United States ex rel. Abubake v. Redman, Civ. A. No. 80-294

• Citation: 521 F. Supp. 963
• Decision Date: 09 September 1981
• Docket Number: Civ. A. No. 80-294,80-351 and 80-440.
• Parties: UNITED STATES of America ex rel. Seifullah ABUBAKE, et al., Petitioners, v. Supt. Walter REDMAN, et al., Respondents.
• Court: U.S. District Court — District of Delaware

521 F. Supp. 963

UNITED STATES of America ex rel. Seifullah ABUBAKE, et al., Petitioners, v. Supt. Walter REDMAN, et al., Respondents.

Civ. A. Nos. 80-294, 80-351 and 80-440.

United States District Court, D. Delaware.

September 9, 1981.

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Melvyn I. Monzack, Walsh, Monzack & Owens, P.A., Wilmington, Del., for petitioners Seifullah Abubake and Sheikl Abdel Rahim Ahmad.

Peter J. Shanley, Murdoch & Walsh, P.A., Wilmington, Del., for petitioner Sterling Hobbs.

Kathleen Molyneux, Deputy Atty. Gen., Dept. of Justice, Wilmington, Del., for respondents.

OPINION

MURRAY M. SCHWARTZ, District Judge.

In this consolidated action, three prisoners of the State of Delaware have filed petitions for writs of habeas corpus. Sheikl Abdel Rahim Ahmad (formerly known as Clarence Hooks), Seifullah Abubake (formerly known as Robert Golson), Sterling Hobbs, and a fourth defendant not before this Court, were convicted in 1976 in the Superior Court of the State of Delaware of first degree murder (felony murder), first degree robbery, and conspiracy in the second degree.¹ Petitioners' convictions arose out of their alleged participation in the robbery of a Claymont, Delaware, liquor store on May 5, 1975, during which a store clerk was shot and killed. All four defendants were originally sentenced to death on the felony murder charges, but their sentences were reduced to life imprisonment without benefit of parole after the Delaware Supreme Court ruled unconstitutional the then applicable Delaware death penalty statute. See State v. Spence, 367 A.2d 983 (Del.1976). The Delaware Supreme Court wrote a lengthy opinion affirming petitioners' convictions. Hooks v. State, 416 A.2d 189 (Del.1980). Petitioners now renew many of those same claims here. To avoid confusion when referring to the state court record and trial transcript, this Opinion will refer to Ahmad as Clarence Hooks and to Abubake as Robert Golson.

I.

An examination of the state court record reveals that the following claims are not cognizable in a federal habeas corpus proceeding and therefore may be summarily dismissed: (1) An accomplice cannot be found guilty of first degree murder under the Delaware felony murder statute for an act committed by another person (raised by Hooks and Golson); (2) the trial court erred in refusing to compel the prosecution to produce prior statements of one of the state's witnesses in its possession (Hooks and Golson); (3) the trial court erred in permitting introduction of evidence of certain prior bad acts of the defendants (Golson, Hooks and Hobbs); and, (4) the trial court erred in denying the severance motions of Hooks and Hobbs. These claims must be dismissed for two reasons: First, petitioners never urged in the state courts that these alleged trial errors rose to a violation of any federal constitutional or statutory rights, and they have therefore failed to satisfy the exhaustion requirement. See Paullet v. Howard, 634 F.2d 117, 119-20 (3d Cir. 1980). Second, petitioners in any event have failed in these proceedings to identify any particular federal rights abridged by these alleged trial errors, and have therefore failed to state a claim upon which relief may be granted.

II.

Petitioners raise several claims attacking the jury selection process. First, they argue that they were denied their sixth amendment right to a jury drawn impartially from a cross-section of the community when the trial court granted the prosecution's challenges for cause to prospective jurors who stated that their conscientious scruples against capital punishment would prevent them from returning a guilty verdict even if they were satisfied by the evidence that a defendant was guilty. In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the Supreme Court held that it violates a defendant's sixth and fourteenth amendment right to an impartial jury to execute a death sentence imposed or recommended by a jury from which prospective jurors were excluded for cause "simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U.S. at 522, 88 S.Ct. at 1777 (footnote omitted). The Court, however, held invalid only Witherspoon's sentence of death — not his conviction — and expressly declined to conclude either on the evidence in the record or as a matter of judicial notice "that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." Id. at 518, 88 S.Ct. at 1775. The Court emphasized that its decision would not render invalid the conviction or death sentence in any case in which veniremen were excluded for cause from the jury because their attitude toward capital punishment would prevent them from making an impartial determination of the defendant's guilt. Id. at 522-23 n.21, 88 S.Ct. at 1777 n.21.

