Petition — Hopper v. Allen

, Supreme Court, U. &

‘FILED *

2,

MICHAEL ROD: K, JR., CLERK

Supreme Court of ‘the United States

OCTOBER TERM, 1975

NO. £5 ~ J 229

JOE S. HOPPER,

Warden, Georgia State Prison,

Petitioner,

Vv.

LUTHER HENRY ALLEN,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

For the Fifth Circuit

ArtuurR K. Botton

Attorney General

Rosenrt S. Strusss, II

Chief Deputy

Attorney General

RicHarp L. CHAMBERS

Deputy Attorney General

Please serve: G. Toomas Davis

Senior Assistant

B. ce een : 2 Attorney General

132 State Judicial Bldg. B.D G j

40 Capitol Square, SW. . VEAN GRINDLE, JR.

Atlanta, Georgia 30334 Assistant Attorney General

(404) 656-3356 Attorneys for Petitioner

INDE X

OPINIONS BELOW .........

JURISDICTION ° * * . * * * . ° °

QUESTION PRESENTED .......

STATUTORY PROVISIONS INVOLVED ..

STATEMENT OF THE CASE ......

REASONS FOR GRANTING THE WRIT

A. THE DECISION BELOW CONFLICTS

WITH THE DECISIONS OF OTHER

COURTS OF APPEALS AS TO THE

PROPER INTERPRETATION OF

28 U.S.C. § 2254(b). . ...

B. THE PETITION PRESENTS AN

IMPORTANT QUESTION OF

FEDERAL-STATE COMITY THAT

SHOULD BE SETTLED BY THE

es + ©. + 6 6 eS eee ee

ee ee

APPENDIX . . * * . . * * * « * >

4

ll

-13

App.

1

CITA

EATS Roberts v. LaVallee, 389 U.S.

Cases: . 40 (1967) e e e e e e e e e e e e ll

Allen v. Caldwell, 231 Ga. 442, Thompson v. Peyton, 406 F. 2d 473,

202 S.E. 2d 35 (1973) ..... 6 476 (4th Cir. 1968) . « « « « « eff

| United States ex rel. Figueroa

Allen v. State, 228 Ga. 859, 188 '

S58. Be vee (8078) 2 ct ee ee S v. McMann, 411 F. 2d 915 (2d Cir.

(1968) °- © e © «© © © © @© @© © e# @ 10

Avery v. Alabama, 308 U.S. 444

Oo) ee ee ee ee ee ee ee ee

Miscellaneous:

Daniels v. Nelson, 453 F. 2d 4 6

340 (9th Cir. 1972) ....-.- 10 28 U.S.C. § 2241 2.» ee e+ we ee

Francisco v. Gathright, 419 U.S. 28 U.S.C. § 2254 . . . 2,3,6,9,11,12

— ee. | ee ee ee ee ee?

Gurule v. Turner, 461 F. 2d 1083,

BGee (1008 Cif. 3972) «© © eo o «

Humphrey v. Cady, 405 U.S. 504,

(oe Se oy eee ee ee ee

Needel v. Scafati, 412 F. 2d 76l,

765-766 (lst Cir. 1969) .... .10

Picard v. Conner, 404 U.S. 270,

,, We; Be :) ) ree ee oe

Pitchess v. Davis, 421 U.S. 482

+, ee ee ee a ee

ii iii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

NO. 75-

JOE S. HOPPER, Warden,

Georgia State Prison,

Petitioner,

Vv.

LUTHER HENRY ALLEN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner, Joe S. Hopper, respect-

fully prays that a writ of certiorari issue

to review the judgment and opinion of the

United States Court of Appeals for the Fifth

Circuit entered in this proceeding on

November 26, 1975.

OPINIONS BELOW

No opinion was rendered by the Court

of Appeals; the judgment of the District

Court was affirmed pursuant to Fifth

Circuit Local Rule No. 21. See Appendix

A.

The opinions rendered by the District

Court for the Middle District of Georgia

are unreported; the opinions appear in

Appendices C and D.

