Dennis v. Hopper, 76-3736
| Decision Date | 11 March 1977 |
| Docket Number | No. 76-3736,76-3736 |
| Citation | 548 F.2d 589 |
| Parties | Arthur Lee DENNIS, Petitioner-Appellant, v. Joe S. HOPPER, Warden, Georgia State Prison, Respondent-Appellee. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Arthur Lee Dennis, pro se.
B. Dean Grindle, Jr., Asst. Atty. Gen., Arthur K. Bolton, Atty. Gen., John C. Walden, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before COLEMAN, GODBOLD and TJOFLAT, Circuit Judges.
The petitioner alleges he has been denied his constitutional rights in that (1(a)) the grand jury that indicted him and (1(b)) petit jury that convicted him were illegally constituted on the basis of race; (2) his trial attorney was incompetent; (3) he was tried with an individual he had never met.
These allegations arise out of petitioner's trial and conviction for armed robbery, indictment No. 6-10108 on April 28, 1969, on which petitioner was sentenced to eight years imprisonment. On September 24, 1969, the petitioner was sentenced to 15 years for another armed robbery on indictment No. 6-10084, which sentence runs concurrently with the prior sentence.
The petitioner's claims (1(a)), (2), and (3) relate only to his conviction on indictment No. 6-10108. Relief, if warranted, would only affect the petitioner's conviction under that indictment, and would not affect petitioner's sentence under indictment No. 6-10084, which runs concurrently with No. 6-10108. Petitioner has shown no specific detriment from No. 6-10108, and we pretermit discussion of issues (1(a)), (2), and (3) by virtue of the concurrent sentence doctrine. U. S. v. Barsaloux, 5 Cir. 1969, 419 F.2d 1299; Rogers v. Wainwright, 5 Cir. 1968, 394 F.2d 492.
Petitioner's only claim that escapes the pale of the concurrent sentence doctrine is his allegation that the grand jury that indicted him was illegally constituted. Since the same grand jury returned No. 6-10108 and No. 6-10084, it is judicially noted that a finding favorable to the petitioner on this allegation would upset both convictions.
The petitioner baldly avers that Blacks were unconstitutionally excluded from the grand jury that returned the indictment. In the state habeas proceeding petitioner did not establish a prima facie case of an unconstitutionally composed grand jury. Without benefit of a prima facie case, petitioner's allegation does not warrant habeas relief. See Willis v. Smith, 5 Cir. 1970, 434 F.2d 1029, cert. denied 403 U.S. 932, 91 S.Ct. 2261, 29 L.Ed.2d 711 (1971).
Furthermore, even assuming that petitioner was indicted by a grand jury unconstitutionally composed, habeas relief is not merited.
Georgia law requires that challenges to grand jury compositions be urged at the earliest available opportunity. Blevins v. State, 220 Ga. 720, 141 S.E.2d 426 (1965). Failure to timely challenge the composition of a grand jury waives the right to attack the composition collaterally,...
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Tennon v. Ricketts, 77-2356
...551 F.2d 680, 682 (5th Cir. 1977), and as requiring challenges to be made at the "earliest available opportunity," Dennis v. Hopper, 548 F.2d 589 (5th Cir. 1977). The Supreme Court defined the rule as requiring a challenge "before indictment" in Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, ......
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Spencer v. Kemp
...at time of trial applied, but claims held barred due to procedural default despite provisions of 1967 statute). But see Dennis v. Hopper, 548 F.2d 589 (5th Cir.1977) (petitioner convicted in 1969; held, without mentioning Georgia habeas statute, failure to raise timely challenge to composit......
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Goodwin v. Balkcom
...petitioner's trial to hold that a failure to challenge the grand jury array before trial resulted in a waiver. See, e.g., Dennis v. Hopper, 548 F.2d 589 (5th Cir. 1977); Blevins v. State, 220 Ga. 720, 141 S.E.2d 426 (1965). Thus, the court next addressed the question of whether cause and pr......
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Hayes v. State of Ala., 79-0572-C.
...statute to find procedural default in jury composition challenge where record did not indicate basis of state ruling); Dennis v. Hopper, 548 F.2d 589, 590 (5th Cir.1977) (jury composition) (relying solely on prior state case law, court denied relief where petitioner committed procedural def......