Wallace v. Kemp

Decision Date08 March 1984
Docket NumberCiv. A. No. 83-72-ATH.
Citation581 F. Supp. 1471
PartiesRobert Lewis WALLACE, Petitioner, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent.
CourtU.S. District Court — Middle District of Georgia

Elyse Aussenberg, American Civil Liberties Union of Ga., Hyatt Legal Services, Atlanta, Ga., Risa L. Lieberwitz, Whitney Point, N.Y., for petitioner.

Mary Beth Westmoreland, Atlanta, Ga., for respondent.

OWENS, Chief Judge:

Among the duties and responsibilities given United States district courts by Congress is that of considering and deciding applications of state prisoners for a writ of habeas corpus on the ground that the state prisoner "is in custody in violation of the Constitution or laws ... of the United States." 28 U.S.C. § 2254(a). This congressionally imposed duty and responsibility results in United States district courtsthe trial courts of the federal court system —reviewing state criminal convictions that have already been reviewed by a Georgia trial court, a Georgia habeas court, and the state Supreme Court and found by them to be without United States Constitutional error. United States district court decisions are made by one district judge; the state trial, habeas, and appellate court decisions are made by one trial, one habeas, and seven Supreme Court judges. As a practical matter Congress has thus created a federal habeas system which requires one United States district judge to review and agree or disagree with the opinions of nine Georgia trial and appellate judges on constitutional questions. Most United States district court judges dislike their role in state prisoner habeas actions as much as state trial and appellate judges dislike the concept of one federal judge reviewing the opinions of at least nine state judges. See, Schneckloth v. Bustamonte, 412 U.S. 218, 263-64, 93 S.Ct. 2041, 2066-67, 36 L.Ed.2d 854, 884 (1973) (Powell, J., concurring). Nevertheless, until Congress changes this concept it remains for this one United States district court judge to consider this state habeas case, even though it has already been considered by one trial judge, one habeas judge, and seven Supreme Court justices (on two separate appearances) of this state and found by them to contain no United States constitutional error.

FACTUAL BACKGROUND

As stated by the Supreme Court of Georgia in its opinion on petitioner's appeal to that court:

This is a death case. The petitioner appellant, Robert Lewis Wallace, was indicted for the murder of a Union Point police officer, an aggravated assault committed upon another Union Point police officer, the theft of a Union Point police vehicle, and driving under the influence. Although the offenses occurred in Green County, a change of venue was granted and the appellant was tried in Baldwin County Superior Court. He was found guilty of all charges. The jury found the existence of three aggravating circumstances and returned a death sentence. The trial court sentenced the appellant to death for the murder, twenty years imprisonment for the aggravated assault, seven years for the motor vehicle theft, and one year for driving while intoxicated — all sentences to be served consecutively.
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From the evidence presented at trial the jury was authorized to find the following facts:
The appellant was at the home of his girlfriend, Teresa Herring, on May 15, 1979. He was drinking and around midnight decided to drive to Atlanta to find a job. His girlfriend gave a statement to the GBI in which she said that she did not want him to leave and told him he would be stopped by the police for driving while intoxicated. He replied to the effect that if he were to be stopped by the police he would `shoot hell out of them.' At trial she partially recanted her statement. The appellant had a shotgun, a pistol and three rifles in the car when he left Teresa Herring's home.
Just after midnight on May 16, 1979, Officers Rowry and Cook were patrolling the City of Union Point. The officers observed the appellant's car weaving across the centerline and going on and off the shoulder of the road. The officers stopped the appellant and, smelling alcohol on his breath, gave him a field test which was positive. They asked appellant for his driver's license. Appellant told the officers it was not on his person and started to rummage through a box in the back of the car. The officers ordered him to stop and transported him to jail for a formal breath test.
After being transported, appellant was given a breath test which revealed a .11% blood alcohol content. He was told by the police that they would have to lock him up for driving under the influence and that he could be released on bond after four hours. Officer Rowry then left the room and went to prepare a cell. The appellant, alone with Officer Cook, begged not to be locked up. Officer Cook then took the appellant by the arm and told him to come on. At that point, appellant grabbed the officer's .357 magnum pistol and they grappled. Officer Rowry, hearing the scuffle, came back to help just as Officer Cook was shot in the lower abdomen. Officer Cook fell and momentarily lost consciousness. Appellant then shot Officer Rowry in the neck. Officer Rowry turned and ran, at which time appellant again fired but missed. He then turned and pointed the gun in Officer Cook's face from a distance of less than 2 feet and fired. However, Officer Cook moved his head and was not shot but received cuts from debris and powder burns. The appellant fled the scene in a patrol car.
Officer Cook was able to summon help. He was transported to a hospital and survived. Officer Rowry's body was found down the street from the jail.
Appellant hid the patrol car in the woods in Wilkes County and then made his way to his brother's home. He told his brother of the shooting and asked him to look into it. The brother found out that one of the officers died and that it was dangerous for appellant to stay around. Appellant decided to go to Atlanta. His brother gave him a .22 magnum pistol, which appellant took to Atlanta, along with a shotgun he had taken from the patrol car.
In Atlanta, appellant could not find a place to stay. Finally, he found a vacant basement apartment which he thought was in a deserted building. However, a woman lived upstairs. When she heard noises she called the Atlanta police, who investigated. They found the appellant behind a barricaded door. When he was arrested, he was reaching for the shotgun. When asked about the incident in Union Point, the appellant said he shot one officer in the stomach but didn't remember shooting anyone else. He stated he shot the officer because they were too lax and not paying attention to what they were doing. However, he said they had been nice to him. He further stated he had started to shoot the arresting officers but surrendered instead.
Appellant led officers back to the stolen patrol car but refused to show the officers where he hid the gun. He said in reply to their request, `No murder weapon, no case.'

