708 F.2d 541 (11th Cir. 1983), 82-8310, Coleman v. Zant

Docket Nº:82-8310.
Citation:708 F.2d 541
Party Name:Wayne Carl COLEMAN, Petitioner-Appellant, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
Case Date:June 10, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 541

708 F.2d 541 (11th Cir. 1983)

Wayne Carl COLEMAN, Petitioner-Appellant,

v.

Walter D. ZANT, Warden, Georgia Diagnostic and

Classification Center, Respondent-Appellee.

No. 82-8310.

United States Court of Appeals, Eleventh Circuit

June 10, 1983

Page 542

[Copyrighted Material Omitted]

Page 543

Joseph M. Nursey, Millard C. Farmer, Kenneth Rose, Atlanta, Ga., for petitioner-appellant.

Nicholas G. Dumich, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court For the Middle District of Georgia.

Before JOHNSON and ANDERSON, Circuit Judges, and COLEMAN [*], Senior Circuit Judge.

R. LANIER ANDERSON, III, Circuit Judge:

In this capital case, petitioner Wayne Carl Coleman appeals from the federal district court's order denying his petition for habeas corpus relief. On September 4, 1973, a Seminole County grand jury indicted Coleman, Carl J. Isaacs, George Elder Dungee, and Billy Isaacs on six counts of murder. Some three months later, Billy Isaacs entered a guilty plea to armed robbery and burglary. He was sentenced to a forty-year prison term. In January 1974, Coleman and the two remaining defendants were tried separately, convicted, and sentenced to death by electrocution. 1

The Supreme Court of Georgia affirmed Coleman's convictions and sentences, and the United States Supreme Court subsequently denied Coleman's petition for writ of certiorari. Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976), cert. denied, 431 U.S. 909, 97 S.Ct. 1707, 52 L.Ed.2d 394 (1977). Coleman filed a state habeas corpus petition in the Superior Court of Tattnall County. The superior court held hearings on July 27, 1979 and January 25, 1980. On June 13, 1980, the superior court denied Coleman's habeas corpus petition. On October 31, 1980, the Supreme Court of Georgia denied Coleman's application for a certificate of probable cause to appeal. The United States Supreme Court denied Coleman's second petition for writ of certiorari. Coleman v. Balkcom, 451 U.S. 949, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981). At this point, Coleman filed for habeas corpus relief in the United States District Court for the Middle District of Georgia. The district court denied the petition. Coleman v. Zant, No. 81-42-THOM (M.D.Ga. Mar. 11, 1982). In answer to Coleman's habeas corpus petition, respondent conceded that Coleman had exhausted available state remedies for the issues raised in his petition. Record at 49.

Among the several issues raised on this appeal, petitioner contends that the federal district court erred in denying his request for discovery and an evidentiary hearing on the question of whether pretrial publicity and the community's atmosphere were so prejudicial and inflammatory that the trial court's refusal to grant petitioner's motion for a change of venue deprived him of his constitutional rights. 2 In his petition for

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habeas corpus, petitioner requested the district court to conduct an evidentiary hearing so that petitioner could prove the facts alleged in the petition. Record at 41. The district court decided that an evidentiary hearing was unnecessary. Record at 239. Petitioner also filed a motion for discovery. Record at 60. In this motion, petitioner indicated that he would use depositions obtained in discovery as direct evidence and as evidence of the need for an evidentiary hearing. The district court did not directly respond to this motion. In its opinion denying habeas relief, the district court said that petitioner had had full and adequate state court hearings relating to the petition's allegations. Record at 239.

We have reviewed the record and it is clear that petitioner is entitled to an evidentiary hearing on the change of venue issue. We therefore remand to the district court for an evidentiary hearing. In the interests of judicial economy and the expeditious handling of this case, we will retain jurisdiction. The district court is instructed to certify its findings and the record of its proceedings on remand to us within 60 days of the issuance of this opinion. See Spivey v. Zant, 661 F.2d 464, 478 (5th Cir.1981) (Unit B), cert. denied, --- U.S. ----, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982); Harris v. Oliver, 645 F.2d 327, 331 (5th Cir.1981) (Unit B), cert. denied, 454 U.S. 1109, 102 S.Ct. 687, 70 L.Ed.2d 650 (1981). 3

I. CHANGE OF VENUE

The Fourteenth Amendment's due process clause safeguards a defendant's Sixth Amendment right to be tried by "a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). When prejudicial pretrial publicity or an inflamed community atmosphere preclude seating an impartial jury, due process requires the trial court to grant a defendant's motion for a change of venue, Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963), or a continuance, Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522-23, 16 L.Ed.2d 600 (1966). Ultimately, the question is whether a defendant's "trial was not fundamentally fair." Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). Two standards guide analysis of this question. They are the "actual prejudice" standard and the "presumed prejudice" standard.

To find the existence of actual prejudice, two basic prerequisites must be satisfied. First, it must be shown that one or more jurors who decided the case entertained an opinion, before hearing the evidence adduced at trial, that the defendant was guilty. Irvin v. Dowd, 366 U.S. at 727, 81 S.Ct. at 1645. Second, these jurors, it must be determined, could not have laid aside these performed opinions and "render[ed] a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1643.

Prejudice is presumed from pretrial publicity when (1) pretrial publicity is sufficiently prejudicial and inflammatory, and (2) the prejudicial pretrial publicity saturated the community where the trials were held. Rideau v. Louisiana, 373 U.S. at 726-27, 83 S.Ct. at 1419-20; Murphy v. Florida, 421 U.S. at 798-99, 95 S.Ct. at 2035-36; Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981); see also Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). As the Fifth Circuit has described the test, "where a petitioner adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community, '[jury]

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prejudice is presumed and there is no further duty to establish bias.' " Mayola v. Alabama, 623 F.2d at 997 (quoting in part from United States v. Capo, 595 F.2d 1086, 1090 (1979), cert. denied, 444 U.S. 1012, 100 S.Ct. 660, 62 L.Ed.2d 641 (1980)).

Petitioner has the burden to show "essential unfairness," Beck v. Washington, 369 U.S. 541, 558, 82 S.Ct. 955, 964, 8 L.Ed.2d 98 (1962) (quoting United States ex rel. Darcy v. Handy, 351 U.S. 454, 462, 76 S.Ct. 965, 970, 100 L.Ed. 1331 (1956)), under either standard. The petitioner must "show that setting of the trial was inherently prejudicial or that the jury selection process of which he complains permits an inference of actual prejudice." Murphy v. Florida, 421 U.S. at 803, 95 S.Ct. at 2038. Given petitioner's allegations of "grave constitutional errors," Townsend v. Sain, 372 U.S. 293, 319, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1963), regarding the trial court's denial of the motion to change venue, and given the fact that petitioner shoulders the burden to demonstrate these allegations, it cannot be doubted that petitioner is entitled to a full and fair opportunity to develop the facts material to this constitutional claim. We must determine whether or not the petitioner has had that...

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