United States v. Ellingsworth

• Citation: 408 F. Supp. 568
• Decision Date: 02 January 1975
• Docket Number: Civ. A. No. 74-48.
• Parties: UNITED STATES of America ex rel. David PRESTON, Petitioner, v. Hon. John J. ELLINGSWORTH, Warden, Sussex Correctional Institution, Respondent.
• Court: U.S. District Court — District of Delaware

408 F. Supp. 568

UNITED STATES of America ex rel. David PRESTON, Petitioner, v. Hon. John J. ELLINGSWORTH, Warden, Sussex Correctional Institution, Respondent.

Civ. A. No. 74-48.

United States District Court, D. Delaware.

January 2, 1975.

John B. Kennedy, Wilmington, Del., for petitioner.

J. Dallas Winslow, Jr., Deputy Atty. Gen., Wilmington, Del., for respondent.

MEMORANDUM OPINION

STAPLETON, District Judge:

This is a habeas corpus proceeding. Petitioner, a black, was indicted by an all white grand jury for the armed robbery of a liquor store in Kent County, Delaware. Counsel was appointed from the public defender's office. Petitioner was tried and convicted by an all white petit jury.

At trial, after several of the potential jurors had already been seated, petitioner asked his counsel to question the prospective jury members about racial prejudice toward blacks. Petitioner's counsel neither questioned the jurors on this point nor asked the court to do so.¹

After the jury was impaneled, petitioner's counsel made a motion to quash the indictment based on alleged systematic exclusion from the grand jury panel of "members of the negro race and migrant workers."² Petitioner's counsel also moved to dismiss the case on the ground of alleged systematic exclusion of the same minority groups from the petit jury panel.³ Lastly, petitioner's counsel moved for a continuance of one day in order to enable him to confer with two of petitioner's witnesses prior to the commencement of trial. The trial judge denied each of these motions.⁴

Subsequent to his conviction, petitioner appealed to the Delaware Supreme Court, complaining, inter alia, of the trial judge's refusal to grant the continuance, of the alleged exclusion of blacks and migrant workers from the grand and petit jury panels, and of what he maintained to be the incompetence of his trial counsel. On May 9, 1973, the Delaware Supreme Court rendered an opinion which upheld the trial judge's discretionary refusal to grant the continuance, and remanded petitioner to his state post-conviction remedies on the jury panel and incompetence of counsel issues.⁵

Petitioner promptly applied for post-conviction relief in the Superior Court of Delaware⁶ and new counsel was appointed to represent him. A hearing was held on June 14, 1973 at which petitioner, his trial counsel, and the two current jury commissioners from Kent County testified. Thereafter, the Superior Court issued opinions denying relief on both claims.

Following the affirmance of these rulings by the Supreme Court, a petition for a writ of habeas corpus was filed in this Court.

A. PETITIONER'S RIGHT TO AN EVIDENTIARY HEARING.

Petitioner filed his application in this Court pro se. He included a generalized request that the Court hold an evidentiary hearing. This request was subsequently made more specific and pressed by counsel appointed by this Court to represent petitioner. An evidentiary hearing was said to be necessary in connection with petitioner's ineffective assistance of counsel claim.⁷ In a Memorandum Opinion dated October 23, 1974, this Court denied the application for an evidentiary hearing on the ground that a full record had been developed on this matter in the state courts and petitioner had made no showing, under the criteria set forth in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) and enacted into statute in 28 U.S.C. § 2254(d), that another evidentiary hearing was necessary or desirable.

Subsequent to the Court's Memorandum Opinion, petitioner's counsel moved for reargument on the evidentiary hearing question. This motion was heard along with argument on the merits of the petition. The Court pointed out to counsel that the only record support for his motion were generalized statements in his brief that the performance of trial counsel had been defective. The Court, however, provided an additional opportunity to develop the record in support of the motion for an evidentiary hearing and instructed counsel, in petitioner's presence, that if petitioner had knowledge of any evidence not offered at the state hearing which would bear on the competence of trial counsel issue, he should describe that evidence with specificity in an affidavit and indicate why it had not been presented to the state court.

In response to the Court's invitation, an affidavit of petitioner was filed which reads in pertinent part as follows:

I, David Preston, being duly sworn according to law, do hereby depose and say . . .