JURISDICTION

The judgment of the Court of Appeals

for the Fifth Circuit was entered on

November 26, 1975. A timely petition for

rehearing was denied on January 13, 1976.

See Appendix B. This petition for

certiorari was filed within 90 days of

that date. The Court's jurisdiction is

invoked pursuant to 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Re

When a state habeas corpus applicant

unsuccessfully asserts the denial of a

federal constitutional right in the state

courts, on facts that do not warrant a

conclusion that the constitutional right

was abridged, if, in a subsequent federal

habeas corpus action, the applicant

relies on the same constitutional right

buttressed by other, materially

different facts, under 28 U.S.C. §

2254(b), must the district court require

the applicant to present the materially

different facts to the state courts

before ruling on the merit of appli-

cation?

STATUTORY PROVISIONS INVOTVED

UNITED STATES CODE, TITLE 28:

§ 2254. State custody; remedies

in Federal courts.

x «tek

(b) An application for a writ of

habeas corpus in behalf of a person in

custody pursuant to the judgment of a

State court shall not be granted unless

it appears that the applicant has

exhausted the remedies available in the

courts of the State, or that there is

either an absence of available State

corrective process or the existence of

circumstances rendering such process

ineffective to protect the rights of

the prisoner.

STATEMENT OF THE CASE

On March 4, 1971, the grand jury of

Elbert County, Georgia, returned a two

count indictment charging the respondent,

Luther Henry Allen, with raping Georgia

Mae Fortson. The counts of the indict-

ment charged Allen with having raped

Mrs. Fortson on two occasions, December

17, 1970, and January 20, 1971.

Allen was tried before a jury and

found guilty of both charges on March 10,

1971. Sentenced to concurrent terms of

life imprisonment, the judgments of

conviction were affirmed on appeal to

the Supreme Court of Georgia. Allen v.

State, 228 Ga. 859, 188 S.E. 2d 793 (1972).

Approximately one year after the

affirmance of his convictions, Allen

sought habeas corpus relief in the Superior

Court of Tattnall County, Georgia. As a

basis for relief Allen asserted (1) that

he was denied a preliminary hearing,

(2) that he was convicted on the uncor-

roborated testimony of the rape victim,

(3) that he was prosecuted by the husband

of the victim,! and (4) that he was

ithe husbane was the prosecuting

witness.

denied the effective assistance of

counsel in Elbert County .?

Allen's ineffective counsel claim

was premised upon the factual contention

that his appointed counsel, Carlton

Matthews, proceeded to trial without

sufficient time in which to prepare an

adequate defense (R. Vol. I 10, 53);

As noted, Allen was indicted on March

4, 1971, and stood trial on March 10,

1971. The order appointing Matthews

to represent Allen was signed on March

8, 1971. As was customary in rural

Elbert County, however, Matthews

prepared the order after having been

verbally informed of the appointment.

On the basis of a post-trial affidavit

filed by Matthews pursuant to the

Georgia Criminal Justice Act, it was

apparent that Matthews probably became

aware of his appointment as early as

March 5, 1971. (R. Vol. I 82, R. Vol.

Tr 40, 41).

Allen, proceeding in forma pauperis,

represented himself in the state habeas

case. After an evidentiary hearing in

the state habeas court, Allen was

remanded to custody. On appeal, the

judgment of the habeas court was affirmed.

* subsequent to the affirmance of

the convictions and a,few months prior

to the filing of the state habeas action,

Allen's Elbert County attorney died.

(R. Vol. I 24).

Allen v. Caldwell, 231 Ga. 442, 202 S.E.

2d 35 (1973) (two justices dissenting on

the preliminary hearing issue).

Having exhausted state remedies,

Allen filed an application for habeas

corpus relief in the federal district

court for the Middle District of Georgia.

Allen, again proceeding without the

assistance of counsel, presented the same

grounds for relief that had been presented

to the state courts. The jurisdiction of

the district court was founded on 28 U.S.C.

§ 2241 and 28 U.S.C. § 2254. The district

court appointed counsel to represent Allen.

After an evidentiary hearing, the district

court concluded that Allen had not been

afforded effective counsel in Elbert

County and ordered that Allen was either

to be discharged from custody or retried.

