Potts v. Zant
| Citation | 638 F.2d 727 |
| Decision Date | 17 February 1981 |
| Docket Number | Nos. 80-7476,80-7664 and 80-7665,80-7477,s. 80-7476 |
| Parties | Jack Howard POTTS, Petitioner-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee. Jack Howard POTTS, Petitioner-Appellant, v. Sam AUSTIN, Respondent-Appellee. . Unit B |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Susan V. Boleyn, Robert S. Stubbs, II, Don A. Langham, John C. Walden, John W. Dunsmore, Jr., Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee in No. 80-7476.
Millard C. Farmer, Joseph M. Nursey, Andrea I. Young, Frank Derrickson, Ralph Goldberg, Thomas McKee West, Atlanta, Ga., for petitioner-appellant in all cases.
Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee in all cases.
Appeals from the United States District Court for the Northern District of Georgia.
Before MORGAN, ANDERSON and THOMAS A. CLARK, Circuit Judges.
Appellant Jack Howard Potts was sentenced to be executed pursuant to two convictions: one for kidnapping with bodily injury and the other for first degree murder. He brings this appeal of four consolidated petitions for habeas corpus, claiming he has been improperly denied federal review on the merits of his claims. The unusual factual circumstances surrounding Potts' filing of these petitions requires this panel to examine important questions concerning abuse of the writ of habeas corpus. Because we find that the district court should have granted a hearing on the issue of abuse, and because we find that in cases numbered 80-7476 and 80-7477 the district court applied an improper standard, we vacate the decisions in those cases and remand for further hearings. With respect to cases numbered 80-7664 and 80-7665, we affirm the district court's order dismissing, at Potts' request, the petitions filed in those cases.
Because of the difficult question we must address here concerning abuse of the writ, a full statement of the unusual procedural history in these cases is necessary.
Potts' federal habeas petitions attack both convictions and sentences. Both convictions arose out of a single incident in which Potts allegedly kidnapped Michael D. Priest in Cobb County, Georgia, drove Priest to Forsyth County, Georgia, where Potts allegedly shot and killed Priest.
On March 11, 1976, Potts was convicted of kidnapping with bodily injury and armed robbery in the Superior Court of Cobb County, Georgia, and death sentences were imposed for each of those offenses. Four months later, on July 14, 1976, Potts was convicted for the murder of Priest in the Superior Court of Forsyth County, Georgia, and was sentenced to death pursuant to this conviction.
The two cases were consolidated for direct appeal to the Supreme Court of Georgia. On March 16, 1978, that court affirmed Potts' convictions and sentences with respect to the charge of kidnapping with bodily injury and murder, and reversed the sentence of death for armed robbery. Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978).
Potts, in his brief to this court, alleges that after losing his direct appeal to the Supreme Court of Georgia, he desired to file a petition for writ of certiorari in the United States Supreme Court, but that his attorneys failed to do so.
On November 14, 1978, Potts filed a state habeas corpus petition in the Superior Court of Tattnall County, Georgia, for both of his convictions and death sentences. After consolidated evidentiary hearings on January 22 and April 27, 1979, the superior court entered an order on July 24, 1979, denying Potts all relief. On August 9, 1979, Potts applied for a certificate of probable cause to appeal this denial of state habeas to the Supreme Court of Georgia.
Before any action was taken on his appeal of the denial of state habeas, Potts discharged his attorneys and requested them to withdraw the application pending in the Supreme Court of Georgia. Potts has testified in a hearing on June 10, 1980, related to his first federal habeas petitions, that shortly before asking that his application be withdrawn, his attorneys told him there was no hope of success, but they could only prolong his case and hope that the death penalty would be abolished before completion of his appeals 1 (Tr., June 10 An execution date was then set in both cases for February 15, 1980. On February 13, 1980, Governor George Busbee, acting upon a request from the Pardon and Parole Board, granted a 90-day stay pending clemency consideration. Potts did not initiate or seek this review by the Pardon and Parole Board. In his brief to this court, Potts alleges without contradiction from the state that he declined to cooperate with attorneys seeking to pursue clemency with the Pardon and Parole Board on his behalf. After a proceeding on April 24, 1980, at which Potts was unrepresented, clemency was denied on May 1, 1980. An execution date was then reset in both cases for June 5, 1980.
