Partida v. Castaneda

• Decision Date: 26 October 1974
• Docket Number: Civ. A. No. 74-B-50.
• Citation: 384 F. Supp. 79
• Parties: Rodrigo PARTIDA v. Claudio CASTANEDA, Sheriff.
• Court: U.S. District Court — Southern District of Texas

384 F. Supp. 79

Rodrigo PARTIDA v. Claudio CASTANEDA, Sheriff.

Civ. A. No. 74-B-50.

United States District Court, S. D. Texas, Brownsville Division.

October 26, 1974.

COPYRIGHT MATERIAL OMITTED

ACLU Foundation-South Texas Project, David G. Hall, San Juan, Tex., for petitioner.

Oscar McInnis, Crim. Dist. Atty. of Hidalgo County, Edinburg, Tex., for respondent.

MEMORANDUM

GARZA, District Judge.

After exhausting all available state remedies, the Petitioner, Rodrigo Partida, filed this Petition for Writ of Habeas Corpus with the United States District Court, Southern District of Texas, naming Claudio Castaneda, the Sheriff of Hidalgo County, Texas, as Respondent. Petitioner alleges he has been denied due process and equal protection of the laws under the Fourteenth Amendment to the Constitution, because Mexican-Americans were significantly underrepresented on the state grand jury that indicted him, as a result of a long continued system of underrepresentation in the particular jurisdiction where he was tried. The District Attorney for Hidalgo County filed the answer for the Respondent which asserts that the Petitioner has waived his right to claim racial discrimination because Petitioner failed to raise his claim prior to trial. It is further asserted that the Texas Court of Criminal Appeals was correct in holding Petitioner failed to establish his claim that he had been denied his constitutional rights because of a long continued racial underrepresentation on the state grand juries in Hidalgo County. Two issues are presented for decision by this Court. The first issue is whether this Court should hold Petitioner waived his right to object to the composition of the grand jury that indicted him, where the state courts have ignored any waiver provision and considered Petitioner's claim on the merits. The second issue is whether the Petitioner has proven his claim of a long-continued racial underrepresentation in the particular jurisdiction where he was tried and is entitled to relief.

The Petitioner, Rodrigo Partida, was indicted on March 17, 1972, for the offense of burglary of a private residence at night with intent to commit rape; on December 19, 1972, the Petitioner was found guilty by a jury and sentenced to serve not less than five nor more than eight years in the Texas Department of Corrections. The Petitioner filed a Motion for a New Trial and for the first time raised the issue of the unconstitutional composition of the grand jury that indicted him. Petitioner attempted to prove systematic racial discrimination in the selection of the grand jurors in Hidalgo County by placing in evidence data from the U.S. Census of 1970, which shows that the Mexican-American population of Hidalgo County, as indicated by Mexican-American surnames, was 79.2% of the total population. He further showed that the grand juries for the ten year period from 1962 to 1972, when he was indicted, were composed of 39% Mexican-American surnamed jurors. These figures illustrate the existence of a 40.2% disparity between the percentage Petitioner's ethnic group constituted of the total population, and the percentage which his ethnic group constituted of the jury lists actually compiled. Petitioner's Motion for New Trial was overruled and he appealed to the Texas Court of Criminal Appeals, the highest state appellate court on criminal matters. The Texas Court of Criminal Appeals considered the untimely presented point of error and held that the Petitioner had failed to carry his burden of establishing a prima facie case of jury discrimination and, therefore, affirmed his conviction. Partida v. State of Texas, 506 S.W.2d 209 (Tex. Cr.App.1974). The Texas Court of Criminal Appeals held that even though Petitioner did show a substantial underrepresentation of Mexican-Americans on the grand jury, he failed to show:

". . . that the females who served on grand juries were not of Mexican-American descent but married to husbands with Anglo-American surnames. He did not show how many persons with Mexican-American surnames or of Mexican-American descent were summoned for grand jury duty and were excused for age, health or other legal reasons. . . . How many of those listed in the census figures with Mexican-American names were not citizens of the state, but were so-called `wet-backs' from the south side of the Rio Grande; how many were migrant workers and not residents of Hidalgo County; how many were illiterate and could not read and write; how many were not of sound mind and good moral character; how many had been convicted of a felony or were under indictment or legal accusation for theft or a felony; none of these facts appear in the record. Their absence renders the disparity of the percentages of little force or effect."

