Dumont v. Estelle

• Decision Date: 30 May 1975
• Docket Number: No. 74-2903,74-2903
• Citation: 513 F.2d 793
• Parties: Donald V. DUMONT, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 793

513 F.2d 793

Donald V. DUMONT, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent-Appellee.

No. 74-2903.

United States Court of Appeals, Fifth Circuit.

May 30, 1975.

Donald L. Kraemer, Staff Counsel for Inmates, Stanley G. Schneider, James H. Randals, Huntsville, Tex., for petitioner-appellant.

John L. Hill, Atty. Gen., Ben M. Harrison, Gilbert Pena, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GIBSON ^*, THORNBERRY and AINSWORTH, Circuit Judges.

THORNBERRY, Circuit Judge:

Donald V. Dumont was convicted by a Texas jury in 1965. The offense: possession of heroin; the punishment: life in the Texas Department of Corrections. The judgment was affirmed on direct appeal, Dumont v. State, Tex.Cr.App.1965, 398 S.W.2d 129.

Dumont, who has exhausted available state remedies, appeals the district court's denial of habeas corpus following an evidentiary hearing. On the merits, Dumont levels a due process attack against Texas' former statutory procedure for selecting grand jury commissioners and grand jurors as that procedure was applied in the selection of the grand jury which indicted him in Harris County on December 18, 1964. ¹ Specifically, Dumont contends and sought to prove that the "freeholder" requirement for service on the grand jury commission, together with the "freeholder or householder" requirement for service on the grand jury, operated to deny him an indictment by a fair cross-section of the community. For a fuller explication of the proceedings below, see the opinion of the district court, S.D.Tex.1974, 377 F.Supp. 374, which held that Dumont's statistical evidence did not make a prima facie case of unconstitutional exclusion of cognizable segments in the community. We affirm, but we do so for different reasons which fall short of the merits. In sum, we hold that the district court erred in failing to sustain the state's contention of procedural waiver as to the collateral challenge to the grand jury.

Dumont was brought to trial in March 1965, represented by employed counsel. His plea was not guilty. Texas law then (Vernon's Ann.C.C.P. of 1925, art. 358) and now (Vernon's Ann.C.C.P. of 1965, art. 19.27) provides:

Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be brought into court to make such challenge.

The Court of Criminal Appeals has consistently construed this article to mean that a defendant who would challenge the composition of the grand jury, for any reason, must do so at his earliest opportunity. See, e. g., Valadez v. State, Tex.Crim.App.1966, 408 S.W.2d 109; Armentrout v. State, 1940, 138 Tex.Cr.R. 238, 135 S.W.2d 479. Although the accused has both the right and the duty to challenge the grand jury prior to its impanelment, a longstanding line of case law permitted the challenge to be raised by motion to quash the indictment, if the defendant did not neglect a reasonable pre-impanelment opportunity or the offense occurred after the grand jury was impaneled. See Ex parte Fertitta, 1959, 167 Tex.Cr.R. 483, 320 S.W.2d 839; Ex parte Covin, 1955, 161 Tex.Cr.R. 320, 277 S.W.2d 109; Turner v. State, 1945, 148 Tex.Cr.R. 491, 187 S.W.2d 991; Conklin v. State, 1942, 144 Tex.Cr.R. 210, 162 S.W.2d 416. The Texas Legislature codified this case law in 1965, subsequent to Dumont's indictment. See V.A.C.C.P. art. 27.03, subd. 3. Under Texas practice, the procedures just described constitute the exclusive methods for challenging the makeup of the grand jury. A failure to observe them results in a procedural waiver, which precludes assertion of the point by motion in arrest of judgment or in a motion for new trial. Tyson v. State, 1943, 146 Tex.Cr.R. 128, 171 S.W.2d 496 and cases cited at 498. Similarly, if the challenge has been waived by the accused's failure to follow the prescribed procedures, the Court of Criminal Appeals will not consider the point in an application for state post-conviction relief. Ex parte Covin, supra. ²

