Roach v. Mauldin

• Decision Date: 30 April 1968
• Docket Number: No. 24793.,24793.
• Citation: 391 F.2d 907
• Parties: Freddie ROACH, Appellant, v. G. T. MAULDIN, Sheriff of Whitfield County, Georgia, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

391 F.2d 907 (1968)

Freddie ROACH, Appellant, v.G. T. MAULDIN, Sheriff of Whitfield County, Georgia, et al., Appellees.

No. 24793.

United States Court of Appeals Fifth Circuit.

March 18, 1968.

Rehearing Denied April 30, 1968.

John T. Avrett, Dalton, Ga., for appellant.

Mathew Robins, Asst. Atty. Gen., Atlanta, Ga., Robert L. Vining, Jr., Sol.Gen., Dalton, Ga., Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Atlanta, Ga., for appellees.

Before COLEMAN and SIMPSON, Circuit Judges, and DAWKINS, District Judge.

COLEMAN, Circuit Judge:

On March 2, 1967, after an evidentiary hearing, the United States District Court for the Northern District of Georgia denied appellant a writ of habeas corpus, Roach v. Mauldin, 277 F.Supp. 54.This judgment will be affirmed.

On May 18, 1965, in the Circuit Court of Whitfield County, Georgia, Roach was convicted of a rape alleged to have been committed on September 8, 1964.He was sentenced to suffer the penalty of death.His conviction was affirmed by the Georgia Supreme Court, Roach v. State, 221 Ga. 783, 147 S.E.2d 299.The Supreme Court denied certiorari, 385 U.S. 935, 87 S.Ct. 297, 17 L.Ed.2d 215(1966).

The record reveals that twice previously Roach had been convicted in the Georgia Courts of assaults with intent to rape and for these offenses had been imprisoned in the state penitentiary.

In his application for habeas the convict contended that his federally protected constitutional rights had been violated in three particulars, to-wit, (1)he was denied a request for a mental examination prior to trial, (2) evidence alleged to have been obtained as the result of an illegal search and seizure was used to secure his conviction, and (3) the Grand Jury which returned the indictment and the trial jury which convicted him were unconstitutionally selected because their names came from the racially orientated tax digest of Whitfield County pursuant to Georgia Code § 59-106.

As above noted, the opinion of the District Court, denying the writ, has been published.The factual findings and careful reasoning of the District Court are thus of record.

As to the request for a mental examination and as to the alleged illegal search and seizure we fully adopt and completely approve the opinion of the District Court.

With some additional observations, we also adopt and approve what was said on the question of jury selection.

On that issue the trial court exhaustively considered the existing precedents, particularly Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 743, 17 L.Ed.2d 599.It was there held that a segregated jury source (such as the earlier Georgia Tax Digests) which result in racially imbalanced juries, is improper.The Court below pointed out that this appellant, of the white race, did not attack the tax digest for racial reasons but solely because non-property owners were not on the tax lists and were thus systematically excluded from jury service.The District Court felt, and we agree, that in the absence of racial considerations the use of tax digests, which necessarily exclude nonproperty owners, seems to have been settled as not prima facie unconstitutional in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469(1952).

We note, however, that this Court has twice recently had occasion to apply Whitus.In the first case, White v. McHan, Warden, 386 F.2d 817(1967), it was held that Whitus imposes upon the petitioner the burden of presenting a prima facie case of deliberate discrimination and that the burden had not been met.

In Whippler v. Dutton, Warden, February 7, 5 Cir.1968, 391 F.2d 425, it was said,

"Also in Whitus, evidence was presented which demonstrated a

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