Shinall v. Breazeale, 25807.
| Decision Date | 19 December 1968 |
| Docket Number | No. 25807.,25807. |
| Citation | 404 F.2d 785 |
| Parties | Cloudies SHINALL, Appellant, v. C. E. BREAZEALE, Superintendent of the Mississippi State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jack H. Young, Jackson, Miss., Barbara A. Morris, New York City, for appellant.
Joe T. Patterson, Atty.Gen., Jackson, Miss., for appellee.
Before DYER and SIMPSON, Circuit Judges, and CABOT, District Judge.
Cloudies Shinall, state prisoner, appeals from the denial of his petition for writ of habeas corpus. Petitioner was convicted of murder on August 6, 1966, in the Circuit Court of Forrest County, Mississippi. Inasmuch as the jury in its verdict did not recommend mercy, the trial judge was required to and did impose the death penalty. This was the second trial for petitioner, an earlier conviction and death sentence having been reversed because of exclusion of Negroes from the grand and petit juries. Shinall v. State, 187 So.2d 840 (Miss.1966). This second conviction was also appealed and affirmed, Shinall v. State, 199 So.2d 251 (Miss.1967), and the United States Supreme Court denied a petition for certiorari, Shinall v. Mississippi, 389 U.S. 1014, 88 S.Ct. 590, 19 L.Ed.2d 660 (1967). Petitioner then filed an application in the Mississippi Supreme Court for leave to file a petition for writ of error coram nobis, Mississippi Code Annotated § 1992.5, which was denied without opinion on January 15, 1968. Having exhausted his only available state post-conviction remedy, the petitioner filed the instant petition in the United States District Court for the Northern District of Mississippi on January 23, 1968. That same day Circuit Judge Clayton, sitting as a district judge, granted leave to petitioner to proceed in forma pauperis and transferred the case to the Southern District of Mississippi, the district of conviction. On January 30, 1968, a rule to show cause was issued with a return date of February 6, 1968. After hearing on the rule, the district court denied the petition without an evidentiary hearing.
Petitioner raised a number of grounds in the district court, which for convenience may be grouped. The first group concern the alleged constitutional infirmities with the choice of grand and petit jurors. Under this group, petitioner contended:
1. That Negroes were excluded from the venire of the grand and petit juries which indicted and convicted petitioner. This complaint concerns the actions of the registrar of Forrest County, Mississippi.
2. That the state prosecutors aided in the exclusion of Negroes from the petit jury by using their peremptory challenges to excuse any Negroes.
3. That women by law are excluded from jury service in Mississippi. White v. Crook, 251 F.Supp. 401 (M.D.Ala. 1966).
4. That persons conscientiously scrupled against the death penalty were excluded for cause. Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
The next group involve the imposition of the death penalty in this case. Under this group petitioner contended:
1. That the death penalty violates petitioner's due process rights in that it exceeds the maximum statutory penalty for homicide committed while resisting unlawful arrest. With regard to this ground, petitioner contends that the attempted arrest of petitioner by the deceased, a constable, was constitutionally unlawful and that therefore the most he could be guilty of was homicide committed while resisting unlawful arrest, a statutory non-capital crime in Mississippi.
2. That the Mississippi statute which allows the petit jurors to decide the penalty of life or death is a denial of due process in that the jurors are left to their unfettered, unreviewable, and unregulated discretion in that there are no standards for the jury to determine the proper penalty.
3. That the above-mentioned procedure is further constitutionally defective in that it forces a defendant such as petitioner to choose between two constitutional rights. Since, as petitioner points out, the verdict on guilt and punishment are returned...
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...expression of the reasons for the denial either by informal memorandum, by recitals in an order, or by findings."); Shinall v. Breazeale, 404 F.2d 785, 787 (5th Cir. 1968) (remanding where failure to state findings or reasons for denial of habeas prevented appellate court from determining w......
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