Buck v. Green

• Citation: 690 F. Supp. 1034
• Decision Date: 21 June 1988
• Docket Number: Civ. A. No. 82-282-3-MAC (WDO).
• Parties: Ronnie BUCK, Petitioner, v. Calvin GREEN, Warden, Respondent.
• Court: U.S. District Court — Middle District of Georgia

690 F. Supp. 1034

Ronnie BUCK, Petitioner, v. Calvin GREEN, Warden, Respondent.

Civ. A. No. 82-282-3-MAC (WDO).

United States District Court, M.D. Georgia, Macon Division.

June 21, 1988.

Alice C. Stewart, Atlanta, Ga., for petitioner.

Paula K. Smith, Atlanta, Ga., for respondent.

ORDER

OWENS, Chief Judge.

The magistrate recommends that petitioner's application for a writ of habeas corpus be granted because petitioner was indicted by an unconstitutionally composed grand jury. Respondent vigorously objects to the magistrate's recommendation, and petitioner more vigorously urges the court to adopt the recommendation. The recommendation, having been carefully read and thoughtfully considered in light of said views, is hereby accepted in its entirety and made the order of the court. Accordingly, the respondent is hereby ORDERED within 180 days from and after such time as the judgment of this court becomes final to reindict petitioner before a constitutionally composed grand jury and retry him, failing which upon further motion the writ of habeas corpus will be granted and an order discharging petitioner from custody will be entered.

REPORT AND RECOMMENDATION

CLAUDE W. HICKS, Jr., United States Magistrate.

Petitioner RONNIE BUCK filed the above-captioned matter with this court under provisions of 28 U.S.C. § 2254, contending that habeas corpus relief should be granted to him. The matter was referred to the undersigned by the standing order of this court entered August 6, 1986.

I. PROCEDURAL BACKGROUND

Petitioner was convicted after a jury trial, of armed robbery and aggravated battery in the Superior Court of Washington County, Georgia on March 20, 1978. He received four life sentences in connection with the armed robbery counts and twenty years on the aggravated battery charge. Thereafter he filed a motion for a new trial alleging in part that blacks and women were discriminatorily excluded from the grand and petit juries that indicted and convicted him.

In support of the motion for a new trial, petitioner's attorney submitted the grand and traverse jury lists for 1974 and 1976 with each name identified as to race and sex.¹ He identified each person's race and gender by looking at the voters registration list which contains this information, and by asking black citizens with personal knowledge to identify those who could not be located on the list. He then compared the percentage of blacks on the jury lists with the percentage of blacks in the age-eligible population of Washington County. This was also done with the actual venire from which petitioner's jury was struck and with the eighteen grand jurors who indicted him. Counsel argued that the resulting disparities were statistically significant and amounted to a prima facie case of discrimination.²

The judge denied the motion on the basis that petitioner waived his right to challenge the composition of the jury by not making a timely objection. Under Georgia law in effect at the time of petitioner's motion, an objection to the composition of the grand or trial jury could not be initially raised after conviction unless the court determined good cause existed for not raising the objection earlier. 1975 Ga.Laws 1143-44 (codified at Ga.Code Ann. § 50-127(1); current version at O.C.G.A. § 9-14-42 (1987)). The court concluded that petitioner's attorney failed to challenge the composition of the jury for tactical reasons. Thus, good cause was not shown.

Although denial of the motion did not turn on the statistical evidence presented, the court made the following observation:

A list of juror's names has been introduced into evidence. Defendant contends that the exhibit has been screened by black citizens of Washington County and marked for racial identification. The state stipulated that the list is correct but the accuracy of the racial identification is not admitted as correct by the state. The evidence amounts to an unsubstantiated assertion that blacks were systematically excluded. No additional evidence has been proferred except the census figures.

... The doubtful racial designations on the list tendered in evidence fail to establish a prima facie case of discrimination. The mere allegation unsupported by proof presents no cause for granting a motion for new trial.

Respondent's Exhibit No. 1, Denial of Motion for New Trial, p. 4-5. The court also noted that the racial composition of the grand and traverse jury lists for Washington County had been upheld in 1971 by the Fifth Circuit Court of Appeals. See Wiggins v. Haynes, 439 F.2d 848 (5th Cir.1971).