As further evidence of the lack of purposeful discrimination, the Texas Court of Criminal Appeals noted that the record showed that the Judge who presided at the trial and summoned the jury commissioners had a Mexican-American surname; that three of the five jury commissioners that he summoned had Mexican-American surnames; that ten of the twenty members of the grand jury array had Mexican-American surnames; that five of the twelve grand jurors that indicted Petitioner had Mexican-American surnames, probably because four of the original members of the array who were Mexican-Americans could not be located; that the foreman who signed the grand jury indictment had a Mexican-American surname; that seven of the twelve petit jurors that found Petitioner guilty had Mexican-American surnames.

After Petitioner's appeal had been denied, he filed his Petition for Writ of Habeas Corpus in this Court. Petitioner alleges he has been denied due process of law and equal protection of the law under the Fourteenth Amendment to the Constitution, because of the ethnic underrepresentation in the state grand jury which indicted him, which defect constitutes a denial of a fundamental right and may be raised for the first time in a Motion for New Trial; that he did not knowingly and intentionally waive his right to challenge the composition of the grand jury because his court appointed counsel did not inform him that such right existed; that he was an indigent at the time of his indictment and was unrepresented by counsel at this "critical stage", which, according to the Texas statutory and court fashioned rules, is the stage when Petitioner must challenge the array or be barred from asserting his challenge; that the Texas statutes do not provide for his particular constitutional challenge and, therefore, he could not have waived it, since it did not exist; that the highest state appellate court on criminal matters considered the constitutional challenge and, therefore, ignored the waiver provisions, if any existed; that the highest criminal appellate court in the state applied the wrong burden of proof and completely misunderstood the requisites of a constitutional attack based on ethnic discrimination in the selection of the grand jury. The state answers that the Petitioner did waive his challenge to the ethnic composition of the grand jury and he did not establish a prima facie case of discrimination.

Since the waiver issue is potentially dispositive of the entire case, it will be considered first. Rule 12(b)(2) of the Federal Rules of Criminal Procedure provides:

". . . objections based on defects in the institution of the prosecution or in the indictment . . . may be raised only by motion before trial . . . failure . . . constitutes a waiver . . . but the court for cause shown may grant relief from the waiver." (Emphasis supplied.)

In Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), this rule was held to apply to both procedural and constitutional defects in the institution of prosecutions which do not affect the Court's jurisdiction. The policy reasons for the rule, as so clearly stated by the Davis Court, are:

"If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult."

Davis clearly establishes the rule that once an objection to the institution of the prosecution is waived, it cannot later be resurrected, either in direct criminal proceedings or in federal habeas corpus, unless cause is shown. If cause is shown, then a new trial will be granted so that an indictment can be returned by a properly constituted grand jury. Nothing in the previous trial need be redone; the prosecution will be allowed to present its entire case through the testimony given at the previous trial, if it is shown that its witnesses are unavailable. Under this procedure, the state will only lose the enhancement of credibility that the actual presence of witnesses will lend to their testimony. Several factors should be considered in determining whether there is sufficiant cause to grant relief from any waiver suffered by the complainant.

In determining if cause exists, the Court should consider whether the case against the Petitioner is a strong one or weak one, if the case is a weak one, then it is probable a properly composed grand jury would have found that probable cause did not exist and would not have bound the defendant over for trial; whether the facts concerning the selection of the grand jury were notorious and available to the Petitioner in the exercise of due diligence...