Fleming v. Kemp

Decision Date27 June 1986
Docket NumberNo. 86-8476,86-8476
Citation794 F.2d 1478
PartiesSon H. FLEMING, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Kenneth Shapiro, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for petitioner-appellant.

William B. Hill, Jr., Asst. Atty. Gen., State of Ga., Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before FAY, JOHNSON and CLARK, Circuit Judges.

PER CURIAM:

Son H. Fleming, who is scheduled to be executed on June 27, 1986, petitions this Court for a certificate of probable cause to appeal (CPC), for permission to present his application in forma pauperis (IFP), for a stay of execution and for relief on his second habeas corpus application. We determine that Fleming's habeas petition presents issues that "are debatable among jurists of reason," Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983), and that are taken in good faith, 28 U.S.C.A. Sec. 1915(a); thus, we GRANT petitioner's request for certificate of probable cause to appeal and motion to proceed in forma pauperis. We conclude further that petitioner presents at least one substantial ground properly before this Court upon which he may be entitled to relief. Without deciding the merits of the habeas petition, we therefore STAY Fleming's execution pending further order of this Court.

I

Son H. Fleming was convicted of murdering the police chief of a small South Georgia town and sentenced to death in 1977. On direct appeal, the Georgia Supreme Court reversed the death sentence because the trial judge erred in instructing the jury in the sentencing phase. In a second sentencing trial a jury again recommended the death penalty and the court sentenced petitioner accordingly.

After petitioner failed to win further relief on direct appeal and in state post-conviction proceedings, he filed his first federal habeas application with the United States district court for the Middle District of Georgia. That court denied the writ, Fleming v. Zant, 560 F.Supp. 525 (M.D.Ga.1983), and on appeal a divided panel of this Court affirmed, Fleming v. Kemp, 748 F.2d 1435 (11th Cir.1984). The United States Supreme Court denied certiorari. Fleming v. Kemp, --- U.S. ---, 106 S.Ct. 1286, 89 L.Ed.2d 593 (1986).

The Superior Court of Butts County, Georgia, thereafter denied petitioner's second state habeas application, and the Georgia Supreme Court refused to grant a certificate of probable cause to appeal. The United States District Court for the Middle District of Georgia denied Fleming's second federal habeas petition and application for stay of execution on June 25, 1986. This petition, stay application, and motions for CPC and IFP now come before this Court for review. Apart from the CPC and IFP orders, our decision here implicates only the stay application; we do not reach the merits of the habeas petition except to determine that the latter presents a substantial ground upon which relief might be granted.

II

Petitioner presents five claims on appeal: (1) that the prosecutor's exercise of peremptory challenges to exclude blacks from the trial jury violated Fleming's sixth and fourteenth amendment rights under the Supreme Court's recent ruling in Batson v. Kentucky, --- U.S. ---, 106 S.Ct. 1712, 90 S.Ct. 69 (1986); (2) that Fleming's death sentence violated the sixth and fourteenth amendments under the Supreme Court's ruling in Michigan v. Jackson, --- U.S. ---, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), because it was based in part upon statements obtained in police interrogations after petitioner was formally charged and after he requested the assistance of counsel; (3) that petitioner was convicted and sentenced to death in violation of the sixth and fourteenth amendments because he did not have the assistance of counsel at his commital hearing; (4) that certain improper prosecutorial remarks made in closing argument at trial require reversal under Caldwell v. Mississippi, --- U.S. ---, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); and (5) that Fleming's death sentence is unconstitutional because Georgia's capital sentencing process is arbitrary and discriminatory. Without expressing any opinion on the merits of Fleming's claims, we stay Fleming's execution based on the first ground presented.

