Gibson v. Jackson

• Decision Date: 23 August 1978
• Docket Number: No. 78-1113,78-1113
• Citation: 578 F.2d 1045
• Parties: Samuel GIBSON, III, Plaintiff-Appellee, v. George L. JACKSON, Individually and as Superior Court Judge of Jones County, Georgia, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1045

578 F.2d 1045

Samuel GIBSON, III, Plaintiff-Appellee, v. George L. JACKSON, Individually and as Superior Court Judge

of Jones County, Georgia, et al., Defendants-Appellants.

No. 78-1113.

United States Court of Appeals, Fifth Circuit.

Aug. 23, 1978.

Frank H. Childs, Jr., Macon, Ga., for Moore, Baker 7 Chapman.

Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., Atlanta, Ga., for all other defendants.

Millard C. Farmer, Jr., Atlanta, Ga., Robert Altman, New Orleans, La., for plaintiff-appellee.

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

Before COLEMAN, GEE and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Samuel Gibson, an indigent black male sentenced to death by the State of Georgia for the murder and rape of a white female, filed a state habeas corpus action alleging that his federal constitutional rights had been violated in his earlier criminal trial. A Georgia lawyer filed the petition, in which he alleged that the state court is required to appoint counsel to represent Gibson, and that the state of Georgia is required to provide funds to pay for investigative and witness expenses in his state habeas proceeding. The state court has never formally ruled on this issue. By agreement of the parties, the state habeas action was stayed while petitioner, again represented by the same unpaid counsel who had appeared on his behalf in the state habeas proceeding, filed this federal action pursuant to 42 U.S.C. § 1983, seeking a declaratory judgment that the state is required to afford him appointed counsel and reasonable monetary assistance as a matter of constitutional right. ¹ The federal trial court concluded that petitioner had raised five substantial issues in his habeas petition that could not be fairly and fully presented without both the assistance of counsel and funds for investigative and litigation expenses, ² and, extending the rationale of Bounds v. Smith, 1977, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72, granted the relief sought. Gibson v. Jackson, M.D.Ga.1977, 443 F.Supp. 239. The defendants appeal, contending, first, that the federal court should have abstained from resolving the issue pending completion of the state habeas process, and, second, that there is no constitutional right to the relief sought. Because we agree that the trial court should have abstained, we do not at this time consider the second issue.

In Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, principles of "equity, comity and federalism" ³ led the Supreme Court to fashion the doctrine of federal abstention, ⁴ later broadened in Younger v. Harris, ⁵ 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and its successors. ⁶ Pullman -type abstention ⁷ is, in general, appropriate "in cases presenting a federal constitutional ⁸ issue which might be mooted or presented in a different posture by a state court determination of pertinent state law." ⁹ Colorado River Water Conservation Dist. v. United States, 1976, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483, quoting County of Allegheny v. Frank Mashuda Co., 1959, 360 U.S. 185, 189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163.

The necessity for abstention is to be determined by principled discretion ¹⁰ not doctrinaire adherence; its application must, therefore, be decided on a case-by-case basis. ¹¹ The stay of federal decision is "an extraordinary and narrow exception to the duty of the District Court to adjudicate a controversy properly before it." Colorado River Water Conservation Dist. v. United States, id. ¹² Although federal courts should seek, whenever possible, to resolve a controversy without reaching the question of the constitutionality of federal or state action, this self-restraint "does not alone justify abstention." Colorado River Water Conservation Dist. v. United States, supra, 424 U.S. at 815 n. 21, 96 S.Ct. at 1245. See Harman v. Forssenius, 1965, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50; Baggett v. Bullitt, 1964, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377. When declaratory relief is sought with respect to issues presented in a pending state civil proceeding, "a vigorous balancing test is contemplated, including the plaintiff's cost of having to proceed through the state court system, and some judgment as to how intrusive or disruptive a federal decree is likely to be to the ongoing state civil proceeding." Diaz v. Stathis, 576 F.2d 9, 1 Cir. 1978. The principle is not, however, limited to a single species of cases. Even when suit is brought for violation of federal civil rights, pursuant to Section 1983, a proceeding that does not require the exhaustion of state remedies as a prerequisite to federal action, ¹³ federal courts may refrain from decision until a related state court proceeding is resolved. ¹⁴

