Parker v. Ross, Civ. No. 2639.
| Decision Date | 10 August 1971 |
| Docket Number | Civ. No. 2639. |
| Citation | 330 F. Supp. 13 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Charles Lee PARKER, Petitioner, v. Fred R. ROSS, Superintendent of Caledonia Correctional Unit, Respondent. |
Norman B. Smith, Smith & Patterson, Greensboro, N. C., for petitioner.
Robert Morgan, Atty. Gen., Jacob L. Safron, Asst. Atty. Gen., State of North Carolina, Raleigh, N. C., for respondent.
This is an application for a writ of habeas corpus by Charles Lee Parker, a state prisoner. Petitioner is confined pursuant to a sentence of life imprisonment imposed at the August 1964 Term of the Superior Court of Halifax County upon his plea of guilty to an indictment for first-degree burglary.
Parker, a Negro, alleges as his sole ground for relief that his custody violates the Constitution because members of his race were systematically excluded from the grand jury which returned the indictment. Petitioner, assisted by counsel, presented this claim, together with another claim not material here, in an application for post-conviction relief filed in the state court. After a plenary hearing, the state court denied relief. The Court of Appeals of North Carolina did not reach the merits of petitioner's claim but held that under North Carolina law1 an objection to the composition of the grand jury is waived unless raised by motion to quash the indictment prior to the entry of the guilty plea. Parker v. North Carolina, 2 N.C.App. 27, 162 S.E. 2d 526 (1968). The Supreme Court of the United States granted certiorari. 395 U.S. 974, 89 S.Ct. 2136, 23 L.Ed.2d 764 (1969). On May 4, 1970, the Court held that N.C.G.S. § 9-23, constituted an adequate state ground precluding the Court's reaching the grand jury issue. However, the Court further stated that "Whether the question of racial exclusion in the selection of the grand jury is open in a federal habeas corpus action we need not decide." Parker v. North Carolina, 397 U.S. 790, 798-799, 90 S.Ct. 1458, 1463, 25 L.Ed.2d 785.
This court must now resolve the question left undecided by the Supreme Court. We conclude that the question of racial exclusion in the selection of a state grand jury is cognizable in federal habeas corpus. In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the petitioner's failure to perfect in apt time a direct appeal to a state appellate court was urged to be an adequate state ground barring federal habeas corpus relief. The Court rejected this contention:
We hold: (1) Federal courts have power under the federal habeas statute to grant relief despite the applicant's failure to have pursued a state remedy not available to him at the time he applies; the doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute. Id. at 398-399, 83 S.Ct. at 827.
Title 28, United States Code, § 2244(c) is not determinative of this proceeding.2 The court is of the opinion that the Supreme Court's affirmance of the state appellate court based on the adequate state law ground which precluded the Court from reaching the grand jury issue was not an "actual adjudication" of the issue presented in petitioner's application for habeas corpus relief.
The court has the power to grant the relief sought, but the respondent contends that petitioner, by his failure to enter a timely motion to quash the indictment, has waived the right upon which his claim for relief is based. However, where, as here, there is no evidence that petitioner, after intelligent consultation with his attorney, had understandingly and knowingly waived the right of trial by an indictment returned by a constitutionally selected grand jury, there is no basis to support a finding that he has waived that right. McNeil v. State of North Carolina, 368 F.2d 313 (4 Cir. 1966).
The Supreme Court of the United States has consistently held the view that the selection of a legally constituted grand jury is a constitutionally protected right, and that the indictment of a defendant by a grand jury from which members of his race have been systematically excluded is a denial of his right to equal protection of the laws. Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947); Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Rogers v. State of Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417 (1904); Carter v. State of Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839 (1900). In 1967, the Court stated:
"For over fourscore years it has been * * * the law of this Court as applied to the States through the Equal Protection Clause of the Fourteenth Amendment, that a conviction cannot stand if it is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race." Whitus v. State of Georgia, 385 U.S. 545, 549-550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599.
The presence of only a token number of Negroes on the jury lists does not vitiate the operation of the systematic exclusion rule. Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940). Conversely, "Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group." Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L.Ed. 2d 759 (1965). The rule is simply that there can be no exclusion because of race. Ex parte Commonwealth of Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880).
The petitioner has the initial burden of establishing a prima facie case of purposeful discrimination. Tarrance v. State of Florida, 188 U.S. 519, 23 S. Ct. 402, 47 L.Ed. 572 (1903). A prima facie case of jury discrimination can be established through a showing of a substantial disparity between the percentage of Negro residents in the county as a whole and on the jury lists, Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), or by a showing of such disparity between the percentages of Negroes on the tax rolls, from which the jury lists are drawn, and on the jury lists. Whitus, supra. Such a showing is strengthened where "the disparity originated, at least in part, at the one point in the selection process where the jury commissioners invoked their subjective judgment rather than objective criteria." Turner, supra at 360, 90 S. Ct. at 540. If a prima facie case of discrimination is proven, the state must justify the disparity. Whitus, supra. However, the state's failure to do so does not mean that a guilty defendant must go free. The state "may indict and try him again by the procedure which conforms to constitutional requirements." Hill v. State of Texas, 316 U.S. 400, 406, 62 S.Ct. 1159, 1162, 86 L.Ed. 1559 (1942).
The court must now apply these legal principles to the facts in this case as disclosed by the record. Petitioner's indictment was returned during the August 1964 Term of the Superior Court of Halifax County. In 1964 at the time of petitioner's indictment the grand and petit jury lists in Halifax County were prepared pursuant to Section 9-1 of the General Statutes of North Carolina.3
The board of county commissioners compiled the jury list from the tax list of each township within Halifax County by making a distinctive mark beside the names of those selected to serve. The tax lists were divided into two sections, the first designated as "white", and the second designated as "colored". In determining the taxpayers qualified to serve as jurors, the commissioners, relying upon their personal knowledge, selected individuals of good moral character, without a criminal record, and of sufficient intelligence to serve as grand and petit jurors. The commissioners on occasions made inquiries of deputy sheriffs and tax collectors concerning the qualifications of certain taxpayers for jury duty. The names so selected were then placed in a jury box from which the grand and...
To continue reading
Request your trial
-
Parker v. Ross
...voluntary" guilty plea2 blocks a subsequent attack on the composition of a grand jury, and we reverse the decision of the district court, 330 F.Supp. 13, granting relief on the ground of racial discrimination in the selection of the grand jury that indicted On July 16, 1964, Parker, a 15-ye......