Jones v. Henderson
| Citation | 494 F.2d 47 |
| Decision Date | 15 May 1974 |
| Docket Number | No. 73-3274 Summary Calendar.,73-3274 Summary Calendar. |
| Parties | Donald JONES, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Donald Jones, pro se.
William J. Guste, Jr., Atty. Gen., Baton Rouge, La., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Spec. Asst. Dist. Atty., Gretna, La., for respondent-appellee.
Before GEWIN, GODBOLD and CLARK, Circuit Judges.
After exhausting state remedies Jones sought federal habeas corpus on the ground that the Louisiana grand and petit juries that indicted, tried, and convicted him were unconstitutionally constituted. Adopting the magistrate's recommendation in which Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), was cited, the District Court refused to grant the writ, because petitioner had raised the jury makeup objections after trial rather than before trial as required by Louisiana rules. We affirm on the basis of Davis, Marlin v. Florida, 489 F.2d 702 (CA5, 1974), and Rivera v. Wainwright, 488 F.2d 275 (CA5, 1974).
Davis held that under F.R.Crim.P. 12(b), a federal criminal defendant who fails to raise objections to grand jury makeup before the beginning of trial is thereafter properly deemed to have waived them. A majority of the Court held inapplicable the principles developed in earlier cases1 that when the government claims waiver it must bear a heavy burden of showing a deliberate bypass or understanding and knowing waiver.
Louisiana procedures and the facts of petitioner's particular situation justify applying Davis in this case. The Louisiana Code of Criminal Procedures states:
La.C.Cr.P. Art. 535(B)(2), (D). The critical moment under these provisions for grand and petit jury objections comes just three days earlier than the critical moment for grand jury objections identified by the federal rule considered in Davis. Moreover, as in Davis, Marlin, and Rivera, the petitioner was represented by counsel (whose competency is not challenged) before his particular critical moment arrived.2
We have considered petitioner's other claims and conclude they are without merit.
Affirmed.
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Morris v. Sullivan
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