778 F.2d 1482 (11th Cir. 1985), 82-8017, Isaacs v. Kemp

Docket Nº:82-8017, 85-8202 and 85-8277.
Citation:778 F.2d 1482
Party Name:Carl J. ISAACS and George Elder Dungee, Petitioners-Appellants, v. Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee. George Elder DUNGEE, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee. Carl J. ISAACS, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee.
Case Date:December 09, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1482

778 F.2d 1482 (11th Cir. 1985)

Carl J. ISAACS and George Elder Dungee, Petitioners-Appellants,

v.

Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee.

George Elder DUNGEE, Petitioner-Appellant,

v.

Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee.

Carl J. ISAACS, Petitioner-Appellant,

v.

Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee.

Nos. 82-8017, 85-8202 and 85-8277.

United States Court of Appeals, Eleventh Circuit

December 9, 1985

Rehearing and Rehearing En Banc Denied Jan. 31, 1986.

Thomas J. Killeen, Athens, Ga., for C. Isaacs.

Stephen B. Bright, Carla J. Friend, Atlanta, Ga., W. Gary Kohlman, Robinson & Kohlman, Washington, D.C., for G. Dungee.

Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeals from the United States District Court for the Middle District of Georgia.

Before JOHNSON and ANDERSON, Circuit Judges, and HUNTER[*], District Judge.

ANDERSON, Circuit Judge:

Petitioners Carl J. Isaacs and George Elder Dungee appeal from the federal district court's denial of their habeas corpus

Page 1483

petitions.1 On May 14, 1973, five members of the Alday family were shot to death in their mobile home in Donalsonville, Georgia. A sixth person, Mary Alday, was taken from the mobile home, raped, and then shot to death.2 On September 4, 1973, Seminole County's grand jury indicted Carl Isaacs, Dungee, Billy Isaacs, and Wayne Carl Coleman on six counts of murder. Some three months later, Billy Isaacs, Carl's sixteen-year old brother, pleaded guilty to armed robbery and burglary. He was sentenced to a forty-year prison term. Shortly thereafter, the three remaining defendants were tried separately, convicted, and sentenced to death by electrocution. Several post-conviction proceedings followed.3 Petitioners have exhausted their state remedies.

In this habeas proceeding, petitioners raise five issues: (1) whether pretrial publicity and the community's atmosphere were so prejudicial and inflammatory that the trial court's refusal to grant appellants' motion for a change of venue deprived them of their Fourteenth Amendment due process rights; (2) whether, under the Fourteenth Amendment's due process clause, appellants received sufficient notice specifying the aggravating circumstances which the prosecutor would rely on in the sentencing phase of the bifurcated trial; (3) whether the trial court's jury instruction on intent impermissibly shifted the burden of proof from the state to the petitioners in violation of the Fourteenth Amendment's due process clause; (4) whether Georgia's death penalty is applied in a discriminatory manner, thus violating the dictates of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam); and (5) whether the district court erred in refusing to allow appellants leave to amend their petition to add claims which are, in large part, already before the court in a related case.4 We have carefully reviewed the entire record available for our consideration, and we conclude that the district court's order denying habeas relief should

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be reversed on the basis of the first issue raised by the petitioners.5

This court has considered the presumed prejudice issue at length in the companion case of Coleman v. Kemp, 778 F.2d 1487, published simultaneously with this opinion. In Coleman, we concluded that highly prejudicial publicity had saturated and inflamed the community to the extent that there was overwhelming prejudice in Seminole County both as to petitioner Coleman's guilt and the sentence he should receive. Accordingly, we presumed prejudice under Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). While the legal standards and relevant facts are basically the same, there are some differences between Coleman's case and the cases of Isaacs and Dungee.

We must determine whether differences between the cases of Isaacs and Dungee, on the one hand, and Coleman's case on the other hand, suggest that prejudice should be presumed for Coleman, but not for Isaacs and Dungee. Upon review, we conclude that while there are differences between the cases, these differences are not of sufficient significance to warrant a different result in Isaacs' and Dungee's cases.

The primary difference between Coleman's case and that of petitioner Isaacs is that the verdict and sentence in the previous cases as well as the explicit details of Billy Isaacs' testimony were not published prior to Carl Isaacs' trial. Our review of the record convinces us, however, that the same prejudicial sentiment in Seminole County against these defendants existed prior to Carl Isaacs' trial, and thus prejudice must be presumed in the instant case as well. Although the explicit details of Billy Isaacs' testimony were not published prior to Carl Isaacs' trial, the entry of Billy Isaacs' guilty plea, the fact that Billy Isaacs would be an eyewitness to the murders, and the fact that Billy Isaacs had issued a statement describing the murders were all widely known prior to the first trial. In short, there was overwhelming sentiment that "these were the 'right' defendants" prior to Carl...

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