Winters v. Cook, 71-3323.

• Decision Date: 02 January 1973
• Docket Number: No. 71-3323.,71-3323.
• Citation: 466 F.2d 1393
• Parties: Matthew WINTERS, Petitioner-Appellant, v. Thomas D. COOK, Superintendent of The Mississippi State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

466 F.2d 1393 (1972)

Matthew WINTERS, Petitioner-Appellant, v. Thomas D. COOK, Superintendent of The Mississippi State Penitentiary, Respondent-Appellee.

No. 71-3323.

United States Court of Appeals, Fifth Circuit.

September 20, 1972.

On Petition for Rehearing and Rehearing January 2, 1973.

Roy S. Haber, George Peach Taylor, Jackson, Miss., for petitioner-appellant.

A. F. Summer, Atty. Gen., Guy N. Rogers, Asst. Atty. Gen., Jackson, Miss., for respondent-appellee.

Before JOHN R. BROWN, Chief Judge, and RIVES and CLARK, Circuit Judges.

On Petition for Rehearing and Rehearing En Banc January 2, 1973.

RIVES, Circuit Judge:

In April of 1963 Winters, a Negro male, was indicted in Holmes County, Mississippi, for the murder of E. T. Branch, a male caucasian. At his arraignment, Winters pleaded not guilty. Six months later, on the date for which trial had been set and with the advice of counsel, Winters changed his plea to guilty. He was sentenced to life imprisonment.

On October 6, 1969, Winters filed a motion in State court to vacate his sentence, alleging inter alia that "at the time of the indictment and plea, and for a long time prior thereto, there was and continues to be a system and practice in the organization and selection of jurors in Holmes County which is deliberately designed to exclude members of the Negro race from service on the grand and petit juries in violation of the Fourteenth Amendment of the Constitution of the United States." (App. at 46.) At a hearing on the motion, it became clear that at the time Winters entered his plea of guilty he was unaware of his right to challenge the composition of the jury. Though Winters' counsel had cognizance of the right, he did not inform Winters. Nor did the trial court instruct Winters as to that right. On December 11, 1969, the State court dismissed Winters' motion, stating that "The petitioner knowingly, intelligently and voluntarily entered his plea of guilty upon the advice of competent counsel. The petitioner's voluntary guilty plea waived all nonjurisdictional defects." (App. at 108.) That decision was affirmed, February 8, 1971, by the Mississippi Supreme Court. 244 So.2d 1.

Thereafter, Winters instituted this suit in the United States District Court for the Northern District of Mississippi, seeking habeas corpus relief. Again he asserted his constitutional right to indictment and trial by a grand and petit jury from which Negroes are not excluded. He contended that his guilty plea was not a bar to relief, first because he was denied effective assistance of counsel, and second because his plea was not a waiver of his right to challenge the array of jurors in that he was unaware of such right when he entered his plea. The district court denied relief. We reverse.

We start with the rubric that a voluntary plea of guilty waives all known nonjurisdictional defects, including the constitutional right to challenge the composition of the grand and petit juries. Colson v. Smith, 5 Cir. 1971, 438 F.2d 1075, 1078;¹ Williams v. Smith, 5 Cir. 1970, 434 F.2d 592; Throgmartin v. United States, 5 Cir. 1970, 424 F.2d 630. Both the State courts and the district court in this case held that Winters' plea of guilty waived his right to complain of the array of jurors in Holmes County. The rationale for such view is that Winters' lawyer knew of the right and that by failing to raise the objection counsel effectively waived the right for Winters. But it is axiomatic that Winters is the one who must make the waiver, not his attorney.² Winters had no idea that he could object to the jury composition. Before a waiver can be effective it must be knowingly given. Since Winters had not been informed of the right, his waiver did not encompass its relinquishment.

We need not consider Winters' contention that counsel was ineffective, for his claim for relief is amply supported by the more basic and fundamental proposition that he did not knowingly waive a right of which he was unaware. As we said in Cobb v. Balkcom, 5 Cir. 1964, 339 F.2d 95, 98, 102:

"We * * * pretermit the question of denial of the effective assistance of counsel as guaranteed to a state prisoner by the Sixth Amendment * * *.

