High v. Kemp

• Decision Date: 19 November 1985
• Docket Number: Civ. A. No. CV185-041.
• Citation: 623 F. Supp. 316
• Parties: Jose Martinez HIGH, Petitioner, v. Ralph KEMP, Warden, Georgia Diagnostic & Classification Center, Respondent.
• Court: U.S. District Court — Southern District of Georgia

623 F. Supp. 316

Jose Martinez HIGH, Petitioner, v. Ralph KEMP, Warden, Georgia Diagnostic & Classification Center, Respondent.

Civ. A. No. CV185-041.

United States District Court, S.D. Georgia, Augusta Division.

November 19, 1985.

Bradley S. Stetler, Office of Public Defender, Burlington, Vt., Michael C. Garrett, Augusta, Ga., for petitioner.

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

ORDER

BOWEN, District Judge.

The petitioner, Jose Martinez High, is under sentence of death and applies to this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254.

In its review of this case the Georgia Supreme Court noted that the facts were set out in the companion case of Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (1979), cert. denied 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 425 (1980). High v. State, 247 Ga. 289, 276 S.E.2d 5 (1981). The Ruffin court summarized the evidence as follows:

In the late evening hours of July 26, 1976, Henry Lee Phillips was operating an Amoco service station off I-20 near Crawfordville, Georgia, with his eleven-year-old stepson, Bonnie Bulloch, helping him. A car pulled into the station with three occupants. Judson Ruffin and the two co-indictees, Nathan Brown and Jose High, were in the car. The car had been in the station a week or two earlier. The three men got out of the car and one pointed a pistol at Phillips. Ruffin had a sawed-off shotgun. Phillips was forced to leave the booth while Ruffin removed the money from the register and demanded any other money. When Phillips told him that there was no more money, Ruffin grabbed Bonnie Bulloch and told Phillips to get in the car trunk or Phillips and the boy would be killed. Phillips got in the trunk of the car and when he was released from the trunk found that they were in the woods. Phillips and his stepson were ordered to lie on the ground. Phillips then heard shots fired. When Phillips regained consciousness he discovered the Bulloch was dead.... Phillips had been shot in the temple and wrist. He managed to get to a nearby house and the sheriff was summoned.

Ruffin v. State, supra at 95, 252 S.E.2d at 474 (1979), cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 425 (1980).

The Georgia Supreme Court noted the following additional evidence in the instant case:

The evidence, if it is to be believed, shows that High and his two co-indictees planned the armed robbery on the night in question with the express purpose of eliminating any witnesses to the crime. They abducted an eleven-year-old child along with his stepfather at gun-point. The victim was fifty-six inches tall and weighed seventy pounds. As they drove the victims to the execution site, the young boy rode inside the automobile with High while his stepfather was locked in the trunk. High in his statement said he thought the boy was too young, but he kept asking him as they rode, "Are you ready to die? Do you want to die? Well, you're going to die." He stated that the boy was begging for his life. Once the three robbers reached a rural area, the victims were removed from the car, marched around to the front of the automobile and forced to lie on their faces. They were then shot in the head in a cold-blooded execution fashion. The murder victim's stepfather, however, was not fatally injured.

High v. State, 247 Ga. at 296, 276 S.E.2d at 13.

Petitioner was convicted in the Superior Court of Taliaferro County, Georgia, on charges of murder, armed robbery, two counts of kidnapping with bodily injury, aggravated assault and the unlawful possession of a firearm during the commission of a crime. On December 1, 1978, petitioner initially was sentenced to death for murder, armed robbery and two counts of kidnapping with bodily injury. Petitioner also received a five-(5) year sentence for unlawful possession of a firearm and a ten-year sentence for aggravated assault. The Georgia Supreme Court affirmed the convictions for murder, armed robbery and two counts of kidnapping with bodily injury. The court vacated the convictions for the unlawful possession of a firearm and aggravated assault, holding that these crimes merged into the crimes of armed robbery and kidnapping. High v. State, 247 Ga. at 294-95, 276 S.E.2d at 11-12. The court affirmed the death penalty for murder and one count of kidnapping with bodily injury but sua sponte vacated the death sentences for armed robbery and for the one count of kidnapping with bodily injury in which the victim did not die. High v. State, 247 Ga. at 297, 276 S.E.2d at 14. The Georgia Supreme Court denied a petition for rehearing on March 31, 1981. The United States Supreme Court denied petitioner a writ of certiorari. High v. Georgia, 455 U.S. 927, 102 S.Ct. 1290, 71 L.Ed.2d 470 (1982). A petition for rehearing was also denied. High v. Georgia, 455 U.S. 1038, 102 S.Ct. 1742, 72 L.Ed.2d 156 (1982).

