Stewart v. Ricketts

Decision Date08 June 1978
Docket NumberCiv. A. No. 76-14-ALB.
Citation451 F. Supp. 911
PartiesDonald Ray STEWART, Petitioner, v. James G. RICKETTS, Superintendent, Georgia Diagnostic & Classification Center, Respondent.
CourtU.S. District Court — Middle District of Georgia


Donald Ray Stewart, pro se.

Arthur K. Bolton, Atty. Gen., State of Georgia, B. Dean Grindle, Asst. Atty. Gen., Atlanta, Ga., for respondent.


OWENS, District Judge.

The petitioner, Donald Ray Stewart, seeks habeas corpus relief on the grounds that the grand jury which indicted him and the petit jury which convicted him were discriminatorily composed. Stewart, a black man, was convicted in 1971 of raping a white woman and was sentenced by the Dougherty County Superior Court to ten years imprisonment. During his trial he did not object to the composition of either the grand or petit juries and he did not directly appeal from that conviction as he had a right to do.

He first challenged his conviction that same year by way of a habeas corpus petition in the Tattnall County Superior Court. Among the grounds raised in that state habeas petition was the assertion that his grand and petit juries were unconstitutionally composed. The state habeas court failed, however, to rule on this question. After exhausting his state remedies in 1973, Stewart turned to this court seeking federal habeas relief pursuant to 28 U.S.C.A. § 2254. He did not raise the jury issue in his first federal petition and relief was denied on August 28, 1973. Stewart v. Caldwell, Civ.No. 1261 (Albany Division); leave to appeal in forma pauperis denied, United States Court of Appeals for the Fifth Circuit (No. 73-8342, November 21, 1973).

In 1973 in an unrelated civil proceeding this court declared the grand and petit jury lists in Dougherty County Superior Court to be unconstitutionally composed. Thompson v. Sheppard, 490 F.2d 830 (5th Cir. 1974). Stewart then brought this successive federal petition and raised the jury claim. This court ordered that he be allowed to proceed in forma pauperis only with respect to this new claim that his grand and petit juries were unconstitutionally composed.


In Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) the Supreme Court ruled that a state prisoner who fails to make a timely challenge to the composition of the grand jury that indicts him cannot challenge the composition in a subsequent federal habeas corpus attack of his state conviction. If the state has a valid rule of criminal procedure which requires the defendant to object to a grand or petit jury during trial, failing which the objection is waived, then the federal court can honor that procedural rule by not allowing the convicted defendant to raise the jury claim in a federal habeas corpus proceeding. In essence the federal court imposes the waiver upon the defendant even though he may have had at the time of his trial a completely meritorious grand or petit jury claim.

In this case the question is whether the petitioner by failing to object at his trial to a grand and petit jury which this court subsequently adjudicated unconstitutional has thereby waived the objection as a basis for habeas relief. A part of this question is whether Georgia had a valid criminal procedure rule which required timely objection to the jury and whether that rule has been actually enforced against Stewart. If the petitioner did not waive his objection because Georgia did not require timely objection, then he is automatically entitled to have his conviction set aside, assuming that in 1971 the petit and grand jury list in Dougherty County were as unconstitutional as this court subsequently found them to be in 1973.

This court concludes that Georgia did have a valid procedural rule requiring timely objection which if not made resulted in waiver of the jury claim and also concludes that at no time has the state relieved Stewart of his failure to object. Furthermore, even though the petitioner may have been entitled to relief in the state habeas court, that court of its own choosing did not grant relief and it is not for this court to correct errors of the state habeas court.

A. Georgia's Objection Requirement

It is undisputed that Georgia has two trial rules, one statutory and one of case law, which require a defendant to object to the petit and grand jury at or before trial in order to preserve the question for direct appeal. Under Ga.Code Ann. § 59-803 the accused is required to challenge the array (the petit jury) when it is put upon him, and the failure to object at that time precludes raising it on direct appeal. Williams v. State, 232 Ga. 203, 206 S.E.2d 37 (1974). It has also long been a matter of decisional law that an accused must object to the composition or impaneling of the grand jury even before he is indicted. Blevins v. State, 220 Ga. 270, 141 S.E.2d 426 (1965); Williams v. State, supra. The time limitation for objection must be applied in a reasonable fashion, Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1954); Tennon v. Ricketts, Civ.No. 76-27-Amer. (June 2, 1977), but if a criminal defendant completely fails to object then the waiver is validly imposed. See Dennis v. Hopper, 548 F.2d 589 (5th Cir. 1977). It is therefore obvious that if Stewart had appealed his case and raised the unconstitutional jury claim he would have been precluded from challenging either the grand or petit jury because he failed to object at trial as required by long standing Georgia criminal procedure rules which were in effect at the time of his trial and remain in effect today.

B. Georgia's Habeas Statute

A serious complication arises, however, with respect to the "failure to object-waiver" principle of Francis because in 1967 Georgia enacted a new habeas corpus statute which appeared to create a new standard for waiver in Georgia:

(1) Grounds for writ.—
* * * * * *
Rights conferred or secured by the Constitution of the United States shall not be deemed to have been waived unless it is shown that there was an intentional relinquishment or abandonment of a known right or privilege which relinquishment or abandonment was participated in by the party and was done voluntarily, knowingly and intelligently.
Ga.Code Ann. § 50-127(1).

