Maxwell v. Bishop

Decision Date26 August 1966
Docket NumberNo. PB-66-C-52.,PB-66-C-52.
PartiesWilliam L. MAXWELL, Petitioner, v. O. E. BISHOP, Superintendent of the Arkansas State Penitentiary, Respondent.
CourtU.S. District Court — Eastern District of Arkansas

Norman C. Amaker, of the NAACP Legal Defense and Educational Fund, Inc., New York City, and George Howard, Jr., Pine Bluff, Ark., for petitioner.

Bruce Bennett, Atty. Gen., State of Arkansas, and Fletcher Jackson, Asst. Atty. Gen., Little Rock, Ark., for respondent.

MEMORANDUM OPINION

HENLEY, Chief Judge.

This is a habeas corpus proceeding wherein petitioner, William L. Maxwell, attacks collaterally for the second time his 1962 conviction in the Circuit Court of Garland County, Arkansas, of the crime of forcible rape. The sentence imposed upon him was death. Ark.Stats. Ann., § 41-3403.

Petitioner, a Negro man, was charged with raping a 35 year old, unmarried white woman on the night of November 3, 1961. He pleaded not guilty and was tried before a jury. During the trial and during subsequent proceedings in the State court petitioner was represented by capable counsel of his own choice. Following the pronouncement of sentence and entry of judgment by the Circuit Court, petitioner appealed to the Supreme Court of Arkansas where his conviction was affirmed. Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113.

Subsequently, in early 1964 shortly before his scheduled execution petitioner filed in this Court a petition for habeas corpus challenging his conviction and sentence on a number of federal constitutional grounds. The case was assigned to District Judge Gordon E. Young who held a full evidentiary hearing and filed a detailed memorandum opinion denying the petition. Maxwell v. Stephens, E.D. Ark., 229 F.Supp. 205. The Court of Appeals, one judge dissenting, affirmed. Maxwell v. Stephens, 8 Cir., 348 F.2d 325. In late 1965 the Supreme Court of the United States denied certiorari. Maxwell v. Stephens, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353.

In due course the Governor of Arkansas scheduled the execution of petitioner for late July 1966; however, the execution was stayed administratively until September 2. That stay is still in effect.

Instant petition was filed on July 21, 1966. On August 5 a pre-trial conference was held, and the case was set for hearing on the merits on August 22. That hearing has been held as scheduled. The Court has given careful consideration to the materials before it, including oral testimony and documentary evidence. This opinion incorporates the Court's findings of fact and conclusions of law.

In the petition now before the Court petitioner alleges certain things that he alleged in his initial habeas corpus action; some things that were alleged in that action are not alleged here;1 and the present petition contains some allegations that did not appear in the original proceeding.

Petitioner now contends that racial discrimination was practiced in the selection of the petit jury which tried and convicted him;* that it is unconstitutional to put anyone to death for the crime of rape;* that certain Arkansas statutes to be mentioned dealing with the crime of rape and the punishment to be imposed therefor have been applied unconstitutionally to Negro men convicted of raping white women;* that certain Arkansas statutes dealing with the imposition of the death penalty and certain Arkansas trial procedures in capital cases amount to a denial of due process of law; that petitioner was mentally incompetent to stand trial in the State court, and that his mental condition is now such that it would be unconstitutional to put him to death.2

In his pleadings respondent denies that any of petitioner's contentions have merit and, in addition, pleads res judicata, that is to say, respondent asserts that all contentions made here were either raised or could have been raised in the original proceeding in this Court and should not now be considered.

As far as respondent's plea of res judicata is concerned, it is settled that the conventional rule that issues which were litigated or which could have been litigated in an original proceeding will not be again examined in a subsequent proceeding between the same parties or their privies does not apply with strictness to habeas corpus proceedings in the federal courts. Whether a federal court will entertain a successive application for a writ of habeas corpus, and whether and to what extent such a court will consider in connection with a successive petition matters which were or could have been determined in the original proceeding are questions addressed to the sound discretion of the court. See 28 U.S.C.A. § 2244; Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L. Ed.2d 148; Simcox v. Harris, 8 Cir., 324 F.2d 376, 377. Of course, the fact that a specific contention brought forward in a successive application has been considered and rejected in connection with an earlier application is a factor to be considered by the court to which the successive application is addressed.

In this connection the Court in its pretrial conference order in this case cautioned counsel for petitioner that if they knew of any constitutional grounds for attack on his conviction which had not been raised, such grounds should be brought forward in this proceeding since the Court "would be most reluctant to consider in some subsequent proceeding any grounds of attack which could have been raised in this proceeding." No contentions other than those previously mentioned have been made.

Taking up first the attack on the makeup of the jury, petitioner's complaint is that the Garland County jury commissioners chose the members of the jury panel from the tax records identifying poll tax payers by race. That is the same complaint about the jury which was made in the original habeas corpus case, and the record here is the same as the one before the Court in that case. The matter was considered thoroughly by Judge Young and by the Court of Appeals and, as indicated, the argument was rejected. This Court sees no occasion to reexamine the question and is not persuaded to do so by the action of the Supreme Court in recently granting certiorari in the case of Sims v. Georgia, 384 U.S. 998, 86 S.Ct. 1953, 16 L.Ed.2d 1013 noted in 34 U.S. Law Week. 3429.

