Birt v. Montgomery

• Decision Date: 16 February 1982
• Docket Number: Civ. A. No. 681-24.
• Parties: Billy Sunday BIRT, Petitioner, v. Charles MONTGOMERY, Warden, Respondent.
• Court: U.S. District Court — Southern District of Georgia

531 F. Supp. 815

Billy Sunday BIRT, Petitioner, v. Charles MONTGOMERY, Warden, Respondent.

Civ. A. No. 681-24.

United States District Court, S. D. Georgia, Augusta Division.

February 16, 1982.

John Charles Boger, New York City, Eric G. Kocher, Gainesville, Ga., for petitioner.

Harrison Kohler, Asst. Atty. Gen., Atlanta, Ga., for respondent.

ORDER

BOWEN, District Judge.

On December 23, 1973 Mr. and Mrs. Reid Oliver Fleming, Sr., two elderly citizens of Wrens, Georgia, were found strangled to death in the bedroom of their rural home. After investigation, Billy Sunday Birt, the petitioner, was indicted by a Jefferson County grand jury for the following offenses relating to the death of the Flemings: burglary, two counts of armed robbery and two counts of murder. Petitioner was convicted of these offenses on June 28, 1975 after a six day jury trial in the Superior Court of Jefferson County. He received a twenty year sentence for the offense of burglary, two life sentences for two counts of armed robbery and two sentences of death for the two counts of murder. Petitioner's death penalties were subsequently vacated and petitioner has been granted a new sentencing hearing in regard to his murder convictions. See Birt v. Hopper, 245 Ga. 221, 265 S.E.2d 276, cert. denied, 449 U.S. 855, 101 S.Ct. 150, 66 L.Ed.2d 68 (1980).

Petitioner, now an inmate at Georgia State Prison in Reidsville, Georgia, was allowed to proceed in forma pauperis in this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 under an order of the Court dated March 24, 1981. The following grounds for relief are raised in the petition which petitioner, through counsel, has submitted to the Court: (1) petitioner was denied his right to effective assistance of counsel, (2) excessive security measures at petitioner's trial violated his right to due process and (3) there was insufficient evidence to support petitioner's convictions. Petitioner's petition reveals that prior to filing this action in federal court, plaintiff sought relief from his convictions before the Georgia Supreme Court on two occasions, see Birt v. State, 236 Ga. 815, 225 S.E.2d 248, cert. denied, 429 U.S. 1029, 97 S.Ct. 654, 50 L.Ed.2d 632 (1976) (direct appeal of his conviction); Birt v. Hopper, 245 Ga. 221, 265 S.E.2d 276, cert. denied, 449 U.S. 855, 101 S.Ct. 150, 66 L.Ed.2d 68 (1980) (appeal from decision of state habeas court), and before the Tattnall County Superior Court (state habeas corpus). After reviewing the findings of those state courts, the Court is satisfied that petitioner has exhausted his state remedies as to every issue now raised before this Court. See 28 U.S.C. § 2254(b).

FINDINGS AND CONCLUSIONS

At the outset, the limited scope of this Court's power to review state court factual findings must be recognized.

In a federal habeas corpus proceeding instituted by a state prisoner, a determination after a hearing on the factual issues made by a state court of competent jurisdiction and evidenced by a written finding, written opinion or other reliable and adequate written indicia shall be presumed to be correct unless one of the seven specified conditions set forth in 28 U.S.C. § 2254 is found to exist or unless the habeas corpus court concludes that the relevant state court determination is not fairly supported by the record.

Williams v. Blackburn, 649 F.2d 1019, 1022-23 (5th Cir. 1981) (supplemental opinion); see Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Since the Court finds that petitioner received a full and fair hearing on the merits of all of the grounds for relief which he now brings before this Court and that not one of the statutory exceptions contained in 28 U.S.C. § 2254(d) is satisfied, the factual findings made by the state courts of Georgia concerning such grounds for relief will be presumed to be correct. The specific state factual findings relied upon by the Court will be explicated as necessary in the following divisions of this opinion.

I. EFFECTIVE ASSISTANCE OF COUNSEL

Petitioner alleges that he was denied effective assistance of counsel because Mr. Collins, his court-appointed attorney,¹ failed to challenge the composition of petitioner's grand and traverse juries. Under the sixth amendment, petitioner was entitled to "counsel reasonably likely to render and rendering reasonably effective assistance." McKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), modified, 289 F.2d 928, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). The burden of proof is on the petitioner to show that he was denied adequate representation under this standard. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Jones v. Estelle, 632 F.2d 490, 492 (5th Cir. 1980), cert. denied, 451 U.S. 916, 101 S.Ct. 1992, 68 L.Ed.2d 307 (1981). "The appropriate methodology for determining whether there has been effective assistance is to examine the totality of circumstances in the entire record." Baty v. Balkcom, 661 F.2d 391, 394 (5th Cir. 1981). See e.g., Washington v. Estelle, 648 F.2d 276 (5th Cir. 1981); Lovett v. Florida, 627 F.2d 706 (5th Cir. 1980).

