Sheffield v. Lack, Civ. A. No. 3:87-0779.

• Decision Date: 22 March 1988
• Docket Number: Civ. A. No. 3:87-0779.
• Citation: 702 F. Supp. 634
• Parties: Hubert L. SHEFFIELD, Petitioner, v. Larry LACK, etc., et al., Respondents.
• Court: U.S. District Court — Middle District of Tennessee

702 F. Supp. 634

Hubert L. SHEFFIELD, Petitioner, v. Larry LACK, etc., et al., Respondents.

Civ. A. No. 3:87-0779.

United States District Court, M.D. Tennessee, Nashville Division.

December 1, 1987.

Opinion after Answer March 22, 1988.

Hubert Sheffield, Nashville, Tenn., pro se.

Jerry Smith, Nashville, Tenn., James W. Thompson, Asst. Attys. Gen., Jackson, Tenn., for respondents.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

This is the second pro se application made to this Court for the federal writ of habeas corpus by the petitioner Mr. Hubert Sheffield. His first petition was dismissed for his failure to have exhausted available state-remedies. See, Hubert Sheffield, petitioner, v. Larry Lack, et al., respondents, civil action no. 3:87-0496, order of July 15, 1987.

Mr. Sheffield in his second habeas corpus petition has now eliminated apparently those claims which were held by this Court to be unexhausted. He claims now that he is in the custody of the respondent-warden pursuant to the judgment of conviction of March 25, 1981 of the Criminal Court of Tennessee for its 30th judicial district (comprising Shelby County), in violation of the federal Constitution, Sixth and Fourteenth Amendments. 28 U.S.C. §§ 2241(c)(3), 2254(a).

Mr. Sheffield contends herein that his trial-Court committed some 22 errors during his trial and the resulting penalty-stage in a violation of his rights under the Constitution, Sixth Amendment, to confront witnesses against him and to be tried by a fair and impartial jury. He contends this aggregation of errors deprived him of his federal right to the due process of law.

"The right of confrontation * * * is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Pointer v. State of Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965), quoted in Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 13202, 20 L.Ed.2d 255 (1968). "No State shall * * * deprive any person of * * * liberty * * * without due process of law * * *." Constitution, Fourteenth Amendment. "* * * `A fair trial in a fair tribunal is a basic requirement of due process.' * * *" Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 19423, 6 L.Ed.2d 751 (1961).

As it does not appear plainly on preliminary consideration of the face of the applicant's current petition that he is not now entitled to relief in this Court, Rule 4, Rules — § 2254 Cases, it hereby is

ORDERED that the respondent-warden file an answer comporting with Rule 5, Rules — § 2254 Cases, within 23 days here-from, and that a copy of the petition herein and of this order be served forthwith by the clerk of this Court by certified-mail on the respondent-warden and the attorney-general and reporter of Tennessee. Rule 4, Rules — § 2254 Cases. The noticed slow movement of the mail provides good cause for the additional time allowed. 28 U.S.C. § 2243; Rule 81(a)(2), F.R.Civ.P.

OPINION AFTER ANSWER

The respondent answered, see order herein of December 1, 1987. It appears from the record that the petitioner has exhausted his available state remedies. 28 U.S.C. § 2254(b).

Mr. Sheffield claims that his trial-Court erred in refusing to dismiss the indictment returned against him based upon the unconstitutionality of Tennessee's death-penalty statute. "The Tennessee death penalty statute is constitutional * * *." State v. Nelson, 638 S.W.2d 342, 36848 (Tenn. 1982), cert. den., 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983). As there is no contention herein that such statute was applied against Mr. Sheffield arbitrarily, this claim has no merit.

Mr. Sheffield claims that his trial-Court erred in refusing to dismiss the indictment returned against him, because there was discrimination based upon gender in the selection of the grand-jury foreperson. To show that a federal-constitutional and equal-protection violation has occurred in the context of the selection of the fore-person of a grand jury, it must have been shown that "the procedure employed resulted in substantial underrepresentation of * * * the identifiable group to which he belongs." Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977), quoted in Rose v. Mitchell, 443 U.S. 545, 565, 99 S.Ct. 2993, 30054, 61 L.Ed.2d 739 (1979).

Mr. Sheffield, a male, lacks the standing to challenge the alleged discrimination against females in the selection of the foreperson of the grand jury which indicted him. Beal v. Rose, 532 F.Supp. 306, 313 4 (D.C.Tenn.1981). This claim, thus, has no merit.