The facts upon which the district

court based its conclusion that effective

counsel was lacking differed materially

from the facts developed in the state

courts. Developed for the first_time at

the federal evidentiary hearing, the

3on the basis of exhaustion, or

rather, the lack thereof, objection was

made in the district court to the consid-

eration of materially different facts

pertaining to the ineffective counsel

issue.

additional facts were: (1) counsel

failed to interview the victim of the

rapes and her 13 year old son prior to

trial,* (2) black persons were

significantly underrepresented on

Elbert County jury rolls,> (3) counsel

did not object to hearsay testimcny

concerning the arrest warrants issued

in the case, © (4) counsel did not

develop evidence concerning the victim's

4nftter discussion with counsel,

Allen agreed that the best theory of

defense was consensual interccurse.

(R. Vol. I 56).

>allen and the victim are black;

Elbert County is rural and it is

reasonable to infer that the black

community would have been aware, based

on general reputation, of Allen's

previous criminal escapades. Allen

peremptorily challenged both black men

from the panel from which his jury was

chosen. (R. Vol. I 223).

rhe testimony revealed that the

victim did not officially complain of

the rapes for over a month after the

second assault. (R. Vol. I 118, 126).

numerous arrests for public drunkenness

and prior, specific acts of urchasteness, ’

and (5) counsel did not object to the

disclosure of Allen's criminal record to

the jury. 8

Apparently agreeing with the state

courts, the district court did not find

that the length of time in which counsel

prepared for trial contributed to his

effectiveness vel non. See, Avery v.

Alabama, 308 U.S. 444 (1940).

On appeal, the Court of Appeals

affirmed without opinion pursuant to

Local Rule 21.9

TEvidence as to the victim's arrests

for public drunkenness would have been

inadmissible under state law as being

irrelevant. Prior, specific acts of

sexual misconduct were similarly inadmis-

sible.

Sunder Georgia's bifurcated sentencing

procedure, Allen's record was not disclosed

until after he had been found guilty.

(R. Vol. I 185-191).

°The primary focus of the petitioner's

argument in the Court of Appeals was

exhaustion: The state courts did not have

the opportunity to consider the materially

different facts adduced at the federal

hearing “either as factual evidence

relating to ineffective counsel or as

separate and independent constitutional

issues."

REASONS FOR GRANTING THE WRIT

A. THE DECISION BELOW CONFLICTS

WITH THE DECISIONS OF OTHER

COURTS OF APPEALS AS TO THE

PROPER INTERPRETATION OF

28 U.S.C. § 2254(b).

If a state habeas applicant seeks

relief from a conviction in the state

courts on a given set of facts, premised

upon a particular constitutional theory,

he cannot thereafter, consistent with

28 U.S.C. § 2254(b), prevail in the

federal courts on the same facts,

buttressed by a different constitutional

theory. Picard v. Conner, 404 U.S. 270

(1971). The state courts must first be

presented with the substance of the

federal claim. Id. at 278.

Sub judice, the district court and

the Fifth Circuit were presented with

the converse situation -- same consti-

tutional theory, materially different

facts.10

105n Picard, the Court noted the

converse situation but, of course, had

no reason to do more than note its

existence. 404 U.S. at 276.

Other circuits require exhaustion

when the state habeas applicant seeks to

present, or presents, factual contentions

in support of a constitutional claim to

the district court that differ signifi-

cantly from the factual contentions

presented to the state courts in support

of the same constitutional claim. E.g.,

Gurule v. Turner, 461 F. 2d 1083, 1084

(lOth Cir. 1972): Daniels v. Nelson,

453 F. 2d 340 (9th Cir. 1972); Needel v.

Scafati, 412 F. 2d 761, 765-766 (lst Cir.

1969), cert. denied, 396 U.S. 861 (1969);

United States ex rel. Figueroa v. McMann,

411 F. 2d 915 (2d Cir. 1969); Thompson v.

Peyton, 406 F. 2d 473, 476 (4th Cir. 1968).

