Henderson v. Tollett

• Decision Date: 12 April 1971
• Docket Number: Civ. No. 5996.
• Citation: 342 F. Supp. 113
• Parties: Willie Lee HENDERSON v. Lewis S. TOLLETT, Warden, Brushy Mountain State Prison.
• Court: U.S. District Court — Middle District of Tennessee

342 F. Supp. 113

Willie Lee HENDERSON v. Lewis S. TOLLETT, Warden, Brushy Mountain State Prison.

Civ. No. 5996.

United States District Court, M. D. Tennessee, Nashville Division.

April 12, 1971.

Willie Lee Henderson, pro se.

David Pack, Atty. Gen., and R. Jackson Rose, Asst. Atty. Gen., State of Tennessee, Nashville, Tenn., for respondent.

ORDER

FRANK GRAY, Jr., Chief Judge.

This proceeding involves a petition for the writ of habeas corpus. Petitioner is presently confined, in the custody of respondent, at the Brushy Mountain Prison, Petros, Tennessee, where he is serving a sentence of ninety-nine years which was imposed by the Criminal Court of Davidson County, Tennessee, following his plea of guilty, in 1948, to a charge of murder in the first degree. In his pro se petition, petitioner sets forth four grounds upon which he bases his claim that his present incarceration is illegal. With regard to the first three of his asserted grounds, petitioner makes no affirmative showing, nor does he otherwise indicate, that he has ever presented them for adjudication to the courts of Tennessee. Since a showing of exhaustion of available state remedies is required by 28 U.S.C. § 2254 before federal habeas corpus relief can issue, this court, by order entered December 29, 1970, refused to take cognizance of petitioner's first three grounds for relief. As his fourth ground for relief, petitioner asserts that his present confinement is illegal, because he was indicted by a grand jury from which members of his race (Negro) had been systematically excluded.

With regard to this fourth ground, the petition contains the required showing of exhaustion of available state remedies. Additionally, as was noted by this court in its order of December 29, 1970, this ground raises constitutional issues of considerable magnitude. Accordingly, the aforesaid order directed respondent to show cause why the writ should not issue. The directed response was subsequently forthcoming, and, no satisfactory cause to the contrary appearing therein, it was ordered that the writ issue and that petitioner be brought before this court at an appointed time for a hearing. The hearing was held as ordered, and, as a result thereof, the following have been established as the basic facts of the case.

Petitioner, a black youth, was indicted by the Davidson County Grand Jury in 1948 on a charge of murder in the first degree. Although roughly one fourth of the population of Davidson County in 1948 was composed of members of petitioner's race, no black people served on the grand jury which indicted him; no black people had ever served on a Davidson County Grand Jury prior to the time of his indictment; and no black people served on the Davidson County Grand Jury until well into the next decade following his indictment. What is more, whenever the name of a black citizen appeared on the venire lists from which members of the Davidson County Grand Jury were chosen at the time of petitioner's indictment, it was marked with either the designation "c" or the designation "col" to signify that the bearer of the name was "colored." Petitioner was represented by counsel who failed to object to the composition of the indicting grand jury, quite simply, because the possibility never occurred to him. For the same reason, he never apprised petitioner of the possibility of attacking his indictment on that ground, and petitioner himself, a twenty-year-old with less than a sixth grade education, never thought of the possibility on his own. Ultimately, petitioner pleaded guilty (he now claims as the result of coercion and trickery, but that is irrelevant in the present context) and was sentenced to serve a term of ninety-nine years in prison.

After serving some two decades in prison, petitioner collaterally attacked his sentence in a state habeas corpus proceeding on the ground that he had been indicted by a racially-exclusive grand jury. His petition was denied at the trial level without a hearing. Eventually, however, the Supreme Court of Tennessee reversed this denial and ordered that an evidentiary hearing be held on petitioner's allegations. Apparently petitioner was provided with court-appointed counsel who, in effect, elected to begin the proceeding de novo by filing a second and somewhat more sophisticated petition, based upon the same ground, in the Criminal Court of Davidson County (No. 4662) on January 12, 1968. A hearing was held on the new petition, and at that hearing all of the facts recited above were adduced. Nevertheless, the trial judge found as a matter of fact that there had been no systematic exclusion of Negroes from the grand jury which had indicted petitioner, and, accordingly, the petition was denied.

