Young v. Zant

• Decision Date: 05 December 1980
• Docket Number: Civ. A. No. 79-100-Ath.
• Citation: 506 F. Supp. 274
• Parties: Charlie YOUNG, Jr., Petitioner, v. Walter ZANT, Warden, Georgia Diagnostic & Classification Center, Respondent.
• Court: U.S. District Court — Middle District of Georgia

506 F. Supp. 274

Charlie YOUNG, Jr., Petitioner, v. Walter ZANT, Warden, Georgia Diagnostic & Classification Center, Respondent.

Civ. A. No. 79-100-Ath.

United States District Court, M. D. Georgia, Athens Division.

December 5, 1980.

COPYRIGHT MATERIAL OMITTED

Laughlin McDonald, Atlanta, Ga., for petitioner.

Arthur Bolton, Atty. Gen., State of Ga., Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent.

RULING ON PETITION FOR WRIT OF HABEAS CORPUS

WILBUR D. OWENS, Jr., Chief Judge.

Petitioner in the above styled action seeks federal habeas corpus relief under 28 U.S.C.A. § 2254. Petitioner is presently under a death sentence imposed by the Superior Court of Greene County, Georgia, following his conviction by jury in that court on February 19, 1976 of murder, armed robbery, and robbery by intimidation. Pursuant to 28 U.S.C.A. § 636(b)(1)(B), the petition was referred to United States Magistrate John D. Carey, who on August 7, 1980 entered proposed findings of fact and recommendations for disposition by the court. Pursuant to 28 U.S.C.A. § 636(b)(1)(C), petitioner has filed objections to the Magistrate's proposed findings and recommendations, and respondent has replied. This habeas corpus petition is now ready for determination by the court.

The enumerations of error asserted by petitioner in his § 2254 habeas corpus petition are listed in the Magistrate's proposed findings and recommendations for disposition. The Magistrate's proposed order holds against petitioner on each of his alleged grounds for relief, and recommends that the petition be denied. Petitioner's objections to the Magistrate's proposed findings reiterate in toto the enumerations of error underlying his habeas corpus petition.

Petitioner initially moves the court to grant an evidentiary hearing and oral argument on his habeas corpus petition or, alternatively, to recommit the petition to the Magistrate for an evidentiary hearing, on the grounds that the Magistrate's proposed findings and recommendations were made without a hearing or the receipt of additional evidence on several of petitioner's claims. Petitioner has submitted to the court in connection with his motion additional evidence consisting of affidavits, depositions, transcripts of various unrelated habeas corpus hearings, and other materials.

The Magistrate found, based on the entire record of the case, that the facts were fully and fairly developed in the state courts and therefore no additional evidentiary hearing is necessary. This court agrees. Moreover, the court can consider the additional documentary evidence submitted by petitioner without the necessity of an additional hearing or oral argument.

One ground upon which petitioner seeks habeas corpus relief is that the jury selection procedures for grand and traverse juries in Greene County, Georgia unconstitutionally discriminated on the grounds of race, sex, and age, resulting in petitioner's being indicted and convicted by unconstitutionally composed juries. Petitioner's counsel raised this challenge by motion for hearing prior to trial but failed to produce any evidence whatsoever at the hearing to support the allegations of discrimination, and a motion for a continuance for that purpose was denied by the trial judge. No evidence of unconstitutional jury selection procedures was thereafter presented on direct appeal to the Georgia Supreme Court; on petition for certiorari to the United States Supreme Court; or to the state courts in state habeas proceedings. In fact, no such evidence was presented until after the Magistrate's report was submitted to this court.

The Magistrate found that petitioner's jury composition challenge is without merit since petitioner has not shown some actual way in which the composition of the grand or petit juries resulted in prejudice, citing Lumpkin v. Ricketts, 551 F.2d 680 (5th Cir. 1977). The court agrees with this conclusion of the Magistrate; however, the court deems it necessary to expand on the proposed findings of the Magistrate on this question.

