Weems v. United States

Decision Date14 May 1973
Docket NumberCiv. A. No. 72-251.
Citation361 F. Supp. 922
PartiesJohn Louis WEEMS, Petitioner, v. UNITED STATES of America, Respondent.
CourtU.S. District Court — District of Maryland

John Louis Weems, pro se.

George Beall, U. S. Atty., for the D. Maryland, and Paul M. Rosenberg, Asst. U. S. Atty., for the D. Maryland, Baltimore, Md., for respondent.

OPINION AND ORDER

WATKINS, Senior District Judge.

On July 13, 1967, John Lewis Louis Weems, petitioner, was convicted in this Court by a jury of kidnapping under 18 U.S.C. § 1201(a). He was subsequently sentenced on October 19, 1967 to life imprisonment. On July 16, 1968, the conviction was affirmed on appeal, United States v. Weems, 398 F.2d 274 (4th Cir. 1968), cert. den., 393 U.S. 1099, 89 S.Ct. 894, 21 L.Ed.2d 790 (1969). Between the date of his sentencing and June 2, 1970, petitioner addressed at least fifteen letters to this Court, one of which was construed as a motion to vacate or reduce sentence and was denied. Thereafter, petitioner filed a petition under 28 U.S.C. § 2255 wherein he contended, in substance, that much of the evidence upon which he was convicted was unconstitutionally obtained in derogation of his right to be free of unreasonable searches and seizures under the Fourth Amendment. This was not one of the issues upon which his appeal in United States v. Weems, supra, was based. This Court dismissed that petition in an unpublished Memorandum Opinion and Order, Civil No. 70-659-W, filed on January 21, 1971; the Court of Appeals affirmed that dismissal in an unpublished memorandum decision, No. 71-1292, filed on December 8, 1971, for the reasons stated by this Court in the dismissal of January 21, 1971.

Petitioner's tendency to be prolific was again manifested in and after the filing of the present petition under 28 U.S.C. § 2255 wherein he relies upon two grounds to support what he styles as a "Motion to Vacate": (Literal transcription, brackets in original).

(1) that "Petitioner was denied due process and the equal protection of the law by the racial exclusion of nerro representatives of the community from service as prospective jurors"; and
(2) that "Petitioner was denied counsel at a `critical stage of this proceedings against him when counsel's presence is constitutionally required.'"

For his first ground, what petitioner complains of in his petition, is that peremptory challenges were used, pursuant to Rule 24(b) of the Federal Rules of Criminal Procedure, to exclude negroes from the petit jury that heard the petitioner's case by, as petitioner asserts, Weem's co-defendant, Washington. However, the record is silent as to which of the defendants struck the negroes, or even whether the Government used any of its challenges to remove blacks from the jury; but the record does reflect that Washington's attorney, in the presence of petitioner's attorney and while at the Bench on other matters, stated that Washington desired an all-white jury:1

MR. BOURNE: I might say this, while we are at the Bench, Your Honor: in discussing with counsel the approach to picking jurors, we discussed whether we should include negroes on the jury panel or strike them off, and I felt that I should ask the Defendant his preference in the matter, and he indicated to me that he did not want any negroes to sit on the jury.
THE COURT: Well now, that is a matter for your determination, and you may have enough strikes, I am sure, between you two, to exclude them.
MR. BOURNE: I did want it on the record that he did respond.2

Assuming without deciding, as petitioner asserts, that Washington's attorney used his challenges to remove blacks from the jury, this Court concludes that this claim, although one of first impression in this district and apparently unresolved by any other federal court, is totally without merit thereby eliminating any need for any evidentiary hearing. Raines v. United States, 423 F.2d 526 (4th Cir. 1970).

At the outset it is noted that the Court fails to perceive a factual dispute with regard to the issue of lack of blacks on the jury. Petitioner has very diligently avoided stating throughout his various petitions that he was unaware that Washington's attorney desired to have an all white jury and that he was unaware of his own attorney's apparent agreement with this decision. Weems merely asserts, in summary, (1) that it does not appear in the record that he agreed to an all white jury, (2) that the record does not show that he knew that blacks were to be excluded, (3) that the record does not show that petitioner was advised that all blacks were to be systematically excluded, (4) that petitioner did not participate in the exclusion of blacks from the jury and (5) that petitioner's attorney did not advise petitioner that Washington desired an all white jury.

