Bailey v. Henslee
| Decision Date | 26 May 1960 |
| Docket Number | No. LR 60 C 25.,LR 60 C 25. |
| Parties | Luther BAILEY, Petitioner, v. Lee HENSLEE, Superintendent of Arkansas State Penitentiary, Respondent. |
| Court | U.S. District Court — Eastern District of Arkansas |
Thad D. Williams, Little Rock, Ark., for petitioner.
Bruce Bennett, Atty. Gen., Thorp S. Thomas, Asst. Atty. Gen., for respondent.
This is a petition for a writ of habeas corpus by the petitioner, Luther Bailey, a Negro under sentence of death by the State of Arkansas for the crime of rape committed on a white woman June 14, 1956. Petitioner was tried upon this charge, convicted and sentenced in September of 1956.
It is the petitioner's contention here (as modified by stipulation of his counsel read into evidence):
An order to show cause was issued to respondent upon this petition, upon which hearings were held on both April 1 and April 12, 1960. Evidence was received from the witnesses called by petitioner, who included the three jury commissioners for the March 1956 term of the First Division court, the term in which petitioner was tried. The court also considered the records, transcripts of testimony, and prior reported history, state and federal, of petitioner's trial and subsequent appeals. Upon this consideration of the petition, it is the decision of this court that petitioner has failed to prove his allegation of racial discrimination, either by exclusion or by limitation, in the selection of the petit jury panels. The petition for writ of habeas corpus is denied.
After his conviction in September of 1956, petitioner appealed to the Arkansas Supreme Court, which affirmed. Bailey v. State, 1957, 227 Ark. 889, 302 S.W.2d 796. The Supreme Court of the United States denied certiorari. 1957, 355 U.S. 851, 78 S.Ct. 77, 2 L.Ed.2d 59.
Bailey's present counsel was appointed to represent him by the Pulaski County Circuit Court more than a month before his trial. On the morning of the trial, his attorney filed a motion to quash the panel of regular and special panel of petit jurors for the alleged reason that the jury commissioners of the trial court in Pulaski County had purposely limited and restricted the number of Negroes serving on any petit jury panel from the years 1952 through 1956, and particularly as to the March 1956 term had selected only three Negroes out of the total of 36 selected to serve on the regular jury panel, and no Negroes out of 100 selected to serve on the special jury panel; and that such discrimination violated the Fourteenth Amendment. (Original trial transcript, pages 14-18.)
Petitioner then filed a petition for a writ of habeas corpus in the court of his conviction, alleging denial of compulsory process and systematic limitation of Negroes on the petit jury panel. His petition was later amended to raise only the question of denial of compulsory process.
Upon denial of his petition, Bailey again appealed to the Supreme Court of Arkansas, but the Court held that the point involved (denial of compulsory process) must necessarily have been raised and litigated, or waived, in the original trial proceedings. Bailey v. State, Ark.1958, 313 S.W.2d 388. Certiorari was denied by the United States Supreme Court, 1958, 358 U.S. 869, 79 S.Ct. 101, 3 L.Ed.2d 101, "without prejudice to an application for a writ of habeas corpus in an appropriate United States District Court".
Then Bailey applied for a writ of habeas corpus in this court before J. Smith Henley, J. The basis for the writ was the claim that Bailey was denied compulsory process for obtaining witnesses in his favor in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States.
Upon hearing of that petition, no compulsory process for attendance of witnesses was requested by Bailey, nor were witnesses, offers of proof, affidavits or other forms of additional proof introduced. The petition was denied. Bailey v. Henslee, D.C.E.D.Ark.1958, 168 F. Supp. 314.
Petitioner Bailey's appeal of the lower court's denial of his petition was affirmed by the Eighth Circuit Court of Appeals. 1959, 264 F.2d 744. That court, in its opinion, held that there was nothing to indicate that the jury commissioners excluded Negroes from the petit jury panel, and that no offer of testimony had been made by petitioner to support this allegation.
The court said, at page 748:
"After having made his record in the trial court, appellate (Bailey) deliberately omitted urging the question which he now seeks to urge, either in his motion for new trial or on appeal."
Petitioner again appealed to the United States Supreme Court, but certiorari was denied, 1960, 361 U.S. 945, 80 S.Ct. 408, 4 L.Ed.2d 364.
"without prejudice to a further application for writ of habeas corpus in the appropriate United States District Court, on the question whether members of petitioner's race were deliberately and intentionally limited and excluded in the selection of petit jury panels, in violation of the Federal Constitution."
Shortly thereafter, Bailey filed this petition for a writ of habeas corpus with this court.
It is true that such adverse State determinations, with the subsequent denials of certiorari by the United States Supreme Court, or the previous petition for habeas corpus denied by this court, does not prevent this court's reception of evidence or its evaluation of the prior record in determining the asserted federal grounds for habeas corpus. Brown v. Allen, 344 U.S. 443, at pages 458, 497-513, 73 S.Ct. 397, 437, at pages 407, 441-449, 97 L.Ed. 469. Nor can it be said to be res adjudicata, as the cases demonstrate.
It was admitted by respondent upon petitioner's request that:
The following table (referred to as Table 1) has been prepared from the complete record before the court to allow a comparison of the various allegations and testimony concerning Negro representation on the petit juries. The table reveals that most of the discrepancies in the evidence before the court are more apparent than real when considered against the complete record.
Table of Negro Jurors
First Division (Criminal) of Pulaski Circuit Court
March 1952 through March 1956 Court Terms
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Allegations of Testimony of Bailey's Corrections
Motion to Quash Court Clerk Exhibit No. 1 To Exhibit
Panel 9/19/56 9/19/56 4/1/60 No. 1
Ordinary Special Regular Alternate Regular Alternate
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March 1952 2 2 0 0
September 1952 1 1 0 0
March 1953 2 2 2 0
September 1953 3 2 3 of 50; 0 of 5 of 21 1 0
(Note 2)
March 1954 2 2 0 of 5 of 24 (Note 3) 1 0 2 0 (Corrected by
)Rosteck
September 1954 2 2 0 of 7 of 100 (Note 4) 1 0 1 1 (4/12/60
March 1955 3 3 4 of 100, one person 3 0
called (Note 5)
September 1955 3 3 0 of 1 of 100 (Note 6) 3 0
(Corrected by
March 1956 3 (Note 1) 3 (See Note 7) 2 0 3 )stipulation of
(parties 4/1/60
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Note 1. Alleged that no Negroes selected out of the "100" on the special panel for the March 1956 term. Further alleged that there had never...To continue reading
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Bailey v. Henslee
...on the issue specified by the Supreme Court. After a hearing and the introduction of evidence his petition was denied. Bailey v. Henslee, D.C.E.D.Ark., 184 F.Supp. 298. Judges of this court granted the certificate of probable cause required by 28 U.S.C.A. § 2253 and the appeal is now before......
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Bailey v. Henslee
...Ark. 889, 302 S.W.2d 796; Bailey v. State, 1958, 229 Ark. 74, 313 S.W.2d 388. 2 Bailey v. Henslee, 1958, 168 F.Supp. 314; Bailey v. Henslee, 1960, 184 F.Supp. 298. 3 Bailey v. Henslee, 8 Cir., 1959, 264 F. 2d 744; Bailey v. Henslee, 1961, 287 F. 2d 936. 4 Bailey v. Arkansas, 1957, 355 U.S. ......
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Bailey v. State
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