Hale v. Henderson, Civ. No. C-67-130.

• Decision Date: 27 January 1972
• Docket Number: Civ. No. C-67-130.
• Citation: 336 F. Supp. 512
• Parties: Albert William HALE, Petitioner, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, Nashville, Tennessee, Respondent.
• Court: U.S. District Court — Western District of Tennessee

336 F. Supp. 512

Albert William HALE, Petitioner, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, Nashville, Tennessee, Respondent.

Civ. No. C-67-130.

United States District Court, W. D. Tennessee, W. D.

January 27, 1972.

Walter L. Bailey, Jr., Memphis, Tenn., for petitioner.

James M. Tharpe, Memphis, Tenn., for respondent.

MEMORANDUM DECISION

BAILEY BROWN, Chief Judge.

The purpose of this memorandum is to summarize in one document the lengthy history of this litigation and to state our reasons for ordering an evidentiary hearing and to define the questions to be investigated at such hearing.

Petitioner, Albert William Hale, a prisoner of the State of Tennessee serving a life sentence imposed in the Criminal Court of Shelby County (Memphis) in 1965 for first degree murder, initiated this federal habeas proceeding by filing a petition pro se in the Middle District of Tennessee on May 10, 1967, and the action was transferred to this District pursuant to 28 U.S.C.A. § 2241. In the petition, the conviction was attacked only on the ground that petitioner's statement was admitted in evidence at his trial in violation of his federal constitutional rights, and petitioner alleged that the Supreme Court of Tennessee had affirmed the conviction. On July 7, 1967, respondent answered, admitting petitioner had exhausted state remedies and denying that the admission of his statement in evidence was federal constitutional error. On July 14, 1967, this Court ordered respondent to file a transcript of petitioner's state criminal trial.

On July 26, 1967, this Court entered an opinion and order, based on our review of the trial transcript, denying the petition and dismissing the action. We concluded therein that the state trial court's determination of the federal constitutional issue met the standards of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, and that therefore an evidentiary hearing was unnecessary. On appeal, the Court of Appeals for the Sixth Circuit on September 17, 1968 reversed, holding that an evidentiary hearing was required. 400 F.2d 655 (1968).

On October 22, 1968 we appointed counsel for petitioner, Mr. Walter L. Bailey, Jr., and we then entered an order of habeas ad subjiciendum with respect to petitioner for the purpose of holding an evidentiary hearing on January 29, 1969. However, with leave of Court, petitioner amended his petition on January 8, 1969 to add the contention that Negroes were systematically excluded from the position of foreman of the grand jury at the time he was indicted¹ and to add the contention that evidence obtained by an unconstitutional search was admitted against him at the trial. The evidentiary hearing was then continued more than once on request of counsel for both sides. On May 1, 1969, petitioner filed a motion for discovery and inspection, and when this motion was heard, the Court pointed out to counsel for petitioner that he had not exhausted state remedies with respect to the new grounds for relief added to the petition, and we inquired whether he desired to have the evidentiary hearing on the original ground for relief alone or to first exhaust state remedies as to the additional grounds for relief. Counsel advised that he preferred to follow the latter course, and an order was entered on May 9, 1969 holding this cause in abeyance.

Petitioner then filed a post-conviction proceeding in the Criminal Court of Shelby County, setting out the claim with respect to the grand jury foreman and the claim with respect to the search. His petition was denied without a hearing, and such denial was affirmed on appeal by the Court of Criminal Appeals of Tennessee on September 17, 1970.² The Supreme Court of Tennessee denied certiorari without written opinion on February 16, 1971.

On August 10, 1971, petitioner moved for evidentiary hearing on all issues, alleging that he had now exhausted state remedies, and this Court, treating the motion as an amendment to the petition, entered a show cause order on August 18, 1971 requiring respondent to answer the petition as so amended. Respondent answered on October 28, 1971, and on November 1, 1971, we referred the cause to the Magistrate for a study and report. The Magistrate filed his report on November 23, 1971, and because of certain questions raised by the report, we entered an order on December 16, 1971 requiring respondent to amend his answer and to thereby supply additional information. The answer was so amended on January 7, 1972, and on that day we again referred this cause to the Magistrate for an additional study and report in the light of such amended answer. The Magistrate filed his supplemental report on January 12, 1972.

With respect to systematic exclusion of Negroes from grand juries, the applicable law is clear. In Whitus v. Georgia, 385 U.S. 545, 549, 87 S.Ct. 643, 646, 17 L.Ed.2d 599 (1967) it is stated:

"For over fourscore years it has been federal statutory law, 18 Stat. 336 (1875), 18 U.S.C. § 243, and the law of this Court as applied to the States through the Equal Protection Clause of the Fourteenth Amendment, that a conviction cannot stand if it is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race. Citations omitted."

Moreover, with respect to proof of such systematic exclusion, in Coleman v. Alabama, 389 U.S. 22, 88 S.Ct. 2, 19 L. Ed.2d 22 (1967) it is stated at 22-23, 88 S.Ct. at 3:

"Although the evidence was in dispute regarding the inclusion of Negroes in the grand and petit jury venires in the county in which petitioner was indicted and tried, it appeared that no Negro served on the grand jury which indicted or the petit jury which convicted petitioner. It further appeared that up to the time of petitioner's trial, no Negro had ever served on a grand jury panel and few, if any, Negroes had served on petit jury panels. This `testimony in itself made out a prima facie case of the denial of the equal protection which the Constitution guarantees.' Citation omitted. In the absence of evidence adduced by the State adequate to rebut the prima facie case, petitioner was therefore entitled to have his conviction reversed. Citations omitted."

In his petition filed in the post-conviction proceeding in the Criminal Court of Shelby County, petitioner alleged:

"That subsequently Petitioner was indicted by the Shelby County Grand Jury for MURDER IN THE FIRST DEGREE. That petitioner is racially black and the foreman of the Shelby County Grand Jury which returned the indictment against him and who is the present foreman is racially white. That although Section 40-1506 of the Tennessee Code Annotated provides that a foreman is to be selected every two years, no black man has ever served in such capacity in Shelby County. That as far back as Petitioner's attorney has researched, which is to 1940, there have been more than 152 pro-tempore Grand Jury foremen and at least 14 regular grand jury foremen appointments and none has been black. That the only qualification to serve in such capacity as pro-tempore and regular foreman is that a person be at least 25 years of age, a citizen of the United States, and a resident of the State of Tennessee, and of the County of Shelby for a period of twelve months next preceding the date that he would be summoned to serve. That there have always been thousands of blacks with these qualifications and Negroes have constituted in the past at least approximately 25% of the entire population of Shelby County. That the population of Shelby County since 1940 has been in excess of 200,000 residents and is now above 600,000. That there has been deliberate and systematic exclusion of Negroes from the post of Grand Jury foreman and the post of pro-tempore and said exclusion caused the Grand Jury that returned the indictment herein to be unconstitutionally constituted and in violation of the Petitioner's `equal protection' under the United States Constitution."

In that post-conviction proceeding, respondent filed a "motion to strike" the petition, setting out, as the only ground therefor so far as the grand jury exclusion claim was concerned, that "a defective indictment is no...