Smith v. Kemp, 83-8611
| Decision Date | 09 September 1983 |
| Docket Number | No. 83-8611,83-8611 |
| Citation | 715 F.2d 1459 |
| Parties | John Eldon SMITH, Petitioner-Appellant, v. Ralph M. KEMP, Superintendent, Georgia Diagnostic & Classification Center, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
John Charles Boger, New York City, Timothy K. Ford, Seattle, Wash., for petitioner-appellant.
Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before RONEY, HILL and HATCHETT, Circuit Judges.
Joseph Ronald Akins and his wife of twenty days, Juanita Knight Akins, were killed in a secluded area of a new housing development in Bibb County, Georgia, on August 31, 1974, by shotgun blasts fired at close range. Petitioner, John Eldon Smith, also known as Tony Machetti, charged with firing the shotgun, was convicted of murder and sentenced to death.
Briefly, the evidence was that petitioner and his wife, Rebecca Akins Smith Machetti, together with John Maree, plotted to kill Akins, a former husband of Rebecca's and the father of her three children, in order to collect his life insurance proceeds. John Maree testified that he and petitioner lured Akins to the area of the crime on the pretense of installing a television antenna. When Akins appeared with his wife, petitioner shot them both.
Before this Court is the appeal from a denial of a second federal habeas corpus petition that asserted three grounds for relief: first, John Maree had a pretrial agreement or understanding not revealed to the jury so that the trial was unconstitutional under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); second, the Georgia death statute is applied in an unconstitutional, arbitrary, and discriminatory way; and third, the underrepresentation of women made the jury that convicted him unconstitutional under Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).
We affirm the denial of habeas corpus relief holding first, the Giglio claim, although not asserted in the prior federal habeas corpus proceeding, was resolved by a state court's findings of fact that there was no understanding or agreement that should have been revealed to the jury; second, that defendant had a full opportunity to litigate and did litigate in his prior habeas corpus proceeding the issue concerning the arbitrary and discriminatory application of Georgia's death penalty to petitioner, so that the attempt to relitigate here is a clear abuse of the writ; and third, the defendant waived his right to object to the jury by failing to assert the issue at trial, on appeal, or on his first habeas corpus proceeding.
Petitioner's execution was scheduled for August 25, 1983. A notice of appeal was filed in this Court on Monday, August 22, from a denial of the relief by the district court entered on Friday, August 19. A motion for stay of execution was simultaneously filed, along with a motion for certificate of probable cause, denied by the district court.
Following the procedures indicated by Barefoot v. Estelle, --- U.S. ----, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), this Court gave proper notice that the Court would consider the merits as well as the pending motion and heard two and one-half hours of oral argument on Tuesday, August 23. The parties cooperated by filing excellent briefs and thoroughly arguing all issues raised in this appeal. The Court entered a stay, in order to more thoroughly examine the issues presented, and called for additional briefs to be filed by August 29. Supreme Court Justice Powell refused to vacate the stay. Our decision here reflects the full consideration of the merits of the case based on the record from the trial and both habeas corpus proceedings, voluminous briefing at the trial and appellate stage, extensive oral argument, and the Court's independent research on the legal issues involved.
To understand our decision, insofar as it relates to the abuse of the writ and the waiver issues, it is helpful to review a chronology of the prior proceedings in this case:
Jan. 30, 1975 Petitioner convicted
Feb. 1975 Rebecca Smith Machetti convicted
Jan. 6, 1976 Conviction & sentences aff'd - Smith
v. State, 236 Ga. 12, 222 S.E.2d 308
(1976). 1
July 6, 1976 Cert. denied, Smith v. Georgia, 428
U.S. 910, 96 S.Ct. 3224, 49 L.Ed.2d
1219 (1976).
Oct. 4, 1976 Petition for rehearing denied, Smith
v. Georgia, 429 U.S. 874, 96 S.Ct.
3224, 49 L.Ed.2d 1219 (1976).
Oct. 22, 1976 Petition for Writ of Habeas Corpus
Georgia Superior Court.
Mar. 16, 1977 Petition dismissed (unpublished order).
Oct. 18, 1977 Order dismissing petition affirmed,
Smith v. Hopper, 240 Ga. 93, 239 S.E.
