Donlavey v. Smith, 28146.
| Decision Date | 10 June 1970 |
| Docket Number | No. 28146.,28146. |
| Citation | 426 F.2d 800 |
| Parties | William B. DONLAVEY, Petitioner-Appellant, v. S. Lamont SMITH, Warden, Georgia State Prison, Reidsville, Georgia, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William B. Donlavey, pro se, Frank B. Strickland, Atlanta, Ga. (Court-appointed), for petitioner-appellant.
Arthur K. Bolton, Atty. Gen. of Georgia, Courtney Wilder Stanton, Marion O. Gordon, Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.
Before SIMPSON, MORGAN and INGRAHAM, Circuit Judges.
Petitioner, a state prisoner, was arrested for burglary of a grocery store, tried by a jury and convicted. He contends on this petition for habeas corpus: (1) that he was deprived of a fair trial because poor people were systematically excluded from the jury list, (2) that he was denied his right to counsel at the preliminary hearing, and (3) that his arrest was void ab initio because he was held incommunicado for 68 hours before being arraigned.
The jury which convicted the petitioner was "selected from the books of the tax receiver" pursuant to Georgia Code, Section 59-106. The petitioner here is white, and no question of racial exclusion has been raised by him. The question is whether such selection from the tax digests amounts to a systematic exclusion of poor people from the jury rolls. Georgia law requires that all persons must make returns on their taxable property. Taxable property means "* * all real and personal property * * *". Ga.Code Ann. 92-101 (1961 Rev.). Personal property as used here includes automobiles, furniture, livestock, tools, etc. Ga.Code Ann. 92-6215 (1961 Rev.). Therefore, all persons who own any kind of property should, if they make a return in compliance with Georgia law, appear on the tax list. Ga.Code Ann. 92-6305 (1961 Rev.). Since the evidence shows that petitioner owned an automobile, he would be in that same class of persons who appear on the tax list who also own their automobiles. The only class that is excluded under such a system is that group of persons who fail to make a return in violation of state law. Since it is presumed that people will obey the law, it is unnecessary to hold an evidentiary hearing to determine how many people did not make tax returns on their property. See also Roach v. Mauldin, D. C., 277 F.Supp. 54, aff'd in 391 F.2d 907 (5 Cir. 1968) which held that the Georgia tax digest is a reasonable source for jury lists.
As to petitioner's contention that he was denied right to counsel at the preliminary hearing, the record shows that the state courts have not dealt with this issue. Having failed to exhaust state post-conviction remedies, petitioner is precluded from using this federal forum to decide this question. 28 U.S.C.A. § 2254; Fox v. Dutton, 5 Cir., 1968, 406 F.2d 123. Even if the issue had been exhausted in state courts, the District Court below (which only assumed that petitioner had...
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State v. Houston
...that a preliminary hearing in Georgia is not a critical stage. Ardister v. Smith, 433 F.2d 931 (5th Cir., 1970); Donlvey v. Smith, 426 F.2d 800, 801 (5th Cir., 1970); Worts v. Dutton, 395 F.2d 341, 342 (5th Cir., The majority ruling here that Georgia's preliminary hearing is a 'critical sta......
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Wright v. Smith, 72-2249.
...on at least two occasions in the past upheld the nondiscriminatory use of tax returns as a source of potential jurors. Donlavey v. Smith, 5th Cir. 1970, 426 F. 2d 800; Roach v. Mauldin, 5th Cir. 1968, 391 F.2d 907, cert. denied, 393 U.S. 1095, 89 S.Ct. 884, 21 L.Ed.2d 786 There remains appe......
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Moye v. State of Georgia
...court habeas corpus hearing, and having failed to exhaust his state remedies petitioner cannot raise that issue here. Donlavey v. Smith, 426 F.2d 800 (5th Cir. 1970). Petitioner claims that he was paraded before the jury in handcuffs and was the only person at the trial not wearing a coat a......
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Jackson v. Smith, 30407 Summary Calendar.
...for voiding the conviction. King v. Beto, 5 Cir. 1970, 429 F.2d 892; see Gamez v. Beto, 5 Cir. 1969, 406 F.2d 1000; Donlavey v. Smith, 5 Cir. 1970, 426 F.2d 800. Further, an incarcerated state defendant has a statutory but not a constitutional right to a preliminary commitment hearing in Ge......