The conflict betweei. the Fifth Circuit and

the First, Second, Fourth, Ninth, and

Tenth Circuits on exhaustion -- same

constitutional theory, materially different

facts -- is complete and cannot be

reconciled.

The Fifth Circuit has chosen, through

local rules, to avoid "publicizing" the

conflict; the conflict nevertheless

remains. This Court should not permit a

circuit court to possibly evade certiorari

review by the arguably questionable use of

"no-publish" local rules.

The conflicts noted justify the

grant of certiorari to review the judgment

be low.

ai@e

B. THE PETITION PRESENTS AN

IMPORTANT QUESTION OF

FEDERAL-STATE COMITY THAT

SHOULD BE SETTLED BY THE

COURT.

In Picard v. Conner, 404 U.S. 270

(1971), the Court held:

". . . the substance of

a federal habeas corpus

claim must first be

presented to the state

courts." 404 U.S. at

278. (Emphasis added).

Of course, when a state habeas applicant

has once presented the state courts with

a full opportunity to resolve federal

constitutional issues, the exhaustion

requirement of 28 U.S.C. § 2254(b) is

satisfied. Francisco v. Gathright, 419

U.S. 59 (1974); Roberts v. LaVallee, 389

U.S. 40 (1967); cf., Humphrey v. Cady,

405 u.S. 504, 517 n. 18 (1972).

Sub judice, however, the factual

substance of the ineffective counsel

claim upon which the district court

granted habeas corpus relief was never

presented to the state courts. The state

courts have been denied the opportunity

to receive and weigh the additional

factual material that was developed in

the district court; the state courts

=

have been denied the opportunity to

apply controlling legal principles to

the additional facts as they may find

them to be -- the ineffective counsel

claim before the state courts was

simply not the same ineffective counsel

claim before the district court and

before the court of appeals.

Whether 28 U.S.C. § 2254(b) requires

recourse to the state courts, in the

context of the facts of this case, is a

recurring and significant problem to

district courts throughout the nation.

The problem is equally important, if

not more so, to the state courts whose

decisions must pass the scrutiny of the

federal district judge. The issue has

not previously been squarely confronted

by the Court; 1 the importance of the

issue suggests that the time for review

is ripe.

llct., Pitchess v. Davis, 421 U.S.

482 (1975).

oiZe

CONCLUSION

For the above reasons, a writ of

certiorari should issue to review the

judgment and opinion of the Fifth

Circuit Court of Appeals.

Respectfully submitted,

ARTHUR K. BOLTON

Attorney General

ROBERT S. STUBBS, II

Chief Deputy

Attorney General

RICHARD L. CHAMBERS

Deputy Attorney General

G. THOMAS DAVIS

Senior Assistant

Attorney General

B. DEAN GRINDLE, JR.

Assistant Attorney

General

Please serve:

B. DEAN GRINDLE, JR.

132 State Judicial Bldg.

40 Capitol Square, S.W.

Atlanta, Georgia 30334

(404) 656-3356

wi De

Al

APPENDIX

APPENDIX "A"

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Summary Calendar*

LUTHER HENRY ALLEN,

Petitioner-Appellee,

versus

JOE S. HOPPER, Warden,

Georgia State Prison,

Respondent-Appellant.

Appeal from the United States District Court for the

Middle District of Georgia

( November 26, 1975 )

Before WISDOM, DYER and CLARK, Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 2l.

*Rule 18, 5 Cir., Isbell Enterprises, Inc. v.

Citizens Casualty Company of New York, et al.,

5 Cir., 1970, 431 F.2d 409, Part I.

lsee N.L.R.B. v. Amalgamated Clothing Workers

of America, 5 Cir. 1970, 430 F. 2d 966.

Issued as Mandate:

A2

APPENDIX "B"

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 75-2324

LUTHER HENRY ALLEN,

Petitioner-Appellee,

versus

JOE S. HOPPER, Warden,

Georgia State Prison,

Respondent-Appellant.

Appeal from the United States District Court for the

Middle District of Georgia

ON PETITION FOR REHEARING

(JANUARY 13, 1976)

Before WISDOM, DYER and CLARK, Circuit Judges.

