Morgan v. Zant, No. CV 182-055.

CourtUnited States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
Writing for the CourtBOWEN
Citation582 F. Supp. 1026
PartiesAlphonso MORGAN, Petitioner, v. Walter D. ZANT, Respondent.
Decision Date08 February 1984
Docket NumberNo. CV 182-055.

582 F. Supp. 1026

Alphonso MORGAN, Petitioner,
v.
Walter D. ZANT, Respondent.

No. CV 182-055.

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

February 8, 1984.


582 F. Supp. 1027
COPYRIGHT MATERIAL OMITTED
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William E. Hoffmann, Jr., Atlanta, Ga., John F.M. Ranitz, Jr., Ranitz, Mahoney, Forbes & Coolidge, P.C., Savannah, Ga., for petitioner

Michael J. Bowers, Atty. Gen., Nicholas G. Dumich, Asst. Atty. Gen., Atlanta, Ga., for respondent.

582 F. Supp. 1029

ORDER

BOWEN, District Judge.

The petitioner, Alphonso Morgan, applies to this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254.

The Georgia Supreme Court summarized the evidence and described the petitioner's crime as follows:

On August 22, 1976, at 11:30 p.m., the victim James Gray was driving to his job as night superintendent at the Graniteville Company in South Carolina. When he stopped at an intersection, appellant Morgan, Jose High and Judson Ruffin approached Gray's truck. One of the co-indictees got into the truck with Gray, and, pointing a sawed-off shotgun at him, forced the victim to follow Ruffin's automobile. Somewhere in Georgia, the victim was taken out of his truck and put into the trunk of Ruffin's automobile. The co-indictees then drove their victim to the south end of Bush Field in Richmond County.
Morgan and his companions pulled Gray out of the truck, took ninety dollars from his wallet and told him that they were going to kill him. They took off the victim's shirt and tied it around his head like a blindfold. While Gray was begging for his life, Morgan pulled the sawed-off shotgun to his face and pulled the trigger.

Morgan v. State, 241 Ga. 485, 485-86, 246 S.E.2d 198, 198-99 (1978). The petitioner was convicted in the Superior Court of Richmond County for the armed robbery, kidnapping and murder of James Gray. A jury sentenced Morgan to a twenty-year term for kidnapping, a concurrent life sentence for armed robbery, and the death penalty for murder.

The Supreme Court of Georgia affirmed the petitioner's conviction and sentence. Morgan v. State, 241 Ga. 485, 246 S.E.2d 198 (1978). The United States Supreme Court subsequently denied Morgan's petition for a writ of certiorari. Morgan v. Georgia, 441 U.S. 967, 99 S.Ct. 2418, 60 L.Ed.2d 1073, reh'g denied, 444 U.S. 976, 100 S.Ct. 475, 62 L.Ed.2d 393 (1979). Morgan filed a state habeas corpus petition in the Superior Court of Tattnall County. The superior court held a hearing on September 26, 1980, and denied Morgan's habeas corpus petition on March 27, 1981. Morgan v. Montgomery, No. 80-118 (Superior Court of Tattnall County March 27, 1981). On June 23, 1981, the Georgia Supreme Court denied Morgan's application for a certificate of probable cause to appeal. Morgan v. Montgomery, Application No. 1640 (Ga. June 23, 1981). The United States Supreme Court denied Morgan's second petition for a writ of certiorari and a subsequent petition for rehearing.

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 accordance with the model form for use in applications for habeas corpus under 28 U.S.C. § 2254, paragraph twelve of his petition contains numerous grounds for possible relief specified by subparagraphs lettered from "A" to "BB." Morgan generally enumerates the following reasons to support his challenge:

1. The jury instructions on mitigating and aggravating circumstances were improper and insufficient. Subparagraphs A, B & C.
2. This counsel provided ineffective assistance. Subparagraphs D, E & F.
3. He was denied due process with regard to his right to appeal. Subparagraphs G & H.
4. The trial judge improperly excluded relevant hearsay evidence concerning mitigating circumstances. Subparagraph I.
5. The statutory aggravating circumstance found by the jury in its recommendation of the death penalty was unconstitutionally vague and overbroad. Subparagraph J.
6. The trial judge failed to instruct the jury that its recommendation of the death sentence was binding upon him. Subparagraph K.
582 F. Supp. 1030
7. The trial judge failed to exclude Morgan's statements as involuntary and the fruit of an unlawful arrest. Subparagraph L.
8. The grand jury and traverse jury compositions were unconstitutional. Subparagraphs M-W.
9. The Georgia death penalty is unconstitutional. Subparagraphs X, Y & Z.
10. Morgan was denied a full and fair hearing on his petition for writ of habeas corpus in the Georgia state courts. Subparagraphs AA & BB.

