Dix v. Newsome

• Decision Date: 20 March 1984
• Docket Number: Civ. A. No. C80-826A.
• Citation: 584 F. Supp. 1052
• Parties: Horace William DIX, Petitioner, v. Lanson NEWSOME, Warden, Georgia State Prison, Respondent.
• Court: U.S. District Court — Northern District of Georgia

584 F. Supp. 1052

Horace William DIX, Petitioner, v. Lanson NEWSOME, Warden, Georgia State Prison, Respondent.

Civ. A. No. C80-826A.

United States District Court, N.D. Georgia, Atlanta Division.

March 20, 1984.

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COPYRIGHT MATERIAL OMITTED

Joseph M. Nursey, Millard C. Farmer, Jr., August Siemon, Atlanta, Ga., for petitioner.

William B. Hill, Susan V. Boleyn, Atlanta, Ga., for respondent.

MEMORANDUM OPINION AND ORDER OF COURT

HORACE T. WARD, District Judge.

Petitioner, a state prisoner currently incarcerated at the Georgia State Prison, Reidsville, Georgia, has filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner seeks habeas corpus relief from the sentence of death for the offense of murder imposed upon him by the Superior Court of Clayton County, Georgia in March 1975. Petitioner was, at the same trial, convicted on three additional charges of kidnapping.

This habeas petition, which raises fifteen (15) grounds, was initially referred to the Magistrate who conducted an evidentiary hearing and directed the parties to file briefs. On August 17, 1983, the Magistrate issued his Report and Recommendation addressing each ground. The Magistrate recommended that petitioner's habeas corpus petition be denied on all grounds except the first ground—incompetency to stand trial. Both parties have filed objections to the Magistrate's Report and Recommendation. Thus, this matter is now before the court on the Magistrate's Report and Recommendation.

BACKGROUND

On the morning of September 8, 1974, at approximately 11:00 a.m., Dixie Jordan, the murder victim, and her mother, Mrs. Alpha McPherson, arrived at Ms. Jordan's apartment. Horace Dix, the defendant and exhusband of Dixie Jordan, was waiting in the driveway. Ms. Jordan said that it would be better if she spoke with the defendant alone, so Dixie's mother left them at Dixie's apartment and went to visit another daughter, Barbara. Shortly thereafter, Dixie called her mother and asked her to return to Dixie's apartment for dinner around 4:00 p.m. because Dix wanted to talk to her.

At approximately 3:00 p.m., Barbara called Dixie's apartment. The defendant answered the telephone and told Barbara that Dixie stepped out to visit a neighbor. Barbara asked for Dixie to return her call. Receiving no call, Barbara called Dixie's apartment again. Dix again answered the telephone, and Barbara inquired as to Dixie's whereabouts. The defendant did not answer her question, but instead requested that Dixie's mother come over to the apartment. Dixie's mother (Mrs. McPherson), Barbara, and Rita, Barbara's fourteen year old daughter, then drove over to Dixie's apartment.

When they arrived at Dixie's apartment, the defendant opened the door. He stated that Dixie was in the bedroom resting. Dixie's mother tried to enter the bedroom but the door was locked. Mrs. McPherson then called for Dixie but there was no response. At this time, Dix said, "Don't open that door ... You are not messing my plans up." He had a gun drawn and was holding Rita in front of him. When Dixie's mother asked Dix why he was holding them at gunpoint, he replied that they were all going to Carrollton, Georgia. When asked if Barbara and Rita could stay in the apartment, he stated that they could not because if they did they would call the police. Dix then concealed his gun and took Mrs. McPherson, Barbara, and Rita to Dixie's car.

Later, while driving, Rita wanted something to drink. Dix was eventually persuaded to stop at a store. There, Mrs. McPherson was told to get out of the car to buy drinks and cigarettes. Mrs. McPherson got out and then refused to get back into the car even though Dix commanded her to do so at gunpoint. Mrs. McPherson then told Barbara and Rita to get out of the car. When the defendant tried to block their exit, Mrs. McPherson said, "Horace, just don't start no stuff here." At about this time another car pulled into the store, and Barbara and Rita got out of the car. Mrs. McPherson then went inside the store to use the telephone. At that time Barbara asked the defendant if there was anything wrong with Dixie. Dix replied, "Yes, I hurt her." He then stated, "If this gets out, I'll kill you, Alpha, and Rita." Dix then drove off. Mrs. McPherson called another daughter, Charlotte, and told her to go to Dixie's apartment and check the bedroom.