The Court finds it convenient to consider next the contentions with respect to the mental condition of petitioner.

As to the mental condition of petitioner at this time, it was agreed following the pre-trial conference that petitioner would be examined by the staff of the Arkansas State Hospital for Nervous Diseases. The examination was made and petitioner was found to be without psychosis. He thus, in effect, had the benefit of the post-conviction examination contemplated by Ark.Stats. Ann., § 43-2622. In addition, at the request of counsel for petitioner he was examined by Dr. William G. Rees, Professor of Psychiatry and head of the Department of Psychiatry at the University of Arkansas Medical Center. Dr. Rees also found petitioner to be without psychosis. Petitioner was present at the hearing and was observed by the Court; the Court noted no irrationality in petitioner's behavior, and petitioner gave no evidence of present mental incompetency. While the contention has not been abandoned formally, it has not been pressed, and the Court finds it to be without merit.

With respect to petitioner's mental incompetency in 1962 to stand trial for the offense allegedly committed in November 1961, the thrust of the argument seems to be not so much that petitioner was in fact mentally incompetent to stand trial but rather that in the circumstances the Circuit Court was required to make a judicial determination of his competency, that no such determination was made, and that its absence voids the conviction. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; see also United States ex rel. Robinson v. Pate, 7 Cir., 345 F.2d 691.

The facts in that case were that the defendant, Robinson, was tried to the court without a jury in Illinois on a charge of first degree murder; his defense was insanity, and his mental condition both at the time of the commission of the alleged offense and at the time of trial were directly in issue in the case. He had a long history of behavior indicating serious mental disease; that history was brought out by testimony in the course of the trial, and four witnesses testified that in their opinion defendant was insane. In the course to the trial the prosecuting attorney conceded that there was doubt as to the sanity of the defendant and suggested that a psychiatrist in the employ of Cook County be called as a witness. Notwithstanding the fact that a statute of Illinois provided that whenever the evidence raises a "bona fide doubt" as to a defendant's competency to stand trial, it is the duty of the judge on his own motion to impanel a jury to pass on the question,3 the trial judge indicated that it was not necessary for the State to call the psychiatrist, did not impanel a jury to consider the question of Robinson's sanity, and found the defendant guilty without making any specific finding as to his competency to stand trial. Both the Court of Appeals and the Supreme Court held that this action amounted to a denial of due process of law.

The facts in this case are quite different from those in Robinson. As far as petitioner's mental competency is concerned, the transcript of the proceedings in the Circuit Court reflects the following:

On November 7, 1961, an information was filed by the Prosecuting Attorney charging petitioner with the crime of rape committed on November 3. On November 28, 1961, it having been made to appear to the Court that petitioner desired counsel and was without means to employ counsel, an order was entered appointing two members of the Hot Springs, Arkansas Bar to represent petitioner without charge. On November 30 those attorneys proceeding...

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6 cases
  • Maxwell v. Bishop
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 16 Diciembre 1968
    ...District Court for the Eastern District of Arkansas and came before Chief Judge Henley. The court denied the petition. Maxwell v. Bishop, 257 F.Supp. 710 (E.D.Ark.1966). 8. The district court and a judge of this court successively declined to grant a stay of the execution or to issue a cert......
  • Irving v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 17 Noviembre 1969
    ......570, 88 S.Ct. 1209, 20 L.Ed.2d 139 (1968), and may be in conflict with the decision to be handed down by the United States Supreme Court in Maxwell v. Bishop, an Arkansas case which has been pending for some time before the United States Supreme Court and reported in 236 Ark. 694, 370 S.W.2d 113 ......
  • Swain v. State, 7 Div. 796
    • United States
    • Supreme Court of Alabama
    • 5 Febrero 1970
    ...391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).' The United States District Court which denied habeas corpus to Maxwell in 257 F.Supp. 710 (1966) stated in its opinion, in part, as '* * * If a State can constitutionally impose the death penalty for a crime, this Court sees no constituti......
  • Maxwell v. Bishop
    • United States
    • United States Supreme Court
    • 1 Junio 1970
    ...of any kind to guide it is deciding whether to impose a sentence of life imprisonment or death. The District Court denied the writ, 257 F.Supp. 710, and the Court of Appeals for the Eighth Circuit affirmed, 398 F.2d 138. We granted certiorari limited to the two questions noted above. 393 U.......
  • Request a trial to view additional results
1 books & journal articles
  • David Baldus and the Legacy of McCleskey v. Kemp
    • United States
    • Iowa Law Review No. 97-6, October 2012
    • 1 Octubre 2012
    ...The facts as to rape charges in Garland County are known and have been recited. Standing by themselves, they 1. Maxwell v. Bishop, 257 F. Supp. 710 (E.D. Ark. 1966), aff’d , 398 F.2d 138 (8th Cir. 1968), vacated , 398 U.S. 262 (1970). 2. Marvin E. Wolfgang & Marc Riedel, Race, Judicial Disc......

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