Arguably this statute would allow a habeas petitioner to raise by way of habeas corpus constitutional claims which were not considered on the direct appeal of his case simply because he unknowingly failed to raise them in the original trial of his case. More specifically, an accused who failed to object to the composition of his grand or petit jury would have waived the matter on direct appeal and yet be able to raise it for the first time in a habeas suit, claiming that although he did not object, it was not "an intentional relinquishment or abandonment of a known right." Ga.Code Ann. § 50-127(1). The legislature of Georgia ended all confusion on this point in 1975 by specifically excepting from this habeas waiver standard all failures to object to grand juries. 1975 Ga.Laws 1143. But during the period from 1967, the original enactment date of § 50-127(1), and 1975, the date of the clarifying amendment, Georgia law with respect to waiver of a grand jury claim was unclear. The Georgia Supreme Court issued conflicting pronouncements on the question and never appeared to resolve definitively whether a waiver for failure to object would indeed be imposed on Georgia habeas petitioners who challenged their original petit and grand jury. Compare Mitchell v. State, 229 Ga. 781, 194 S.E.2d 414 (1972) with Ferguson v. Caldwell, 233 Ga. 887, 213 S.E.2d 855 (1973). Atkins v. Martin, 229 Ga. 815, 194 S.E.2d 463 (1972).1 Because Stewart's 1971 conviction falls into this time span when the law was confused and because he did not object at trial, this case must resolve whether he should be relieved of his failure to object by virtue of the waiver standard in Ga.Code Ann. § 50-127(1) (1967).

This court concludes that the petitioner cannot be permitted to raise his jury claim in federal court despite § 50-127(1) (1967) for three reasons. First, it appears that Georgia never changed its law imposing a waiver even though § 50-127(1) was enacted. Second, assuming § 50-127(1) did change the Georgia rule with respect to waiver of grand and petit jury claims, nonetheless the state habeas court did not relieve Stewart of his failure to object.2 Finally, Francis v. Henderson allows a federal court to impose the same waiver which a state appellate court would impose on the direct appeal of the case without regard to what a state habeas court could do with the jury claim in collateral proceedings.

Beginning with the first reason, although during the time of Stewart's conviction Georgia law was confused on the point, the state maintained its "waiver for failure to object" rule despite the language of Ga. Code Ann. § 50-127(1) (1967). The Georgia Habeas Corpus Act of 1967, Ga.Code Ann. § 50-101 et seq. was not designed to alter Georgia's long standing criminal trial procedure rules with respect to waiver. Rather, the statute was created, as its preamble clearly illustrates, to allow Georgia courts to hear and adjudicate collateral attacks of criminal convictions in as broad a fashion as the federal courts. It was an effort to keep Georgia criminal justice largely in the courts of Georgia and to that end, the narrowness of Georgia's old habeas remedy was repealed to make the Georgia remedy coextensive with the federal remedy. It is clear from the language of Ga.Code Ann. § 50-127(1) (1967), which comes directly from the federal case of Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837, 869 (1963) that the legislature intended to enable state habeas corpus courts to hear all claims which a federal court would hear. To accomplish this purpose, the legislature attempted to enact the federal law of waiver so that a state...

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11 cases
  • Spencer v. Kemp
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • January 23, 1986
    ...will not be applied retroactively to bar challenge to jury selection procedures not made before or during trial); Stewart v. Ricketts, 451 F.Supp. 911 (M.D.Ga.1978) (petitioner convicted in 1971; law in effect at time of trial applied, but claims held barred due to procedural default despit......
  • Goodwin v. Balkcom
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • September 3, 1982
    ...jury composition in a collateral proceeding was available, given the petitioner's failure to do so before trial. See Stewart v. Ricketts, 451 F.Supp. 911 (M.D.Ga.1978). 17 Because of this position, Goodwin has made no effort to demonstrate cause and prejudice as mandated by Francis v. Hende......
  • Mitchell v. Hopper
    • United States
    • U.S. District Court — Southern District of Georgia
    • April 1, 1982 a grand jury must be made even before indictment. Durham v. State, 239 Ga. 697, 238 S.E.2d 334, 338 (1977). See Stewart v. Richetts, 451 F.Supp. 911, 914 (M.D.Ga. 1978). If the state has a valid rule of criminal procedure which requires the defendant to object to a grand or petit jury at......
  • Birt v. Montgomery
    • United States
    • U.S. District Court — Southern District of Georgia
    • February 16, 1982
    ...fundamental rights under Georgia law. See Ga.Code Ann. § 50-127(1); Young v. Zant, 506 F.Supp. 274 (M.D.Ga.1980); Stewart v. Ricketts, 451 F.Supp. 911 (M.D.Ga. 1978). Any confusion was ended, at least for the purposes of this case, by an amendment to the habeas corpus statute which was appr......
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