When Dixie's room was entered, her body was found in the bed wrapped in a bed sheet. The testimony of Dr. Joseph Burton, forensic pathologist and medical examiner, indicated that Ms. Jordan had been struck with a blunt object in the area of her jaw, and then strangled. Several cuts were also made in her throat, and several superficial stab marks were made in her chest and abdomen. All of these blows, cuts and wounds, including strangulation, were inflicted while Ms. Jordan was still alive. Dr. Burton testified that Ms. Jordan died of three stab wounds to the heart.

At the trial, the defendant offered evidence which was intended to support his insanity defense. He contended that he was not mentally responsible at the time of the offense because of residual damage from earlier head injuries and prior mental and emotional problems. The jury found sufficient evidence to convict the defendant, finding him guilty of murder and three counts of kidnapping. After the sentencing hearing, at which the defendant testified, the jury recommended the imposition of the death penalty based upon their conclusion that Dixie Jordan had been subjected to inhuman torture and serious physical abuse prior to her death.

On direct appeal to the Georgia Supreme Court, petitioner's conviction and sentence were affirmed. Dix v. State, 238 Ga. 209, 232 S.E.2d 47 (1977). Apparently, no immediate petition for writ of certiorari was filed at that time in the United States Supreme Court.

On June 9, 1977, a habeas corpus petition was filed in behalf of Mr. Dix in the Superior Court of Clayton County, Georgia. By Order dated December 29, 1977, that petition was dismissed. No hearing was held in this state habeas petition. On January 30, 1978, petitioner filed notice of appeal from the dismissal of this first state habeas corpus petition. On February 14, 1978, the Georgia Supreme Court denied petitioner's application for a certificate of probable cause.

On February 15, 1978, petitioner applied for clemency to the Georgia Board of Pardons and Paroles. An order staying petitioner's second scheduled execution was granted on March 21, 1978 by the Georgia Board of Pardons and Paroles pending review of the application. Later, on May 17, 1978, the Georgia Board of Pardons and Paroles denied petitioner's application.

On May 30, 1978, petitioner filed a petition for writ of habeas corpus with a stay of execution application in the Superior Court of Tattnall County, Georgia. A simultaneous petition for writ of habeas corpus was filed at the same time in this court. The stay of execution was granted by the Tattnall County Superior Court, and the federal habeas corpus petition was voluntarily dismissed on May 30, 1978.

Previously, on March 12, 1978, petitioner had filed an extraordinary motion for new trial in the Clayton County Superior Court. A two-day hearing was held on the extraordinary motion on March 19 and 20, 1979. By Order dated March 21, 1979, the extraordinary motion for a new trial was denied. Later, on October 16, 1979, the Georgia Supreme Court affirmed the denial of the extraordinary motion for a new trial. Dix v. State, 244 Ga. 464, 260 S.E.2d 863 (1979). Following this adverse decision, Dix petitioned the United States Supreme Court for writ of certiorari. The writ was denied on March 24, 1980. Dix v. Georgia, 445 U.S. 946, 100 S.Ct. 1346, 63 L.Ed.2d 781 (1980).

On April 25, 1980, the State of Georgia reset petitioner's execution date for May 15, 1980. The instant petition was filed in this court on May 14, 1980. Accompanying this petition was an application for a stay of execution. By Order dated May 14, 1980, petitioner's scheduled execution was stayed by the district court. Following the stay order, the parties in this action filed briefs which fully addressed the grounds alleged. On August 4, 1981, the Magistrate issued an order directing that the current petition be stayed pending exhaustion of petitioner's available state remedies with regard to his challenge based upon ineffective assistance of counsel.

Thereafter, on September 3, 1981, petitioner filed a habeas corpus petition in the Superior Court of Butts County, Georgia. In that petition, he raised the same grounds pertaining to ineffective assistance of counsel as are currently raised in this petition. On November 15, 1982, this court was informed of the Georgia Supreme Court's affirmance of the Butts County Superior Court's denial of the additional habeas petition. The Georgia Supreme Court found that for purposes of any federal habeas corpus action, petitioner's claims which he raised in his successive petition, were deemed exhausted. Dix v. Zant, 249 Ga. 810, 294 S.E.2d 527 (1982).

On August 17, 1983, the Magistrate issued his Report and Recommendation, and on September 22, 1983, this court heard oral argument on the parties' objections to the Magistrate's Report and Recommendation.

Petitioner raised the following grounds, alleging that: (1) he was incompetent to stand trial; (2) the jury charge on the burden of proof improperly shifted the burden to Dix on an essential element of the crime; (3) the aggravating circumstance on which Dix's sentence is based is unconstitutionally overbroad and vague; (4) the death penalty as applied to Dix is an arbitrary and capricious infliction; (5) death is an excessive penalty; (6) death is cruel and unusual in light of all the circumstances, including mitigating circumstances; (7) the death penalty was given on the basis of fundamentally unfair proceedings; (8) he had ineffective assistance of counsel; (...