Hayes v. State of Ala., 79-0572-C.

Citation566 F. Supp. 108
Decision Date19 May 1983
Docket NumberNo. 79-0572-C.,79-0572-C.
PartiesArthur Bernard HAYES, Petitioner, v. STATE OF ALABAMA, and Joseph A. Oliver, Warden, et al., Respondents.
CourtU.S. District Court — Southern District of Alabama

Donald J. Stewart, Cabaniss, Johnston, Gardner, Dumas and O'Neal, Mobile, Ala., for petitioner.

Charles A. Graddick, Atty. Gen. of the State of Ala., and P. David Bjurberg, Asst. Atty. Gen. of the State of Ala., Montgomery, Ala., for respondents.

MEMORANDUM OPINION AND ORDER

EMMETT RIPLEY COX, District Judge:

This action is brought pursuant to 28 U.S.C.A. § 2254 (West 1982) seeking habeas corpus relief from a sentence of life imprisonment imposed by the Circuit Court of Mobile County, Alabama under Ala.Code § 13-1-74 (1975). The matter is now before the court on the motion filed by the petitioner for a determination of the necessity of an evidentiary hearing, and respondents' motions to dismiss and for summary judgment.

1. State Procedural History. The petitioner, Arthur Bernard Hayes, a Black man, was indicted by the Grand Jury of Mobile County on May 23, 1975, for the murder of one Herman Lee Forrest, Sr., also a Black man. Hayes was tried before a Mobile County petit jury on January 7 and January 8, 1976, and found guilty of first degree murder.

The petitioner appealed the conviction to the Court of Criminal Appeals of Alabama which affirmed by a published opinion. Hayes v. State, 340 So.2d 1142, 1143 (Ala. Cr.App.), cert. denied, 340 So.2d 1144 (Ala. 1976). The issues presented in this petition were not before the Alabama courts in the petitioner's direct appeal.

On January 12, 1979, Hayes filed a petition for writ of error coram nobis in the Circuit Court of Mobile County. Relying on Preston v. Mandeville, 479 F.2d 127 (5th Cir.1979), the petitioner asserted for the first time that the jurors which indicted and tried him were unconstitutionally selected because the selection procedures systematically excluded Blacks. Petitioner alleged that the Mobile County Jury Commission did not comply with the mandate of Preston and subsequent implementation orders issued by the district court pursuant to Preston. Additionally, Hayes alleged in his coram nobis petition that neither he nor his attorney knew or could have known about the Preston decision. In a letter dated June 1, 1978, and admitted as evidence in the coram nobis proceedings, Hayes' lawyer indicated that he was not aware of the Preston decision at the time of trial but that notwithstanding this fact he would have nevertheless excluded Blacks because "black jurors are harder on black defendants than white jurors are" when the crime involves only "black on black confrontation." The Circuit Court of Mobile County, Alabama held an evidentiary hearing on January 12, 1979, at which the petitioner was represented by counsel. He was afforded an opportunity to offer such evidence as he chose to offer. At the conclusion of the hearing the Circuit Court denied the petition without comment. Petitioner appealed on March 22, 1979, and the Court of Criminal Appeals subsequently denied relief on the petition without opinion.

Hayes' original petition before this court asserted four grounds for relief: (1) the illegal composition of the grand jury which indicted him and the petit jury which tried him; (2) ineffective assistance of counsel; (3) cruel and unusual punishment; and (4) a faulty indictment. Pursuant to the court's order granting leave to amend the petitioner amended his original petition to delete grounds (2) and (3). The grounds for relief presently asserted are: ground (1), illegal jury composition; and ground (2), a faulty indictment.

In the state coram nobis hearing the petitioner testified and the trial record reflects that the defense did not challenge the composition of the grand and petit juries prior to or during the trial. There is no allegation in the petition before the court that indicates the racial composition of the juries which indicted and tried Hayes. Hayes did not attack the validity of the indictment on appeal or in a coram nobis proceeding.

2. Exhaustion. The respondents argue in their motions to dismiss and for summary judgment that the petitioner has failed to adequately exhaust his state remedies as required by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

As to the jury issue, petitioner alleges and respondents admit that the petitioner has exhausted all of his state remedies.

The only ground for relief not alleged by the petitioner to have been exhausted is ground (4) which asserts that a faulty indictment was issued by the grand jury. This ground is not subject to the exhaustion requirement for two reasons. First, the time for appeal of the state conviction has expired. See Ala.R.App.P. 4. Second, the ground is not assertible as a ground for relief in any postconviction proceeding in Alabama. See Price v. Holman, 279 Ala. 324, 184 So.2d 835 (1966) (habeas corpus); Butler v. State, 279 Ala. 311, 184 So.2d 823 (1966) (writ of error coram nobis). See generally Postconviction Remedies in Alabama, 29 Ala.L.Rev. 617 (1978).

