Hulsey v. Sargent, PB-C-81-2.

• Decision Date: 12 November 1981
• Docket Number: No. PB-C-81-2.,PB-C-81-2.
• Citation: 550 F. Supp. 179
• Parties: Dewayne HULSEY, Petitioner, v. Willis SARGENT, Superintendent of the Cummins Unit Penitentiary, Grady, Arkansas, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

550 F. Supp. 179

Dewayne HULSEY, Petitioner, v. Willis SARGENT, Superintendent of the Cummins Unit Penitentiary, Grady, Arkansas, Respondent.

No. PB-C-81-2.

United States District Court, E.D. Arkansas, Pine Bluff Division.

November 12, 1981.

COPYRIGHT MATERIAL OMITTED

William R. Wilson, Jr., Wilson & Engstrom, Little Rock, Ark., Michael Chertoff, Latham, Watkins & Hills, Washington, D.C., John Charles Boger, NAACP Legal Defense Fund, New York City, for petitioner.

Victra Fewell, Asst. Atty. Gen., State of Ark., Little Rock, Ark., for respondent.

ORDER

EISELE, Chief Judge.

Dewayne Hulsey, who is presently being held in custody by the Arkansas Department of Correction, has filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. As one of several enumerated grounds for the relief he seeks,¹ the petitioner alleges that the jury which sat for his trial was not impartial and did not represent a cross section of the community as is required by the Constitution because the jury was "death-qualified" during voir dire hereinafter, the Grigsby issues. The respondent has filed a Motion to Dismiss the petition arguing that none of the grounds relied on by the petitioner for the relief he seeks was properly raised before the trial court and, therefore, cannot be a basis for relief under 28 U.S.C. § 2254 as interpreted by the United States Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The petitioner has opposed the motion on alternative grounds. The petitioner first argues that the Grigsby issues were timely as presented to the Arkansas Supreme Court, and therefore there is no state procedural rule barring review upon a petition for a writ of habeas corpus. The petitioner then argues that even if the Grigsby issues were not properly presented to a state forum, they are so fundamental that there can be no waiver of them that would bar federal habeas review unless it is shown that the petitioner deliberately bypassed his procedural opportunity to raise them in state court. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Wainwright, 433 U.S. at 93, 97 S.Ct. at 2509 (Burger, C.J., concurring). Finally, the petitioner argues that if the Wainwright standard is held applicable, he has legal "cause" for not raising the issues in timely fashion, and has suffered "prejudice" as a result thereof, and therefore this Court may consider the merits of the claims despite the state procedural waiver. For the reasons discussed below, the Court concludes that to the extent that the petition seeks relief because the trial jury was not impartial and did not represent a cross section of the community, the rule of Wainwright is applicable to this case; that the petitioner failed to raise the claims as required by Arkansas Rules of Criminal Procedure; and that federal habeas review of the claims of the petitioner is barred thereby because he has not shown adequate "cause" for the procedural default. The Motion to Dismiss will therefore be granted to the extent that it relates to the Grigsby claims.

In this case it is undisputed that Mr. Hulsey first attempted to raise his claims that the trial jury was not impartial and did not represent a cross section of the community in an amended petition for permission to proceed under Rule 37 of the Arkansas Rules of Criminal Procedure. With the amended petition was filed a petition for rehearing of the petition for permission to proceed under Rule 37, which had been denied approximately two weeks before. The language cited by the petitioner in the amended petition as raising the issues here in question does so only obliquely, and could not fairly be said to put the Arkansas Court on notice that the petitioner intended to press the Grigsby issues. The memorandum in support of the petition for rehearing, however, clearly makes the arguments here espoused by Mr. Hulsey. Directly after the discussion of the petitioner's claim that a potential juror was excluded because of her views on the death penalty in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), at page 12 of the memorandum, the petitioner made the following argument:

Even if Mrs. Creamer had stated unequivocal opposition to the death penalty and even if such opposition had been apparent on the record, her excusal for cause nevertheless was contrary to the Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States. First, because a juror opposed to the death penalty is representative of a significant segment of the community, even in a capital case he or she must be part of the jury panel in order to comply with the Sixth and Eighth Amendments' mandate that the jury's decision represent to the maximum degree possible the prevailing standards of the community. Second, because the death-qualification of a jury increases the likelihood of conviction, the exclusion of a juror opposed to the death penalty violates the defendant's right to a trial by an impartial jury guaranteed by the Sixth Amendment.