Mr. Sheffield claims also that his trial-Court erred in sustaining the prosecution's challenge for cause of six persons on his venire, in that such persons on his venire did not state unequivocably that he or she was committed irrevocably to vote against infliction of the death-penalty irrespective of the facts and circumstances that might emerge in the course of the proceedings. "Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position," Witherspoon v. State of Illinois, 391 U.S. 510, 515, 88 S.Ct. 1770, 17742, 20 L.Ed.2d 776 (1968), thereby rendering them subject to disqualification from serving on a jury.

The Supreme Court of Tennessee found factually that, while at times each of the challenged jurors "gave confusing and sometimes inconsistent responses, their final unequivocal positions rendered each of them subject to dismissal." State v. Sheffield, 676 S.W.2d 542, 5483 (Tenn.1984). This finding is presumed by this Court to be correct, 28 U.S.C. § 2254(d), as none of the conditions of sub-§'s (1)-(8), inclusive, is claimed to have been extant by the petitioner. See also, Loveday v. Davis, 697 F.2d 135, 1381 (6th Cir.1983). This issue has no merit.

Mr. Sheffield claims that his conviction was obtained in violation of his federal-constitutional right to the due process of the law, because the process of death-qualifying large groups of jurors is prejudicial innately. The Supreme Court of the United States has not addressed this specific issue; however, such Court has held that death qualification of a jury does not violate the fair cross-section requirement of the fair and impartial jury requirement of the Sixth Amendment to the United States Constitution "so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case." Lockhart v. McCree, 476 U.S. 162, 184, 106 S.Ct. 1758, 17704, 90 L.Ed.2d 137 (1986). Mr. Sheffield has not shown he has available any evidence that his jury failed to apply properly the law to the facts of his particular case, nor has he shown that he was prejudiced by the death-qualification process. This issue has no merit.

He also claims that there is insufficient evidence to support the verdict of guilt returned against him. "In a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 * * * the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-2792, 61 L.Ed.2d 560 (1979), reh. den., 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979). In order to make the above determination, the Court is required to view "the evidence in the light most favorable to the prosecution." Id., 443 U.S. 319, 99 S.Ct. 2789.

To have convicted Mr. Sheffield of murder in the first degree, the jury was required to have found that he committed a willful, deliberate, malicious and premeditated killing. T.C.A. § 39-2-202.

The pertinent facts on that issue, as stated by the Supreme Court of Tennessee, follow:

"Ruby Marlar and her husband Hill Marlar lived on Addison Street near the National Cemetery in Memphis. Their house was just a half block from Whittier Street, where defendant and his friend William Pratere, one of the principal witnesses, lived.

"On New Year's Eve, December 31, 1979, Mr. and Mrs. Marlar began celebrating at 5:00 p.m. They visited Nita's Lounge, the Viaduct Lounge and Knight's Cafe, where Mrs. Marlar worked part time but she was not working on New Year's Eve. About 2:00 a.m. Mr. Marlar went home, by mutual agreement, having made arrangements for someone to drive Mrs. Marlar home. Mr. Marlar had been asleep about two hours when he heard his wife knocking on the door, but by the time he opened it, she was gone. He was not disturbed because her brother lived about one and a half blocks away and on previous occasions she had walked to her brother's house and spent the night. If that was her destination that morning, she did not get there because she had an encounter with defendant, `Butch' Sheffield, or his friend Gary Haning, or both of them. Her body was discovered beside a dirt road near Lakeland Lake in Shelby County, on January 5, 1980, with a seven inch incision to her neck that almost severed her head from her body and, of course, caused her death. Tests revealed seminal fluid and sperm in her vagina and anus and saliva on her breast and a blood alcohol level of 0.51%.

"Gary Haning testified that he had been given a life sentence for his participation in the murder of Mrs. Marlar and that the State had made no deal with him other than that he would not be incarcerated in the same facility as defendant and that the attorney general would write the parole board to the effect that he had testified under `difficult circumstances.'

"Gary Haning's version of the events that culminated in the murder of Ruby Marlar was that he had gone to sleep at Mike Pratere's house, woke up cold, went to the heater, fell and burned his leg and back; that Mike and defendant came in about 3:00 a.m., defendant left for a while and Mike bandaged his burns. Defendant...