785 F.2d 1467 (11th Cir. 1986), 82-8413, Ross v. Kemp

Docket Nº:82-8413.
Citation:785 F.2d 1467
Party Name:Willie X. ROSS, Petitioner-Appellant, v. Ralph KEMP, Respondent-Appellee.
Case Date:March 20, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1467

785 F.2d 1467 (11th Cir. 1986)

Willie X. ROSS, Petitioner-Appellant,

v.

Ralph KEMP, Respondent-Appellee.

No. 82-8413.

United States Court of Appeals, Eleventh Circuit

March 20, 1986

Page 1468

John Charles Boger, Jack Greenberg, James M. Nabrit, III, Joel Berger, Deborah Fins, James S. Liebman, Deval L. Patrick, New York City, Timothy K. Ford, Seattle, Wash., for petitioner-appellant.

Jan Hildebrand, Mary Beth Westmoreland, Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before KRAVITCH and JOHNSON, Circuit Judges, and LYNNE [*], Senior District Judge.

KRAVITCH, Circuit Judge:

The principal issue before this panel is whether appellant Ross should be allowed to submit additional evidence to this court after issuance of a panel opinion and scheduling of en banc argument. The issue was presented the day preceding en banc rehearing of the case, by Ross' motion to supplement the record with affidavits based on information obtained by attorneys in an unrelated case. Subsequent to the filing of the motion, and en banc argument, the court affirmed the district court's denial of federal habeas corpus relief on all grounds except the one relating to the motion to supplement the record. Ross v. Kemp, 756 F.2d 1483 (11th Cir.1985) (en banc). The en banc court did not address the motion, but remanded the case to this panel for consideration of the motion and reconsideration of Ross' claim of unconstitutional jury composition. Id. at 1494.

I. BACKGROUND

Appellant Ross, a black male, was convicted of the murder of a white policeman, armed robbery, and kidnapping, 1 and sentenced to death by an all white and all male jury on March 13, 1974. The Georgia Supreme Court affirmed his conviction and sentence on direct appeal. Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974), cert. denied, 428 U.S. 910, 96 S.Ct. 3222, 49 L.Ed.2d 1217 (1976). In 1976, Ross filed in state court a petition for habeas corpus relief consisting of twenty-one claims, including an allegation that the grand jury which indicted him and the traverse jury which convicted and sentenced him were selected through procedures that systematically excluded blacks and women in violation of the sixth and fourteenth amendments. At the state court hearing, Ross' attorney, Herbert Phipps, 2 explained that when he had gone to the office of the Colquitt County clerk and requested the 1973 jury lists from which the jury venires for 1974, the year in which Ross was indicted

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and tried, had been picked, the clerk told him that the lists had been destroyed. Phipps also filed an affidavit, dated October 13, 1976 (Exhibit F state habeas petition), with the state court averring that although the 1973 Colquitt County jury lists were no longer available, he had personally examined the lists in connection with other cases he had handled since 1971 and had found unconstitutional underrepresentation of blacks and women. The state habeas court rejected the merits of Ross' jury composition claim due to lack of evidence. The Georgia Supreme Court affirmed, stating it had fully considered all of Ross' contentions but found that he was fairly tried and convicted. Ross v. Hopper, 240 Ga. 369, 240 S.E.2d 850, 853 (1977), cert. denied, 435 U.S. 1018, 98 S.Ct. 1890, 56 L.Ed.2d 397 (1978).

