Ellzey v. Breazeale, Civ. A. No. 4119.

• Decision Date: 08 November 1967
• Docket Number: Civ. A. No. 4119.
• Citation: 277 F. Supp. 948
• Parties: Charles ELLZEY, Petitioner, v. C. E. BREAZEALE, Superintendent of the Mississippi State Penitentiary, Respondent.
• Court: U.S. District Court — Southern District of Mississippi

277 F. Supp. 948

Charles ELLZEY, Petitioner, v. C. E. BREAZEALE, Superintendent of the Mississippi State Penitentiary, Respondent.

Civ. A. No. 4119.

United States District Court S. D. Mississippi, Jackson Division.

November 8, 1967.

Alvin J. Bronstein, Jackson, Miss., for plaintiff.

Guy N. Rogers, Jackson, Miss., for defendant.

OPINION OF THE COURT

DAN M. RUSSELL, Jr., District Judge.

This matter is before the Court on a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. The petition charges that both petitioner's indictment for murder of a white man in 1958, and his sentence for life following a guilty plea, were illegal and void because of the systematic exclusion of Negroes from the jury venire from which was drawn the grand jury which indicted petitioner, a Negro, and the petit jury which passed on his conviction, and because his plea of guilty was neither a waiver of his right to object to the exclusion, nor was it voluntarily given.

Petitioner Ellzey originally filed for a writ of error coram nobis in the circuit court of Pike County, Mississippi, in May 1966. Following a hearing, the court granted the petition. The State of Mississippi appealed this decision, with supersedeas, to the state supreme court. Pending the appeal, the supreme court discharged the supersedeas, remanded Ellzey to the Pike County jail, and ordered a hearing on whether he should be entitled to bail. Bail was denied and petitioner appealed. By stipulation, the records on the state's appeal from the error coram nobis hearing and on petitioner's appeal from the denial of bond were incorporated into a single record. Before decision by the state supreme court, Ellzey, in October 1966, was re-indicted by a Pike County grand jury for the same offense as in his original indictment. In its opinion rendered March 31, 1962 the supreme court of Mississippi found that the state's appeal was not moot, reversed the circuit court of Pike County, and reinstated petitioner's former life sentence.

The aforesaid record, Ellzey's petition containing the same grounds for relief as were presented in the state court proceedings, the state's response, and briefs are before this Court, a hearing and the physical presence of petitioner having been waived.

On the night of January 13, 1958, Charles Ellzey, then about 18 years old, and his 14 year old brother were rabbit hunting with head lamps and shotguns on land adjacent to that on which the deceased, Howard Hawkins, maintained a pasture. As they were crossing a fence, Hawkins accosted the two brothers, words passed, and shooting followed. Ellzey alleged Hawkins shot first, hitting Ellzey in the right hand and forearm, and that he fired back. Both boys ran from the scene to their home. From there the brother went in one direction, and Ellzey in another to the home of an elderly colored woman, Mrs. Mattie Young. She notified authorities who came and arrested Ellzey. Both brothers were taken to jail, put in separate cells, and interrogated over a period of weeks by from one to five officials. Statements were taken without benefit of counsel, and defendant at no time was advised of any constitutional rights or right to representation. Ellzey testified that he was frightened, in pain, and was offered no medical attention for the bullet wounds, which injuries were denied by the State. About a month after his arrest, the accused apparently had a preliminary hearing before a Justice of the Peace. No plea was made, nor did he have counsel. Although the exact dates are in dispute, the lower state court judge found that Ellzey was indicted by the Pike County circuit court grand jury on March 17, 1958, and that on March 21 two local attorneys were appointed to represent Ellzey, being the same day he was first called for arraignment, and on which day defendant entered a plea of not guilty. The case was called again March 24 and set for trial on March 28. Meanwhile, on motion of counsel, a special venire had been called for the trial. On March 28, 1958, following a conference in the trial Judge's chambers attended by Ellzey, his counsel, the State's counsel, and the widow of the deceased Hawkins, Ellzey returned to the courtroom and pled guilty on assurance he would be sentenced to life imprisonment rather than face trial and conviction, the penalty for which could be death. The trial jury was so instructed and brought in a verdict of guilty, with a sentence of life imprisonment.

Following a very full hearing on the error coram nobis procedure, held approximately 8 years after the conviction, the circuit court Judge, who was a successor to the trial Judge, issued a comprehensive opinion. He found that in the 10-year period from 1950 to 1960, there were approximately 12,147 white, adult residents of Pike County, of whom 7,000 to 8,000 were consistently qualified electors; that in 1950 there were 7,608 adult, non-whites and in 1960 there were 6,936 such residents. Of these only 150 were registered voters in 1958. During 1948 to 1958, approximately 3100 to 3200 names were drawn for jury duty, of which 12 to 25 were non-whites. No Negroes ever served on a grand jury during that 10 year period and there were no Negroes called to serve on the special venire drawn to try Ellzey. The Court cited state court decisions, beginning with Farrow v. State, 91 Miss. 509, 45 So. 619, and including such recent cases as Harper v. State, 251 Miss. 699, 171 So. 2d 129; Black v. State, Miss., 187 So.2d 815; Shinall v. State, Miss., 187 So.2d 840; and Thompson v. State, Miss., 188 So.2d 239; and federal cases beginning with Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76, and including the Fifth Circuit recent cases of United States ex rel. Goldsby v. Harpole, 263 F.2d 71, cert. den., 361 U.S. 838, 80 S.Ct. 58, 4 L.Ed.2d 78; Gordon v. Breazeale, D.C., 246 F.Supp. 2; and Smith v. Breazeale, D.C., 245 F.Supp. 978, in support of his finding that, although the board of supervisors, the chancery clerk, the circuit clerk, and the sheriff strictly complied with all state statutes governing the jury process and were guilty of no intentional exclusion of Negroes from jury duty in 1958, nonetheless the number of Negro qualified electors, 150, was out of all proportion to the number of white qualified electors, at least 7,000; that the number of Negroes called for jury duty (none for grand jury) was but a token representation; that the State failed to refute the presumption that Negroes were systematically excluded from jury duty,¹ and that such exclusion from both juries violated Ellzey's constitutional rights, unless he voluntarily waived this right to object by entering a plea of guilty. This Court adopts the findings and conclusions of the circuit court and cites additional authorities: United States ex rel. Seals v. Wiman, 5th Cir., 304 F.2d 53; Whitus v. Balkcom, 5th Cir., 333 F.2d 496; Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Mitchell v. Johnson, D.C., 250 F.Supp. 117; Scott v. Walker, 5th Cir., 358 F.2d 561...