Petitioner appealed, and a divided Court of Criminal Appeals of Tennessee, with apparent reluctance, affirmed the decision of the trial judge. The appellate court did not, however, affirm the trial judge's finding of fact that there had been no systematic exclusion of Negroes from the Davidson County Grand Jury in 1948. Rather, it based its decision on the ground that, regardless of whether petitioner was correct or not in contending that members of his race had been systematically excluded from the grand jury which had indicted him,¹ he had waived all right to complain of the grand jury's composition, (a) because he had failed to raise that issue by means of the procedural devices available to him at the time of his indictment and conviction, and (b) because his plea of guilty had abrogated any defects which the indictment might have contained. Henderson v. Russell, No. 5996 (Ct.Crim.App.Tenn., filed July 6, 1970). This decision by the Court of Criminal Appeals of Tennessee became the final state court ruling in the case upon denial of certiorari by the Supreme Court of Tennessee. Finally, having thus exhausted his available state remedies, petitioner sought federal habeas corpus relief. It remains, then, to consider whether such relief shall be granted.

(I) The constitutional issue: indictment of a black man by a grand jury from which members of his race have been systematically excluded.

The unconstitutionality of racially-exclusive grand juries, insofar as their actions affect members of the excluded race, has been firmly established since at least as early as 1880. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). Neither an in-depth analysis of the facts of the instant case nor a lengthy citation of authorities is required to support the proposition that petitioner's showing of the total absence of members of his race from the Davidson County Grand Jury in 1948 and prior years constitutes proof of a prima facie case of systematic exclusion of such persons, thereby casting the burden on respondent to prove to the contrary. Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L.Ed.2d 599 (1967). This burden respondent clearly has failed to sustain. Moreover, any rebuttal proof which respondent might have offered would have been essentially ineffective in the face of petitioner's showing that the names of black people were given distinguishing marks whenever they appeared in the venire lists from which Davidson County Grand Jurors were chosen at the time of his indictment, for it is obvious that such ". . . marking of the jury . . . lists with the letter `C' or with the abbreviation `col' to indicate persons of the Negro race constituted a purposeful discrimination which is unlawful under the Federal Constitution." Bonds v. State, 220 Tenn. 555, 421 S.W.2d 87, 90 (1967). It is thus ineluctable that petitioner was indicted by an unconstitutionally-composed grand jury, and it is also ineluctable that such a body is legally not a grand jury at all.

(II) The waiver issue: effect of petitioner's failure to object, at the time of his indictment or shortly thereafter, to the racial composition of the grand jury which indicted him.

Respondent concedes—as it is apparent he must—that petitioner has proved everything necessary fully to support his contention that members of his race were systematically excluded from the grand jury which indicted him. He thus asserts ". . . that the only remaining issue is whether or not the petitioner has waived his rights to question the composition of the indicting grand jury . . .," and he strenuously insists that petitioner has indeed waived such rights. This court does not agree.

With all deference to what respondent refers to as a "long line of cases" in Tennessee which appear to hold otherwise, this court feels it is illogical to contend that either petitioner's failure timely to object to the composition of the indicting grand jury or his subsequent entry of a guilty plea constitutes a waiver, by operation of law, of his right to object to the composition of that grand jury at the present time. Such a contention, as pointed out by Judge Oliver in his well-reasoned and convincing dissent in Henderson v. Russell, supra, rests upon a confusion between an indictment which is merely technically defective and one—such as petitioner's—which is a complete nullity.² In the latter case, stated in the simplest of terms, there is no "defect" in the indictment to waive, for there is in fact no "indictment" to contain such a defect: instead, there is merely a sheet of paper, meeting, to be sure, the facial requisites of a valid indictment, but having in actuality no legal effect whatsoever. It is clear that any criminal prosecution brought incident to such an "indictment" is illegal and that a plea of guilty to such an "indictment" is of no binding effect, for such an "indictment" confers no subject-matter jurisdiction on the sentencing court. State v. Hughes, 212 Tenn. 644, 371 S.W.2d 445 (1963); Robinson v. City of Memphis, 197 Tenn. 598, 277 S.W.2d 341 (1955); and cases cited in Henderson v. Russell, supra (Oliver, J., dissenting).

Respondent places great store in the fact that a defendant in federal...