Evans v. Maggio, No. 76-3072

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GEWIN, AINSWORTH and SIMPSON; AINSWORTH
Citation557 F.2d 430
PartiesDaryl EVANS and Bernard Butler, Petitioners-Appellants, v. Ross MAGGIO, Warden, Louisiana State Penitentiary, Respondent-Appellee.
Docket NumberNo. 76-3072
Decision Date12 August 1977

Page 430

557 F.2d 430
Daryl EVANS and Bernard Butler, Petitioners-Appellants,
v.
Ross MAGGIO, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
No. 76-3072.
United States Court of Appeals,
Fifth Circuit.
Aug. 12, 1977.

William E. Rittenberg, New Orleans, La. (Court-appointed), for petitioners-appellants.

Harry Connick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., New Orleans, La., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

AINSWORTH, Circuit Judge:

Daryl Evans and Bernard Butler, in custody of the State of Louisiana, brought this petition for habeas corpus under 28 U.S.C.

Page 431

§ 2254 alleging that the grand and petit juries which indicted and convicted them in Louisiana state court were unconstitutionally composed. The district judge held that Evans and Butler had waived the issue on appeal in Louisiana state court and denied relief. Evans and Butler now appeal asserting that they did not intentionally or understandingly waive the issue in state court. We affirm.

In 1963 Evans and Butler, who are black, were arrested by Louisiana authorities for the murder of a New Orleans bus driver during an attempted robbery. Their attorneys filed a pretrial motion to quash the indictment, alleging systematic exclusion of blacks from Orleans Parish grand and petit juries. The motion was denied. Both Evans and Butler were convicted of murder and sentenced to life imprisonment. 1 Both appealed. Each perfected 39 bills on appeal, 2 including a bill alleging that the trial court erred in denying the motion to quash on account of the jury composition. On November 20, 1964 defendants filed a lengthy stipulation in Orleans Parish (Louisiana) Criminal District Court to the effect that they "incorporated verbatim into the record in the instant case" the extensive testimony concerning the composition of Orleans Parish grand and petit juries which had been received in State v. Barksdale, a case then pending on appeal in the Louisiana Supreme Court.

On December 14, 1964 the Louisiana Supreme Court decided State v. Barksdale, 247 La. 198, 170 So.2d 374 (1964), concluding that "Appellant has failed to prove systematic discrimination against members of the Negro race by purposeful limitation in the selection of juries because of race, . . .." 170 So.2d at 384. Later when Evans' and Butler's appeals were heard in the Louisiana Supreme Court their bill of exceptions alleging discriminatory jury practices was neither briefed nor argued to the Court. This issue was therefore not discussed by the Court in its opinion. State v. Evans and Butler, 249 La. 861, 192 So.2d 103 (1966).

Five years later, in 1971, Evans filed a habeas corpus petition in Louisiana state court. This petition did not refer to the jury composition issue. Denial of relief was affirmed by the Louisiana Supreme Court. La. ex rel. Evans v. Henderson, 259 La. 955, 253 So.2d 793 (1971). In 1972 both Evans and Butler filed habeas corpus petitions in Louisiana state court; again the jury composition issue was not raised. These petitions were not pursued after Evans' and Butler's sentences were reduced from the death penalty to life imprisonment, on May 1, 1973. In 1975 Evans and Butler again petitioned the Louisiana state court for habeas relief, this time raising the jury composition issue. The writ was finally denied in the Louisiana Supreme Court because the issue "was abandoned on appeal." Butler v. Henderson, La., 1975, 310 So.2d 857, citing State v. Evans and Butler, 249 La. 861, 192 So.2d 103 (1966). Evans and Butler then brought this action in United States District Court seeking habeas corpus relief, alleging that the juries which indicted and convicted them were unconstitutionally composed.

The district judge denied Evans' and Butler's petition largely on the basis of Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), aff'g 5 Cir., 1974, 496 F.2d 896. Francis affirmed the denial of habeas relief to a petitioner who failed to challenge the composition of a grand jury prior to trial as required by Louisiana law, and who later sought to raise the issue in

Page 432

federal court by a section 2254 habeas petition. Citing interests of finality and federalism the Supreme Court held that the state procedural rule could be respected by a federal habeas corpus court where the petitioner showed neither "cause" 3 for the failure to timely challenge the jury composition, nor prejudice resulting from its composition. Francis v. Henderson, supra, 425 U.S. at 542, 96 S.Ct. at 1711; see Davis v. United States, 411 U.S. 233, 244-45, 93 S.Ct. 1577, 1583-84, 36 L.Ed.2d 216 (1973). The effect of the district judge's holding was to apply the rule in Francis to post-trial waivers of timely challenges of the composition of juries. Both Evans and Butler appealed.