3. Necessity For An Evidentiary Hearing. In Huffman v. Wainwright, 651 F.2d 347 (5th Cir.1981) (Unit B), the Fifth Circuit remanded a case similar to the instant case because the record was not sufficient on certain determinative points. The district court was instructed to conduct an evidentiary hearing to "determine (1) whether there was an adequate challenge to the jury venire before trial; (2) whether the challenge was waived on state appeal; (3) whether, if the challenge was inadequate, there was cause for the failure to challenge; and (4) if so, whether prejudice resulted from the asserted constitutional defect." Id. at 349. The court is of the opinion that the response to each of the first three inquiries advanced in Huffman is in the negative, and therefore need not reach the fourth. The record before this court is sufficient to address the petitioner's claims and no evidentiary hearing is required.

4. Procedural Default. If the state decision was on the merits, not based on procedural grounds, then the district court must also reach the merits. E.g., Thompson v. Estelle, 642 F.2d 996 (5th Cir.1981). The comity considerations underlying the Supreme Court precedents require the court to look to Alabama law to determine what the state courts have done in the instant case. See Henry v. Wainwright, 686 F.2d 311, 314 (5th Cir.1982) (Unit B). This is a necessary and accepted analysis in habeas cases. See County Court of Ulster Cty. v. Allen, 442 U.S. 140, 149-51, 99 S.Ct. 2213, 2220-22, 60 L.Ed.2d 777 (1979).

It would be a far simpler inquiry in this case if the state courts had made an explicit finding of procedural default. Having said that, however, the absence of such specific findings does not preclude such a holding. The court has no doubt that the petitioner was denied relief in the state courts because of his procedural default.

In Ratcliff v. Estelle, 597 F.2d 474 (5th Cir.1979), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1980), the state court found that a procedural default foreclosed a challenge to the composition of the grand jury which indicted him. Even though the state court then proceeded to consider and deny the challenge on the merits, the Fifth Circuit held that a federal court must deny relief without reaching the merits because of the procedural default. Id. at 476; see e.g., Chenault v. Stynchcombe, 581 F.2d 444, 447 (5th Cir.1978) (relying on state statute to find procedural default in jury composition challenge where record did not indicate basis of state ruling); Dennis v. Hopper, 548 F.2d 589, 590 (5th Cir.1977) (jury composition) (relying solely on prior state case law, court denied relief where petitioner committed procedural default); Wright v. Wainwright, 537 F.2d 224, 226 (5th Cir.1976) (where issue not raised in state proceedings) (jury composition); Dumont v. Estelle, 513 F.2d 793, 796 (5th Cir.1975) (state courts denied challenge to jury composition without opinion; federal relief denied relying on fact that state courts consistently found procedural default in similar circumstances).

In Alabama a motion to quash is the proper way to challenge an indictment and trial venire on the grounds of intentional racial discrimination. Thomas v. State, 277 Ala. 570, 173 So.2d 111 (1965). If the objection is not timely raised, a procedural default occurs. Sanders v. State, 42 Ala. App. 419, 167 So.2d 174, 180 (1964); Ala. Code §§ 15-15-40, -41 (1977). Where the state court would not pass on the merits because of procedural default and the states have consistently so ruled, it is not necessary to present the issue to the state court prior to consideration by a district court. See e.g., Henry v. Wainwright, 661 F.2d 56 (5th Cir.1981); Rummel v. Estelle, 587 F.2d 651 (5th Cir.1978); Johnson v. Hall, 465 F.Supp. 516 (D.Mass.1979).

On this record there are four circumstances which cause the court to conclude that the state courts rejected the petitioner's claims on procedural grounds.

First, Alabama has consistently held that a defendant is precluded from asserting on appeal that the juries were unconstitutionally selected where objection is not made at trial as required by Alabama procedure. E.g., Van Antwerp v. State, 358 So.2d 782, 791 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978). In the petitioner's coram nobis application, it was stipulated that the record in the case of Malloy v. State, 357 So.2d 671 (Ala.Cr.App.), cert. denied, 357 So.2d 674 (Ala.1978), be admitted as evidence in the instant case. The facts in Malloy are indeed similar to those before the court today. There the Alabama courts ruled that the petitioner's failure to raise proper objections to the composition of the juries prior to trial "constituted a waiver of his right to do so." Malloy, 357 So.2d at 674. See also Ball v. State, 252 Ala. 686, 42 So.2d 626, 631 ...

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