Whitus v. Balkcom, 20797.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtCARSWELL, (concurring specially
Citation333 F.2d 496
PartiesPhil WHITUS and Leon Davis, Appellants, v. R. P. BALKCOM, Jr., Warden, State Penitentiary, Reidsville, Georgia, Appellee.
Docket NumberNo. 20797.,20797.
Decision Date18 June 1964

333 F.2d 496 (1964)

Phil WHITUS and Leon Davis, Appellants,
R. P. BALKCOM, Jr., Warden, State Penitentiary, Reidsville, Georgia, Appellee.

No. 20797.

United States Court of Appeals Fifth Circuit.

June 18, 1964.

333 F.2d 497

B. Clarence Mayfield, Savannah, Ga., P. Walter Jones, Albany, Ga., for appellant.

Albert Sidney Johnson, Asst. Atty. Gen., of Georgia, Eugene Cook, Atty. Gen., William L. Grayson, Asst. Atty. Gen., Atlanta, Ga., for appellee.

333 F.2d 498

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and CARSWELL, District Judge.

WISDOM, Circuit Judge.

The difficulties this post-conviction habeas corpus problem presents inhere in the dilemma in which a Negro defendant is placed when he is brought to trial in a state court in a county where Negroes are systematically excluded from juries.1 The matrix within which this problem developed is the social structure of the deep South.

The two Negro petitioners were tried in the Superior Court of Mitchell County, Georgia, for the murder of a white farmer. They were convicted and sentenced to die. Mitchell County is a small county in rural Georgia.2 No Negro has ever served on a grand jury or on a petit jury in Mitchell County. The attorneys for the petitioners were fully aware of this fact. They were also fully aware of the hostility that an attack on the all-white jury system would generate in a community already stirred up over the killing. Without consulting the defendants, the attorneys decided not to object, in the trial or on appeal, to the systematic exclusion of Negroes from either jury. Later, in this habeas corpus proceeding, the federal district court held that the attorneys' non-assertion in the state court of a timely objection to the composition of the juries was an effectual waiver of that objection.

Many constitutional rights may be waived. And, in the interests of legal economy and the integrity of orderly procedure in state courts, a defendant's non-assertion of certain constitutional rights before a trial or in the early stages of a trial has been treated as a "waiver" of those rights. This handy rule applies, for example, to the right to be tried by a jury or the right to counsel. It does not fit this case.3

The core of this case is the lack of remedy in the state courts. The petitioners and their attorneys had no desire to give up their right to be tried by a

333 F.2d 499
jury chosen without regard to the race of the jurors. It was not to their interest to do so — except as a choice of evils. A choice of evils was indeed the only state remedy open to them. The petitioners could choose to be prejudiced by the hostility an attack on the all-white jury system would stir up. Or they could choose to be prejudiced by being deprived of a trial by a jury of their peers selected impartially from a cross-section of the community. This is the "grisly",4 hard, Hobson's choice the State puts to Negro defendants when it systematically excludes Negroes from juries; white defendants are not subjected to this burden

The constitutional vice is not just the exclusion of Negroes from juries.5 It is also the State's requiring Negro defendants to choose between an unfairly constituted jury and a prejudiced jury. We hold that this discrimination violates both the equal protection and the due process clauses of the Fourteenth Amendment.6


Simplifying the facts, the homicide occurred November 15, 1959, when Leon Davis, one of the petitioners, killed a respected white farmer after an altercation between the two precipitated by each causing his automobile to bump into the other's automobile. Phil Whitus and two other Negroes were in Davis's automobile and were at the scene of the killing. All four were indicted for murder. The attorneys for the defendants decided against requesting a change of venue.7 January 13, 1960, the jury found Davis and Whitus guilty as charged.8 Under Georgia law, since the jury withheld a recommendation of mercy, the verdict carried the sentence of death by electrocution.

The petitioners filed unsuccessful motions for new trials, appeals to the Supreme Court of Georgia, and petitions for certiorari to the United States Supreme Court.9 Davis contended that the trial court erred in admitting in evidence an allegedly coerced confession and in making an erroneous charge to the jury on insanity. Whitus contended that he did not participate in the killing in any way; that there was no conspiracy to commit any crime; and that whatever assistance he gave to Davis he gave unwillingly at the point of Davis's gun. In the state court proceedings petitioners did not refer to the composition of the juries, except for a vague allusion in the petition for certiorari to the United States Supreme Court.

