Henderson v. Tollett

Citation459 F.2d 237
Decision Date20 April 1972
Docket NumberNo. 71-1451.,71-1451.
PartiesWillie Lee HENDERSON, Petitioner-Appellee, v. Lewis S. TOLLETT, Warden, Brushy Mountain State Farm, Respondent-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

H. Fred Hoefle, Cincinnati, Ohio (Court appointed), for appellee.

R. Jackson Rose, Nashville, Tenn., for appellant; David M. Pack, Atty. Gen., of counsel.

Before PHILLIPS, Chief Judge, and CELEBREZZE and MILLER, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal from a decision of the United States District Court for the Middle District of Tennessee, granting a petition for habeas corpus.

On January 22, 1948 a Nashville, Tenn. liquor store employee was shot and seriously wounded in an abortive hold-up attempt. Police arrested Petitioner, Willie Lee Henderson, a Negro and two other men, in connection with the crime. The three were charged with robbery and attempted murder. When the hold-up victim died several weeks later, first degree murder indictments were handed up against all three men by the Davidson County Grand Jury.

Without seeking the advice of counsel on this matter, Petitioner signed a confession acknowledging his participation in the robbery attempt and the shooting. Although he initially wanted to plead not guilty Henderson was eventually persuaded by counsel retained by his mother to enter a guilty plea. He did so in March, 1948 and was sentenced to a ninety-nine year prison term pursuant to a plea bargain arranged by his attorney. He was still serving that sentence at the time he sought federal habeas corpus relief.

Neither Henderson nor his counsel objected to the exclusion of Negroes from the Grand Jury which indicted Petitioner. Although Henderson sought habeas corpus relief in state and federal courts in 1964 he did not raise the systematic exclusion question at that time.1 Such claim was included in a 1967 state habeas corpus petition which was denied by the state trial court without a hearing. Upon review of that decision the Tennessee Supreme Court ordered that an evidentiary hearing be held on the issue. On remand the trial court found that no pattern of systematic exclusion had been shown and again denied Petitioner any relief. The Tennessee Court of Criminal Appeals affirmed by a divided vote. It based its decision entirely on what it found to be the waiver created by Petitioner's failure to raise the claim of systematic exclusion before pleading to the indictment and by his plea of guilty itself. The Tennessee Supreme Court declined to review the decision.

Henderson, having exhausted his state remedies on the question then sought federal habeas corpus relief in the District Court. His petition raised several grounds for relief, but the District Court properly considered only the matter of systematic exclusion of Negroes from the Davidson County Grand Jury. It reviewed the testimony offered at the state evidentiary hearing and concluded that a pattern of systematic exclusion of Negroes from the Davidson County Grand Jury in 1948 had, in fact, been shown. It was also held that Petitioner had not waived his right to challenge the indictment handed up by such a grand jury. Accordingly, the District Court ordered Petitioner's release. This appeal followed.

For nearly a century it has been plain that "a criminal defendant is denied the equal protection of the laws guaranteed by the Fourteenth Amendment if he is indicted by a grand jury . . . from which members of his race have been excluded because of their race." Eubanks v. Louisiana, 356 U.S. 584, 585, 78 S.Ct. 970, 972, 2 L.Ed.2d 991 (1958); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947). It is plain that the evidence in this case fully supports the District Court's finding that Negroes were systematically excluded from the Davidson County Grand Jury at the time the indictment against Petitioner was handed up.2 The Respondent does not contest the finding of impermissible exclusion on appeal; he bases the appeal entirely on the claim that Henderson waived any right to attack the indictment because he did not make his challenge before pleading to the charges and because he pled guilty to the indictment.

Tennessee courts have consistently ruled that a challenge to the composition of the grand jury venire must be made by motion or plea in abatement before any plea to the indictment is entered. Failure to make such a challenge waives any objection under Tennessee law. See State ex rel. Lawrence v. Henderson, 433 S.W.2d 96, 101 (Tenn.Ct.Crim.App., 1968) and cases cited therein.

A "state court's finding of waiver" does not, however "bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question." Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963). In making that independent determination the federal courts must apply the "classic" definition of waiver: Did the defendant's conduct amount to "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); Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837.

Respondent initially suggests that it is inappropriate to apply the "classic" definition here, apparently because he does not believe that the equal protection right in question warrants the scrupulous protection which that definition and the accompanying "presumption against waiver" would provide. See Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. 1019.

