642 F.2d 1055 (6th Cir. 1981), 80-1078, Haney v. Rose

Docket Nº:80-1078.
Citation:642 F.2d 1055
Party Name:John W. HANEY, Petitioner-Appellant, v. James H. ROSE, Warden and The Attorney General of The State of Tennessee, Respondent-Appellee.
Case Date:March 04, 1981
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1055

642 F.2d 1055 (6th Cir. 1981)

John W. HANEY, Petitioner-Appellant,


James H. ROSE, Warden and The Attorney General of The State

of Tennessee, Respondent-Appellee.

No. 80-1078.

United States Court of Appeals, Sixth Circuit

March 4, 1981

Argued Oct. 24, 1980.

Page 1056

John W. Haney, pro se, Bill G. Wilder, Florence, Ky., for petitioner-appellant.

Page 1057

William M. Leech, Jr., Atty. Gen. of Tennessee, William W. Hunt, III, Asst. Atty. Gen., Nashville, Tenn., for respondent-appellee.

Before BOYCE F. MARTIN, Jr., and JONES, Circuit Judges, and PECK, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

This case is before us on the appeal of John W. Haney from an order of the District Court denying his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Haney's sole contention on appeal is that he was deprived of his Fourteenth Amendment right to trial by an impartial jury.

Petitioner was convicted in a Tennessee state court of second degree murder and received a sentence of life imprisonment. The pertinent facts relating to his claim, as described by the District Court, are as follows. On the day of petitioner's trial, before the voir dire and before any jurors had been sworn in, a prospective juror named Evelyn Yell overheard a conversation between two unidentified women in the ladies' restroom. Without referring to the case about to be tried, the two women mentioned that petitioner had killed his wife at some point in the past. Shortly thereafter, during the voir dire, the prospective jurors were questioned about their knowledge of the case. They were asked: "Ladies, do any of you four jurors who have just been recently called know any facts about the case, heard anything about it that would influence in any way?" This question elicited no response from any of the jurors. Later in the voir dire petitioner's attorney asked Juror Yell: "Do you know of any reason why you might not be able to return an unbiased and unprejudiced verdict?" She responded "No." Yell was then seated on the jury which subsequently returned Haney's conviction.

When petitioner's counsel learned from a fellow attorney about the conversation overheard by Yell, he filed a motion for a new trial. There followed a hearing at which Juror Yell gave extensive testimony. It was determined that she had related the content of the conversation to another juror, but apparently not until after the jury deliberation and verdict. The court denied the motion for a new trial.

The Criminal Court of Appeals of Tennessee affirmed petitioner's conviction, and the Supreme Court of Tennessee denied certiorari. Haney then filed a petition for a writ of habeas corpus with the District, the denial of which has resulted in this appeal.

Before considering the merits of Haney's constitutional claim, we must first address an issue which neither party raised in his brief. We must determine whether Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), precludes federal habeas corpus review of petitioner's claim. In Wainwright, the Supreme Court held that the failure by a defendant to comply with a state's contemporaneous objection requirement constitutes an adequate and independent state ground for affirming his conviction, unless the petitioner can show "cause" and "prejudice" attendant upon his state procedural waiver. 433 U.S. at 87, 97 S.Ct. at 2506.

On direct review of Haney's conviction, the Tennessee Court of Criminal Appeals denied his claim on the merits and observed:

Finally, we note that the record in this case suggests a waiver of the issue on appeal. In addressing the trial judge at the hearing on the motion for a new trial, one of the defense attorneys stated that "immediately prior to the beginning of the trial, possibly before the juror was even seated, she informed me that she had overheard a discussion in a restroom with some women who said that Mr...

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