1980, hearing, p. 20). Counsel communicated Potts' request to withdraw his application to the Supreme Court of Georgia. Potts himself wrote three letters to the Supreme Court of Georgia in November and December, 1979, and in January, 1980, reiterating his request that his applications be withdrawn. On January 8, 1980, the Supreme Court of Georgia denied Potts' motion to withdraw his appeal, denied his application for certificate of probable cause for habeas corpus appeal, and granted the motion to discharge Potts' attorneys. 2
On June 3, 1980, the Reverend Murphy Davis and other individuals, in an attempt to stay Potts' imminent execution, filed two "next friend" habeas corpus petitions in both cases in the United States District Court for the Northern District of Georgia. Potts in no way participated or consented to the filing of these petitions. After a hearing on June 4, 1980, in which testimony by a psychologist was taken, documentary evidence was viewed, and a video tape of a press conference held by Potts on June 2, 1980, was reviewed, the district judge dismissed the action, finding that the petitioners were not proper next friends and that Potts was competent. 3 At approximately 6:50 P.M. on June 4, this court entered an order denying the next friends' applications for a stay of execution pending appeal. Davis v. Austin, Nos. 80-7418 and 80-7419 (5th Cir. June 4, 1980).
At approximately 7:15 P.M. on that same day, June 4, the judge received notice by telephone that Potts had signed an authorization for Messrs. Millard Farmer, Andrea Young, and Joe Nursey to act as his attorneys and to file for the first time with his authorization two § 2254 petitions attacking his two convictions and sentences. 4 When this telephonic notice was received, Potts' scheduled execution was less than 15 hours away. The judge immediately granted stays of the execution. The state did not contest these stays.
Potts' intention to pursue federal habeas was apparently short-lived. Late in the afternoon on June 6, 1980, the district court received a letter written earlier that day by Potts, in the presence of his mother, in which he asked that his habeas petitions be withdrawn. 5 The letter, not surprisingly, is During the weekend after June 6, Potts' attorneys attempted to convince Potts to continue with his habeas corpus action and their representation of him. Because the district court refused to dismiss Potts' petition on the basis of the letter transmitted by Potts' mother, the district court met on June 9 with Potts' attorneys and representatives of the Georgia Attorney General's office to establish a procedure to determine whether or not Potts' petitions would be withdrawn. The district court proposed that Potts be brought to the court in order that the court could address him personally and suggested that the court follow a procedure analogous to acceptance of a plea of guilty under Rule 11 of the Federal Rules of Criminal Procedure. All counsel concurred in the court's proposed approach. The court further proposed that a court-appointed psychiatrist be present at the hearing for the purpose of rendering his opinion as to Potts' competency at the time of the hearing. Counsel also agreed with this procedure. Because Potts had expressed in his letter to the court that he would thereafter refuse the help of his counsel and desired not to talk with them further, Potts' attorneys agreed that they should not act as counsel at the hearing but that the court should conduct the proceedings.
emotional, yet articulately phrased. In it, Potts stated that the only reason he authorized the filing of the § 2254 petitions was to set his brother's mind at ease so that his brother could believe that he had done all he could for Potts. Potts further stated that at the time he authorized the filing of his § 2254 petitions, he did not believe that a stay would be granted since he knew of the court's prior refusal of a "last final appeal." 6 Potts requested that his petition be withdrawn as quickly as possible so that he could die while "in a state of grace." Potts further requested that he be allowed to dismiss his attorneys and that the court order that he be permitted to refuse to see reporters or news people. Potts assured the court that he was of sound mind and body. At the end of the letter on a third page were five items, some of which were requests. Potts specifically asked that an immediate date for execution be set
On June 10, 1980, a hearing was held with Potts present and his attorneys also in the courtroom. The district court commenced the hearing by advising Potts that his attorneys of record had not been relieved by the court and that he had a right to be represented at the hearing by counsel of record or another attorney. Potts indicated that he did not desire his attorneys of record or any other attorney to represent him. Potts then took the witness stand and was sworn in. Potts was...
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