In 1978, Ross filed a petition for federal habeas corpus relief, raising twelve claims, again including an allegation of unconstitutional jury composition, and requested an evidentiary hearing. In December, 1979, after the court granted his motion for discovery, Ross subpoenaed and deposed both the county clerk, Wilbur Murphy, who was custodian of the records, and a former member of the jury commission, Thomas Norman. 3 Murphy testified that the jury commissioners revised the lists every two years and that his office kept the one copy of the current jury lists but discarded the old lists when the new ones were completed. He explained that was why he did not have any of the lists from 1970 through 1974. Murphy also stated that the commissioners revised the lists earlier than usual in 1977 in anticipation of an upcoming criminal drug case. He testified that he did not know why the trial judge ordered the early revision, that he believed it was just to make sure the lists were proper, and that he was not aware of any party having requested the revision. Murphy produced no documents in response to the subpoena seeking the jury lists from 1970 through 1974 and other documents identifying the race or sex of jury members in those years, but provided the 1975 and 1977 lists stating they were the only ones he had. Norman testified that the clerk was the sole custodian of the lists and that none of the jury commissioners ever had in his or her possession the entire lists, but only the portions containing the geographic area for which that commissioner was responsible and which were always returned to the clerk. He explained that the jury commissioners started afresh each time they revised the jury lists and did not simply amend the old lists. Norman corroborated Murphy's testimony as to the selection procedures. He added that the early 1977 revision was aimed at getting a closer percentage according to race and sex, and resulted in an increase of women and blacks on the lists although he could not make an accurate estimate as to the degree of increase since 1973 because he did not have the 1973 lists and could not recall the percentage of blacks or women on those lists. He stated that his best guess was that the judge ordered the early revision. Norman did not produce any documents in response to his subpoena which requested the same documents as Murphy's subpoena.

Following the depositions, Ross filed a renewed motion for an evidentiary hearing with a supporting legal memorandum arguing that the discovery depositions revealed significant new evidence on his jury claim entitling him to a hearing. At the court's request, Ross subsequently joined in a consolidated legal memorandum supporting his motion for a hearing with two petitioners in unrelated habeas cases, addressing five common constitutional claims. On January 26 and 27, 1981, the district court held a consolidated hearing to determine what evidence the three petitioners could present and added the jury challenges to the list of

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common claims. The petitioners' joint evidence consisted of studies showing the unique harm that capital defendants experience when blacks and women are excluded from their juries because members of these two groups are statistically less likely to vote for the death penalty. As a result of the January hearing, the parties understood that the court had limited the evidence which the petitioners could present individually on the jury claims at the May 1981 hearing to showings of cause and prejudice.

After the hearings, the district court denied Ross' petition for habeas corpus. It held that Ross had had a full and fair opportunity to present his jury claim to the state court and had not overcome the presumption of correctness accorded state court findings in federal habeas proceedings under 28 U.S.C. Sec. 2254(d). Ross v. Hopper, 538 F.Supp. 105 (S.D.Ga.1982). 4 This panel of the court of appeals affirmed the district court's denial on this ground as well as other grounds. Ross v. Hopper, 716 F.2d 1528, 1537-39 (11th Cir.1983). The full court subsequently granted Ross' motion for rehearing en banc, 729 F.2d 1293, and scheduled oral argument for June 12, 1984.

II. THE MOTION TO SUPPLEMENT THE RECORD

On June 11, 1984, appellant Ross filed a motion to supplement the record of his habeas petition with four documents, copies of which have been lodged with this court. Two of the documents are depositions taken in conjunction with the district court proceedings: Murphy deposition dated December 6, 1979; Cole deposition dated December 7, 1979 relating to a different claim. The other two documents are affidavits outlining statistical evidence relevant to Ross' claim of unconstitutional composition of Colquitt County's 1973 grand and traverse jury venires: Friedman affidavit dated June 8, 1984; Jenkins affidavit dated June 10, 1984.

Ross now seeks a full hearing on the merits of his jury composition claim in order to develop this evidence, and argues in the alternative that we should grant relief on the merits of his jury composition claim because the proffered evidence presents a prima facie case of unconstitutional jury composition and the state has not suggested any "serious rebuttal testimony." The state argues that the motion to supplement

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should be denied, or in the alternative, remanded to the district court.

No single alternative correctly resolves all the issues raised by the motion. We find that proper disposition of the motion requires consideration of the request to supplement the record with the 1979 depositions apart from consideration of the request to supplement it with the 1984 affdavits.

III. THE 1979 DEPOSITIONS

According to Ross' memorandum in support of his motion, the Murphy and Cole depositions were two of several taken by Ross' attorneys in connection with the federal district court proceedings that they expected would be automatically filed with the district court pursuant to Fed.R.Civ.P. 30(f)(1) and the Southern District of Georgia's Local Rules. In an affidavit (Boger affidavit dated June 8, 1984) filed in support of Ross' motion to supplement the record, one of Ross' attorneys stated that he and his co-counsel believed that the depositions had been automatically filed with the court and that there had not been a conscious decision to omit them from the record. He explained that they did not file these two depositions as part...

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