Petitioner's failure to state that he did not know, but only that the record does not show, that the attorneys were going to exclude all blacks from the jury is certainly not by inadvertence. The Government made the same claim in its "Answer and Memorandum in Opposition to Motion to Vacate" and the petitioner in several responses to the Government's motion continuously failed to assert that he did not have knowledge of the planned tactics and that if he did have knowledge that he did not agree to the plan. With the case in this posture, what petitioner asks this Court to do is to rule upon an abstraction rather than a concrete legal issue presented in an actual case. Without this required controversy, this Court simply lacks jurisdiction to render a decision on this issue. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).

Furthermore, even assuming that there was jurisdiction and taking petitioner's allegations as true, this claim must fail inasmuch as the petition lacks a showing of prejudice constituting a denial of due process. Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971); Smith v. United States, 449 F. 2d 176 (5th Cir. 1971). The failure of the record to reflect that which petitioner desires it to reflect, i.e., Nos. 1, 2 and 3 above, certainly is not an issue, without more, cognizable in a federal habeas corpus proceeding. It is true that the record is used to record that which transpires at a trial. But it is equally true that this recordation of events is merely one instrument used to preserve for reproduction incidences which might be needed to be ascertained at some later date; and, absent indications on the record sufficient to determine what occurred where a factual issue is raised, testimony may be utilized in order to fill any void in the record. However, petitioner's very carefully phrased responses wherein he adroitly failed to state his acquiescence, or the lack of it, in the plan to exclude blacks from the jury, negates any need to resurrect the events surrounding the exclusion of blacks during the jury selection process. Accordingly, no prejudice can flow from the record's silence on this issue. Smith v. United States, 449 F.2d 176 (5th Cir. 1971). Additionally, No. 4 above, that petitioner did not "participate" in the exclusion, and No. 5 above, that his attorney did not "advise" petitioner concerning Washington's desire for an all white jury, do not rise to constitutional dimensions where, as before, petitioner fails to state, after given several opportunities to do so, his lack of knowledge or acceptance of the plan. Again, there can be no prejudice in these claims as framed by Weems because they raise questions the answers to which are consistent with his failure to state his awareness and involvement in the plan. As to the latter, it is clear that Weems need not himself participate in the execution of the plan in order to be held to agree to it, and Weems' attorney need not inform him of the plan when he already knows.

Granting that petitioner has in some way alleged a lack of knowledge in his petition, this Court would believe that to be an untenable position since Washington, his attorney and petitioner's attorney all had knowledge of the plan3 to exclude blacks and visibly had to select whites over blacks during the course of the selection process, and since petitioner observed not only these acts but he also observed that a white jury was ultimately selected from a racially mixed panel. Although this form of petitioner's participation demonstrates an understanding and knowing course of action amounting to a waiver of his right to object, Fay v. Noia, 372 U.S. 391, 93 S.Ct. 822, 9 L.Ed.2d 837 (1963); Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Kaufman v. United States, 394 U.S. 217, 89 S. Ct. 1068, 22 L.Ed.2d 227 (1969); United States v. Gomez, 457 F.2d 593 (4th Cir. 1972); Parker v. United States, 184 F. 2d 488 (4th Cir. 1950), this Court need not entirely rely upon waiver by petitioner himself as a basis for dismissal of this issue. It is quite clear that Weems' trial counsel's compliance with Washington's plan precludes Weems from a decision on the merits of his federal claim since this choice of strategy amounts to a waiver by the attorney binding on petitioner.4 Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943); Williams v. United States, 463 F.2d 1183 (2nd Cir. 1972); Terry v. Peyton, 433 F.2d 1016 (4th Cir. 1970); United States v. Williams, 421 F.2d 529 (8th Cir. 1970); Jones v. Director, Patuxent Institution, 351 F.Supp. 913 (D. Md.1972). See also United States v. Gomez, 457 F.2d 593 (4th Cir. 1972); Comment, Developments In The Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1109 (1970).

Waiver takes many forms. Aside from that attributed directly to knowledge on the part of either the petitioner or his attorney or both, as set out above, waiver...

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  • Wilcox v. United States, N-75-112
    • United States
    • U.S. District Court — District of Connecticut
    • August 5, 1975
    ...the right to grand and petit juries selected without regard to race, Aaron v. Capps, 507 F.2d 685 (5th Cir. 1975); Weems v. United States, 361 F.Supp. 922 (D.Md.1973). See also, Vessels v. Estelle, 376 F.Supp. 1303, 1308 (S.D.Tex.1973), aff'd, 494 F.2d 1295 (5th Cir. 1974) (waiver of insani......

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