Hollis v. Davis, 88-7477

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation912 F.2d 1343
Docket NumberNo. 88-7477,88-7477
PartiesO.P. HOLLIS, Petitioner-Appellant, v. J.O. DAVIS and The Attorney General of the State of Alabama, Court of Appeals, Bullock County, Criminal Courts, Union Springs, Respondents-Appellees.
Decision Date25 September 1990

Page 1343

912 F.2d 1343
O.P. HOLLIS, Petitioner-Appellant,
J.O. DAVIS and The Attorney General of the State of Alabama,
Court of Appeals, Bullock County, Criminal Courts,
Union Springs, Respondents-Appellees.
No. 88-7477.
United States Court of Appeals,
Eleventh Circuit.
Sept. 25, 1990.

Page 1344

J. Dorman Walker, Jr., Montgomery, Ala., for petitioner-appellant.

James B. Prude, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellees.

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

Before HATCHETT, Circuit Judge, RONEY * and FAIRCHILD **, Senior Circuit Judges.

FAIRCHILD, Senior Circuit Judge.

O.P. Hollis appeals from the district court's denial of his petition for the writ of habeas corpus. Thirty-one years ago, Mr. Hollis was indicted in Bullock County, Alabama, and convicted of first-degree burglary. Despite Mr. Hollis' pro se attempts to challenge this conviction in state court, no state court has ever reviewed his conviction. After two federal habeas petitions were dismissed for lack of exhaustion, this third was considered, in part, on the merits. Upon recommendation of a magistrate, the district court dismissed it. We reverse and remand, and direct the district court to issue the writ.

I. Procedural History 1

In early 1959, a grand jury indicted Mr. Hollis for first degree burglary, which then carried a possible sentence from ten years in prison to death. 1940 Ala.Code, tit. 14, Sec. 85. He was tried and convicted in the Circuit Court of Bullock County on March 25, 1959. The jury set his sentence that same day at 99 years in prison. No direct appeal was taken.

Mr. Hollis is a virtually illiterate black man. What the magistrate referred to as his "inscrutable handwriting," and his very limited ability to formulate written expression have greatly hindered his attempts to secure post-conviction judicial review. Mr. Hollis first filed a pro se petition for writ of error coram nobis with the Circuit Court of Bullock County in 1961. There is no record of any disposition of this petition; apparently no action was taken. (Mr. Hollis testified that the Clerk of Court "kept it about three years and sent it back." In 1966, Mr. Hollis filed another pro se petition for writ of error coram nobis with the Bullock County Circuit Court. Again, there is no record of any disposition of this petition. (Mr. Hollis said the petition was

Page 1345

held until 1970, when he signed a petition to withdraw it as a condition of receiving parole. Magistrate Carroll made no finding of what issues Mr. Hollis attempted to raise in these coram nobis petitions. (Mr. Hollis testified that he challenged the exclusion of blacks from the jury in both petitions, but did not specify if the challenge was to the grand or petit jury, or both.

Mr. Hollis was paroled in March, 1970, but his parole was revoked in September, 1971. He was paroled again in May, 1973, but parole was revoked in April, 1974. Parole was reinstated in May, 1977, and revoked yet again in June 1978.

Mr. Hollis first sought relief in federal court in 1981 but his petition for the writ of habeas corpus was dismissed for failure to exhaust available state remedies. He petitioned again in 1984, and counsel was appointed. This petition was also dismissed for failure to exhaust state remedies.

Mr. Hollis then returned to state court, filing another petition with the Circuit Court of Bullock County. This submission, which is part of the record in this case, was prepared by Mr. Hollis, obviously without the assistance of a lawyer. It is handwritten, barely legible, and largely incomprehensible. Counsel was not appointed to help Mr. Hollis pursue this petition. According to the Clerk of the Bullock County Circuit Court, it was not ruled on, as it was "not in proper order."

On January 8, 1987 Mr. Hollis filed this third petition for federal habeas corpus. The district court recognized Mr. Hollis' pauper status and appointed counsel. His counsel then filed an amended complaint, asserting four grounds of relief: (1) ineffective assistance of counsel, based on various allegations of inadequate representation; (2) unconstitutional selection of the grand and petit juries, based on the exclusion of blacks from the county jury list; (3) denial of the right to appeal, based on his attorney's alleged failure to tell him of his right to appeal; and (4) improper sentencing, allegedly because Mr. Hollis was sentenced by the judge, rather than the jury, in violation of Alabama law. The respondents denied the allegations, and moved for dismissal based on Mr. Hollis' failure to exhaust state remedies, and his delay in filing for relief.