Thereafter followed a seven page argument setting forth the legal and factual grounds relied on by the petitioner in support of these claims.

Developing the claims for relief in the brief rather than in the petition itself is not proper pleading practice in Arkansas. However, the Arkansas Supreme Court had not refused up to that time to consider claims so raised because they were not set forth clearly in the petition without reference to the brief. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980).² Although the Arkansas Supreme Court in its opinion in Neal, which was delivered a few months after the decision in Hulsey v. State, 268 Ark. 312, 315, 599 S.W.2d 729 (1980),³ denying Mr. Hulsey a rehearing on his petition for relief under Rule 37, admonished the attorneys for not raising the claims in the proper way and warned that they would not in the future consider claims so raised, they did nonetheless "consider the facts stated in the petition and memorandum as if they, considered together, constituted the allegations of the petition." Neal, 270 Ark. at 447, 605 S.W.2d 421. It cannot therefore be said that the Arkansas Supreme Court would refuse to consider the claims of Mr. Hulsey that the jury which sat for his trial was not impartial and did not represent a cross section of the community only because they were not properly pled. It must be concluded that the petitioner did raise the issues before the state forum in his amended petition for Rule 37 relief and the memorandum in support of a rehearing thereof.

Since Mr. Hulsey did raise the Grigsby issues in this plea for relief under Rule 37, the next inquiry is whether raising the issues at such time was timely under the Arkansas Rules of Criminal Procedure. If the issues were timely raised, they could be considered on their merits by the Arkansas Supreme Court, and by this Court on federal habeas review without further question. If they were not timely raised, a procedural default occurred for which Mr. Hulsey must demonstrate a legally sufficient excuse to avoid dismissal of the habeas petition. The opinions of the Arkansas Supreme Court denying Mr. Hulsey relief under Rule 37 do not answer this question clearly.

In its disposition of Mr. Hulsey's original petition for Rule 37 relief, the Arkansas Supreme Court pointed out that constitutional questions may be first presented to an Arkansas court in accordance with the state procedure in a petition for relief under Rule 37 if they "raise issues so fundamental as to render the sentence and the judgment void and open to collateral attack." Hulsey v. State, 268 Ark. 312, 315, 599 S.W.2d 729 (1980). The Court then decided that the issues raised by Mr. Hulsey in his claim that the dictates of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), had been violated were sufficiently "fundamental" that the Court was required to reach them on their merits despite the fact that they were raised for the first time in that petition. It was held that the requirements of Witherspoon had been met in the selection of the jury for Mr. Hulsey's trial and he would not be granted relief on that ground. The Court then expressed its opinion that it was "simply too late" for all other contentions argued by the petitioner to be raised because they had not been raised on the first appeal. Hulsey v. State, 268 Ark. 312, 315, 599 S.W.2d 729 (1980). Mr. Hulsey had not at that point presented his claims that the jury was not impartial and did not represent a cross section of the community to the Court for consideration. Therefore, this summary finding that the contentions had been waived because not raised as required by Arkansas procedure cannot be held applicable to those issues. In the opinion denying rehearing of the Rule 37 petition, the Court did not directly address the Grigsby issues which had been raised by the petitioner in the amended petition filed at the same time as the petition for rehearing. Hulsey v. State, 268 Ark. 315, 599 S.W.2d 729 (1980). The Court first discussed the Witherspoon issues as it had in the original opinion, and concluded that it adhered to its original holding. The Court then addressed on its merits the petitioner's claim that he did not have effective assistance of counsel during his trial and the subsequent appeals, a contention that had not been included in the original petition and was also raised for the first time in the amended petition for Rule 37 relief as had been the Grigsby issues. The Court stated that "no violation of any fundamental constitutional right has been discovered" and that trial counsel could not be held ineffective for not having "anticipated the frail and insubstantial constitutional questions that are now being urged three years later." The Court concluded as it had in the first opinion that it was "simply too late for the present...