After a careful review of the record in this case, the Court is satisfied that the representation afforded petitioner by Mr. Collins with the assistance of Mr. Reeves was more than adequate. Specifically, the Court adopts the finding of the state courts that petitioner "personally relinquished his right to challenge the composition of the grand jury." Birt v. Hopper, 245 Ga. 221, 224, 265 S.E.2d 276, cert. denied, 449 U.S. 855, 101 S.Ct. 150, 66 L.Ed.2d 68 (1980). The Court finds that petitioner had informed counsel of his desire to proceed to trial as rapidly as possible so that petitioner could face his accusers. Counsel's decision to forego a challenge to the grand jury was consistent with and a direct result of petitioner's request to avoid any unnecessary delay of his trial.

As for the composition of the traverse jury,² the Court credits the testimony of Mr. Collins, which was adopted by the state courts, indicating that "although counsel did not know the racial composition of the county, he knew that the traverse jury pool had recently been revised to include more blacks and women." Id. The Court finds that Mr. Collins met with the jury commissioners and diligently investigated the jury list in question. In assessing Mr. Collins' ultimate decision not to challenge the traverse jury, the Court notes again that petitioner had expressed to counsel his desire to proceed to trial as rapidly as possibly. Under the facts of this case, the Court cannot say that Mr. Collins' failure to challenge petitioner's traverse jury rendered his representation of petitioner ineffective. Taken in context, counsel's decision can best be characterized as a matter of trial strategy. Mr. Collins testified at petitioner's state habeas corpus hearing that he filed a motion for change of venue with the stipulation that he would not insist on such a change if the defense was able to draw a satisfactory jury. (state habeas transcript at 306-08). Mr. Collins indicated that he was indeed satisfied with the jury which was ultimately selected and that the venue motion was dismissed.³ Even if the decision not to challenge the traverse jury could be characterized as a mistake in judgment,⁴ "it is well settled ... that an accused in a criminal case is entitled to `effective assistance of counsel,' but not to an error free performance." Dozier v. United States Dist. Court, etc., 656 F.2d 990 (5th Cir. 1981); see United States v. Burroughs, 650 F.2d 595 (5th Cir. 1981); Washington v. Estelle, 648 F.2d 276, 279 (5th Cir. 1981). Mr. Collins' reasoned choice not to challenge the traverse jury and his acquiescence in petitioner's decision not to challenge the composition of the grand jury do not establish a claim for habeas corpus relief. See Beckham v. Wainwright, 639 F.2d 262, 265 (5th Cir. 1981); United States v. Hughs, 635 F.2d 449, 452-53 (5th Cir. 1981). Under the totality of the circumstances it is clear that petitioner's first contention is without merit. Nelson v. Estelle, 642 F.2d 903, 906 (5th Cir. 1981).

II. EXCESSIVE SECURITY

While "the presumption of innocence is not specifically mentioned in the Constitution ..., it is recognized as a component of due process." Kennedy v. Cardwell, 487 F.2d 101, 104 n.4 (6th Cir. 1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). In implementing and overseeing security measures at trial,

a trial court finds itself obligated to simultaneously discharge clashing duties .... On the one hand, it is incumbent upon the court to strive to preserve impartiality and to avoid allowing anything to undermine the defendant's presumption of innocence. On the other hand, the trial court is charged with the duty to preserve the safety of counsel, jury, witnesses, spectators—in short, everyone inside the courtroom.

United States v. Clardy, 540 F.2d 439, 442-43 (9th Cir.), cert. denied, 429 U.S. 963, 97 S.Ct. 391, 50 L.Ed.2d 331 (1976); see Leyvas v. United States, 264 F.2d 272, 277, cert. denied, 359 U.S. 936, 79 S.Ct. 651, 3 L.Ed.2d 637 (1959). In reviewing a state trial court's attempt to reconcile these two duties, this Court must consider whether the trial court "abused its discretion and deprived the petitioner of a fair trial." Clardy, 540 F.2d at 443.

In this case, petitioner was accused of two exceptionally brutal murders. Judge McMillan testified in petitioner's state habeas corpus hearing that threats had been made against the lives of petitioner and his coindictees. There was also evidence that some attempt might be made by friends or relatives of petitioner to kill certain state witnesses. Agents of the Georgia Bureau of Investigation testified that they had been informed that petitioner's son and the son of codefendant Billy Gaddes were...