Federal courts usually await state court action only if a state court determination of state law may moot or reshape the federal constitutional issue. Although the record when counsel appeared to seek a postponement of state proceedings indicates that the state court was not receptive to the request, it has not acted upon or even been presented with a specific demand for relief; it may yet rule favorably upon this plea. Because the state's attorney informed us, in oral argument, that he would like to see petitioner represented by counsel, it is possible that the state attorney general may join in petitioner's motion, a development that would enhance its prospects. ¹⁵ Even if the trial court considers and denies such relief, the Georgia Supreme Court may rule in petitioner's favor notwithstanding its prior jurisprudence rejecting the right to appointed counsel in habeas proceedings. ¹⁶ The Georgia Supreme Court has never considered the issue with respect to a petitioner who faces the death penalty, ¹⁷ nor has it considered the effect, if any, of Bounds v. Smith, supra, which the federal trial court found persuasive. ¹⁸ Finally, the Georgia Supreme Court may, without a complete departure from its prior jurisprudence, decide that, under the circumstances of this case, involving both imposition of the death penalty and complex legal issues, due process requires counsel and state financial assistance. We note that, in less compelling cases, ¹⁹ two justices of that court have stated the opinion that this approach should be adopted.

The state trial court or state supreme court may deny petitioner's requests for assistance but nonetheless find his substantive claims meritorious, hence mooting the procedural issues. Moreover, the issue here raised may be moot in the literal sense: the petitioner is presently represented by counsel in the state court and that able lawyer, who appeared on petitioner's behalf before us, may continue in the task he has assumed pro-bono. The likelihood that the issues now presented will remain for decision when the state proceeding is concluded is so uncertain at this moment that an immediate decision borders on being advisory in nature. ²⁰

Petitioner asks this court to inform the state tribunal of the procedural requirements imposed upon it by the federal Constitution while that tribunal is in the process of charting its own course. "Proceedings in state courts should normally be allowed to continue unimpaired by intervention of the lower federal courts, with relief from error, if any, through the state appellate courts and ultimately (the United States Supreme Court)." Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers, 1970, 398 U.S. 281, 287, 90 S.Ct. 1739, 1743, 26 L.Ed.2d 234. See Lamb Enterprises, Inc. v. Kiroff, 6 Cir. 1977, 549 F.2d 1052, 1058, Cert. denied, 1977, 431 U.S. 968, 97 S.Ct. 2926, 53 L.Ed.2d 1064; Louisville Area Inter-Faith Committee v. Nottingham Liquors, Ltd., 6 Cir. 1976, 542 F.2d 652, 654. As we recently noted in Williams v. Rubiera, 5 Cir. 1976, 539 F.2d 470, Cert. denied, 1977, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 246, where petitioner sought a declaration of his right to appointed counsel in a state welfare prosecution, " If relief were granted . . . it would have the effect of a federal court telling the state court how to run an ongoing criminal prosecution, i. e., whether it could constitutionally try the defendant without appointed counsel." 539 F.2d at 473. Compare Cleaver v. Wilcox, 9 Cir. 1974, 499 F.2d 940. Abstention will avoid such a "continuous federal supervision of state functioning." Friendly, Federal Jurisdiction, A General View, 95 (1973).

"(P)iecemeal results and delay" are usually considered attendant to abstention, Ross v. Houston Independent School Dist., 5 Cir. 1977, 559 F.2d 937, 942, but those problems would be exacerbated by the entertainment of claims like those presented here. We are conscious of the serious nature of this case, and we do not approach the issue by the traditional slippery slope argument. But to act here and now is to indicate to persons engaged in other death sentence cases that federal courts will, by the declaratory judgment device, monitor a myriad of state habeas claims presenting issues that apparently pose federal constitutional questions. If state trials are not stayed pending submission of such issues to federal courts, the possibilities of inconsistent judgments from both forums promises increased friction. If state trials are stayed, whether by stipulation or otherwise, while these issues are litigated over the course of several years through the tiers of the federal system, the possibilities of delay and piecemeal resolution are interminably expanded. Such an encroachment of the federal government into ongoing state proceedings would be unseasonable and obtrusive. ²¹ The "delay and expense to which application of the abstention doctrine inevitably give rise," Bellotti v. Baird, 1976, 428 U.S. 132, 150, 96 S.Ct. 2857, 2868, 49 L.Ed.2d 844, quoting England v. Medical Examiners, 1964, 375 U.S. 411, 418, 84...