Willis v. Zant

Decision Date17 November 1983
Docket NumberNo. 82-8677,82-8677
Citation720 F.2d 1212
PartiesHenry WILLIS, III, Plaintiff-Appellant, v. Walter B. ZANT, Warden, Georgia Diagnostic and Classification Center, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Joseph M. Nursey, Millard C. Farmer, Atlanta, Ga., for plaintiff-appellant.

Virginia H. Jeffries, Staff Asst. Atty. Gen., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT, FAY and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

The petitioner, Henry Willis III, was convicted in the Superior Court of Bleckley County, Georgia, of malice murder. He was sentenced to death. The Georgia Supreme Court affirmed his conviction and sentence. Willis v. State, 243 Ga. 185, 253 S.E.2d 70 (1979). He then petitioned the Superior Court of Tatnall County, Georgia, for a writ of habeas corpus. The court denied his petition, and the Georgia Supreme Court declined to entertain an appeal therefrom. The United States Supreme Court has denied petitions for writs of certiorari to review both decisions of the Georgia Supreme Court. Willis v. Georgia, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979); Willis v. Balkcom, 451 U.S. 926, 101 S.Ct. 2003, 68 L.Ed.2d 315, reh'g denied, 452 U.S. 932, 101 S.Ct. 3070, 69 L.Ed.2d 433 (1981). Willis then petitioned the district court for a writ of habeas corpus, alleging thirty-three constitutional infirmities in his conviction and sentence. The district court denied his petition without an evidentiary hearing. Petitioner presents eight of these claims to us on appeal. 1 We hold that four of these claims are without merit. Two of the remaining claims require an evidentiary hearing, and that hearing must be held before we dispose of the final claims.


Petitioner, Son Fleming, and Larry Fleming were indicted in Lanier County, Georgia, for the murder of James Giddens, Police Chief of Ray City, Georgia, on the evening of February 11, 1976. They allegedly abducted Chief Giddens following an armed robbery, shot him several times with a .357 magnum and a .22 caliber pistol, and left him to die in a South Georgia swamp.

Petitioner obtained the disqualification of the Superior Court judge who was assigned to try his case and, in succession, four other judges as well. His motion to disqualify the prosecutor was denied. 2 Petitioner's case finally went to trial on January 23, 1978. (The trials of his two co-indictees were held later, in other counties.) Petitioner, who is black and was twenty-three years old at the time of his trial, challenged the composition of the jury venire, or pool, prior to commencement of voir dire, on the ground that it did not represent a fair cross section of the community as required by the sixth and fourteenth amendments to the Constitution. The court rejected his challenge. Next, petitioner moved in limine for an order precluding the prosecutor from peremptorily challenging any black veniremen who were qualified to serve on the traverse, or petit, jury. The court denied this motion also. Jury selection proceeded, and an all-white jury was empaneled, the prosecutor having utilized, over petitioner's objection, his ten peremptory challenges to strike all ten of the qualified black veniremen. The trial ensued. The jury found petitioner guilty of malice murder, and after considering the evidence relevant to the sentence to be imposed--death or life imprisonment--recommended the death sentence. The trial judge, being bound under Georgia law by the jury's recommendation, imposed that sentence.

Petitioner presents eight discrete federal constitutional claims in this appeal: (1) he was denied an opportunity to present evidence at his state and federal habeas corpus proceedings, in violation of the due process clause of the fourteenth amendment, because the State of Georgia failed to provide him financial assistance to obtain the evidence necessary to prove his constitutional claims and failed to transcribe, for his use, several thousand pages of pretrial proceedings; (2) his trial counsel possessed a conflict of interest, in that counsel represented both petitioner and co-indictee Larry Fleming at their separate trials, thereby denying petitioner effective assistance of counsel in violation of his sixth, and fourteenth, amendment right; (3) his confession was involuntary, and its admission into evidence against him violated due process; (4) prosecutorial misconduct rendered the guilt phase of petitioner's trial fundamentally unfair and denied petitioner due process; 3 (5) a "cognizable group"--young adults from age 18-30--was systematically excluded from petitioner's jury venire, thereby denying his sixth, and fourteenth, amendment right to a venire made of a fair cross-section of the community; (6) the prosecutor had a history of intentionally and systematically excluding blacks from traverse juries through the use of peremptory challenges, in violation of the equal protection clause of the fourteenth amendment; 4 (7) the trial court's jury charge concerning aggravating circumstances was constitutionally defective, under the eighth, and fourteenth, amendments; and (8) prosecutorial misconduct rendered the sentencing phase of petitioner's trial fundamentally unfair and thus denied petitioner due process.