PER CURIAM:

Our affirmance of the Final Order Granting

Writ of Habeas Corpus entered April 9, 1975 does

not reach the second ground stated in the district

A3

court's announcement of April 1, 1975, relating

to cruel and unusual punishment.

IT IS ORDERED that the petition for rehearing

filed in the above entitled and numbered cause be

and the same is hereby denied.

A4

APPENDIX "C"

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ATHENS DIVISION

LUTHER HENRY ALLEN,

) CIVIL NO. 74-39-Ath.

Petitioner,

)

Vv.

)

JOSEPH HOPPER, Warden,

Georgia State Prison, )

Respondent. )

Gentlemen, the Court is reserving any actual

determination on the jury composition question until

the facts are before the Court.

Not long ago I went to a convocation at the

University of Georgia, and attending that convocation

were Justices of the Supreme Court of Georgia, Judges

of the Court of Appeals of Georgia, a substantial

number of Federal Trial Judges and State Trial Judges,

at least one of the fifteen Judges of the Fifth |

Circuit Court of Appeals, and many distinguished

professors from our various law schools. One of

the distinguished speakers on that occasion was

Judge Aldisert who is in my humble judgment a very

scholarly judge of the United States Court of Appeals

for the Third Circuit. According to the introduction

of Judge Aldisert, before being appointed to the

appellate bench, he I think for some more than ten

years sat as a trial judge in the State of Pennsyl-

vania. ‘le has been a distinguished lecturer many,

AS

many places in these United States dealing with

the judicial process. He suggested one thing that

I think is worthy of note. He said that there are

many critics within the legal profession who suggest

that judges in deciding cases fail to put on the

record the real reason that causes them to make the

decision that they make. He says that in Switzer-

land - I believe it was Switzerland - some foreign

country - after a case is argued in the appellate

level, the judges sit and confer with each other

with everybody present. They decide that case in

public, then stating among themselves in argument

as to why they decide it, so the world really

knows why they decided it. They don't go back

and shut the doors and say, "Boys, this is a case

that ought to be decided; let's find out some way

to do it." - which I suggest is frequently the

case in our process. The judye sits in the

courtroom and listens and then he goes back to

Chambers and figures out what to do with the case.

I am not going to do that today. I am going

to adopt Judge Aldisert's suggestion. We judges

ought to really be frank and open with litigants

and with the public and teli what's the human

basis for making a decision, as well as the legal

basis - the human basis and the legal basis in

this case.

I want to suggest to you, first of all, that

‘any human being who reads the transcript of this

trial, the basis on which this man was sent to

Reidsville under two life sentences, would have

to say that the entire set of circumstances

completely shocks the conscience. That's the

way it really hit me as I read it - I could not

A6é

believe, as a human being, that in this society

that we live in where we have constitutional

and legal rights, that any human being on the

face of this earth would be tried in any court-

room and sent off to spend the rest of his

natural life as a result of what's in this record.

Admittedly, in a habeas corpus proceeding, this

Court cannot consider the quantum of evidence

that resulted in his conviction. The cases do

indicate a total absence of evidence rises to

constitutional standards.

There's not a total absence of evidence in

this case, but I suggest to you that the evidence

that is in this case is incredible. It's just

as incredible as if I were to come in here and

swear under oath that unlike the astronauts

who went to the moon in a vehicle that we know

of, that I got on my pogo stick and went to the

moon last night and came back this morning

before breakfast.

In the course of human events, human beings

do not get raped like this woman was raped on

two occasions. That to me is just common sense

and common knowledge.

But what concerns me about the jury issue is

that in this world that we live in, those of us

who grew up in the State of Georgia and who have

had some acquaintance with the habits of the

various segments of our population, certainly

know as a matter of common sense that people in

different neighborhoods and of different races

A7

and different levels of society live in

different ways. That's no criticism of any

particular person or any particular race.

It's a fact. This judge happened to grow up

down in South Georgia in Albany when Albany

was a little bitty place - it wasn't some

80,000 people, as it is now. So I played

with Negro children, been in their homes,

and have some familiarity with what goes on.

