Williams v. Griswald

Decision Date11 October 1984
Docket NumberNo. 83-7153,83-7153
Citation743 F.2d 1533
PartiesDennis Edward WILLIAMS, Petitioner-Appellant, v. Frank GRISWALD, Warden, and Attorney General of the State of Alabama, Respondents-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Dennis Edward Williams, pro se.

Barry Friedman c/o Davis, Polk & Warwell, Washington, D.C., for petitioner-appellant.

William A. North, Rivard Melson, Asst. Attys. Gen., Montgomery, Ala., for respondents-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before HILL and HENDERSON, Circuit Judges, and WISDOM *, Senior Circuit Judge.

ALBERT J. HENDERSON, Circuit Judge:

Dennis Edward Williams was convicted in the Circuit Court of Colbert County, Alabama, for the offense of murder and sentenced to thirty years imprisonment. After exhausting his state remedies, he filed this petition for a writ of habeas corpus pursuant to the provisions of 28 U.S.C. Sec. 2254 in the United States District Court for the Northern District of Alabama. After the denial of the writ by the district court, he lodged this appeal alleging that 1) five jurors read prejudicial statements in a newspaper during the trial, 2) one of the state's witnesses committed perjury at the trial, 3) he did not knowingly and intelligently waive his right to have the jury sequestered at the trial, and 4) he was denied effective assistance of counsel because his attorney failed to adequately apprise him of the nature and consequences of his jury sequestration waiver.

The facts pertinent to the issues in this case arose out of a confrontation between Williams and Robert Washington, the deceased, during a party at a friend's house. At some point both pulled guns and shot at each other. Washington was mortally wounded.

At the trial, Williams purported to waive in writing his right to jury sequestration. He entered a plea of not guilty to murder and introduced evidence that he had acted in self defense. The testimony was conflicting on the crucial issues of which of the participants reached for his gun and who fired the first shot.

Before the start of the second day of trial, Williams' attorney moved for a mistrial on the ground that the day before a local newspaper had published an article about the trial containing statements prejudicial to the defendant. The article falsely stated that felony warrants had been issued against Williams in California and Ohio. 1 A poll of the jury revealed that five jurors had read the article. Each of the five jurors assured the court that they would disregard the newspaper article and could render a fair and impartial verdict. Thereupon, the trial judge gave the following cautionary instruction:

I want to instruct to you that anything that you read in the paper is not evidence and I do know for a fact that they had mistaken information because they said N. Pride Tompkins was trying the case and I am trying the case. So, I don't know where they get their information from, but I know it was wrong and I ask that you disregard this--it's not evidence in this case and it should not be considered by you as such in this case and you are to completely disregard it from your deliberations when you go in to deliberate this case ....

Transcript Exhibit vol. 1, pp. 170-71. The judge denied the motion for a mistrial. Williams was subsequently convicted of murder and sentenced to a term in prison.

After an unsuccessful direct appeal, Williams filed a pro se petition for a writ of error coram nobis in the Alabama state trial court. He alleged newly discovered evidence, and, in support thereof, attached the affidavit of one of the state's witnesses at the trial, James Tompkins. The affiant stated that he had given false testimony during the trial because of intimidation from the police. There was evidence that an outstanding forgery charge against Tompkins was dropped after Williams' conviction and that the police had originally considered charging Tompkins with Washington's murder.

Without granting an evidentiary hearing, the Alabama state trial court dismissed the coram nobis petition. The Alabama Court of Criminal Appeals affirmed without opinion and the Alabama Supreme Court denied certiorari. The petitioner then filed this pro se federal habeas corpus petition in the United States District Court for the Northern District of Alabama. The district court dismissed the petition without an evidentiary hearing.

Before us, Williams claims that it was error for the district court not to conduct an evidentiary hearing on the issues raised in his petition. 2 The burden is on a petitioner in a habeas corpus proceeding to establish the need for such a hearing. Birt v. Montgomery, 725 F.2d 587, 591 (11th Cir.1984) (en banc). The threshold inquiry in making that determination is whether the petitioner's allegations, if proved, would establish the right to habeas corpus relief. Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770, 782 (1963); Birt, 725 F.2d at 591 (quoting Townsend ). In evaluating a request for a hearing a court must "consider the allegations of the defendant's habeas petition and supplement the petition with those facts undisputed on the record below." Birt, 725 F.2d at 591; see Cronnon v. Alabama, 587 F.2d 246, 249 (5th Cir.), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 792 (1979). 3 Accordingly, we must first examine the allegations in the habeas corpus petition and the undisputed facts in the record before us in an effort to ascertain whether each issue states a constitutional violation.