333 F.2d 500

The attorneys first presented the issue now before this Court in a petition for habeas corpus in the United States District Court. That court denied the petition on the ground, among others, that a state remedy through habeas corpus was still available. We affirmed. Whitus v. Balkcom, 5 Cir. 1962, 299 F.2d 844. The Supreme Court, per curiam, vacated the judgment and remanded the case. Whitus v. Balkcom, 1962, 370 U.S. 728, 82 S.Ct. 1575, 8 L.Ed.2d 803. Again the district court dismissed the petition.10 The petitioners are before us on their appeal from that order of dismissal.

The factual question of the existence of the custom of systematic exclusion of Negroes from the Mitchell County juries is not at issue. The appellee relies solely on the doctrine of waiver. The appellee's brief states: "Rather than argue the substantive issue of systematic exclusion of Negroes from the juries of Mitchell County and thereby attempt to overcome this Court's decision in United States ex rel. Seals v. Wiman, 5 Cir. 1962, 304 F.2d 53, cert. den'd, 1963, 372 U.S. 924, 83 S.Ct. 741, 9 L.Ed.2d 729, appellee will admit for the purposes of this Appeal that the present case is adversely covered by such decision."11


The classic, Johnson v. Zerbst definition of waiver is "an intentional relinquishment or abandonment of a known right or privilege."12 The general principles governing "waiver" of constitutional rights, as that doctrine is applied in federal habeas corpus post-conviction proceedings, are succinctly stated in Mr. Justice Frankfurter's separate opinion in Brown v. Allen, 1953, 344 U.S. 443, 503, 73 S.Ct. 397, 444, 97 L.Ed. 469:

"Of course, nothing we have said suggests that the federal habeas corpus jurisdiction can displace a State\'s procedural rule requiring that certain errors be raised on appeal. Normally rights under the Federal Constitution may be waived at the trial, and may likewise be waived by failure to assert such errors on appeal. When a State insists that a defendant be held to his choice of trial strategy and not be allowed to try a different tack on State habeas corpus, he may be deemed to have waived his claim and thus have no right to assert on federal habeas corpus. Such considerations of orderly appellate procedure give rise to the conventional statement that habeas corpus should not do service for an appeal. However, this does not touch one of those extraordinary cases in which a substantial claim goes to the very foundation of a proceeding." (Citations omitted. Emphasis added.)

The Supreme Court has recently expressed itself on the subject of waiver in Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, a case pertinent here on the facts. The Court said:

"If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other
333 F.2d 501
reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief * * *. At all events we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner. Cf. Carnley v. Cochran, 369 U.S. 506, 513-517 82 S.Ct. 884, 8 L.Ed. 2d 70; Moore v. Michigan, 355 U.S. 155, 162-165 78 S.Ct. 191, 2 L.Ed.2d 167. A choice made by counsel not participated in by the petitioner does not automatically bar relief. Nor does a state court\'s finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question. E. g., Rice v. Olson, 324 U.S. 786 65 S.Ct. 989, 89 L.Ed. 1367." (Emphasis added.)

In addition to its holding on waiver,13 Fay v. Noia makes it clear that to invoke the Great Writ a petitioner need exhaust only the state remedies available to him at the time he files his petition. As to the applicability of the doctrine of "an adequate and independent state law ground", the Court said:

"The doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute." 372 U.S. at 399, 83 S.Ct. at 827.

Two recent decisions of this Court deal with waiver in systematic exclusion cases: United States ex rel. Goldsby v. Harpole, 5 Cir. 1959, 263 F.2d 71, cert. den'd 1959, 361 U.S. 838, 80 S.Ct. 58, 4 L.Ed.2d 78 and United States ex rel. Seals v. Wiman, 5 Cir. 1962, 304 F.2d 53, cert. den'd 1963, 372 U.S. 924, 83 S.Ct. 741, 9 L.Ed.2d 729. Judge Rives was the author of both opinions; the author of this opinion was on both panels. In each case the attorneys for the Negro defendant did not make a timely objection to the composition of the jury. In spite of this non-compliance with the state rule requiring such an objection to be made in the early stages of a trial,14 this Court held that there was no waiver. In Goldsby "we held that the conduct of Goldsby's counsel without consultation with his client did not bind...

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