Nothing in Fay v. Noia suggests that the Supreme Court intended to establish a hierachy of constitutional protections and limit the applicability of the classic definition of waiver to those rights occupying the highest positions. The decision speaks only of "waivers affecting federal rights," Fay v. Noia, supra, 373 U.S. at 439, 83 S.Ct. 822; it does not distinguish among those rights. Since that decision was handed down three Circuit Courts have been asked to decide whether a particular habeas petitioner's conduct constituted a waiver of his equal protection right to indictment by a grand jury from which members of his race have not been systematically excluded. Each Circuit has applied the Johnson v. Zerbst standard in answering that question. McNeil v. State of North Carolina, 368 F.2d 313 (4th Cir. 1966); Cobb v. Balkcom, 339 F.2d 95 (5th Cir. 1964); Wade v. Yeager, 377 F.2d 841, 846 (3rd Cir. 1967) cert. den. 393 U.S. 893, 89 S.Ct. 218, 21 L.Ed.2d 173 (1968).3 We see no justification whatever for applying a less rigorous standard here.

When the Johnson v. Zerbst standard is applied it becomes clear that Petitioner's failure to raise an objection to the grand jury selection process could not have been an intentional abandonment of a known right. Petitioner was himself unaware that he had any such right at the time of his plea. Given the fact that he was then twenty years old, had received less than a sixth grade education and was not informed of such right by counsel this lack of knowledge is hardly surprising. Waiver, if it is to be found here would have to be predicated upon the knowledge and conduct of Petitioner's retained counsel.

While Fay v. Noia, supra, indicated that "a choice made by counsel not participated in by the petitioner does not automatically bar relief," 372 U.S. at 439, 83 S.Ct. at 849, that decision does not require that the criminal defendant be consulted in every situation before a valid waiver can be effected. Certainly such consultation would be useless where, as here, the Petitioner's "frame of reference could not have included any comprehension of the traditional constitutional rights incident to a fair trial." Whitus v. Balkcom, 333 F.2d 496, 503 (5th Cir. 1964), cert. den. 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964).

If the conduct of counsel is, by itself, to waive a constitutional right held by the defendant, however, it would seem that at a minimum counsel's actions should involve "a deliberate choice of strategy" amounting to an intentional "bypassing" of state procedures. Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Fay v. Noia, supra, 372 U.S. at 438, 83 S.Ct. 822.

Any discussion of tactical calculation is clearly inappropriate here. Petitioner's counsel testified at the evidentiary hearing that he never thought of the "possibility" of objecting to the systematic exclusion of Negroes from the Davidson County Grand Jury. Judge Galbreath, concurring in the decision of the Tennessee Court of Criminal Appeals denying Petitioner relief, felt compelled to comment: "No lawyer in this State would have ever thought of objecting to the fact that Negroes did not serve on the Grand Jury in Tennessee in 1948." State ex rel. Henderson v. Russell, 459 S.W.2d 176, 179 (Tenn.Ct.Crim.App. 1970). This statement from a Tennessee Appellate Judge makes all the more credible the claim that Petitioner's attorney was without knowledge of the right to challenge the indictment when he advised his client to plead to the charges without objection to the grand jury venire.

When neither attorney nor client have any knowledge whatever of the right assertedly waived, it is clear that the Johnson v. Zerbst standard for waiver has not been met. Such is the case here. Accordingly we hold that Petitioner's failure to object to the indictment returned by an all-white grand jury before entering a plea did not waive his right to challenge the composition of that grand jury in subsequent federal habeas proceedings.

It is suggested, however, that apart from the mere failure to challenge the grand jury composition Petitioner also acted to affirmatively waive his right to make such challenge by pleading guilty to the indictment.

It is the general rule in this Circuit, as elsewhere, that a voluntary plea of guilty made by an...

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  • Tollett v. Henderson 8212 95
    • United States
    • U.S. Supreme Court
    • April 17, 1973
    ...that counsel's advice was not within the standards of McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763. Pp. 261—269. 459 F.2d 237, reversed and R. Jackson Rose, Asst. Atty. Gen., State of Tennessee, for petitioner. H. Fred Hoefle, Cincinnati, Ohio, for respondent. Mr. Justi......
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    • U.S. Court of Appeals — Third Circuit
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    ...following his indictment by a properly constituted grand jury. That was the relief directed by the Sixth Circuit, see Henderson v. Tollett, 459 F.2d 237, 243 (6th Cir.1972), and which the Supreme Court modified by remanding for further That is a far cry from what Boyd has been contending an......
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    • November 6, 1972
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    • U.S. Court of Appeals — Ninth Circuit
    • June 1, 1973
    ...counsel are without knowledge of a substantial constitutional right that right is not waived even by a guilty plea." Henderson v. Tollett, 459 F.2d 237, 243 (6th Cir. 1972). The Sixth Circuit had based its reasoning on a line of cases holding that a petitioner could not knowingly relinquish......
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