Gibson v. Jackson

• Citation: 443 F. Supp. 239
• Decision Date: 16 December 1977
• Docket Number: Civ. A. No. 77-59-MAC.
• Parties: Samuel GIBSON, III, Plaintiff, v. George L. JACKSON, Individually and as Superior Court Judge of Jones County, Georgia, Butch Moore, Charles E. Baker, Jr., Nelson Chapman, Individually and in their capacity as Commissioners of Jones County Georgia, James Ricketts, Individually and in his capacity as Warden of the Georgia Diagnostic & Classification Center in Jackson, Georgia, George Busbee, Individually and in his capacity as Governor of the State of Georgia, Defendants.
• Court: United States District Courts. 11th Circuit. Middle District of Georgia

443 F. Supp. 239

Samuel GIBSON, III, Plaintiff, v. George L. JACKSON, Individually and as Superior Court Judge of Jones County, Georgia, Butch Moore, Charles E. Baker, Jr., Nelson Chapman, Individually and in their capacity as Commissioners of Jones County Georgia, James Ricketts, Individually and in his capacity as Warden of the Georgia Diagnostic & Classification Center in Jackson, Georgia, George Busbee, Individually and in his capacity as Governor of the State of Georgia, Defendants.

Civ. A. No. 77-59-MAC.

United States District Court, M. D. Georgia, Macon Division.

December 16, 1977.

Millard C. Farmer, Jr., Robert Altman, Atlanta, Ga., for plaintiff.

Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., State of Ga., Atlanta, Ga., for defendants.

OWENS, District Judge:

Constitutionally and legally the State of Georgia may execute persons who murder their fellow human beings provided that such persons have been constitutionally and legally tried and sentenced, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and provided further that they have been afforded their "constitutional right of access to the courts to assert such procedural and substantive rights as may be available . . . under state and federal law. . . ." Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72, 86 (1977).

Plaintiff Samuel Gibson, III, an indigent, having been convicted in Jones County Superior Court of both murder and rape and sentenced to die and having lost his appeal of right¹ to the Supreme Court of Georgia, 236 Ga. 874, 226 S.E.2d 63 (1976), has petitioned the Butts County Superior Court for a writ of habeas corpus pursuant to a statutory scheme enacted by the legislature of this State.

Georgia's habeas corpus statute permits "any person imprisoned by virtue of a sentence imposed by a State court of record . . ." to file a petition in the Superior Court of the county in which he is imprisoned and in his petition to assert "that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Georgia or the laws of Georgia." The statute² itself is technical and difficult for judges and lawyers to apply. Major changes³ effective April 24, 1975, were enacted, 1975 Ga.Laws at 1143, making the statute even more difficult to apply in petitioner's case since he was tried May 12, 1975, for a crime that occurred April 10, 1975.

Not only is Georgia's habeas corpus statute technical and difficult of application, it also is a procedure that Georgia prisoners must utilize and complete before they can petition in a United States District Court for a writ of habeas corpus. The procedure in United States District Court is set forth in a law enacted by Congress, 28 U.S.C. § 2254, which among other things provides:

"(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

"(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."

The state procedure finally determines Fourth Amendment constitutional claims, Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), and may very well be determinative of and foreclose consideration of other substantial issues in the federal proceeding because "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction . . . shall be presumed to be correct . . .." in the federal proceeding. The exceptions⁴ to this statutory presumption are also technical.

Georgia does not constitutionally have to afford prisoners either direct appeals from criminal convictions or a procedure for petitioning for writ of habeas corpus. Estelle v. Dorough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377, 380 (1975). By statutorily providing for habeas corpus petitions it has made it mandatory for prisoners desiring to petition a United States District Court pursuant to 28 U.S.C. § 2254 to proceed in state court pursuant to Ga.Code Ann. § 50-127. That this result was intended by this State's legislature is shown by a seldom found statement of legislative intent included with 1967 Ga.Laws, p. 835, et seq., a complete revision of Georgia's habeas corpus statute:

"Section 1. Statement of Legislative Intent and Purpose.