I. Publicity During the Trial.

It is well established that prejudicial publicity may deprive a criminal defendant of the constitutional right to a fair trial. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); United States v. Williams, 568 F.2d 464 (5th Cir.1978). 4 The cases dealing with prejudicial publicity are divided into three categories: pretrial publicity, see, e.g., Coleman v. Zant, 708 F.2d 541 (11th Cir.1983); Calley v. Callaway, 519 F.2d 184 (5th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976), publicity during the trial, see, e.g., United States v. Goodman, 605 F.2d 870 (5th Cir.1979); United States v. Williams, 568 F.2d 464 (5th Cir.1978), and the "media circus" involving publicity both before and during trial. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).

Two standards guide our consideration of whether publicity rises to the level of a constitutional violation: "actual jury prejudice" and "presumed prejudice." See, e.g., Coleman, 708 F.2d at 544-45. The presumed prejudice criterion has been applied in two types of cases. First, prejudice is presumed under certain circumstances in federal criminal convictions. See, e.g., Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); United States v. Williams, 568 F.2d 464 (5th Cir.1978). In these instances, the presumption is based solely on the supervisory power of the federal courts to formulate standards for the enforcement of the federal criminal law. Marshall, 360 U.S. at 313, 79 S.Ct. at 1173, 3 L.Ed.2d at 1252; Williams, 568 F.2d at 469. As a result, the presumption is inapplicable to cases involving state convictions. Murphy v. Florida, 421 U.S. 794, 797-99, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589, 593-94 (1975).

Second, prejudice may be presumed in certain egregious pretrial and "media circus" situations regardless of whether the conviction was obtained in federal or state court. 5 See, e.g., Sheppard v. Maxwell 84 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) ("media circus"); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (pretrial publicity); Coleman v. Zant, 708 F.2d 541 (11th Cir.1983) (pretrial publicity).

This appeal involves only a state conviction and during-trial publicity. It lacks the inflammatory, widespread publicity characteristic of cases in which prejudice is presumed. This circuit has never enunciated a "presumed prejudice" standard in such a case. 6 Consequently, we reject Williams' assertion that a "presumed prejudice" standard is appropriate 7 and apply the traditional "actual jury prejudice" test.

It has been pointed out that publicity during the trial

contains greater opportunities for prejudice. For example, information reported during the trial seems far more likely to remain in the mind of a juror exposed to it, and he may be more inclined to seek out this information when he is personally involved in the case.

Williams, 568 F.2d at 468. Therefore, the traditional standard is stricter for during-trial publicity cases. Baldwin v. Blackburn, 653 F.2d 942, 948 (5th Cir. Unit A 1981), cert. denied, 456 U.S. 950, 102 S.Ct. 2021, 72 L.Ed.2d 475 (1982); Williams, 568 F.2d at 468. It is important, then, that principles from the pretrial publicity and "media circus" cases "not be haphazardly applied to cases involving only publicity that occurred during the trial." Williams, 568 F.2d at 468; see Baldwin, 653 F.2d at 948.

Having established what we perceive to be the correct standard, we turn to whether Williams' allegations, if proved, would establish a constitutional violation. The Supreme Court of the United States has instructed that each publicity case "must turn on its [own] special facts." Marshall, 360 U.S. at 312, 79 S.Ct. at 1173, 3 L.Ed.2d at 1252. In making this analysis several factors must be considered by the court. Goodman, 605 F.2d at 882.

First, we look to the character or nature of the published information. The newspaper article in issue was written objectively and contained no inflammatory or editorial material. See Patton v. Yount, 467 U.S. ----, ----, 104 S.Ct. 2885, 2889, 81 L.Ed.2d 847, 855 (1984); 8 Goodman, 605 F.2d...

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