United States v. Harpole, 17300.

• Citation: 263 F.2d 71
• Decision Date: 17 March 1959
• Docket Number: No. 17300.,17300.
• Parties: UNITED STATES of America ex rel. Robert Lee GOLDSBY, Appellant, v. William HARPOLE, Superintendent of the Mississippi State Penitentiary, Parchman, Mississippi, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

263 F.2d 71 (1959)

UNITED STATES of America ex rel. Robert Lee GOLDSBY, Appellant, v. William HARPOLE, Superintendent of the Mississippi State Penitentiary, Parchman, Mississippi, Appellee.

No. 17300.

United States Court of Appeals Fifth Circuit.

January 16, 1959.

Rehearing Denied March 17, 1959.

COPYRIGHT MATERIAL OMITTED

George N. Leighton, Chicago, Ill., for appellant.

Joe T. Patterson, Atty. Gen., J. R. Griffin, Asst. Atty. Gen., Ross R. Barnett, Jackson, Miss., for appellee.

Before RIVES, BROWN, and WISDOM, Circuit Judges.

RIVES, Circuit Judge.

On September 4, 1954, Bryant Nelms, a white man, and Mrs. Moselle McCorkle Nelms, his wife, were shot by one or more Negroes firing from an automobile after Nelms had ordered the Negroes to leave his gasoline filling station and dairy bar near Vaiden, Mississippi. Mrs. Nelms was killed. Later that same day, Robert Lee Goldsby and several other Negroes in an automobile with him were apprehended and lodged in jail. There was evidence to the effect that a .32 caliber bullet was removed from the body of Mrs. Nelms; that a pistol was obtained by the sheriff from appellant's possession when he was arrested; that the two were sent to the F.B.I. Laboratory in Washington, D. C.; and that there a ballistics examination identified the bullet as having been fired from appellant's pistol.

On his preliminary trial, the appellant was represented by Messrs. Tighe and Tighe, a law firm of Jackson, Mississippi. On November 8, 1954, a Grand Jury of the Second Judicial Circuit of Carroll County, Mississippi, indicted the appellant for the murder of Mrs. Nelms. By that time, an aunt who lived in Gary, Indiana, had employed George N. Leighton, Esquire, a Negro attorney of Chicago, Illinois, to defend the appellant. Mr. Leighton appeared with him on his arraignment, the same day that the indictment was returned. A plea of not guilty was entered. The attorney requested and the court granted time for the preparation of motions necessary to raise certain constitutional questions.

November 10th, allowing a lapse of two days, was set as the date of trial. Before that time the attorney had ready for filing a motion to quash the indictment on the ground that Negroes had been systematically excluded from the grand jury, a motion for change of venue, and a petition for removal of the case to the federal court.¹ Before they could be filed, however, appellant's brother and a different aunt had employed John W. Prewitt, Esquire, a white attorney of Vicksburg, Mississippi. Mr. Prewitt told these relatives of appellant that he could not work with the Negro attorney, Mr. Leighton. They informed Leighton of their employment of Prewitt and requested Leighton's withdrawal. Leighton promptly advised the District Attorney and thereafter the court that he was withdrawing from the case. The motions which he had prepared were never filed.

The court then appointed Luther Ringgold, Esquire, a white attorney of Winona, Mississippi, to defend the appellant. Mr. Ringgold informed the court that relatives had employed Mr. Prewitt, and both Ringgold and Prewitt defended the appellant skillfully and ably, with the possible exception that they failed to raise the points that Negroes were systematically excluded from the grand jury and from the petit jury. The appellant was convicted and sentenced to death. On appeal to the Supreme Court of Mississippi, his conviction was affirmed.²

Attorneys Ringgold and Prewitt took no further action and have not since appeared in the case. Attorney Leighton re-entered the case and applied for a writ of certiorari to the Supreme Court of the United States, actually urging for the first time the systematic exclusion of Negroes from the grand jury and from the petit jury. Certiorari was denied by the Supreme Court of the United States.³ The Supreme Court of Mississippi then fixed the date of appellant's execution for February 24, 1956.⁴

Three days theretofore, on February 21, 1956, Mr. Leighton filed for the appellant in the Supreme Court of Mississippi⁵ a petition for writ of error coram nobis, or, in the alternative, habeas corpus, asserting for the first time in the State courts the systematic exclusion of Negroes from the jury lists. The Supreme Court of Mississippi held that the denial of certiorari by the United States Supreme Court was res judicata of the question,⁶ and that the application came too late since no objection to the validity of the juries had been made at the time of trial.⁷

