Jones v. Smith, Civ. A. No. 84-1421-H.

• Decision Date: 13 December 1984
• Docket Number: Civ. A. No. 84-1421-H.
• Citation: 599 F. Supp. 1292
• Parties: Arthur Lee JONES, Petitioner, v. Fred SMITH, Commissioner, Alabama Department of Corrections and J.D. White, Warden, Holman Unit, Respondents.
• Court: U.S. District Court — Southern District of Alabama

599 F. Supp. 1292

Arthur Lee JONES, Petitioner, v. Fred SMITH, Commissioner, Alabama Department of Corrections and J.D. White, Warden, Holman Unit, Respondents.

Civ. A. No. 84-1421-H.

United States District Court, S.D. Alabama, S.D.

December 13, 1984.

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John Furman, Mobile, Ala., for petitioner.

Ed Carnes, Asst. Atty. Gen., State of Ala., Montgomery, Ala., for respondents.

ORDER

HAND, Chief Judge.

This death penalty case is before the Court on Arthur Jones' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was indicted for the murder of Hosea Waymon, and subsequently found guilty and sentenced to death by an Alabama State Court. For reasons stated below this Court concludes that the petitioner is not entitled to habeas relief, that his petition is due to be dismissed with prejudice, and that his motion for a stay of execution is due to be denied. The Court will, however, enter a temporary stay in order to allow the petitioner time to present his claims to the Court of Appeals.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Based upon the testimony at the hearing, arguments of counsel, and the record as a whole, the Court enters the following findings of fact and conclusions of law:

ONE—JURISDICTION

Petitioner Arthur Jones was indicted by a Mobile, Alabama Grand Jury in May, 1982 on two counts of capital murder. He was accused of the intentional killing of Hosea Waymon, a Mobile cab driver. Count One charged a violation of Code of Alabama, 1975, § 13A-5-40(a)(2) (murder by the defendant during a robbery in the first degree). Count Two charged a violation of Code of Alabama, 1975, § 13A-5-40(a)(6) (murder committed while the defendant was under sentence of life imprisonment.) (Exh. A at 1)¹ Trial by jury was held on November 15-16, 1982. Petitioner was convicted on both counts on Tuesday, November 16, 1982. (Exh. A at 14) That same day, following a sentencing hearing, the jury recommended that petitioner be sentenced to death by electrocution. (Exh. A at 15) On November 23, 1982, the trial court filed a written order in which it weighed various aggravating and mitigating circumstances, and determined that the defendant should be sentenced to death. (Exh. A at 32-37)

Jones' conviction was affirmed on appeal by the Alabama Court of Criminal Appeals. 450 So.2d 165 (Ala.Crim.App.1983), reh. den. The Alabama Supreme Court granted certiorari, but affirmed the Court of Criminal appeals decision. 450 So.2d 171 (Ala. 1984). On October 1, 1984, the United States Supreme Court denied Jones' petition for a writ of certiorari. Following this denial, the Alabama Supreme Court on November 5, 1984, set petitioner's date of execution for December 14, 1984, any time after 12:01 A.M.

Petitioner then filed a petition for a writ of error coram nobis in the Circuit Court for Mobile County, Alabama. Following an evidentiary hearing held on December 10, 1984, the Circuit Court (per J. Kittrell, who presided at Jones' original trial) on December 11, 1984, entered lengthy and detailed findings of fact and conclusions of law denying the petition. Later that day, the petitioner filed a notice of appeal from Judge Kittrell's order with the Alabama Court of Criminal Appeals and, at the same time, applied for a stay of execution to the Alabama Supreme Court. That afternoon, following oral argument, the Alabama Supreme Court refused to stay the execution.

This petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed this morning, December 13, 1984, along with a motion for leave to proceed in forma pauperis, and a motion for a stay of execution. The habeas petition included several claims raised in the State coram nobis proceeding which had not previously been raised at trial or on direct appeal. Thus, the petition is mixed, including both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379.

At the outset the State informed the Court that the petitioner would not receive any relief from the Alabama State Courts, that any attempts for collateral relief at this point would be futile, and that the State waived any exhaustion requirements, and desired to proceed. The State also waived any exhaustion defenses in its answer. Petitioner concurred in the waiver. Based upon these representations, as well as considering the State's interest in the finality of these proceedings, the Court agreed to accept the waiver. See generally, Thompson v. Wainwright, 714 F.2d 1495 (11th Cir.1983).

Accordingly, this Court concludes it has jurisdiction over this cause.

