Spencer v. Kemp, No. 82-8408

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON, and CLARK; HILL; TJOFLAT, Circuit Judge, specially concurring, in which HATCHETT and CLARK; JOHNSON
• Citation: 781 F.2d 1458
• Parties: James Lee SPENCER, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic & Classification Center, Respondent- Appellee.
• Decision Date: 23 January 1986
• Docket Number: No. 82-8408

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781 F.2d 1458 James Lee SPENCER, Petitioner-Appellant,
v.
Ralph KEMP, Warden, Georgia Diagnostic & Classification
Center, Respondent- Appellee. No. 82-8408. United States Court of Appeals,
Eleventh Circuit. Jan. 23, 1986.

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Edward D. Tolley, Athens, Ga., Anthony G. Amsterdam, John Charles Boger, Jack Greenberg, James N. Nabrit, III, Joel Berger, Deborah Fins, James S. Liebman, New York City, for petitioner-appellant.

William Hill, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

William Sumner, Quintus W. Sibley, Atlanta, Ga., Thomas M. Lahiff, Jr., Skadden, Arps, Slate, Meagher & Flom, New York City, for amicus-alpha Otis O'Daniel Stephens.

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

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON, and CLARK, Circuit Judges.

HILL, Circuit Judge:

Petitioner James Lee Spencer was convicted of murder and sentenced to death in Georgia state court in 1975. ¹ The Georgia Supreme Court upheld the conviction and sentence on direct appeal in 1976. Spencer v. State, 236 Ga. 697, 224 S.E.2d 910 (1976), cert. denied, 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 302 (1976). In 1977, Spencer filed a petition seeking state habeas relief, which was denied after an evidentiary hearing. That decision was affirmed by the Georgia Supreme Court. Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1 (1979), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979).

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The petition now before this court, seeking a writ of habeas corpus under 28 U.S.C. Sec. 2254, was filed in district court in 1979. The district court found petitioner's allegations of constitutional deprivations to be without merit, and denied the writ. Mitchell v. Hopper, 538 F.Supp. 77 (S.D.Ga.1982). On appeal, a panel of this court remanded two of petitioner's claims to the district court for further evidentiary hearings. Spencer v. Zant, 715 F.2d 1562 (11th Cir.1983). We then determined to rehear the case en banc. Id. at 1583. We now reverse the decision of the district court denying Spencer's federal habeas relief, and we remand this case to the district court to allow Spencer to raise and develop his claim that he was convicted by a jury drawn from an unconstitutionally composed array.

DISCUSSION

Spencer raises five issues on this appeal, alleging that:

(1) the trial court's jury instruction at his hearing on his special plea of insanity violated his due process rights; (2) his jury array was unconstitutionally composed insofar as blacks and women were underrepresented; (3) certain jurors were improperly dismissed during voir dire in violation of the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (4) the trial court's jury instruction violated Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1977), by relieving the state of the burden of proof on an element of the crime; and (5) the Georgia death penalty is arbitrary and discriminatory and therefore unconstitutional as applied.

Spencer v. Zant, 715 F.2d at 1565. We agree with the panel's determination that issues one, three, and four provide no justification for granting habeas relief. We therefore address below only petitioner's claim that the Georgia death penalty is unconstitutionally applied and his challenge to the array from which his jury was chosen.

I. Right to an Evidentiary Hearing on the Constitutionality

of the Death Penalty

In his federal habeas petition, Spencer alleges that Georgia administers its death penalty statute in an arbitrary and discriminatory manner in violation of the eighth and fourteenth amendments to the United States Constitution. Similar allegations had been rejected on petitioner's direct appeal and in his state habeas proceedings. Specifically, he contends that the death penalty in Georgia is disproportionately applied on the basis of the race of defendants and the race of victims.