On this appeal Evans and Butler assert that the district judge erred in holding that the jury composition issue was abandoned by them on appeal in reliance on Barksdale. They argue that the judge further erred in holding that abandonment of the issue on appeal was tantamount to failing to raise it at all since they state they were unaware that the issue had not been briefed and argued on appeal. Finally Evans and Butler contend that the district judge exceeded his authority in applying the rule in Francis to the circumstances of this case.

In considering whether a prisoner has waived his opportunity to assert a constitutional right the usual rule is that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately bypassed the orderly procedure of the state courts and in so doing has forfeited his state remedies. Barnes v. Estelle, 5 Cir., 1975, 518 F.2d 182, 184; see Fay v. Noia, 372 U.S. 391, 438-39, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963). A decision to bypass made by counsel not participated in by the prisoner does not automatically bar relief; "the standard here put forth depends on the considered choice of the petitioner." Fay v. Noia, supra, 372 U.S. at 439, 83 S.Ct. at 849. Evans and Butler assert that they "were never informed" that the jury composition issue was not pressed on appeal, and that therefore they could not "understandingly and knowingly" have chosen to forego appeal on this issue.

We have held, however, that an exception to the general rule that constitutional claims may be raised on federal collateral attack unless "intentionally and knowingly" waived,...

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26 practice notes
  • Morgan v. Zant, No. CV 182-055.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • 8 Febrero 1984
    ...411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Huffman v. Wainwright, 651 F.2d 347, 349 (5th Cir. Unit B 1981); Evans v. Maggio, 557 F.2d 430, 432-33 (5th Cir.1977); Marlin v. Florida, 489 F.2d 702 (5th Cir.1974). A failure to comply with state procedural requirements can be a waiver o......
  • Bromwell v. Williams, Civ. No. K-76-926.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • 30 Diciembre 1977
    ...at 1261-1262, No. 77-1186, (4th Cir. 1977); Rinehart v. Brewer, 561 F.2d 126, 130 n.6 (8th Cir. 1977);10 Evans 445 F. Supp. 114 v. Maggio, 557 F.2d 430 (5th Cir. 1977); Jiminez v. Estelle, 557 F.2d 506, 510-11 (5th Cir. 1977);11 United States v. Williams, 544 F.2d 1215, 1217-18 (4th Cir. 19......
  • Birt v. Montgomery, No. 82-8156
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 11 Julio 1983
    ...has been applied to traverse jury attacks as well. See, e.g., Huffman v. Wainwright, 651 F.2d 347 (5th Cir.1981); Evans v. Maggio, 557 F.2d 430, 434 n. 6 (5th Cir.1977); Cunningham v. Estelle, 536 F.2d 82, 83-84 (5th Cir.1976). "Absent cause for the procedural default and actual prejudice f......
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 15 Abril 1982
    ...the course of a direct appeal from a state court conviction. See Huffman v. Wainwright, 651 F.2d 347 (5th Cir. 1981); Evans v. Maggio, 557 F.2d 430, 433-34 (5th Cir. 1977). Other circuits have applied Sykes in the same fashion. See Forman v. Smith, 633 F.2d 634, 640 (2d Cir. 1980); Cole v. ......
  • Request a trial to view additional results
26 cases
  • Morgan v. Zant, No. CV 182-055.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • 8 Febrero 1984
    ...411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Huffman v. Wainwright, 651 F.2d 347, 349 (5th Cir. Unit B 1981); Evans v. Maggio, 557 F.2d 430, 432-33 (5th Cir.1977); Marlin v. Florida, 489 F.2d 702 (5th Cir.1974). A failure to comply with state procedural requirements can be a waiver o......
  • Bromwell v. Williams, Civ. No. K-76-926.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • 30 Diciembre 1977
    ...at 1261-1262, No. 77-1186, (4th Cir. 1977); Rinehart v. Brewer, 561 F.2d 126, 130 n.6 (8th Cir. 1977);10 Evans 445 F. Supp. 114 v. Maggio, 557 F.2d 430 (5th Cir. 1977); Jiminez v. Estelle, 557 F.2d 506, 510-11 (5th Cir. 1977);11 United States v. Williams, 544 F.2d 1215, 1217-18 (4th Cir. 19......
  • Birt v. Montgomery, No. 82-8156
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 11 Julio 1983
    ...has been applied to traverse jury attacks as well. See, e.g., Huffman v. Wainwright, 651 F.2d 347 (5th Cir.1981); Evans v. Maggio, 557 F.2d 430, 434 n. 6 (5th Cir.1977); Cunningham v. Estelle, 536 F.2d 82, 83-84 (5th Cir.1976). "Absent cause for the procedural default and actual prejudice f......
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 15 Abril 1982
    ...the course of a direct appeal from a state court conviction. See Huffman v. Wainwright, 651 F.2d 347 (5th Cir. 1981); Evans v. Maggio, 557 F.2d 430, 433-34 (5th Cir. 1977). Other circuits have applied Sykes in the same fashion. See Forman v. Smith, 633 F.2d 634, 640 (2d Cir. 1980); Cole v. ......
  • Request a trial to view additional results

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