TWO—HABEAS PROCEEDINGS

On or about December 7, 1984, this Court was telephonically contacted by Ed Carnes of the Alabama Attorney General's Office and informed of the possibility that an emergency petition for federal habeas relief might be filed on the following week by Arthur Jones, who was scheduled to be executed on December 14, 1984. Mr. Carnes informed the Court he would be filing materials relevant to the case early during the week of December 10, 1984. On December 10, 1984, the Court received the following documents from the Attorney General: a trial transcript of State of Alabama v. Arthur Jones, case no. CC82-2983, Circuit Court of Mobile County, Alabama; various briefs; a Petition for a Writ of Certiorari to the United States Supreme Court; a Respondent's brief in opposition to the petition for certiorari; copies of Alabama appellate decisions pertaining to petitioner's case; an order of the U.S. Supreme Court denying certiorari, and a copy of the petitioner's petition for State coram nobis (collateral) relief. The Court subsequently received a copy of the State Circuit Court's decision denying collateral relief, as well as a copy of the transcript of the evidentiary hearing on petitioner's request for collateral relief. Thus, prior to the habeas hearing, held earlier this morning, the Court had the opportunity to fully review the complete State Court record.

At the hearing the Court determined to accept the State's waiver of any unexhausted claims, which waiver was concurred in by the petitioner's attorney. The Court further inquired into the claims of the petitioner and was informed that the issues upon which the petitioner requested a hearing were claims One, Two and Three. A review of the claims clearly indicated that claim one could be dismissed summarily under Habeas Rule 4. The Court determined no hearing was necessary on the second claim (ineffective assistance of counsel) due to the extensive historical factual findings made by Judge Braxton Kittrell in petitioner's State coram nobis proceedings. Finally, the Court concluded that there was no evidence, whatsoever, to establish petitioner was insane or otherwise mentally incompetent and, therefore, no hearing was necessary on that issue. Finally, petitioner's counsel stated he wished to take testimony from one Bobbie Vaughn, an alleged alibi witness. Both the State and petitioner's counsel informed the Court that Vaughn's testimony would be that he had seen the petitioner the night of the murder, but several hours before the crime was committed. On that basis, and also because the claim involving Vaughn was really a request for habeas relief in the form of a new trial based on newly discovered evidence, the Court concluded no constitutional claim was involved.

A district court "is required to grant an evidentiary hearing where the facts were not sufficiently developed in the state court. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)." Raulerson v. Wainwright, 732 F.2d 803, 812 (11th Cir.1984). Furthermore, the burden of "demonstrating facts sufficient to warrant an evidentiary hearing" is with the habeas petitioner. Raulerson, supra, at 813. A district court is not to blindly accept "speculative and inconcrete claims `as the basis upon which a hearing will be ordered,' or additional time be granted." Id. Because the petitioner failed to meet his burden establishing the necessity of additional fact finding, the court concluded that an evidentiary was unnecessary.

Finally, petitioner's counsel was asked if there were any other claims he wished to advance on behalf of his client. He replied that based upon a complete review of the record there were no other meritorious claims that ought to be presented. The Court thereafter ruled that any other claims have been waived. Habeas Rule 9(b).

THREE—CLAIMS

I. Electrocution as Violative of the Eighth Amendment. The petitioner's first claim (Para. 1-5) is that the manner of imposition of death by electrocution as practiced by the State of Alabama constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. There is no merit to that claim, and it is summarily dismissed. In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519; Ritter v. Smith, 568 F.Supp. 1499, 1525-1526 (S.D.Ala.1983), aff'd, 726 F.2d 1505, 1519 (11th Cir.1984) (death by electrocution as imposed by the State of Alabama is not in violation of the Eighth Amendment.); Sullivan v. Dugger, 721 F.2d 719 (11th Cir.1983).

II. Ineffective Assistance of Counsel. In Claim Two (Para. 6-12) the petitioner alleges ineffective assistance of counsel during only the guilt phase of his trial. More specifically he claims that trial counsel were ineffective in failing to properly investigate the case, to call an expert on eye witness identification, to request that opening and closing statements of counsel be reported, to call certain alibi witnesses, and in failing to present an opening statement to the jury during the guilt phase of the trial.

A. Findings of Fact

Based upon the record as a whole, and in particular petitioner's State coram nobis hearing, Judge Kittrell's Findings of Fact and Conclusions of Law entered following that hearing and the transcript of that hearing, the trial transcript, as well as...