Wallace v. State, 248 Ga. 255, 255-57, 282 S.E.2d 325, 328-29 (1981), cert. denied, 455 U.S. 927, 102 S.Ct. 1291, 71 L.Ed.2d 471 (1982), reh'g denied, 455 U.S. 1038, 102 S.Ct. 1743, 72 L.Ed.2d 156 (1982).

STANDARD OF REVIEW IN THIS COURT

Petitioner Wallace's conviction and sentence of death have been affirmed by the Supreme Court of Georgia, and state habeas relief has been denied. Petitioner now asserts that constitutional error, unrecognized by the courts of this state, occurred at his trial and should be recognized by this United States district court.

As succinctly stated in Hance v. Zant, 696 F.2d 940, 946 (11th Cir.1983):

The standard of review for habeas corpus petitions by prisoners in state custody is set out in 28 U.S.C.A. § 2254(d).1 A written determination after a hearing on the merits of a factual issue, made by a state trial or appellate court of competent jurisdiction, is presumed to be correct unless one of the conditions set forth in Section 2254(d)(1)-(7) is found to exist. If none of these conditions is found, or unless the state-court determination is `not fairly supported by the record,' 28 U.S.C.A. § 2254(d)(8), the petitioner must establish by convincing evidence that the factual determination by the state court was erroneous. Sumner v. Mata, 449 U.S. 539, 546, 550, 101 S.Ct. 764, 768, 770, 66 L.Ed.2d 722 (1981). This presumption of correctness does not apply to legal findings or to mixed questions of law and fact. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980). Factual issues involve `what are termed basic, primary, or historical facts: facts "in the sense of a recital of external events and the credibility of their narrators...."' Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963), quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J). On the other hand, mixed questions of law and fact involve `the application of legal principles to the historical facts of the case.' Cuyler, supra, 446 U.S. at 342, 100 S.Ct. at 1714. As Justice Frankfurter once stated: `Where the ascertainment of the historical facts does not dispose of the claim but calls for interpretation of the legal significance of such facts ... the Federal Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.' Brown, supra, 344 U.S. at 507, 73 S.Ct. at 446 (opinion of Frankfurter, J.).
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1 28 U.S.C.A. § 2254(d) provides that:
In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a
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