If a state has a valid rule of criminal procedure which requires the defendant to object to the composition of the grand or petit jury before or during trial, failing which the objection is waived, then the federal courts honor that procedural rule by not allowing the convicted defendant to raise the jury claim in a federal habeas corpus proceeding. Stewart v. Ricketts, 451 F.Supp. 911 (M.D. Ga. 1978), citing Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Lumpkin v. Ricketts, supra. Before 1975, the Georgia courts had established a decisional rule that a defendant's failure to object to the grand or traverse juries before or during trial waived that objection as a basis for habeas relief. This court in Stewart relied on this rule. In 1975 Georgia codified this rule in Ga. Code Ann. § 50-127(1). That section provides in pertinent part:

The right to object to the composition of the grand or traverse jury will be deemed waived under this section, unless the person challenging the sentence shows in the petition and satisfies the court that cause exists for his being allowed to pursue the objection after the conviction and sentence has otherwise become final.

This section became effective as law well before the date of petitioner's trial.

In Stewart, Lumpkin, and other federal and state cases in which this waiver rule has been applied, the petitioners had completely failed to object to the grand or traverse juries until habeas proceedings. The question before the court in the instant case is whether, although having objected to the grand and traverse juries before trial, petitioner's failure to present any evidence whatsoever to support his challenge to those juries constitutes a waiver under Georgia's waiver rule. This question appears to have been answered by the Georgia Supreme Court in the recent case of Patterson v. Balkcom, 245 Ga. 563, 266 S.E.2d 179 (1980).

The facts in Patterson are very similar to those in the present case. There the petitioner filed a challenge to the array of the grand and traverse juries before trial alleging systematic exclusion of blacks. At the hearing petitioner submitted evidence that an opportunity existed for discrimination from the source of the jury lists, but did not submit evidence concerning the racial composition of the juries. The trial court therefore overruled the challenge, and denied the petitioner's motion for a continuance. In state habeas proceedings petitioner submitted evidence of the racial composition of the juries. On review the Georgia Supreme Court, applying Ga. Code Ann. § 50-127(1), held that petitioner had waived his challenge to the grand and traverse juries by not "perfecting" the challenge before the trial court by presenting evidence of the racial composition of the juries. The court went on to consider the evidence presented on state habeas to determine if petitioner had shown sufficient "cause" to be relieved of his waiver. It is clear from Patterson that petitioner in the instant case, having failed before or at trial to present evidence to support his challenge to the juries, would have been precluded by Georgia's waiver rule from raising the unconstitutional jury claims in his state habeas proceedings, absent a showing of prejudice.

Honoring Georgia's valid procedural rule as codified in Ga. Code Ann. § 50-127(1) and applied in Patterson, the court finds that petitioner waived his right to challenge the jury selection procedures of Greene County and the composition of the grand and traverse juries by failing to present evidence before or at trial to support his challenge. Petitioner may be relieved from the operation of this waiver, however, by showing cause for failing to make a timely challenge and actual prejudice. Lumpkin v. Ricketts, supra. Petitioner seeks to establish "cause" by alleging ineffective assistance of counsel. This argument must be rejected. See Lumpkin v. Ricketts. Id. at 682-83. Furthermore, the court finds, as did the Magistrate, that petitioner has failed to show any way in which his waiver or the composition of the actually impaneled grand or petit juries in his case resulted in actual prejudice. Actual prejudice must be some extraneous influence which moves a tribunal to decide a case on an improper basis, Stewart v. Ricketts, supra, citing McCormick, Evidence 439 (2d Ed. 1972). Petitioner's indictment and conviction both rest upon very strong and convincing evidence, a factor which belies any reliance by the grand or petit juries on any improper basis for their decisions. For these reasons, the court finds that petitioner has waived his right to challenge his grand and petit juries in this federal habeas corpus proceeding, and has failed to show cause for his now being allowed to pursue his objection to the composition of the grand and petit juries.

Petitioner asserts as a second basis for habeas corpus relief that he was denied effective assistance of counsel at all stages of his trial in violation of his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States. Claims of ineffective assistance of counsel require the court to inquire into the actual performance rendered by counsel based on the totality of the circumstances. Lovett v. Florida, 627 F.2d 706, (5th Cir. 1980). Counsel's effectiveness is not to be judged by hindsight; the Constitution does not guarantee errorless counsel. Rummel v. Estelle, 590 F.2d 103, 104 (5th Cir. 1979) (per curiam). The Sixth Amendment only guarantees a defendant the right to counsel "reasonably likely to render and rendering reasonably effective assistance." MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960).

Having carefully considered the entire record in this case, the court agrees with the proposed findings of the Magistrate that petitioner's attorneys together afforded him reasonably effective assistance of counsel during...