* * * * * *

"Trial counsel did not discuss the right with Cobb or his mother or anyone acting for Cobb. There was no express waiver by Cobb either of his right to challenge the grand jury indictment or the trial jury. His lawyer was satisfied with the grand and trial juries, but this is insufficient. * * * * In sum, there was no intentional relinquishment of a known right within the purview of the majority opinion in Fay v. Noia 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, and for the state to subject a defendant to this situation amounts to a denial of due process and equal protection of the laws guaranteed by the Fourteenth Amendment. What constitutes a valid waiver in this instance is a federal question, and with all deference to the Supreme Court of Georgia, we hold that Cobb\'s federal rights were not abandoned."

In this case Winters' attorney was satisfied with the grand and petit juries. But the question is whether Winters would have been similarly content had he been fully aware of his rights.

The underpinnings of Cobb are found in United States ex rel. Goldsby v. Harpole, 5 Cir., 263 F.2d 71, cert. denied, 1959, 361 U.S. 838, and 850, 80 S.Ct. 58, and 109, 4 L.Ed.2d 78, and 89, and its rationale was followed in Labat v. Bennett, 5 Cir. 1966, 365 F.2d 698, cert. denied, 1967, 386 U.S. 991, 87 S.Ct. 1303, 18 L.Ed.2d 334. Although neither Goldsby nor Labat involved waiver by a guilty plea, but rather concerned waiver by failure to raise a timely objection to the array of jurors, they are indistinguishable from a guilty plea context. The fundamentals of the doctrine of waiver are the same no matter what form the waiver takes, be it waiver by inadvertent delay in asserting a right or waiver by a plea of guilty. The party giving the waiver must know of his rights before we can hold that he has relinquished them. E. g., Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Labat, supra.

That white lawyers representing black clients often fail to raise an objection to jury composition has been recognized as a problem in this Circuit. Whitus v. Balkcom, 5 Cir. 1964, 333 F.2d 496, 506-507; Goldsby, supra, 263 F.2d at 82. The problem has surfaced in this case. Winters' attorney testified that although he has represented many Negro defendants he has never objected to an array of jurors. In recognition of this difficulty we have said that "the conduct of * * * counsel without consultation with his client did not bind the client to a waiver of his constitutional right to object to the systematic exclusion of members of his race from" the jury. United States ex rel. Seals v. Wiman, 5 Cir. 1962, 304 F.2d 53, 68. See words to similar effect in Goldsby, supra, 263 F.2d at 82-83. We will not, in this case, retreat from that view.

The district court implied that recent decisions of the Supreme Court have somehow undermined the validity of Goldsby, Seals, Cobb, Whitus and Labat. See Brady v. United States, 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; McMann v. Richardson, 1970, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Parker v. North Carolina, 1970, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785. We cannot accept that view. Granted, the Supreme Court has given its approval to the plea bargaining process, but in doing so it in no way derogated the notion that to be effective as a waiver a guilty plea must be knowingly given. Put shortly, without having been informed of his right to object to the systematic exclusion of Negroes from the grand and petit juries of Holmes County, Winters cannot be held to a waiver of that right even though he pleaded guilty.³

Of course there has been no fact finding in this case that Negroes were systematically excluded from the grand and petit juries in Holmes County, Mississippi, at the time of Winters' indictment and conviction. Accordingly we reverse and remand for an evidentiary hearing on the issue of whether Negroes were in fact systematically excluded.

Reversed and remanded.

CLARK, Circuit Judge, dissents.

CLARK, Circuit Judge (dissenting):

The majority opinion adopts the premise that the result in this case is required by the prior decisions of the court and disavows any "retreat from that view." With all deference, I view that disavowal as wholly unnecessary, since I see the result reached by the majority as nothing less than a headlong charge into an area which has heretofore been only occasionally entered, and then with discretion and circumspection. Both precedent and reason forbid my concurrence.

The facts and procedural background of this litigation are well documented in a lucid opinion by the district court, 333 F.Supp. 1033 (N.D.Miss.1971), and need not be published again.

If it was less than crystal clear before, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), wiped away all doubt that every waiver of a constitutionally protected right had to be intelligent and understanding to effectively foreclose federal habeas corpus relief, 372 U.S. at 439, 83 S.Ct. at 849. However, Fay went on to say that "a choice made by counsel not participated in by the petitioner does not automatically bar relief." Id. The implication of this last statement — that some strategic decisions which entail the waiver of a constitutional right may be made by counsel without consultation with the accused — was made express in Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965) in these words:

Although trial strategy adopted by counsel without prior consultation with an accused will not, where the circumstances are exceptional, preclude the accused from asserting constitutional claims, see Whitus v. Balkcom, 333 F.2d 496 (C.A. 5th Cir. 1964), we think that the deliberate bypassing by counsel of the

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