Hance v. Zant, 82-8342

Citation696 F.2d 940
Decision Date24 January 1983
Docket NumberNo. 82-8342,82-8342
PartiesWilliam Henry HANCE, Petitioner, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Leonard M. Marks, Howard Lloyd Wieder, Gold, Farrell & Marks, John Charles Boger, New York City, for petitioner.

Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent.

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

Before VANCE and JOHNSON, Circuit Judges, and ALLGOOD *, District judge.

JOHNSON, Circuit Judge:

Petitioner William Henry Hance was convicted by a jury in the Superior Court of Muscogee County, Georgia, of the murder of Brenda Gail Faison (a/k/a Gail Jackson) and of attempted theft by extortion. The jury sentenced him to death for the murder under Ga.Code Ann. Sec. 27-2534.1(b)(7) and he was sentenced to five years' imprisonment for attempted extortion.

The Supreme Court of Georgia affirmed the convictions and sentences. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 611 (1980), reh'g denied, 449 U.S. 1135, 101 S.Ct. 958, 67 L.Ed.2d 122 (1981). Hance's petition for habeas corpus was dismissed by the Superior Court of Butts County, Georgia, after a hearing. The Supreme Court of Georgia denied petitioner's application for a certificate of probable cause and the United States Supreme Court denied certiorari. Hance v. Zant, --- U.S. ----, 102 S.Ct. 2046, 72 L.Ed.2d 491 (1982).

The United States District Court for the Middle District of Georgia granted petitioner leave to proceed in forma pauperis and summarily denied his application for habeas corpus without an evidentiary hearing. The court denied a stay of execution pending appeal but granted a certificate of probable cause to appeal to this Court. This Court granted a stay of execution pending appeal.

On or about February 28, 1978, Hance, a soldier at Fort Benning in Columbus, Georgia, killed prostitute Gail Jackson, after she propositioned him, by knocking her unconscious with a karate chop and then repeatedly striking her in the face with a jack handle. On March 15, Hance killed prostitute Irene Thirkield in a similar manner, leaving her body on Fort Benning grounds.

Between March 3 and April 5, Hance sent five letters to Columbus Police Chief McClung and one letter to the local newspaper claiming that "The Forces of Evil", a white organization, had kidnapped Gail Jackson and Irene, who were black, in order to pressure the Columbus police to capture the "stocking strangler" who was then terrorizing the white women of the city. The handprinted letters on Army stationery threatened that, if the strangler was not caught by June 1, 1978, or if $10,000 was not given to "The Forces of Evil", Gail Jackson would be killed and other black female victims would follow.

On March 30, 1978, Hance, claiming to be "The Forces of Evil", telephoned the Fort Benning military police and the Columbus Police Department, indicating that Gail Jackson's body could be found a certain metric distance from the Sand Hill Bar. The military police and the police receptionist who received the calls thought the caller was a young black male. Gail Jackson's body was found at the specified location covered with twigs and leaves. Her face was mutilated. Near the body was found an Army cap with a different unit insignia than Hance's unit. On April 3 the Fort Benning desk sergeant received a call from "The Forces of Evil" indicating where on Fort Benning Irene's body could be found. The caller sounded like a black male.

Irene Thirkield was last seen on March 15, talking to a soldier in Vice Mitchell's Tavern. One of the witnesses told Agent Richard Fox, of the United States Army Central Intelligence Division ("C.I.D."), that Hance was the soldier seen with the victim and stated that the two left the tavern together. Tape recordings of the phone calls to the Fort Benning police which indicated where the bodies could be found were taken by C.I.D. Agent Besson to Hance's company commander and first sergeant, who thought it was Hance's voice on the tapes.