When I first came to the Bar I remember I

represented a Negro who was charged with murder

and went down to the local bar to investigate

it - talked to everybody in the bar. I well

recall what goes on in Harlem on Saturday night.

I've had many conversations with those who were

employed by my mother and father about being in

Harlem on Saturday night. I suggest to you

that we also know, as a matter of common sense,

that Harlem on Saturday night is not like being

up on the white folks' side of town on Saturday

night. Not that white folks don't cut up,

don't drink liquor - do the same things to a

degree that are done in Harlem; it's just that

I suggest on Saturday night there is more

liquor drunk and there is more that goes on

down there. I remember an old, fine maid that

we had who it was my job to take home when I

was in high school. She cooked - and she

liked to have a good time. She would come out

of the kitchen and she would be "dolled up"

and she would want me to take her and drop her

in Harlem. I remember one time she said, "Lord,

‘av Mercy, Mr. Owens, you ain't never lived

till you've been a Nigger in Harlem on Saturday

night."

A8

I see the petitioner shaking his head. But

again, that's not being critical of anybody,

That's just a fact of life in the State of

Georgia.

Now that's one of the reasons that the

Court has noted the total absence of Negro

faces on the jury. Twelve white jurors who

have no appreciation for Harlem on Saturday

night can't judge a case that involves an

allegation that a Negro woman who has been

arrested for being publicly drunk on eighteen

occasions was raped by a man who she then let

spend the night in her house on two occasions.

And it is inconceivable that any good lawyer

would expect twelve white jurors to even

begin to understand that set of facts. That's

the reason that this defendant and all

defendants, I suggest to you, are entitled

under the Constitution to have a jury that's

made up of a cross section of the community.

This illustrates it better than any case that

I've run into in years. I'm not deciding

that issue - I'm suggesting to you that's why

it is important in this case more so than any

other case that we have that issue develop.

From a constitutional standpoint there are

two issues in this case on which the Court is

in position to now pass judgment. The first

issue is the question of whether or not this

petitioner received the effective assistance

of counsel that he is entitled to as discussed

in many cases that y'all have referred to,

including the case where a judge of this case

AQ

was reversed on this very issue, Walker vs.

Caldwell, 476 F. 2d 213. Of course y'all are

familiar with that case. This case in effect

says that we in the legal world always hesitate

to say that one of our brethren in an

appointed case has not done the good job that

he should have done. Well, I Know that. I

don't welcome the opportunity to say that Mr.

Matthews didn't effectively assist this

petitioner. Mr. Matthews, as far as I know,

enjoyed the finest reputation at the Bar. I

don't think I knew him personally but I do

know his partner, Bill Grant, who has appeared

in this court before me, and I believe Mr.

Matthews to be as good a lawyer as Bill Grant

is and Bill Grant is a good lawyer.

But the fact that a man is a good lawyer

doesn't mean that he effectively assisted a

defendant in a criminal case in which he was

appointed by the Judge of the Superior Court.

The Court notes that it's this Court's

responsibility to make findings of fact on the

issue of the effectivenss of counsel. And

gentlemen, it is the conclusion of this Court

judging this case that the lateMr. Matthews

did not afford to this petitioner the

effective assistance of counsel that the

Constitution and laws command.

Al0

Why do I say that? Gentlemen, in the first

place it is apparent from two of the three

possible witnesses, the third witness, the

husband of the victim, being deceased - the

record will show the Court endeavored to have

him here by subpoena and that was the report

to the Court, that he is deceased - it is

apparent from two of those three that Mr.

Matthews didn't interview the witnesses before

going into court. He did talk to the defendant.

But he did not interview the witnesses for the

purpose of being prepared to cross examine them.

He could not go into their background for the

purpose of indicating circumstances that might

Support the defendant's version without having

even talked with them. The law does not prohibit

anybody from talking with them. Of course even

as shocking, but not constitutionally involved

is the fact that the District Attorney didn't

interview them either. Not only did he not

interview the witnesses, he didn't subpoena

any - from the record.

