Young v. Zant, 83-8557

• Decision Date: 08 March 1984
• Docket Number: No. 83-8557,83-8557
• Citation: 727 F.2d 1489
• Parties: John YOUNG, Petitioner-Appellant, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1489

727 F.2d 1489

John YOUNG, Petitioner-Appellant, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.

No. 83-8557.

United States Court of Appeals Eleventh Circuit.

March 8, 1984.

August F. Siemon, Atlanta, Ga., for petitioner-appellant.

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

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

Before GODBOLD, Chief Judge, RONEY and KRAVITCH, Circuit Judges.

RONEY, Circuit Judge:

Convicted of murder and sentenced to death in Georgia, John Young appeals the denial of habeas corpus relief on the following grounds: (1) he was indicted by an unconstitutionally composed grand jury; (2) he received ineffective assistance of counsel and was wrongfully denied an evidentiary hearing on the ineffective assistance issue; and (3) mitigation evidence was improperly excluded from the sentencing portion of his trial. We affirm.

The evidence upon which petitioner was convicted and sentenced showed that he brutally beat three elderly persons to death in the course of burglarizing their homes. Petitioner was connected to the murders by the victims' watches and jewelry which were found in his possession, a fingerprint, and his own incriminating statements.

Petitioner's conviction and death sentence in the Superior Court of Bibb County, Georgia, were affirmed by the Supreme Court of Georgia. Young v. State, 239 Ga. 53, 236 S.E.2d 1, cert. denied, 434 U.S. 1002, 98 S.Ct. 648, 54 L.Ed.2d 499 (1977). After exhausting state collateral remedies, petitioner filed this application of habeas corpus relief in federal district court.

Unconstitutionally Composed Grand Jury

Georgia's "opt-out" law for women rendered its juries unconstitutional under Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Machetti v. Linahan, 679 F.2d 236 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983) (involving Bibb County jury selection system). The critical issue here as to petitioner's contention that his grand jury was unconstitutionally composed is the effect of Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), which held that Taylor should not be retroactively applied.

The timing of this case and those cases is important. Petitioner was indicted on December 19, 1974, a little over a month prior to the Taylor decision. Daniel came down six days after Taylor. Petitioner first moved to dismiss the indictment because of an illegal grand jury array on January 16, 1975, five days before Taylor was decided. This motion was renewed on February 26, 1975. The trial court denied these motions on July 25, 1975. Subsequently, the Georgia Supreme Court held that petitioner's challenge to the grand jury array had been timely even though it came after the indictment because petitioner alleged he had no knowledge of the asserted illegal composition of the array prior to his indictment. Young v. State, 239 Ga. 53, 236 S.E.2d 1, cert. denied, 434 U.S. 1002, 98 S.Ct. 648, 54 L.Ed.2d 499 (1977). Although the Georgia Supreme Court did not acknowledge that petitioner challenged the grand jury on two different dates, we assume for purposes of this appeal that the court considered both motions timely.

Reading one sentence in Daniel would indicate that since a timely objection was made after Taylor, petitioner's claim was not foreclosed.

The question is whether our decision in Taylor v. Louisiana is to be applied retroactively to other defendants whose opportunity to raise a timely objection to the jury-selection procedures had passed as of the date of our decision in Taylor.

420 U.S. at 32, 95 S.Ct. at 705. In our judgment, however, applying the spirit of the decision of Daniel, as reflected by later language in the case, it was not intended that a state have to redo something that had already been completed at the time the Taylor objection was made. Daniel had made the precise objection that Taylor had made, and his case was on direct review in the Supreme Court at the same time as Taylor's. The Court could have granted Daniel relief without opening prior convictions to collateral attack. But it did not. Only the luck of getting there slightly before Daniel, gave Taylor the benefit of the decision. Daniel was foreclosed, largely on the judgment of the Supreme Court that, although unconstitutional, the juries thus drawn did not necessarily render the state proceedings unfair. By its refusal to give Daniel the benefit of the Taylor decision, it is quite apparent that the Court did not intend that the states would have to reconstitute grand juries and reindict prisoners who had been indicted by a grand jury drawn, and whose work in this case had been completed, prior to Taylor. The Daniel Court reasoned:

In Taylor, as in Duncan [v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) ], we were concerned generally with the function played by the jury in our system of criminal justice, more specifically the function of preventing arbitrariness and repression. In Taylor, as in Duncan, our decision did not rest on the premise that every criminal trial, or any particular trial, was necessarily unfair because it was not conducted in accordance with what we determined to be the requirements of the Sixth Amendment. In Taylor, as in Duncan, the reliance of law enforcement officials and state legislatures on prior decisions of this Court, such as Hoyt v. Florida, 368 U.S. 57 [82 S.Ct. 159, 7 L.Ed.2d 118] (1961), in structuring their criminal justice systems is clear. Here, as in Duncan, the requirement of retrying a significant number of persons were Taylor to be held retroactive would do little, if anything, to vindicate the Sixth Amendment interest at stake and would have substantial impact on the administration of criminal justice in Louisiana and in other States whose past procedures have not produced jury venires that comport with the requirement enunciated in Taylor.

420 U.S. at 32-33, 95 S.Ct. at 705-706. In our judgment, the requirement of reindicting all prisoners untried when Taylor and Daniel were decided, would have a sufficiently "substantial impact on the administration of justice" in Georgia to dictate that Taylor should not be applied to this case, under the teachings of Daniel. There is also no contention here that underrepresentation of women on Young's grand jury rendered that jury unfair to him in this case.

Ineffectiveness of Counsel

Petitioner's argument that he was denied effective assistance of counsel at his trial has three prongs: first, he asserts he was denied a full and fair hearing in his state court habeas corpus proceeding because the state would not provide him funds to find and bring his trial attorney to testify; second, because of this failure in the state courts, the district court should have funded an investigation to get the attorney to his federal proceeding; and third, in any event, the record shows the district court's finding against him on the merits of his claim was in error.

We have previously noted that the failure of a state court to provide financial assistance for investigation purposes in habeas corpus cases does not present a constitutional issue. Willis v. Zant, 720 F.2d 1212, 1215 n. 5 (11th Cir.1983). See Brooks v. Francis, 716 F.2d 780, 795 (11th Cir.1983). Habeas corpus petitioners are not even constitutionally entitled to state-paid counsel. Norris v. Wainwright, 588 F.2d 130, 132 (5th Cir.), cert. denied, 444 U.S. 846, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979); Ardister v. Hopper, 500 F.2d 229, 233 (5th Cir.1974); see Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); but see Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (either access to a library or legal assistance must be provided state prisoners).

In any event, the state court had before it transcripts from judicial proceedings in which petitioner's trial attorney, Charles Marchman, did address the two points asserted on the merits of the ineffectiveness issue here. Petitioner's first claim is that Marchman's use of drugs affected his ability to present an effective defense for petitioner. Petitioner asserts that Marchman's conviction for possession of marijuana shortly after petitioner's trial ended substantiates his claim. Marchman testified about his drug usage at an earlier state habeas corpus proceeding involving a different capital defendant. As in the instant case, the issue there was ineffective assistance of counsel. Marchman testified that he had had a drug problem but that he felt it had never interfered with his practice of law and that federal investigators had reached the same conclusion. A transcript of this...