This Court will grant a stay of execution only if we find that: (1) an issue presented in the petition for habeas corpus is properly before this Court, (2) this issue presents substantial grounds upon which relief might be granted and cannot be responsibly reviewed by this Court prior to the scheduled time for execution of sentence. See Witt v. Wainwright, 755 F.2d 1396, 1398 (11th Cir.1985), rev'd on other grounds, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Dobbert v. Strickland, 670 F.2d 938, 940 (11th Cir.1982); Barefoot v. Estelle, supra, 463 U.S. at 895, 103 S.Ct. at 3395 (1983).

To determine whether any ground for relief is properly before this Court we must consider whether Fleming has abused the writ in bringing a successive petition. We hold that petitioner did not abuse the writ in raising his Batson (juror exclusion based on race) claim on second habeas.

Successive petitions for habeas corpus are governed by Rule 9(b) of the Rules Governing 28 U.S.C.A. Sec. 2254. Rule 9(b) provides:

(b) Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

The petitioner may rebut the state's contention that he abused the writ in a successive petition in one of several ways:

"(a) If the ground was previously addressed in a federal habeas corpus proceeding, the petitioner must demonstrate that the decision was not on the merits or the ends of justice would be served by reconsideration of the merits. The 'ends of justice' are defined by objective factors, such as whether there was a full and fair hearing on the original petition or whether there was an intervening change in the facts of the case or the applicable law.

(b) If the ground was not previously presented in a federal habeas corpus proceeding, petitioner must demonstrate the failure to present the ground in the prior proceeding was neither the result of an intentional abandonment or withholding nor the product of inexcusable neglect." Witt v. Wainwright, supra, at 1397. See also Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).

In the case at bar, we must first determine whether petitioner properly raised his claim of unconstitutional exclusion of jurors based on race in his first habeas petition. The district court held that this was not the case. It perceived a crucial distinction between Fleming's original claim, that "[p]etitioner was indicted, convicted and sentenced by grand and traverse juries from which blacks and young persons were systematically excluded, in violation of the United States Constitution," and his allegation on successive habeas that he was convicted and sentenced in violation of the Constitution because

the prosecutor exercised his peremptory strikes at the guilt-innocence trial of petitioner, a black man, in a racially discriminatory manner so as to intentionally exclude otherwise qualified blacks from the jury solely on the basis of their race.

We cannot agree with the district court that the difference between these statements is critical. In Sanders, the Supreme Court made it clear that a "ground" for relief is a relatively broad term for abuse of the writ purposes. Sanders, supra, at 16, 83 S.Ct. at 1077. The Court indicated that identical grounds may often, on succeeding petitions, be proved by different factual allegations or supported by different legal arguments. Id. "Should doubts arise in particular cases as to whether two grounds are different or the same," the Court said, "they should be resolved in favor of the applicant." Id. (emphasis added). Resolving any doubts in favor of the petitioner in this case, we are satisfied that Fleming adequately raised his claim of improper juror exclusion based on race in his first habeas petition.

A second and distinct problem arises from the unusual posture of this case. As we hold above, petitioner did state the Batson ground for relief in his initial federal habeas petition--but it is also clear that he did not renew this argument on appeal. Respondent's charge of intentional abandonment could be construed to apply to petitioner's silence on this claim at the appellate stage. However, we reject such a conclusion.

The "intentional abandonment or withholding" doctrine obtains on a second habeas only where petitioner has not, in the words of Witt, supra, "previously presented [the ground for relief] in a federal habeas corpus proceeding." Cf. Sanders, supra, at 15, 83 S.Ct. at 1077 (ground must be presented in "prior [habeas] application"). But petitioner here did present the Batson ground in precisely such a proceeding, and the district court considered and rejected petitioner's arguments. Fleming v. Zant, supra, at 541-42. Once this ground was raised in the first habeas petition--all that is required under Witt and Sanders, supra,--no abandonment for abuse of the writ purposes could logically occur; what was done could not be undone. Petitioner's failure to re-argue this ground for relief on the appeal of his first habeas petition did not remove the claim from his petition. He simply conceded defeat on the merits.

This approach is counseled by previous decisions of this and our predecessor Circuit acknowledging that "[t]...

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