That prior to and during the course of trial, defense counsel, neglected to interview witnesses, that the defense counsel never made an opening statement to the jury; that counsel never asked any questions of the jury, related to racial prejudice, nor did counsel effectively cross examine the prosecution witness Brian Moreland. That defense counsel never exercised any peremptory challenges. That counsel, nor the trial court, never asked any questions of the jurors, in regards to racial as well as any other biases that the jurors may have harbored at the onset of the trial.

That these and other related matters, were not made a part of record in any prior proceeding.

This affidavit does not move the Court to deviate from its ruling of October 23rd. The trial transcript (which was reviewed by the trial judge in connection with his post-conviction rulings and which has been read by this Court), the transcript of the post-conviction hearing and the trial court's conclusions of fact and law provide a full and complete record for determination of most of the matters referred to in petitioner's affidavit.⁸ The conclusory allegation that "counsel neglected to interview witness," does not indicate what evidence, if any, petitioner has to offer and provides no reason for this Court to duplicate the opportunity heretofore provided by the state court. Townsend v. Sain, supra, 372 U.S. at 317-18, 83 S.Ct. 745; United States ex rel. Cronan v. Mancusi, 444 F.2d 51, 56 (2nd Cir. 1971), cert. denied, 404 U.S. 1003, 92 S.Ct. 572, 30 L.Ed.2d 556 (1971).

B. TRIAL COURT'S FAILURE TO GRANT A CONTINUANCE.

Petitioner was arraigned on July 7, 1972. The trial was originally scheduled to commence on September 12, 1972, but was postponed until September 18, 1972 on application of the state. On the morning of trial, petitioner's counsel announced to the court that two of petitioner's prospective witnesses had "missed their bus for emergency reasons at 11:00 o'clock last night which was the only one that could have gotten them here prior to the time to begin, and a time when they could have conferred with Mr. Preston's counsel so as to be better prepared for trial." T. 6-7. In response to this request for a continuance, the trial judge offered to postpone the start of the trial until that afternoon, it being anticipated that the tardy witnesses would arrive during the lunch-time recess. T. 9-10. Petitioner's counsel declined this offer. T. 10. The trial judge then denied the request for an overnight continuance and ordered the trial to proceed. Id.

Upon direct appeal of petitioner's conviction, the Supreme Court of Delaware rejected petitioner's due process contention on the following ground:

it appears that of the two witnesses referred to . . . one appeared in time to testify on behalf of the defendant but the other witness refused to lose time from work in Baltimore in order to attend. Under the totality of the circumstances, we cannot say that the Trial Judge abused his discretion by ruling as he did upon the request for postponement; nor are we convinced that the defendant was prejudiced thereby. There is nothing before us to show that the absent witness would have attended on another day. . . .⁹

Neither in conjunction with his direct appeal to the Delaware Supreme Court, nor in conjunction with his petition for habeas corpus in this Court, has petitioner made any allegation that the trial judge's ruling prejudiced the defense of his case in any way. Under the circumstances, and particularly in light of the fact that the decision to grant a continuance rests within the discretion of the trial court, Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377 (1940), the ruling of the Delaware Supreme Court would appear to be correct and will be adopted by this Court. Cf. United States v. Hendrickson, 417 F.2d 225 (3rd Cir. 1969), cert. denied, 397 U.S. 1026, 90 S.Ct. 1271, 25 L.Ed.2d 537 (1970) (neither defendant's right to due process nor his right to compulsory process were violated by the trial court's refusal to grant adjournment for purpose of recalling witness where testimony of the recalled witness would have been inadmissible); Brady v. United States, 433 F.2d 924 (10th Cir. 1970) (no error in denial of continuance to procure witness where witness's testimony, though possibly persuasive, would have been cumulative).

C. PETITIONER'S GRAND AND PETIT JURIES.

Petitioner's second argument is that he was denied equal protection of the law because negroes and migrant workers were systematically excluded in the selection of the grand jury which indicted him and the petit jury which convicted him. This argument was not timely raised at the pre-trial stage and when it was raised at the commencement of the trial no evidence was offered in support of it. Nevertheless, the state courts chose to consider the matter on a record developed in a post-conviction proceeding and this Court will do likewise.

During the period here relevant, Delaware had a jury commissioner system for the selection of grand and petit juries. All persons qualified to vote, with certain exceptions not here relevant, were qualified to serve. In December of each year the jury commissioners for the county involved (2 in the case of Kent County) selected from the eligible citizens of the county the names of at least 50 people to serve, if summoned, as grand jurors, and the names of at least 150 people to serve, if...