Attorney Leighton again petitioned for certiorari to the Supreme Court of the United States. The Clerk of the Supreme Court requested the Attorney General of Mississippi to file a response, stating, "The response should discuss particularly the issues of systematic exclusion of negroes from the grand and petit jury panel and the state procedure for raising this question in a post conviction proceeding." Such a response was of course filed. The Supreme Court denied certiorari.⁸ The Supreme Court of Mississippi again set a date for execution, this time for February 12, 1957.⁹

On January 29, 1957, Attorney Leighton filed for the appellant a petition for writ of habeas corpus in the United States District Court for the Northern District of Mississippi, Greenville Division. Honorable Allen Cox, United States District Judge, after hearing argument but without waiting for an answer, denied the petition on the same day that it was filed and also denied a certificate of probable cause.

On February 8, 1957, a motion for stay of execution was denied by Honorable Wayne G. Borah, a Judge of this Court. On February 11, 1957, the Honorable Earl Warren, Chief Justice of the United States, granted a stay of execution "until petitioner has had an opportunity to exhaust his federal rights in this proceeding." This Court thereafter heard the appeal from the decision of Judge Cox and reversed and remanded the cause for a hearing of the evidence.¹⁰

Upon remand the case was heard at a special session of the court before Honorable Claude F. Clayton, United States District Judge. At the conclusion of the evidence and after hearing argument, Judge Clayton denied the petition, expressing his views in an oral opinion as follows:

"Mr. Court Reporter, take this:

"The issues of fact, as I understand them in this proceeding, are very much as I stated at the beginning of this hearing. For the benefit of counsel in any further proceeding that may arise, I will state my findings of fact and conclusions of law separately.

"First: The proof shows, as I indicated to counsel for petitioner before he made his argument, that the grand jury which returned the indictment against this petitioner had no Negroes on it.

"Second: The proof shows that the petit jury which tried the petitioner had no Negroes on it.

"Third: The proof fails to meet the burden, as I understand it, of showing a `systematic and willful\' exclusion of any member of the Negro race from jury service in that county.

"Fourth: As a matter of fact, it is rather difficult for the Court to distinguish between fact and law in the twilight zone that arises between the two, but as a matter of fact the Court finds that the petitioner has, and had, at the time of his indictment and trial a high school education, and finds as a fact that he was twenty-eight years old at the time; and finds as a fact that he was represented at the preliminary aspect of the matter by counsel, who were chosen for him by some means not shown by testimony in this record — they being the firm of Tighe & Tighe of Jackson, Mississippi; next, that he was represented by counsel, as the record shows, of his family\'s selection, Mr. Leighton, at his arraignment; that he was represented by able and competent counsel of his family\'s selection and employment throughout the trial and in the Supreme Court of Mississippi on appeal, and that in addition he was represented by able counsel appointed by the Circuit Court of Carroll County.

"With these factual findings, the Court could not do otherwise than conclude, as a matter of law, that ample opportunity was afforded this petition to raise in the courts of the State of Mississippi, the constitutional question involved in this hearing, and undoubtedly if the question of the absence of Negroes from the grand jury and the absence of Negroes from the petit jury had been presented in the Circuit Court of Carroll County by a proper motion to quash, such a motion would have been sustained. That is borne out by the case I cited to counsel, Farrow v. State, 91 Mississippi 509, 45 Southern 619, decided in 1908.

"The opportunity was there, the decision was made by competent counsel of the family\'s employment and of the Court\'s appointment not to raise that question and not to invoke that issue in the lawsuit.

"Under these circumstances, the Court is of the opinion that the petitioner understandingly, in connection with his counsel, waived whatever right he may have had to present any question with respect to the composition of the jury, and that he, therefore, is barred from raising the question here or prevailing on that question being raised in this Court.

"The Court is further of the opinion that the motion for taking of depositions in Chicago is not only untimely, having been filed too late, but from statement of counsel as to the purpose of taking the testimony of those witnesses, in the light of the Court\'s findings that I have given you, the testimony would not be of any help here."

Judge Clayton refused to issue a certificate of probable cause, and the Supreme Court of Mississippi again set a date for execution, this time for May 29, 1958.¹¹ On May 27, 1958, the Chief Justice of the United States again granted a stay of execution "until the petitioner has had an opportunity to exhaust his federal rights in this habeas corpus proceeding." Upon consideration, we now grant a certificate of probable cause.¹²

The present appeal is from Judge...