The General Assembly finds that expansion of the scope of habeas corpus in federal court by decisions of the United States Supreme Court, together with other decisions of said court (a) substantially curtailing the doctrine of waiver of constitutional rights by an accused and (b) limiting the requirement of exhaustion of state remedies to those currently available, have resulted in an increasingly larger number of state court convictions being collaterally attacked by federal habeas corpus based upon issues and contentions not previously presented to or passed upon by courts of this State; that such increased reliance upon federal courts tends to weaken state courts as instruments for the vindication of constitutional rights, with a resultant deterioration of the federal system and federal-state relations; that to alleviate said problems, it is necessary that the scope of state habeas corpus be expanded and the state doctrine of waiver of rights modified. The General Assembly further finds that expansion of state habeas corpus to include many sharply-contested issues of a factual nature requires that only the superior courts have jurisdiction of such cases."

Obviously aiming to eventually try to petition this court pursuant to 28 U.S.C. § 2254, petitioner is now proceeding in state court under Ga.Code Ann. § 50-127 to try to assert every right guaranteed to him by the Constitution of the United States or Georgia and by the laws of Georgia, that possibly was substantially denied him during his Jones County Superior Court trial. Saying that the state procedure in the case of a death row inmate is not only mandated by state law but is also finally determinative of life itself, he comes into this court before being heard in state court on his petition for habeas corpus and asks this court to find and declare under 42 U.S.C. § 1983 that the State of Georgia by failing to appoint and pay a lawyer to represent him and by failing to pay investigative and witness expenses in his habeas corpus proceeding, is denying him his constitutional rights. The defendants vigorously deny that it is constitutionally necessary to appoint counsel for petitioner or pay such expenses.

Not only does petitioner assert that the finality of death makes it constitutionally necessary for counsel to be appointed; he further urges that the development of facts not brought out upon his trial on account of ineffective assistance of appointed trial counsel and the identification and articulation of the constitutional rights substantially denied him, are tasks that can be performed only by a person who is trained in and practicing law and that are impossible of performance by him as a layman. Additionally he argues that prisoners with monetary resources can obtain necessary legal assistance and pay investigators and witnesses and are thus able to secure meaningful access to the courts, but he as an indigent, solely because of his poverty and the state's failure to appoint counsel and pay such expenses, cannot.

Volunteer legal counsel represent petitioner in this court. In petitioner's behalf they have identified substantial constitutional issues that without the assistance of counsel, petitioner will most likely be unable to develop in his state habeas proceeding. First is petitioner's claim of ineffective assistance of appointed trial counsel. Such a claim can be established only by producing evidence in Butts Superior Court of the background, character and reputation of appointed trial counsel and of what he did and failed to do. How can a death row inmate confined almost incommunicado, investigate or present such claims? How can a death row inmate gather and present evidence to refute all that lawyers for the state utilizing its monetary and legal resources, can present?

Second is petitioner's claim that the grand and petit jury master lists from which his grand and petit juries were selected, were unconstitutionally composed. This constitutional issue was presented to the trial court and decided adversely to him by the Supreme Court of Georgia. In so doing the Supreme Court of Georgia may have failed to consider petitioner's contention that evidence showing a grand jury list of:

(a) 87.6 percent males and 12.62 percent females, and

(b) 17.71 percent blacks and 82.29 percent whites in a county that is:

(a) 47.19 percent male and 52.81 percent female, and

(b) 33.3 percent black and 66.7 percent white,

makes out a prima facie showing of unconstitutional jury composition. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1966); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). The adequacy of the trial court record must be considered and further factual investigation must be undertaken to determine whether or not additional facts should be presented in Butts Superior Court.

Third is petitioner's assertion that his death sentence violates the constitutional standards set forth in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), because this case is not one in which the death penalty can be imposed under the statutory standards approved...