Petitioner's state habeas corpus petition, filed in the Superior Court of Butts County, Georgia, was denied on June 25, 1982. On June 30, 1982, the Georgia Supreme Court granted petitioner's motion for a stay of execution and an application for certificate of probable cause to appeal. The court remanded the case to the superior court for further proceeding. After an evidentiary hearing on the issue of the ineffectiveness of counsel, the Superior Court of Butts County found that this and all other issues raised by petitioner were without merit and denied relief on September 10, 1982. The Georgia Supreme Court affirmed the dismissal of the habeas corpus petition. High v. Zant, 250 Ga. 693, 300 S.E.2d 654 (1983). Petitioner's motion for a rehearing was denied. Petitioner's subsequent petition for a writ of certiorari was denied by the United States Supreme Court on May 29, 1984. High v. Georgia, ___ U.S. ___, 104 S.Ct. 2669, 81 L.Ed.2d 374 (1984).

The petitioner is before this Court to challenge the constitutionality both of his conviction and of the sentence imposed. The state does not contest the fact that the petitioner has exhausted all of his available state remedies. In paragraphs 12 through 89 of his petition, High generally enumerates the following reasons, not all of which were seriously urged, to support his challenge:

A. His counsel provided ineffective assistance during the sentencing phase of petitioner's trial. Paragraphs 13-15.

B. The death penalty oriented qualification of his jury. Paragraphs 16-20.

C. Certain jurors were prematurely excluded in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Paragraphs 21-23.

D. The voir dire procedures denied petitioner his right to a fair trial. Paragraphs 24-27.

E. The Georgia statute which gives the state peremptory strikes is unconstitutional. Paragraphs 28-29.

F. Petitioner was denied state paid assistance of experts in the preparation of his case. Paragraphs 30-32.

G. The venue of petitioner's trial should have been changed due to pre-trial publicity. Paragraphs 33-36.

H. Petitioner was denied his right to a speedy trial. Paragraphs 37-40.

I. Petitioner's statements and certain physical evidence were obtained as the result of an arrest that violated the Fourth and Fourteenth Amendments. Paragraphs 41-45.

J. Petitioner was denied a fair trial. Paragraphs 46-47.

K. The failure to record bench conferences violated petitioner's constitutional rights. Paragraphs 48-49.

L. Petitioner was denied state paid assistance in pursuing habeas corpus relief. Paragraph 50.

M. The jury instructions on intent unconstitutionally shifted the burden of proof to the petitioner. Paragraphs 51-54.

N. The trial court gave other improper instructions during the guilt-innocence phase of the trial. Paragraph 55 O. Improper prosecutorial argument during the guilt-innocence phase of the trial. Paragraphs 56-59.

P. Improper prosecutorial argument during the sentencing phase of the trial. Paragraphs 60-64.

Q. Sentence of death for this petitioner is cruel and unusual punishment. Paragraphs 65-67.

R. Georgia's "aggravating circumstances" statute was applied in an overly broad manner. Paragraphs 68-70.

S. The jury instructions on mitigating and aggravating circumstances were improper and inadequate. Paragraphs 71-73.

T. Multiple death counts were improperly submitted to the jury. Paragraphs 74-75.

U. Petitioner was improperly sentenced for crimes that merged. Paragraph 76.

V;W. Petitioner's sentence is arbitrary and discriminatory. Paragraphs 77-83.

X. The appellate review process violates petitioner's constitutional rights. Paragraphs 84-86.

Y. Petitioner improperly received the death sentence. Paragraph 87.

Z. The means of execution in Georgia is unconstitutional. Paragraphs 88-89.

INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner alleges that his counsel, John H. Ruffin, Jr., did not render reasonably effective assistance during the sentencing phase of his trial in that Mr. Ruffin failed to:

1. investigate and call witnesses during the sentencing phase; and

2. present any evidence during the sentencing phase.

In considering an allegation of ineffective assistance of counsel, it should be noted that "the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). In this two-part test, petitioner must first show that his counsel's "acts or omissions were outside the wide range of professionally competent assistance." Id. at ___, 104 S.Ct. at 2066. Petitioner must also show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at ___, 104 S.Ct. at 2068. That is, petitioner must show that the error had a prejudicial effect.

"Judicial scrutiny of counsel's performance must...