The first six of these claims pertain only to the guilt phase of petitioner's trial; the last two relate solely to the sentencing phase. We presently entertain only the claims arising out of the guilt phase, affirming summarily the district court's rejection of the first four. 5 We vacate the district court's order as to the fifth and sixth claims and remand those two claims for an evidentiary hearing. We retain jurisdiction of the case, noting that a decision on petitioner's final two claims, which stem from the sentencing phase of his trial, will be unnecessary if petitioner eventually prevails on either of the two claims remanded. We turn now to the fifth and sixth claims stated above.


Willis alleges that young adults, aged 18-30, were unconstitutionally underrepresented in the jury venire that was summoned for his trial in Bleckley County. Willis claims that young adults are a "cognizable group" and that this group's underrepresentation violated his sixth amendment right, as made applicable to the states through the fourteenth amendment, to a jury venire that represents a fair cross-section of the community. See Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); see also Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Gibson v. Zant, 705 F.2d 1543 (11th Cir.1983); United States v. De Alba-Conrado, 481 F.2d 1266, 1270, 1271 (5th Cir.1973); Daughtery, Cross Sectionalism in Jury-Selection Procedures after Taylor v. Louisiana, 43 Tenn.L.Rev. 1 (1975).

The state trial judge heard this challenge to the jury venire prior to the commencement of traverse jury selection. The prosecutor stipulated that young adults, aged 18-30, constituted only 10.1% of the venire even though they constituted 35.1% of the eligible jury population in Bleckley County. The judge, citing Georgia Supreme Court cases, 6 held as a matter of law that young people did not constitute a constitutionally cognizable group, said he would not consider any evidence Willis proffered on the point, and denied Willis' motion to strike the entire venire. The Georgia Supreme Court, in affirming Willis' conviction, held that the trial judge had handled this issue correctly. The magistrate to whom the district court referred Willis' petition for habeas corpus relief held likewise. In his recommendation to the district court, the magistrate concluded that young adults do not constitute a "cognizable group" under the sixth amendment's fair cross-section standard. He did permit Willis to submit surveys and a lengthy article on the issue, but did not receive them until after he had made his recommendation, to which Willis objected, to the district court. The district court, in its one paragraph review and adoption of the magistrate's recommendation, gave no indication that it accorded these submissions any consideration. Petitioner states, quite correctly, that he has yet to receive an evidentiary hearing on this claim. The three courts that have passed on it have summarily concluded that people aged 18-30 cannot constitute a cognizable group under the sixth amendment.

Whether or not a class of persons is a sufficiently distinct and cognizable for sixth amendment fair cross-section analysis is a question of fact. Hernandez v. Texas, 347 U.S. 475, 478, 74 S.Ct. 667, 670, 98 L.Ed. 866 (1954) ("whether such a group exists within the community is a question of fact"). See also, United States v. De Alba-Conrado, 481 F.2d 1266, 1270, 1271 (5th Cir.1973) (remanding case for determination of cognizable group). The distinctiveness and homogeneity of a group under the sixth amendment depends upon the time and location of the trial. For example, Latins have been held to be a cognizable group in Miami, Florida. 7 In another community, they might not be. To show that a group is distinct or cognizable under the sixth amendment, a defendant must show: (1) that the group is defined and limited by some factor (i.e., that the group has a definite composition such as by race or sex); (2) that a common thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interest among members of the group such that the group's interests cannot be adequately represented if the group is excluded from the jury selection process. United States v. Gruberg, 493 F.Supp. 234 (S.D.N.Y.1979); see also United States v. Test, 550 F.2d 577, 584 (10th Cir.1976); United States v. Guzman, 337 F.Supp. 140, 143-44 (S.D.N.Y.1972), aff'd, 468 F.2d 1245 (2d Cir.1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973).


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