On January 26, 1981, the district court held a hearing to determine the necessity of conducting an evidentiary hearing on this issue. At that time, counsel for petitioner proffered that significant social science research and analysis of the pattern and practice of the imposition of capital sentences in Georgia had recently become available, and that this work had not been available at the time of petitioner's state habeas hearing in 1977. Petitioner further proffered that these studies showed racial and geographic arbitrariness in the imposition of capital sentences based on the race of defendants and race of the victims. The district court denied an evidentiary hearing and dismissed the claim, determining that the claim was "effectively foreclosed" by the decisions in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), and Smith v. Balkcom, 660 F.2d 573 (5th Cir. Unit B 1981), modified, 671 F.2d 858 (5th Cir. Unit B), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982). Mitchell v. Hopper, 538 F.Supp. at 90-91.

Petitioner subsequently filed a timely Rule 59 motion to alter or amend the judgment, alleging newly discovered evidence. In this motion, petitioner proffered the fact that Professor David C. Baldus had just completed detailed statistical research on Georgia's capital sentencing patterns. According to the proffer, the Baldus study reinforced and expanded upon the evidence

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of racial discrimination identified in earlier studies. The district court denied the motion, concluding that "the gist of petitioner's contention has been determined as a matter of law" by the Eleventh Circuit in Spinkellink and Smith.

On appeal, petitioner requests a remand for an evidentiary hearing in which he would be allowed to introduce the statistical data and reports proffered to the district court. Whether he should be allowed such an evidentiary hearing was the issue on which we granted rehearing en banc.

In his briefs and at oral argument, petitioner placed primary reliance on the Baldus study, which is argued to constitute the most thorough and sophisticated study yet completed on the Georgia capital sentencing system. The evidence proffered by Spencer in this case had already been introduced into the district court record in McCleskey v. Zant, 580 F.Supp. 338 (N.D.Ga.1984), when this case was argued en banc. ² The district court rendered its decision in McCleskey shortly after oral argument in this case, and appeals were taken immediately. Because the evidence on which Spencer's proffer relied would be more fully developed in the record on appeal in McCleskey, we postponed our resolution of this case pending our en banc analysis and resolution of McCleskey.

Spencer's contentions on this point are now directly controlled by our recent decision in McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) (en banc ). In that case this court held that even if the Baldus study proved all the facts it was argued to prove, it would remain legally insufficient to support an eighth or fourteenth amendment challenge to the Georgia capital sentencing system alleging that the system was being arbitrarily and discriminatorily applied. Since what the Baldus study is contended by petitioner to prove is insufficient to support an eighth or fourteenth amendment challenge to the operation of the Georgia system, petitioner is not entitled to an evidentiary hearing for the taking of that evidence. Petitioner did not raise any allegations of intentional or purposeful discrimination against him in his sentencing; we therefore affirm the district court's denial of an evidentiary hearing.

II. Challenge to the Jury Array

Spencer alleges that blacks and women were grossly underrepresented on the Burke County jury array from which his jury was drawn, causing him to be tried by a jury that was unconstitutionally composed. Because the district court found Spencer's constitutional challenge to have been untimely and therefore barred by procedural default, we must decide on this appeal only whether he should be permitted to present his claim to the district court. We hold that he should be allowed to raise this claim on federal habeas, and we therefore remand this case to the district court to permit him to do so.

A. Factual and Procedural Background

On January 6, 1975, the first day of Spencer's trial, 42 prospective jurors had been subpoenaed for service. After a delay during which Spencer's special plea of insanity was considered, the trial resumed on January 7. After counsel had announced their readiness to proceed with voir dire, but before the selection of jurors

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had begun, Spencer presented the trial judge with a pro se petition for removal which he allegedly had filed in federal court, seeking removal on the grounds that blacks were systematically excluded from Burke County jury rolls. The petition did not mention a jury challenge having been made in the trial court, as none had been made. The district attorney took the position that the removal petition had not been filed in federal court, and the trial court ruled that it retained jurisdiction. After this ruling, voir dire began and nineteen jurors tentatively qualified by the end of the day.

The next morning, January 8, before voir dire resumed, Spencer filed a pro se motion challenging the jury array. No evidence was produced to support the motion. The trial judge overruled the motion, finding that it had not been timely filed.

On January 15, 1975, immediately after the qualification of the jury was completed, the trial judge asked the district attorney if he was ready to proceed with the trial. The district attorney responded that the state was ready, but that they would argue the motion challenging the jury array if Spencer's counsel insisted on the motion. Both the...