In this case, Dumont admittedly waived both of the Texas procedures for pretrial challenge to the composition of the grand jury. We must decide the consequences of that waiver as they affect the availability of federal habeas corpus relief. The State does not argue that Dumont deliberately bypassed an available state procedure. Cf. Van Eaton v. Wainwright, 5th Cir. 1975, 508 F.2d 849; Aaron v. Capps, 5th Cir. 1975, 507 F.2d 685. Thus, our inquiry does not proceed along lines suggested in Fay v. Noia, 372 U.S. 391, at 439, 83 S.Ct. 822, at 849, 9 L.Ed.2d 837 (1963). Instead, we must analyze this appeal in light of the cases which deal with waivers resulting from the absence of timely complaint about the composition of grand and petit juries. Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955); Rivera v. Wainwright, 5th Cir. 1974, 488 F.2d 275; Morris v. Sullivan, 5th Cir. 1974, 497 F.2d 544; Wilson v. Estelle, 5th Cir. 1974, 504 F.2d 562; Newman v. Henderson, 5th Cir. 1974, 496 F.2d 896; Jones v. Henderson, 5th Cir. 1974, 494 F.2d 47; Marlin v. Florida, 5th Cir. 1974, 489 F.2d 702.

Our analysis begins with a rule of federal constitutional law:

It is beyond question that under the Due Process Clause of the Fourteenth Amendment Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights. More particularly, the State may require prompt assertion of the right to challenge discriminatory practices in the make-up of a grand jury. (350 U.S. at 97, 76 S.Ct. at 162, 100 L.Ed. at 91). "No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by failure to make timely assertion of the right . . . ." (350 U.S. at 99, 76 S.Ct. at 163, 100 L.Ed. at 92).

Michel v. Louisiana, supra. In this case, Dumont makes no due process attack on the reasonableness of the Texas rules which require pretrial challenges to the composition of the grand jury. Cf. Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955). Thus, his procedural waiver in the state courts is no less constitutionally a waiver as it comes before us.

Under these circumstances, we are guided by Davis v. United States,supra, and this Circuit's line of cases, cited supra, which have extended Davis on a state-by-state basis. In Davis the Supreme Court held that a prisoner's failure to raise a grand jury complaint by pretrial objection to the indictment bars collateral review of the alleged defect, unless for "cause shown" the court grants relief from the waiver. Although Davis was a 28 U.S.C. § 2255 case which narrowly involved only a construction of F.R.Crim.P. 12(b)(2), "(t) his Circuit has already rejected the attempt to limit Davis to its precise facts." Newman v. Henderson, supra, 496 F.2d at 898. Since the policy considerations which propelled the result in Davis i. e., to force early complaint about defects in the institution of prosecutions in order to prevent waste of courts', parties', and witnesses' resources are common to both federal and state prosecutions, we have held Davis applicable in a series of state prisoners' habeas challenges to jury composition, if the state has a procedural rule substantially identical to F.R.Crim.P. 12(b)(2). That is not to say that our extension of Davis is or will be limited to grand and petit jury attacks. It is clear, however, that Davis and its legitimate progeny constitute an exception to the general rule, see, e. g., Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), that all constitutional claims may be raised in a federal collateral petition, unless intentionally and understandingly waived. Cf. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

Yet the Davis "waiver-by-failure-to-object" bar is not without its own exception. We implied earlier that it is not beyond conceivability that a prisoner might somehow show the procedural rule to be unconstitutional as applied by the state in his case. Cf. Rivera v. Wainwright, supra, 488 F.2d at 277. Even more to the point, Davis held that the habeas corpus court may grant relief from the waiver upon a showing amounting to "cause," which presumably may or may not involve constitutional overtones. ³ Our cases interpreting Davis have firmly established, nonetheless, that the requirement of "cause" must be satisfied by a strong showing of actual prejudice. Newman v. Henderson, supra, 496 F.2d at 898. Still, this requirement reflects greater leniency to the prisoner than would be afforded if the Texas rule were given unimpeded effect. The Texas law makes no allowance for "cause" excusing the waiver. As in the case of the Louisiana rule discussed in Newman, the "cause" exception has been engrafted onto the rule by this court pursuant to our responsibility under Fay v. Noia, supra. See also Wilson v. Estelle, supra.

Here, Dumont neither alleges nor shows any specific cause for his failure to comply with the Texas law. He does not contend, for example, that his retained counsel was ineffective. Nor does he assert that state officials denied him an opportunity to exercise his right to challenge the grand jury under the state rule. Dumont's sole argument against foreclosure by waiver is that in 1964, at the time of indictment, neither he nor his attorney was aware of any constitutional case law which might arguably have provided a basis for an attack on the "freeholder-householder" qualification. Dumont alleges that it was not until 1972, when he was reading law books in the prison...