On April 4, 1978, Agents Besson and Fox told the petitioner's commanding officer that they wanted to interview Hance. Hance agreed to be taken to C.I.D. headquarters, where he was advised of his rights by Agent Fox and informed that the interview concerned the murder of Irene Thirkield, with whom he was the last person seen. Hance signed a waiver of his rights. The interview was conducted from about 1:00 p.m. until 10:20 p.m. Hance was then interviewed by the FBI and the Columbus police for another hour. During the interviews Hance admitted writing letters and making the telephone calls for "The Forces of Evil" but said he had been forced to do so by the organization. The next morning, at about eight, Hance was again advised of his rights, which he again waived. He was interviewed until about 3:15 p.m. when he signed a written statement concerning each murder. Throughout the two days of interrogation he was given breaks to eat and to use the restroom. Hance was also given coffee and allowed to smoke. At no time did petitioner request a lawyer or ask that the interview be terminated.

I. STANDARD OF REVIEW

The standard of review for habeas corpus petitions by prisoners in state custody is set out in 28 U.S.C.A. Sec. 2254(d). 1 A written determination after a hearing on the merits of a factual issue, made by a state trial or appellate court of competent jurisdiction, is presumed to be correct unless one of the conditions set forth in Section 2254(d)(1)-(7) is found to exist. If none of these conditions is found, or unless the state-court determination is "not fairly supported by the record," 28 U.S.C.A. Sec. 2254(d)(8), the petitioner must establish by convincing evidence that the factual determination by the state court was erroneous. Sumner v. Mata, 449 U.S. 539, 546, 550, 101 S.Ct. 764, 768, 770, 66 L.Ed.2d 722 (1981). This presumption of correctness does not apply to legal findings or to mixed questions of law and fact. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980). Factual issues involve "what are termed basic, primary, or historical facts: facts 'in the sense of a recital of external events and the credibility of their narrators ....' " Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963), quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.). On the other hand, mixed questions of law and fact involve "the application of legal principles to the historical facts of [the] case." Cuyler, supra, 446 U.S. at 342, 100 S.Ct. at 1714. As Justice Frankfurter once stated: "Where the ascertainment of the historical facts does not dispose of the claim but calls for interpretation of the legal significance of such facts ... the [Federal] Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge." Brown, supra, 344 U.S. at 507, 73 S.Ct. at 446 (opinion of Frankfurter, J.).

II. FRUIT OF AN ILLEGAL ARREST

Petitioner's first argument on appeal is that his confessions must be excluded under Taylor v. Alabama, --- U.S. ----, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), as the impermissible fruit of a warrantless arrest without probable cause. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Because Hance was afforded the opportunity for full and fair litigation of this Fourth Amendment claim in state court, Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precludes its consideration in a federal habeas corpus proceeding. Williams v. Brown, 609 F.2d 216, 220 (5th Cir.1980); Caver v. Alabama, 577 F.2d 1188, 1191-94 (5th Cir.1978).

III. ACCESS TO AN ATTORNEY

While Hance was being interrogated, attorney David Clark, who had not yet been retained by petitioner, was attempting to locate him to advise him of his rights. Hance argues that the confessions resulting from his interrogation should be excluded under Escobedo v. Illinois, 378 U.S. 478, 486-87, 490-91, 84 S.Ct. 1758, 1762-63, 1764-65, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 465 n. 35, 86 S.Ct. 1602, 1623 n. 35, 16 L.Ed.2d 694 (1966), because law enforcement officials prevented his attorney from advising him, thereby violating his Fifth, Sixth and Fourteenth Amendment rights. But Hance never requested an attorney and Mr. Clark was never refused access to him. Given this situation, as found by the state trial court during a Jackson v. Denno hearing, Escobedo does not apply. Love v. Alabama, 411 F.2d 558, 560 (5th Cir.1969). Moreover, Hance was advised of his Fifth and Sixth Amendment rights and he signed a written waiver of those rights. Our determination whether this waiver was valid involves a mixed question of law and fact. See Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977). Under the proper constitutional standard, the state must prove "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). 2 The trial court found by a preponderance of the evidence that Hance was properly advised of his rights, that he understood those rights, and that he voluntarily signed a written waiver of those rights. Implicit in this finding is the factual determination that Hance was mentally competent to waive his rights. Upon examination of the entire record, according a presumption of correctness to the factual findings of the ...

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