, 240 Ga. 369, 372, 240 S.E.2d 850, 853 (1977). Given these findings by the Georgia courts, the Court gave petitioner the opportunity at its hearing on January 26, 1981, to show cause why the presumption of correctness created by 28 U.S.C. § 2254(d) should not attach to the determination made by the State courts. After such hearing, this Court found that not one of the statutory exceptions enumerated in 28 U.S.C. § 2254(d) was satisfied so as to negate the statutory presumption of correctness. The Court is still satisfied that petitioner was afforded a full and fair opportunity to present his jury composition issue to the courts of Georgia and that he simply failed to meet his burden of proof. Moreover, as the Supreme Court recently noted in Summer v. Mata, 449 U.S. 539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981):

When it enacted the 1966 amendment to 28 U.S.C. § 2254, Congress specified that in the absence of the previously enumerated factors one through eight, 28 U.S.C. § 2254(d)(1)-(8) the burden shall rest on the habeas petitioner, whose case by that time had run the entire gamut of a state judicial system, to establish "by convincing evidence that the factual determination of the state court was erroneous." 28 U.S.C. § 2254(d).

Petitioner, through counsel, failed to give any indication that he was prepared to meet this burden at the hearings held by this Court on January 26 and 27, 1981. See Smith v. Balkcom, 660 F.2d 573, 575 n.2 (F. 5th Cir. 1981), modified, 671 F.2d 858 (5th Cir. 1982). After due consideration, the Court finds that no further evidentiary hearing is needed on this issue; petitioner's jury composition issue is without merit.

ARBITRARY AND CAPRICIOUS IMPOSITION OF THE DEATH PENALTY

In regard to petitioner's second contention that the State of Georgia is imposing the death penalty in an arbitrary and capricious manner, it must be recognized "that if a state follows a properly drawn statute in imposing the death penalty, then the arbitrariness and capriciousness—and therefore the racial discrimination—condemned in Furman Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) have been conclusively removed." Spinkellink v. Wainwright, 578 F.2d 582, 613-14 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796, rehearing denied, 441 U.S. 937, 99 S.Ct. 2064, 60 L.Ed.2d 667 (1979). (footnotes omitted). The present Georgia statute was reviewed and approved by the Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Petitioner has proffered evidence to show "that statistically significant racial discrimination is present in Georgia's capital sentencing system, based upon the race of the defendant and the race of the victim." Significantly, petitioner has not proffered evidence of "some specific act or acts evidencing intentional or purposeful racial discrimination against him...." Spinkellink, 578 F.2d at 614 n.40.

The Court finds as it did in its April 1, 1982, memorandum and opinion, that the record contains facts sufficient to determine this issue given the existence of controlling precedent.1 The Court sees no reason to hold a further evidentiary hearing to allow petitioner to present "newly available evidence" when the gist of petitioner's contention has been determined as a matter of law by the court of appeals in Spinkellink and in Smith v. Balkcom, 660 F.2d 573, 584-85 (F. 5th Cir. 1981), modified, 671 F.2d 858 (...

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6 cases
  • Spencer v. Zant
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 30 Septiembre 1983
    ... ... After an evidentiary hearing, the court denied his petition and the Georgia Supreme Court again affirmed. Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1, cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979). Spencer then brought this federal habeas petition in ... Hopper, CV No. 478-132, and Ross v. Hopper, CV No. 478-162. The district court heard argument from the parties in these three cases as to the necessity of evidentiary hearings on ... ...
  • Ross v. Hopper
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 3 Octubre 1983
    ...715 F.2d 1562 (11th Cir.1983). The petitions in each were denied. Mitchell v. Hopper, 538 F.Supp. 77 (S.D.Ga.1982); Ross v. Hopper, 538 F.Supp. 105 (S.D.Ga.1982). This appeal I. The Facts 1 On August 23, 1973, Willie X. Ross, Freddie Lee King, Rudy Turner, and Theodore Ross, appellant's bro......
  • Ross v. Kemp
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 25 Marzo 1985
    ...and Spencer v. Zant, CV No. 179-247. The three petitions were denied. Mitchell v. Hopper, 538 F.Supp. 77 (S.D.Ga.1982); Ross v. Hopper, 538 F.Supp. 105 (S.D.Ga.1982). On appeal, a panel of this court affirmed in part the denial of Ross' petition, but reversed and remanded for further eviden......
  • Ross v. Kemp
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 20 Marzo 1986
    ...the presumption of correctness accorded state court findings in federal habeas proceedings under 28 U.S.C. Sec. 2254(d). Ross v. Hopper, 538 F.Supp. 105 (S.D.Ga.1982). 4 This panel of the court of appeals affirmed the district court's denial on this ground as well as other grounds. Ross v. ......
  • Request a trial to view additional results
1 books & journal articles
  • David Baldus and the Legacy of McCleskey v. Kemp
    • United States
    • Iowa Law Review No. 97-6, October 2012
    • 1 Octubre 2012
    ...and money—but did more with what he had than seems humanly possible. There is no empirical evidence that he ever 33. Ross v. Hopper, 538 F. Supp. 105, 107 (S.D. Ga. 1982) (quoting Balkcom , 671 F.2d at 859), modifying Mitchell v. Hopper, 538 F. Supp. 77 (S.D. Ga. 1982), aff’d in part, reman......

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