United States v. Walker, Misc. No. 622.

• Decision Date: 09 July 1963
• Docket Number: Misc. No. 622.
• Citation: 218 F. Supp. 866
• Parties: UNITED STATES of America ex rel. Andrew J. SCOTT v. Victor G. WALKER, Warden of the Louisiana State Penitentiary, Angola, Louisiana.
• Court: U.S. District Court — Eastern District of Louisiana

218 F. Supp. 866

UNITED STATES of America ex rel. Andrew J. SCOTT v. Victor G. WALKER, Warden of the Louisiana State Penitentiary, Angola, Louisiana.

Misc. No. 622.

United States District Court E. D. Louisiana, Baton Rouge Division.

July 9, 1963.

Harris M. English, Baton Rouge, La., for petitioner.

Jack P. F. Gremillion, Atty. Gen., State of Louisiana, Teddy W. Airhart, Jr., Asst. Atty. Gen., Scallan E. Walsh, Asst. Atty. Gen., Thomas W. McFerrin, Sp. Counsel Office of Attorney General, Baton Rouge, La., Duncan Kemp, Dist. Atty. Parish of Livingston, La., William Dawkins, Asst. Dist. Atty. Parish of Livingston, La., for respondent.

WEST, District Judge.

Petitioner applied to this Court for the issuance of a writ of habeas corpus. He is presently incarcerated in Louisiana State Penitentiary, awaiting execution of the death sentence imposed by a state court of competent jurisdiction after having been found guilty by a jury of the crime of aggravated rape. This Court issued an order staying the execution of sentence pending completion of these proceedings. Thereafter, following the filing by respondents of a motion to dismiss, plaintiff was given time to file a memorandum of authorities or brief in opposition to said motion. After receipt of the brief in opposition, an order to show cause why a writ of habeas corpus should not issue as prayed for was issued, and a hearing held thereon. Following the hearing on the show cause order, the Court considered it necessary to grant petitioner an evidentiary hearing, limited to the question of alleged systematic exclusion or systematic inclusion of members of the Negro race from petit juries in the parish where complainant was tried and convicted. Such a hearing was held and some 210 pages of testimony was taken. Following this hearing, counsel for both sides requested time to file briefs in support of their respective positions, which briefs have now been filed and carefully considered. After due consideration, this Court concludes that the application of petitioner, Andrew J. Scott, for the issuance of a writ of habeas corpus, must be denied.

In his application for the issuance of the writ, petitioner sets forth several grounds upon which he contends the writ should issue, including (1) systematic exclusion or systematic token inclusion of Negroes from the petit jury; (2) systematic exclusion or token inclusion of Negroes from the grand jury; (3) improper and erroneous charge given by the trial judge to the jury in connection with responsive verdicts; (4) refusal of the trial court to allow counsel for petitioner, on hearing of a motion for a new trial, to introduce evidence concerning a criminal record of a prosecution witness; and (5) that the indictment was invalid because of an erroneous date shown thereon.

A study of the record in this case reveals beyond any question of doubt that all of the grounds enumerated, with the exception of the first one, are clearly without merit. All of these grounds were thoroughly covered by the Appellate Courts of the State of Louisiana, and this Court is satisfied from its own independent study of the record in this case that no prejudicial errors were committed as claimed in petitioner's alleged grounds. Numbers (2) through (5). Petitioner cannot seriously contend that there was systematic exclusion of Negroes from the grand jury which indicted him because both the prior record in this case and the testimony taken by this Court clearly refutes such a charge. As to the contention that the trial judge improperly charged the jury, we find no merit. That question was thoroughly explored by the Supreme Court for the State of Louisiana and I think properly disposed of. The Court not only found nothing wrong with the charge given, but found no prejudice resulting therefrom in any event. With this conclusion I thoroughly agree. In connection with the third ground of alleged error, petitioner complains that the trial judge did not permit him to introduce evidence, on a hearing for a new trial, assailing the credibility of a state witness, one Joe Sharp. The Supreme Court of Louisiana, as well as the trial judge, concluded that the testimony of Joe Sharp was at best merely corroborative and that testimony impeaching his statements would not have produced a different result even if it had been heard. It is not for this Court to pass upon the guilt or innocence of petitioner, but only to determine whether or not his constitutional rights have been violated. United States ex rel. Fletcher v. Cavell, D.C., 183 F.Supp. 335; United States ex rel. Cobb v. Cavell, D.C., 161 F.Supp. 174, 258 F.2d 946. Clearly there is no merit to this contention of petitioner. As to ground Number (5), that for some technical reason, the indictment was invalid, there is likewise no merit. The State Courts of Louisiana passed upon the validity of the indictment and found it valid. The State Court found that the indictment did properly charge an offense within the jurisdiction of the court, and the person accused was properly within the jurisdiction of the court. The sufficiency of the indictment, therefore, is not open to collateral attack in this Court in habeas corpus proceedings. Blount v. Huff, 79 U.S.App.D.C. 204, 144 F.2d 21; Id., 323 U.S. 787, 65 S.Ct. 276, 89 L.Ed. 628; United States ex rel. Potts v. Rabb, 3 Cir., 141 F.2d 45; Id., 322 U.S. 727, 64 S.Ct. 943, 88 L.Ed. 1563; Goldsmith v. Sanford, 5 Cir., 132 F.2d 126; Id., 318 U.S. 762, 63 S.Ct. 560, 87 L.Ed. 1134; Bigrow v. Hiatt, D.C., 70 F.Supp. 826; Id., 3 Cir., 168 F.2d 992.

The testimony taken by this Court in connection with the petitioner's claim of systematic exclusion or systematic token inclusion of Negroes on the petit jury lists for the Parish of Livingston, State of Louisiana, convinces this Court that no such systematic exclusion or systematic token inclusion was practiced by the officials of that Parish. It is not enough for petitioner to show that in fact no Negroes actually served on the petit juries of that Parish. There is no guaranteed right to have a jury composed of both white and Negro persons. The only constitutional requirement is that, in the selection of jurors, there must be no systematic exclusion of members of a particular race. Virginia v. Rives, 100 U.S. 313, 322, 25 L.Ed. 667. Petitioner in this case has attempted to show that the number of Negroes whose names were included in the general venire list was not proportionate to the number of Negro citizens as compared to the number of white citizens who reside and vote in the Parish of Livingston. In this regard, the voter registration rolls were referred to in the testimony to show the number of registered white voters as compared with the number of registered Negro voters in that Parish. The evidence shows that the names of prospective jurors are taken primarily from the voter registration rolls. However, there is no legal requirement of proportional representation of all racial groups on every jury list. Systematic exclusion of a particular group or a particular class of people only is forbidden. Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 886; Akins v. State of Texas, 325 U.S. 398, 65 S. Ct. 1276, 89 L.Ed. 1692. Discrimination in the selection of juries is not to be presumed, but must be proved by the plaintiff as any other fact. The plaintiff must bear the burden of showing clearly that he has been denied the equal protection of the laws by intentional, arbitrary and systematic exclusion of Negroes from the jury panels from which the petit jury is ultimately chosen. Bailey v. Henslee, 8 Cir., 287 F.2d 936, cert. denied 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed. 2d 78; United States ex rel. Jackson v. Brady, D. C., 47...