# Jack Howard Potts v. Walter Zant, Warden, Georgia Diagnostic and Classification Center, Jack Howard Potts v. Sam Austin

> Court of Appeals for the Fifth Circuit · February 17, 1981 · 638 F.2d 727

URL: https://www.frixlaw.com/law-library/cases/9467456

## Case

- **Full name:** Jack Howard POTTS, Petitioner-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee; Jack Howard POTTS, Petitioner-Appellant, v. Sam AUSTIN, Respondent-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** February 17, 1981
- **Citations:** 638 F.2d 727; 60 A.L.R. Fed. 442; 31 Fed. R. Serv. 2d 206; 1981 U.S. App. LEXIS 20144
- **Precedential status:** Published
- **Opinion:** Concurrence by Clark
- **Judges:** Anderson, Clark, Morgan, Thomas
- **Cited by:** 68 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9467456

## How later opinions describe it (automated extraction)

- recognizing that abuse of the writ does not arise when there has not been a "determination on the merits” or where “there has been an intervening change in the law”

## Opinion text

THOMAS A. CLARK, Circuit Judge,
specially concurring:
I concur.
I agree with and concur in Judge Anderson’s scholarly and thoughtful opinion. I think that the remand provided for in his opinion is the least that is required under *753 the circumstances; I would go further and require a hearing on the merits because I believe the facts and the ends of justice overwhelmingly compel the granting of a habeas corpus hearing on the merits. I would therefore hold that it is unnecessary to conduct a hearing in order to determine whether a later hearing on the merits of Potts’ constitutional claims should be had.
We are balancing (1) the right of a prisoner to a habeas corpus hearing one month after he waived such a right, against (2) the possibility that the state might have suffered substantial prejudice if the hearing were granted, and (3) the district court’s being vexed or harassed in the performance of its functions or the prisoner’s obtaining a delay of his death sentence.
Judge Anderson has forcefully elucidated the preeminence of habeas corpus in our country’s criminal law procedure. Here the prisoner is sentenced to die; he has not had a federal habeas corpus hearing; the record clearly reflects a tortured and vacillating mental state that has bent to differing pressures from his brother, his mother, his attorneys, and the news media, not to consider the alleged maltreatment in prison about which no evidence has been taken in the instánt case. One cannot truly be surprised that the prisoner at one time wanted to hurry his own execution and at another time wanted to live and seek relief for claimed deprivation of constitutional rights.
I read the holding in Sanders to require an express finding that Potts had the specific intent to vex, harass, or delay in withdrawing the first petition before he could be denied a hearing on the second petition. I see no evidence of such intent in the record that has been made up to this time.
Alternatively, I can only conclude that the ends of justice demand a hearing on the second petition. Assuming no prejudice to the state, we have on the one hand the possibility of intent to vex, harass, and delay — on the other, death by electrocution without determining if the prisoner was deprived of his rights. The ends of justice require that the district court fully consider the prisoner’s constitutional claims under these extreme circumstances. To do otherwise would always leave unanswered the questions — Did Potts intend to vex, harass, and delay? Was Potts deprived of any of his federal constitutional rights? Was it appropriate to take his life by answering the first question yes and avoiding an answer to the latter question? The price of granting a full hearing is too small when balancing these considerations.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9467456. Public record. Not legal advice.