Ratcliff v. Estelle, No. 78-1870

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore THORNBERRY, CLARK and RONEY; RONEY
Citation597 F.2d 474
PartiesElijah W. RATCLIFF, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
Docket NumberNo. 78-1870
Decision Date20 June 1979

Page 474

597 F.2d 474
Elijah W. RATCLIFF, Petitioner-Appellant,
v.
W. J. ESTELLE, Jr., Director, Texas Department of
Corrections, Respondent-Appellee.
No. 78-1870.
United States Court of Appeals,
Fifth Circuit.
June 20, 1979.

Page 475

Elijah W. Ratcliff, pro se.

John L. Hill, Atty. Gen., David M. Kendall, 1st Asst. Atty. Gen., Joe B. Dibrell, Jr., William L. Sessions, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before THORNBERRY, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

If a state court finds that a procedural default forecloses a convicted defendant's right to challenge collaterally the composition of the grand jury which indicted him, but then proceeds to consider and deny the challenge on the merits, must a federal court deny habeas corpus relief under the contemporaneous objection rule, without

Page 476

reaching the merits of the constitutional attack? We agree with the district court that it must.

On appeal from a dismissal of a petition for habeas corpus relief, petitioner Ratcliff contends that blacks were systematically excluded from the grand jury whose indictment lead to his Texas theft conviction. Petitioner did not raise the issue of grand jury composition in the Texas courts until his second petition for habeas corpus almost two years after his trial and three-and-a-half years after the indictment was presented. Applying the statutory rule providing for procedural default for failure to make a timely objection to the composition of a grand jury, the Texas court dismissed his challenge. It then went on to find no merit to the grand jury challenge.

Had the Texas court grounded its decision solely on the procedural waiver, the law is clear that the federal court could not reach the merits. It appears, without question, that the state court properly applied the Texas procedural rule.

The Texas courts have construed Tex.Code Crim.Proc.Ann. art. 19.27 (Vernon) 1 to mean that a defendant must raise a challenge to the composition of the grand jury at the earliest point possible. Valadez v. State, 408 S.W.2d 109 (Tex.Cr.App.1966). Where there has been no neglect, a challenge to the composition of the grand jury can be raised before trial by a motion to quash the indictment. See, e. g., Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839 (1900); Dumont v. Estelle, 513 F.2d 793, 976 (5th Cir. 1975); Ex parte Covin, 161 Tex.Cr.R. 320, 277 S.W.2d 109 (1955). Since petitioner waited almost two years after trial to raise the issue of grand jury composition, this procedural rule applied and petitioner does not suggest that there was any impropriety in its application.

Recent Supreme Court cases have indicated that, absent a showing of cause and prejudice, federal courts must respect a procedural rule such as that employed here by Texas. Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973) (challenge to grand jury make-up under 28 U.S.C.A. § 2255 rejected under federal contemporaneous objection rule, Fed.R.Crim.P. 12(b)(2)); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) (Davis rule applied to state contemporaneous objection rule in a habeas corpus petition, 28 U.S.C.A. § 2254). See also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

Petitioner has failed to show cause for his failure to make a timely objection. Petitioner has suggested that federal pleadings filed in connection with a removal petition under 28 U.S.C.A. §§ 1442 and 1443 served informally upon remand to the state court to raise the issue of jury composition. These federal pleadings were a motion to quash the indictment based on the allegation that the grand jury was racially prejudiced, and interrogatories attempting to ascertain the racial make-up of the grand jury. There were served upon the State and were available to the state court. The state court did not rule upon them, however, and petitioner has not shown that in any manner he requested the state court to consider them or sought to raise the issues in separate state pleadings. Absent some indication that the state court considered the federal pleadings or was asked to do so, such pleadings cannot be said informally to satisfy a state contemporaneous objection rule.

At oral argument petitioner indicated that as an attorney he was aware of the disproportionate racial make-up of the grand jury but lacked facts and figures to substantiate his position. He did not file interrogatories in the state court to obtain this information. He indicated that it was

Page 477

his impression that an objection to the Texas trial court would have been futile. The fact that an objection may be overruled does not, however, constitute the requisite cause which would excuse a procedural default under the rule of Davis and Francis and...

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60 practice notes
  • Hall v. Wainwright, No. 83-3563
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 16, 1984
    ...ruling that no procedural default has occurred, this court must determine the basis of the state court decision. Ratcliff v. Estelle, 597 F.2d 474, 477 (5th Cir.), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979). The Supreme Court of Florida based its decision on the procedu......
  • Dobbert v. Strickland, No. 82-84-Civ-J-B.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • January 30, 1982
    ...corpus relief under the contemporaneous objection rule of Sykes. In fact, the Court is compelled to deny such relief. Ratcliff v. Estelle, 597 F.2d 474, 475-76 (5th Cir.), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 Moreover, the Court also holds that petitioner is entitled to ......
  • Jones v. Vannoy, CIVIL ACTION NO. 18-2656 SECTION "A"(2)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • November 15, 2018
    ...Having failed to show an objective cause for his default, the court need not determine whether prejudice existed. Ratcliff v. Estelle, 597 F.2d 474 (5th Cir.1979) (citing Lumpkin v. Ricketts, 551 F.2d 680, 681-82 (5th Cir.1977)).C. FUNDAMENTAL MISCARRIAGE OF JUSTICE A petitioner may avoid p......
  • Thigpen v. Smith, Civ. A. No. 82-0456-H.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • March 13, 1985
    ...refuse to review the merits. E.g., Dobbert v. Strickland, 718 F.2d 1518, 1524-1525 (11th Cir. 1983) (capital case); Ratcliff v. Estelle, 597 F.2d 474 (5th Cir.) cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979); Farmer v. Prast, 721 F.2d 602, 605-606 (7th Cir.1983). Therefore,......
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60 cases
  • Hall v. Wainwright, No. 83-3563
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 16, 1984
    ...ruling that no procedural default has occurred, this court must determine the basis of the state court decision. Ratcliff v. Estelle, 597 F.2d 474, 477 (5th Cir.), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979). The Supreme Court of Florida based its decision on the procedu......
  • Dobbert v. Strickland, No. 82-84-Civ-J-B.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • January 30, 1982
    ...corpus relief under the contemporaneous objection rule of Sykes. In fact, the Court is compelled to deny such relief. Ratcliff v. Estelle, 597 F.2d 474, 475-76 (5th Cir.), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 Moreover, the Court also holds that petitioner is entitled to ......
  • Jones v. Vannoy, CIVIL ACTION NO. 18-2656 SECTION "A"(2)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • November 15, 2018
    ...Having failed to show an objective cause for his default, the court need not determine whether prejudice existed. Ratcliff v. Estelle, 597 F.2d 474 (5th Cir.1979) (citing Lumpkin v. Ricketts, 551 F.2d 680, 681-82 (5th Cir.1977)).C. FUNDAMENTAL MISCARRIAGE OF JUSTICE A petitioner may avoid p......
  • Thigpen v. Smith, Civ. A. No. 82-0456-H.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • March 13, 1985
    ...refuse to review the merits. E.g., Dobbert v. Strickland, 718 F.2d 1518, 1524-1525 (11th Cir. 1983) (capital case); Ratcliff v. Estelle, 597 F.2d 474 (5th Cir.) cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979); Farmer v. Prast, 721 F.2d 602, 605-606 (7th Cir.1983). Therefore,......
  • Request a trial to view additional results

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