Magistrate Carroll conducted two evidentiary hearings, during which Mr. Hollis, the attorney who defended him at trial in 1959, and the judge who presided at his trial, testified. The Magistrate then recommended in a written opinion to the district court that Mr. Hollis' petition be denied.

In this recommendation, the magistrate first determined that although Mr. Hollis had not exhausted his state remedies, further resort to state court would be futile because the state court had neither ruled on any of Mr. Hollis' petitions, nor appointed counsel "in order to overcome the problem caused by the petitioner's inscrutable handwriting."

The magistrate then decided that two of Mr. Hollis' claims, those alleging ineffective assistance of counsel and denial of the right to appeal, were barred by Rule 9(a) of the Rules Governing Section 2254 Cases. The magistrate found that the passage of time and lack of a transcript prejudiced the state's ability to respond to these allegations, and that because Mr. Hollis had unreasonably delayed in bringing his habeas petition, these problems were properly charged to him. The magistrate thought that Mr. Hollis could have obtained counsel and filed for habeas much earlier, during one of his periods of release on parole in the 1970's.

Magistrate Carroll did not rely on Rule 9(a) in rejecting the other two grounds raised by Mr. Hollis. Finding no evidence that Mr. Hollis had been improperly sentenced by the judge rather than the jury, the magistrate rejected that claim on its merits. 2 He agreed with Mr. Hollis that blacks had been unconstitutionally excluded from the pool from which the grand jury was selected, but held that because Mr. Hollis had not shown that a properly selected grand jury would not have indicted him, he had not shown the prejudice necessary

Page 1346

to excuse his failure to raise the issue at trial. The magistrate did not address Hollis' separate claim that he had been convicted by an unconstitutionally selected petit jury.

After the magistrate presented his Recommendation to the district court, Mr. Hollis filed objections, including an objection to the magistrate's failure to answer his petit jury claim. The respondents did not file objections. The district court adopted the Magistrate's Recommendation without comment, and dismissed the petition. On appeal, Mr. Hollis challenges each of the magistrate's conclusions except the one concerning improper sentencing. We address only the jury composition question because it is dispositive.

II. Composition of the Bullock County Jury List

The respondents do not seriously contest the finding that blacks were systematically excluded from the list from which grand and petit juries were chosen in 1959, nor do they rely on Rule 9(a) as grounds for denying relief on this claim. The magistrate's finding of discrimination is well supported.

Magistrate Carroll primarily relied on a 1968 decision by then-District Judge Johnson finding that Bullock County's jury list significantly underrepresented the black population, and was unconstitutional. McNab v. Griswold, No. 2653-N (M.D.Ala. Nov. 5, 1968). According to stipulated facts in that case, Bullock County's total population was 71.9% black and 27.1% white, and the population between the ages of 21 and 64, inclusive, was 64.5% black and 34.5% white, yet only 44% of the names on the jury list were names of black people. Judge Johnson held that this "unexplained disparity ... is constitutionally impermissible." McNab, slip op. at 3. Magistrate Carroll sensibly inferred that if the jury list underrepresented blacks in 1968, it must have underrepresented them in 1959.

This inference is justified. Judge Johnson's decision noted that of the 363 names of black people contained in the jury box in November, 1968, over half had been added after McNab was filed in March, 1968. Slip op. at 2. It is safe to conclude, therefore, that the jury box in 1959 contained even fewer names of black people than it did in 1968. Census data for 1960 (of which we take judicial notice, see, e.g., Barber v. Ponte, 772 F.2d 982, 998 (1st Cir.), vacated on other grounds on reh'g en banc, 772 F.2d 996 (1985), cert. denied, 475 U.S. 1050, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986)), confirm that blacks were a clear majority of the population in Bullock County, yet Mr. Hollis' defense attorney and the judge who presided over his case both testified that very few, if any, blacks served on juries. Neither man could remember any blacks being on the venire from which Mr. Hollis' jury was selected, and Mr. Hollis, who testified that he was present when the jury was chosen, said each member of the venire and the petit jury was white.

The magistrate asked Mr. Jinks, the attorney who defended Mr. Hollis in 1959, whether there was "a statutory or a de facto prohibition against blacks on the jury back then?" Mr. Jinks answered, "Well, as I remember, Your Honor, there was just none in the jury box, or very few at that time." Later, the magistrate commented: "I think that, the sense that I get is that there just were no blacks on juries in Bullock County back in '59." Mr. Jinks responded: "I think you're right, Judge."

Because in Alabama grand and petit juries were selected from the same pool of potential...

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