2d 510 (1977). 2
June 5, 1978 Cert. denied, Smith v. Hopper, 436
U.S. 950, 98 S.Ct. 2859, 56 L.Ed.2d
793 (1978).
Oct. 2, 1978 Petition for rehearing denied, Smith
v. Hopper, 439 U.S. 884, 99 S.Ct.
229, 58 L.Ed.2d 199 (1978).
Feb. 21, 1979 Petition for Writ of Habeas Corpus
filed in U.S. District Court, M.D. Ga.
Sept. 9, 1980 U.S. Magistrate recommended denial
of all relief.
Nov. 26, 1980 District court denied relief (unreported
order and judgment).
Nov. 2, 1981 This Court affirmed, Smith v. Balkcom,
660 F.2d 573 (5th Cir. Unit B
1981). 3
Mar. 29, 1982 Opinion modified on rehearing, 671
F.2d 858 (5th Cir. Unit B 1982).
Oct. 5, 1982 Cert. denied, Smith v. Balkcom, ---
U.S. ----, 103 S.Ct. 181, 74 L.Ed.2d
148 (1982).
June 25, 1982 Second Petition for Writ of Habeas
Corpus filed in Georgia Superior
Court.
Georgia Superior Court dismissed
immediately without consideration of
the merits.
Sept. 16, 1982 Georgia Supreme Court remanded
appeal "for an evidentiary hearing
on the issues raised in the Petition."
Nov. 15, 1982 Superior Court on remand (after brief
hearing on waiver issues) denied
evidentiary hearing on merits and
dismissed.
Mar. 1, 1983 Georgia Supreme Court reversed and
remanded case again for evidentiary
hearing on prosecutorial claim of
misconduct. Smith v. Zant, 250 Ga. 645,
301 S.E.2d 32 (1983).
May 10, 1983 Evidentiary hearings before Superior
June 10, 1983 Court.
Aug. 5, 1983 Superior Court's order denying relief.
Aug. 16, 1983 Georgia Supreme Court denied application
for CPC.
Aug. 17, 1983 Petition for Writ of Habeas Corpus
filed in U.S. District Court, M.D. Ga.
Aug. 17, 1983 Oral Argument before District Court.
Aug. 18, 1983 Petitioner's motion for an evidentiary
hearing.
Aug. 19, 1983 Order denying motion.
Order dismissing petition, denying
CPC, denying IFP and denying stay
of execution pending appeal.
Aug. 19, 1983 Notice of Appeal (11th Cir.).
Aug. 22, 1983 Application for CPC, IFP and certificate
of good faith and application
for stay of execution.
Aug. 23, 1983 Oral Argument and Order granting
CPC, IFP, and stay of execution.
Aug. 24, 1983 Motion to Vacate Stay filed with
Justice Powell.
Aug. 24, 1983 Justice Powell's Order declining to
vacate stay.
Aug. 25, 1983 This Court's letter to counsel to file
other material by August 29.
In these appeals and petitions, a total of 28 jurists on seven separate state and federal courts, some on several occasions (the Supreme Court of the United States has been petitioned four times, the Georgia Supreme Court five), have considered Smith's claims. He has sought procedural devices (stays of execution and full hearings) to insure that his claims be fully developed and considered as well as relief on their merits. He has been provided most of the procedural protections sought. No court has found merit in any of his claims.
The petitioner did not raise the claimed Giglio violation until his second state habeas corpus petition. At the insistence of the Supreme Court of Georgia on its second remand of that petition to the state habeas corpus judge, a hearing was held on petitioner's claim that the prosecution failed to correct the false testimony of John Maree, an accomplice and eyewitness who testified against Smith at the latter's trial, that Maree had no plea agreement with the state. Smith v. Zant, 250 Ga. 645, 301 S.E.2d 32 (1983). Prosecutorial suppression of an agreement with or promise to a material witness in exchange for that witness' testimony violates a criminal defendant's due process rights. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The state must affirmatively correct testimony of a witness who fraudulently testifies that he has not received a promise of leniency in exchange for his testimony.
Maree testified on cross examination that he had never received any promises in exchange for his testimony other than "protection for my family and myself." Smith alleges that Maree had received a promise of a life sentence in exchange for testimony against petitioner and that the prosecutor concealed this promise from the jury.
On remand, the...
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