Dobbs v. Kemp

• Decision Date: 23 January 1987
• Docket Number: No. 84-8153,84-8153
• Citation: 809 F.2d 750
• Parties: Wilburn DOBBS, Petitioner-Appellant, Cross-Appellee, v. Ralph KEMP, Respondent-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 750

809 F.2d 750

Wilburn DOBBS, Petitioner-Appellant, Cross-Appellee, v. Ralph KEMP, Respondent-Appellee, Cross-Appellant.

No. 84-8153.

United States Court of Appeals, Eleventh Circuit.

Jan. 23, 1987.

Robert Altman (court-appointed), Atlanta, Ga., for petitioner-appellant, cross-appellee.

Mary Beth Westmoreland, Atlanta, Ga., for respondent-appellee, cross-appellant.

Appeals from the United States District Court for the Northern District of Georgia.

PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion May 21, 1986, 11 Cir., 790 F.2d 1499).

Before RONEY, Chief Judge, and ANDERSON, Circuit Judge, and MORGAN, Senior Circuit Judge.

PER CURIAM:

In Part VI of the opinion, entitled Sentencing Charge Regarding Mitigating Circumstances, the opinion as previously published is amended by adding a footnote following the phrase "the trial court's jury instructions were not constitutionally deficient," which phrase appears at 790 F.2d at 1513. The added footnote is as follows:

At trial no objection was made challenging the lack of clarity of the instructions in this regard, providing further support for our conclusion that the instructions adequately conveyed the meaning and function of mitigating circumstances. Peek, 784 F.2d at 1493. Moreover, we note that the evidence in this case included very little in the way of mitigating circumstances. During collateral proceedings, Dobbs trial counsel testified that he had looked diligently but without success for mitigating evidence, but that at sentencing he would have argued against the death penalty, and probably had argued that the shooting was impulsive.

Although in his petition for rehearing Dobbs has not challenged Part IV of the opinion as previously published, the court sua sponte vacates Part IV and substitutes the following in lieu thereof:

IV. COMPOSITION OF GRAND AND TRAVERSE ¹ JURIES

The state argues that Dobbs has waived this issue for failure to make timely objection. This claim of waiver is controlled by the discussion in Part II, supra. Because at the time of Dobbs' trial in 1974, the relevant Georgia law permitted a defendant to raise federal constitutional claims in state habeas corpus proceedings in the absence of a knowing and intelligent waiver, and because the state does not assert such a waiver, Dobbs did not waive his right to assert claims concerning jury composition. Spencer v. Kemp, 781 F.2d 1458 (11th Cir.1986) (en banc).

Discriminatory selection of grand juries in state courts may be challenged under the Equal Protection Clause of the Fourteenth Amendment. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Gibson v. Zant, 705 F.2d 1543, 1546 (11th Cir.1983). In order to make out a prima facie case of grand jury discrimination, Dobbs must generally present evidence of the following three factors:

First, the group allegedly discriminated against must be one that is a distinct class in society. Second, the group must be substantially underrepresented in the grand jury venires ... over a significant period of time. Third, the defendant must show that the selection procedure is not racially neutral or is susceptible to abuse as a tool of discrimination.

Bryant v. Wainwright, 686 F.2d 1373, 1375-76 (11th Cir.1982), cert. denied, 461 U.S. 932, 103 S.Ct. 2096, 77 L.Ed.2d 305 (1983) (citing Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977)). ²

Dobbs challenges the selection process and composition of the grand jury venire with respect to women. Evidence of grand jury discrimination was presented at the state habeas corpus hearing. The evidence presented by Dobbs with respect to this issue was extremely sparse. In its entirety, it consisted of the testimony of Sidney Porter, Jr., who was one of the jury commissioners in Walker County, Georgia; an exhibit which listed the names of the persons on the grand jury pool which was in effect at the time Dobbs was indicted; and an exhibit showing the 1970 population of Walker County revealing that, counting persons of all ages, there were 24,735 males and 25,956 females. In addition, Dobbs' attorney stated in his place that he had gone through the names on the grand jury list and, based on the first name, determined in his own mind whether the persons were male or female, and accordingly designated each person on the list as either "M" or "F". The attorney stated that if he thought the name were ambiguous he...