Newman v. Henderson
| Decision Date | 07 October 1974 |
| Docket Number | No. 73-3393,73-3670.,73-3393 |
| Citation | 496 F.2d 896 |
| Court | U.S. Court of Appeals — Fifth Circuit |
| Parties | John NEWMAN, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellant. Abraham FRANCIS, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellant. |
Shirley A. Wimberly, Asst. Dist. Atty., Louise Korns, Barbara Rutledge, Asst. Atty. Gen., New Orleans, La., for respondent-appellant.
John W. Reed, New Orleans, La., for John Newman.
Lolis E. Elie (Court-appointed, not under Act), George M. Strickler, Jr., New Orleans, La., for Abraham Francis.
Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
Rehearings and Rehearings En Banc Denied October 7, 1974.
These consolidated appeals raise the question of whether a state prisoner may challenge the validity of his indictment in a federal habeas corpus proceeding when a state rule of procedure prohibits the issue from being untimely raised in state court. We adhere to the principle that a district court cannot disregard the operation of a state waiver rule, absent a showing of actual prejudice by the habeas petitioner. Because the relief granted by the district courts did not comport with this waiver-by-failure-to-object principle, the district courts' writs must be vacated.
Newman was indicted by an Orleans Parish, Louisiana, grand jury in October, 1962 for aggravated rape and was convicted after a jury trial for that offense. Francis was indicted for felony murder by a grand jury in the same parish in December of 1964 and was subsequently found guilty by a jury of the offense charged. Thereafter both Newman and Francis unsuccessfully sought habeas relief in the Louisiana courts, alleging, inter alia, racial discrimination in the selection of their grand juries. Newman's petition was rejected on the ground that the grand jury system prevailing at the time of his indictment had not been discriminatory. In Francis' case, however, the state habeas court did not reach the merits of his contention, but held instead that Francis had waived the right to challenge the validity of the grand jury selection procedure since he had failed to file an objection within the period specified by the applicable Louisiana rule of criminal procedure.1 It is undisputed that neither Newman nor Francis timely challenged their indictments on the basis of unconstitutionally constituted grand juries.
Failing to obtain relief in the Louisiana courts, the prisoners sought writs of habeas corpus in federal court pursuant to 28 U.S.C.A. § 2254. In each case the district courts concluded that the state had failed to show that the petitioners had deliberately by-passed state procedures and had failed to rebut the prima facie showing of discrimination in selecting grand juries. The district court which granted relief to Francis found alternatively that the petitioner had a "viable explanation" for his failure to file a timely challenge to the indictment. The court reasoned that if the matter had been presented by a federal prisoner seeking to avoid the waiver provision of F.R.Crim.P. 12(b)(2), the court would have found "cause" within the meaning of that Rule so as to justify relief.2 The factual basis for the court's finding was that Francis had been represented by a civil lawyer, unskilled in the intricacies of criminal practice, who had, by his inexperience, allowed the time for challenging the indictment to pass without objecting to the grand jury's composition.
In appealing from the grant of federal habeas relief to Newman and Francis, Louisiana argues that the district courts erred by applying the "deliberate by-pass" test of Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, rather than the waiver-by-failure-to-object principle set forth in Davis v. United States, 1973, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216. In Davis the Supreme Court held that failure to raise an objection to the indictment prior to trial barred consideration of the alleged defect in the indictment in a collateral attack, unless the court found "cause shown" to excuse the operation of the express waiver provision. Although the Davis decision was rendered prior to the federal district courts' disposition of these cases, the record shows that the district judge in acting on Newman's petition did not consider Davis at all. The apparent reason for this omission is that the court relied on a magistrate's report prepared prior to the Supreme Court's opinion in Davis. On the other hand, the district court which granted Francis' petition considered the Davis holding, but accepted the distinction now urged by both Francis and Newman, that the decision concerned a federal prisoner and therefore has no application to a state prisoner seeking federal habeas relief.
This Circuit has already rejected the attempt to limit Davis to its precise facts. We recently affirmed the denial of a federal habeas petition challenging the selection of a Louisiana grand jury on the basis of the waiver provision contained in the present Louisiana rule.3 Jones v. Henderson, 5 Cir. 1974, 494 F.2d 47. See also Marlin v. Florida, 5 Cir. 1974, 489 F.2d 702; Rivera v. Wainwright, 5 Cir. 1974, 488 F.2d 275.
The record before us in Newman's case discloses nothing that would take his federal habeas claim outside the reach of Davis and our decision in Jones v. Henderson, supra. Therefore, we vacate the order of the district court and remand the case with directions to dismiss Newman's petition for habeas corpus.
Francis' petition, however, raises a more troublesome issue. Unlike the Florida waiver provision considered in Rivera and Marlin, supra, which is identical to Rule 12(b)(2), the Louisiana rule now before us purports to be absolute; that is, there is no "cause shown" exception comparable to the provision in the rules which we have previously considered.4 The difference in procedural provisions requires an examination of the exception to the waiver-by-failure-to-object principle.
The Supreme Court in Davis accepted the district court's determination that there had been no "cause shown" to justify relief from the waiver provision of Rule 12(b)(2). The lower court's findings of fact persuaded ...
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Francis v. Henderson 10, 1975
...than when it is asked to overturn a federal conviction because of an allegedly unconstitutional grand jury indictment. Pp. 538-542. 5 Cir., 496 F.2d 896, Bruce S. Rogow, Fort Lauderdale, Fla., for petitioner. Mr. Justice STEWART delivered the opinion of the Court. In Davis v. United States,......
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Tennon v. Ricketts, 77-2356
...233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Newman v. Henderson, 5 Cir., 1974, 496 F.2d 896, 897; Morris v. Sullivan, 5 Cir., 1974, 497 F.2d 544; Watkins v. Green, 5 Cir., 1977, 548 F.2d Moreover, it is for the Georgia......
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Bromley v. Crisp
...waiver rule of Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216, in both of the habeas appeals. See Newman v. Henderson, 5 Cir., 496 F.2d 896, 898-99. In the Supreme Court the result was that where Francis had not received consideration of his constitutional claim on the ......
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U.S. ex rel. Barksdale v. Blackburn, 78-2582
...the cases initially had been assigned. The convictions of both Newman and Barksdale were set aside. The State appealed the decision in the Newman case, but did not immediately do so in the Barksdale case. The decision of the district court in the Newman case was affirmed. Newman v. Henderso......