Petitioner appealed the denial of the motion to the Georgia Court of Appeals. See Buck v. State, 151 Ga.App. 252, 259 S.E.2d 493 (1979). That court entertained the jury composition issue on the merits in spite of its untimely assertion. The court denied relief, however, noting the trial court's failure to find the statistics presented to be accurate. Id. at 253, 259 S.E.2d at 495.

Thereafter, petitioner filed a petition for habeas relief in the Superior Court of Tatnall County. The petition was later dismissed without prejudice. This federal habeas corpus petition followed.

The only ground for relief raised in the instant petition is whether blacks were systematically excluded from the grand and petit jury panels from which petitioner's jurors were selected.³ Because the Georgia Court of Appeals chose to entertain the issue on the merits, this court must do so also. Castaneda v. Partida, 430 U.S. 482, 485 n. 4, 97 S.Ct. 1272, 1275 n. 4, 51 L.Ed. 2d 498 (1977); Machetti v. Linahan, 679 F.2d 236, 238 n. 4 (11th Cir.1982), cert. denied, 459 U.S. 1127, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983).

An evidentiary hearing was held before the Magistrate on May 4, 1987. Petitioner was represented by Ms. Alice C. Stewart. Mr. William B. Hill of the Attorney General's Office appeared for respondent.

Prior to the hearing respondent argued that petitioner had failed to authenticate the racial identification of jurors on the jury list at the state level, and should not be given another opportunity to do so. Respondent urged this court to afford a presumption of correctness to the facts found by the state appellate court under Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), and rule on the petition without a hearing.

The court initially agreed with respondent and issued a recommendation that relief be denied. Petitioner filed objections to the recommendation and the court reconsidered its decision. Upon further review, the court concluded that petitioner had not had a full and fair opportunity to present his case at the state level. The recommendation was vacated and the federal evidentiary hearing followed. The petition is now ready for a decision on the merits.

At the outset the court will address respondent's prehearing argument that the facts found by the Georgia Court of Appeals are entitled to a presumption of correctness. It is true that federal courts must defer to state court findings of fact unless one of the conditions listed at 28 U.S.C. § 2254(d) are present. Sumner v. Mata, supra. Contrary to respondent's assertion, however, neither the trial court nor the court of appeals made a binding factual finding on the sufficiency of petitioner's claim.

As previously noted, the trial court's denial of the motion for a new trial turned on the untimeliness of petitioner's objections to the jury pool, not on the statistical evidence presented. Although the court described the racial designations on the lists as doubtful, there is no indication in the record as to why the court considered them doubtful other than the state's refusal to stipulate to their accuracy. The court does not regard this as a sufficient basis for rejecting them.

The court of appeals simply repeated the trial court's observation that the state had refused to concede to the accuracy of the statistics. Neither court specifically found the statistics to be inaccurate. As far as the record shows, the state never presented any evidence in rebuttal. In the court's opinion, "the merits of the factual dispute were not resolved in the State court hearing. ..." 28 U.S.C. § 2254(d)(1).

Moreover, the reliance of both courts on Wiggins v. Haynes, supra, is misplaced. That case concerned the method used to compile jury lists in Washington County prior to 1971. Not only does the present case deal with a different period of time, the cases are inapposite in other respects as well. The Wiggins court found a significant underrepresentation of blacks in the Washington County jury pool, but concluded on the basis of specific facts concerning the method of selection, that the underrepresentation was not the result of discrimination. Those facts are not present in the case at bar.

Accordingly, this court must make its own factual determinations based upon the record. Although the court does not agree with respondent's assertion that the statistical evidence presented below was conclusively found to be inadequate, the court will not base its decision upon that evidence.⁴ Sufficient evidence upon which to base a decision was presented at the evidentiary hearing held before this court.

II. THE RELEVANT EVIDENCE

At the hearing petitioner presented statistical evidence through the testimony of Mr. Neal Bradley, concerning the racial composition of the Washington County grand jury lists for 1972 through 1983. The lists were revised approximately every two years. Mr. Bradley, an attorney for the American Civil Liberties Union, had compiled the statistical information for another jury composition case filed by black citizens of Washington County in 1983. See Sweet v. Pierce, No. 83-278-2-MAC(WDO).

The method by which Mr. Bradley identified the racial composition of the jury lists was the same method used by petitioner's attorney below. By using the voters registration list for Washington County he was able to identify the race of...