Morgan also requests an evidentiary hearing for the presentation of facts concerning the allegations listed in subparagraphs E(3)-(8), F, M-W, and Y-BB.1

THE NEED FOR AN EVIDENTIARY HEARING

On June 23, 1983, this Court held a hearing to allow the petitioner's counsel an opportunity to make an offer of proof regarding the need for a full evidentiary hearing. He essentially argued that Morgan failed to receive an adequate hearing on his state habeas corpus petition, because the state judge denied Morgan's motion for state funds to hire an investigator and expert witnesses to present evidence on Morgan's behalf. This argument is also the substance of subparagraphs AA and BB of Morgan's petition for federal habeas corpus.2

In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the United States Supreme Court described the six circumstances that would mandate an evidentiary hearing on a habeas corpus petition in federal court. The fifth enumerated circumstance is when "the material facts were not adequately developed at the state-court hearing." Id. at 313, 83 S.Ct. at 757. The Eleventh Circuit has explained this Townsend requirement as follows:

582 F. Supp. 1031
Thus a federal habeas petitioner must make a showing of two elements in order to obtain an evidentiary hearing based on the fifth circumstance of Townsend: first, that a fact pertaining to his federal constitutional claim was not adequately developed at the state court hearing and that the fact was "material" (in the language of section (d)(3)) or "crucial to a fair, rounded development of the material facts" (in the language of Townsend); second, that failure to develop that material fact at the state proceeding was not attributable to petitioner's inexcusable neglect or deliberate bypass.

Thomas v. Zant, 697 F.2d 977 (11th Cir. 1983).

Without so expressly stating, Morgan apparently contends that this Court must hold an evidentiary hearing in accordance with Townsend, because the state judge's refusal to allocate state funds deprived Morgan of the opportunity to adequately develop material facts at the state habeas corpus proceeding. This argument is without merit.

In his federal petition, Morgan requests this Court to "grant Petitioner, who is indigent, sufficient funds to secure expert testimony necessary to prove the facts as alleged in his petition." Petition for Writ of Habeas Corpus at 16. This request is similar to the one made by Morgan before the state habeas corpus court. At the hearing on June 23, 1983, I forewarned the petitioner's counsel and have subsequently decided that Morgan will receive no federal funds to hire an expert witness.

If this Court conducted an evidentiary hearing, the petitioner would be in essentially the same financial position before a federal court that he occupied previously before a state court. If he presented any evidence at a federal evidentiary hearing that he did not present at the state level even though both courts denied his similar motions for funds, then I would view the petitioner's failure to present that evidence at the state level as inexcusable neglect or deliberate bypass.3 See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Morgan's request for an evidentiary hearing, therefore, is DENIED.

Further, the refusal of the state habeas corpus judge to allocate funds to the petitioner did not infringe on Morgan's constitutional right to a full and fair hearing on his petition in the Georgia courts. The Eleventh Circuit in Willis v. Zant, 720 F.2d 1212 (11th Cir.1983), has already considered this point. The petitioner in Willis alleged that:

he was denied an opportunity to present evidence at his state and federal habeas corpus proceedings, in violation of the due process clause of the fourteenth amendment, because the State of Georgia failed to provide him financial assistance to obtain the evidence necessary to prove his constitutional claims and failed to transcribe, for his use, several thousand pages of pretrial proceedings.

Id. at 1215. The Eleventh Circuit summarily noted that "petitioner had full opportunity to put forth evidence, and the failure of the State to provide financial assistance for habeas proceedings states no constitutional issue." Id. at 1215 n. 5. The allegations

582 F. Supp. 1032
specified in subparagraphs AA and BB, therefore, are without merit

JURY INSTRUCTIONS ON MITIGATING AND AGGRAVATING CIRCUMSTANCES

After the jury returned a guilty verdict against Morgan, the judge immediately proceeded into the sentencing phase of the trial. While neither side presented additional evidence to show mitigating or aggravating circumstances, both sides did make arguments to the jury concerning the imposition of a sentence. The trial judge then instructed the jury.4 In his petition at subparagraphs A, B, and C, Morgan challenges the constitutional adequacy of these instructions in that the trial judge:

1. failed to charge the jury on the nature, function and meaning of "mitigating circumstances" (subparagraph A);
2. failed to charge the jury on the meaning of "aggravating circumstances" in general and on the "§ (b)(7) aggravating circumstance" in particular (subparagraph B); and
3. failed to charge the jury on their option to recommend life imprisonment
582 F. Supp....

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2 practice notes
  • Buttrum v. Black, Civ. A. No. 4:87-cv-258-HLM.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • September 20, 1989
    ...that must be defined so as to adequately guide the jury in its deliberations is that of "aggravated battery." See Morgan v. Zant, 582 F.Supp. 1026, 1035 (S.D.Georgia 1984), aff'd in relevant part, rev'd on other grounds, 743 F.2d 775, 781 (11th Cir.1984). The instruction on torture was adeq......
  • Morgan v. Zant, No. 84-8208
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 21, 1984
    ...Morgan petitioned for the writ of habeas corpus in federal district court. He appeals from the district court's denial of relief. 582 F.Supp. 1026 (1984). Because we find the instruction given the jury at the sentencing phase of Morgan's trial to be constitutionally infirm, we reverse as to......
2 cases
  • Buttrum v. Black, Civ. A. No. 4:87-cv-258-HLM.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • September 20, 1989
    ...that must be defined so as to adequately guide the jury in its deliberations is that of "aggravated battery." See Morgan v. Zant, 582 F.Supp. 1026, 1035 (S.D.Georgia 1984), aff'd in relevant part, rev'd on other grounds, 743 F.2d 775, 781 (11th Cir.1984). The instruction on torture was adeq......
  • Morgan v. Zant, No. 84-8208
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 21, 1984
    ...Morgan petitioned for the writ of habeas corpus in federal district court. He appeals from the district court's denial of relief. 582 F.Supp. 1026 (1984). Because we find the instruction given the jury at the sentencing phase of Morgan's trial to be constitutionally infirm, we reverse as to......

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