You gentlemen say that Georgia Mae's

character can't be gone into -- well, if Mr.

Matthews had talked with the defendant, the

defendant could have been advised that he had

a right in making an unsworn statement to tell

not the few words that he said, but anything

and everything. There was nothing to prohibit

this defendant from having told of his life-

long relationship with Georgia Mae, and from

having told that Georgia Mae drank liquor, and

from having gone into all the details in an

unsworn statement, as far as this Court knows.

I think the deciding cases would support it.

All

There would have been nothing to prohibit

Mr. Matthews from cross examining her on

the issue of her habit of drinking liquor,

which I suggest twelve jurors could find

did have something to do with whether or

not she consented to having sex relations

with anybody. If twelve people can't take

notice of the fact that liquor loosens the

morals of all human beings, I suggest they are

not qualified to sit in the jury box -- either

that or they haven't had a drink of liquor,

or they have been living alone all their lives.

So the fact that she's been arrested eighteen

times for being publicly drunk and she, by her

own testimony admitted she could have been

arrested on more occasions, could have been

brought into this case.

That's not general character in the

community - those are specific acts that go

towards impeaching what this witness had to

say.

He talked to eight police officers - Mr. |

Matthews did. The victim and her husband and

her son, though he doesn't remember it,

supposedly made statements to the police

officers. After they testified their

inconsistent statements could have been brought

out for impeachment purposes by putting at

least four police officers on the witness stand.

No effort was made to impeach her on the grounds

of inconsistent statement. And those incon-

sistent statements are shown in this transcript

as is pointed out by Mr. Sizemore, is shown

today. We've now got the knife and the pistol

on the backward occasions when she appears in

this courtroom today. Again, no effort to

bring that out. He consented, Mr. Matthews

did, to the warrant being brought into the case.

Al2

The matters set forth in a warrant,

gentlemen, are not admissible in any court.

No objection to that. Case law would

clearly say you can't produce to a jury

upon a criminal trial the facts set forth

in an affidavit that somebody got to get

a warrant for the arrest that preceded the

indictment. That's rank hearsay. He didn't

object to that.

He sat back while the Chief of Police

went into the complete criminal record of this

defendant, from the time he was a juvenile

up until this trial - every arrest - not

conviction - every circumstance of the arrest.

Just things that the Constitution forbids -

page after page. Of course the State says

this Court shouldn't take notice of that.

Gentlemen, I suggest that the error there is

so plain that any court, be it the Superior

Court of Tattnall County, or Elbert County,

the Court of Appeals of Georgia or the

Supreme Court of Georgia, should take notice

of that as a matter of due process of law.

And I suggest to you that it would be a

denial of due process for this Court to now

tell that petitioner who proceeded without

the assistance of anybody on the two trips

to the appellate courts that he's got to now

go back and ask our appellate courts to take

notice of plain error. More than anything,

that indicates that Mr. Matthews was not

representing this defendant. If he were, he

would have never permitted that Police Chief

to even take the stand - he would have

objected to him being there. What's the

purpose of a Police Chief being at a

sentencing hearing? He's not the custodian

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or the records of any court. If you are

going to introduce the records of convictions,

gentlemen, you've got to bring a certified

copy of the convictions into court. A police

chief does not certify to anything. And what

the Police Chief testified to is not even within

the scope of what's permitted. It's just

shocking that any lawyer would sit back and

permit such testimony without making an objection.

Those are just some of the things that the

Court notes, all of which as I say, leads to

a conclusion as a finder of fact that this

petitioner was deprived of his constitutional

right to be effectively assisted by counsel.

Now the next thing, of course, gentlemen,

in the Court's best judgment, the sentence

that this defend.unt received is patently

unconstitutional. It is unconstitutional to

begin with because of the information that was

before this jury when it considered its

sentence, ninety-nine percent of which it was

not entitled to have, under the decisions of

the Supreme Court of the United States. If

this Court based a sentence on that information

it wouldn't last any longer than the mail could

get down to New Orleans, if that long. It

wouldn't last till a phone call could get to

the Fifth Circuit.