Petitioners would now have this Court go beyond Witherspoon and hold that a "death qualified" jury is necessarily biased with respect to a defendant's guilt and therefore is not an impartial jury as required by the sixth and fourteenth amendments. Finding no legal authority or factual support in the record for such a ruling, I reject petitioners' claim. The Delaware trial court dismissed for cause only those jurors who stated that their opposition to the death penalty would prevent them from entering a guilty verdict even if convinced by the evidence and the law that a defendant had been proven guilty beyond a reasonable doubt. In Witherspoon, on the other hand, jurors with any conscientious scruples against the death penalty were dismissed for cause, without regard to their ability to decide the case solely on the evidence and the law. Thus, even though a narrower group of jurors was excluded in this case than in Witherspoon, petitioners would have this Court find their convictions invalid when the Court in Witherspoon would not. Such a claim is untenable. First, the Supreme Court recently declined to extend Witherspoon and indicated that the right to a jury selected from a cross-section of the community does not include "the right to be tried by jurors who have explicitly indicated an inability to follow the law and instructions of the trial judge." Lockett v. Ohio, 438 U.S. 586, 596-97, 98 S.Ct. 2954, 2960-61, 57 L.Ed.2d 973 (1978). And, more recently, the Supreme Court has stated that the prosecution in a capital case may insist "that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court." Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980). In this case the trial court, consistent with Witherspoon, Lockett, and Adams, excluded only these jurors who expressly stated that they would not return a guilty verdict that was warranted by the evidence and the law. Second, at no stage in the state or federal proceedings did petitioners seek to present evidence in support of the claim that a "death qualified" jury is not impartial on the question of guilt. Instead, they point to results of scientific studies conducted since the Witherspoon decision. This Court, however, is confident that it is inappropriate to determine such a complex factual question as a matter of judicial notice.² To pursue their claim, the proper course for petitioners to have followed would have been to present evidence in support of their claim to the Delaware courts.

Petitioners also make a novel challenge to the jury selection process based upon the Delaware Supreme Court's subsequent declaration that the death penalty was unconstitutional. They point out that jurors with unwavering conscientious scruples against the death penalty were excused for cause only because the then required penalty for first degree murder was death. The death penalty statute was thereafter declared unconstitutional. Thus, by operation of an unconstitutional statute, certain jurors were excused for cause who could not otherwise have been successfully challenged. Petitioners argue that this exclusion of jurors violated their right to trial by an impartial jury. It is conceded, however, that this particular argument was never made to the Delaware courts. Consideration of this claim is therefore precluded by 28 U.S.C. § 2254(b) which provides that a writ of habeas corpus "shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State...." See Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Moreover, petitioners' argument that the Court nonetheless reach the merits of the claim must be rejected in view of the strict adherence to the exhaustion requirement mandated in this circuit. See United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 95-98 (1977); Zicarelli v. Gray, 543 F.2d 466, 470-75 (3d Cir. 1976) (en banc).

III.

Petitioners next argue that the trial court, in conducting voir dire, showed insufficient concern for possible racial and religious prejudices among prospective jurors. In order to ensure that a defendant is tried before an impartial jury, the sixth and fourteenth amendments require that the court inquire into possible prejudices when there are substantial indications that racial or ethnic prejudices might affect the jurors in a particular case. See Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). In this case each of the jurors was asked if he or she had any bias or prejudice against Blacks or against Black Muslims. Assuming that this was a case where special circumstances required voir dire examination regarding racial or religious prejudices, the questions posed satisfied the minimum constitutional requirements. As the Court noted in Ham v. South Carolina, supra, the constitution...