And secondly, gentlemen, I want to suggest

to you that there is one other ground. In

Furman vs. Georgia, the Supreme Court of the

United States held that the indisciiminate

application of the death penalty is cruel and

unusual punishment prohibited by the Constitu-

tion of the United States. In this Court's

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best judgment, the indiscriminate application

of the sentence of life imprisonment in a rape

case such as this is the cruel and unusual

punishment that is prohibited by the Supreme

Court - in the Supreme Court's judgment by

the Constitution of the United States. This

record is void of any circumstances that would

support two life sentences being imposed on

any human being. It just smacks of a kangaroo

court in this Court's best judgment.

Those, gentlemen, are the two main issues

in this case as far as the Court sees them.

There may also be the issue of the jury

composition. If the jury was not attacked

it should have been attacked and he did not

waive his right to, then of course it would

mean that the indictment itself also fails -

not only his conviction but the indictment

on which it was based. So the Court will

reserve judgment on that.

But the Court has passed judgment, though

incompletely in this case, to the extent that

it has so stated, and however will not enter

a complete judgment until such tineas Mr.

Shiver furnishes that information and you

gentlemen advise whether or not you want to

supplement the record in the case. But at

that time you gentlemen may expect that the

Court will supplement what it has said today

for the purpose of granting upon terms that

the Court will so state, the writ of habeas

corpus, giving the State time to appeal the

matter to the Fifth Circuit before the writ

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becomes final. Of course it would become

final at the time they either say they are

not going to appeal or their right to appeal

is exhausted. Anyway, that will be taken

care of at the time.

Until the case is concluded just let the

petitioner remain in the custody of this

Court in case we need his testimony further.

This lst day of April, 1975.

/s/ Wilbur D. Owens, Jr.

Wilbur D. Owens, Jr.

United States District Judge

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APPENDIX "D"

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ATHENS DIVISION

LUTHER HENRY ALLEN, *

Petitioner, *

CIVIL ACTION NO.

Vv. * 74-39-Ath

JOSEPH HOPPER, Warden, *

Georgia State Prison,

Respondent.

FINAL ORDER GRANTING WRIT OF HABEAS CORPUS

On April 1, 1975, following the conclusion

of an evidentiary hearing the court ruled from

the bench as to all issues in this case except

the possible constitutional attack upon the.

grand jury which indicted and the petit jury

which tried the petitioner.

At the request of the court transmitted

by John M. Shiver, Esquire, Attorney at Law

of Elberton, Georgia, Mr. C. H. Rucker, Clerk

of Elbert Superior Court, forwarded to the

court a certified copy of

(1)the 1971 grand jury list from

said Superior Court,

(2) the grand jury selected from

said list which indicted petitioner,

(3) the 1971 petit jury list for

said Superior Court, and

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(4) the list of the petit jurors

selected from said list and from which

a jury was selected for petitioner's

trial.

The clerk added the racial identity of each per-

son to the list at the court's request. An

examination of that information shows that the

grand jury list contains 250 names, of which

16 are those of persons of the Negro race.

Negro citizens thus constitute approximately

3.019 percent of the names in the grand jury

box. The petit jury list contains 1,727 names,

of which 66 are those of persons of the Negro

race. Negro citizens thus constitute approx-

imately 3.822 percent of the petit jury list.

The 1970 United States census shows that

Elbert County, Georgia, had a total population

of 17,272 persons, of whom 5,509 were persons

of the Negro race. Negro citizens thus

constitute 31.914 percent of the total

population of the county.

It is undisputed that petitioner's court

appointed counsel did not attempt to consti-

tutionally challenge either the grand or

petit jury of Elbert County. It is obvious

had he endeavored to do so, such a challenge

would have been successful. Whitus v. Georgia,

385 U.S. 545, 17 L. Ed 2d 599, 87 S. Ct. 643

(1967). This issue was not raised upon appeal

in the state courts of Georgia and it would,

therefore, be inappropriate for this court to

grant a writ of habeas corpus on the basis

of the obvious unconstitutional composition

of said jury list. Petitioner if he desires

to do so cun raise these issues upon his

retrial, if he is retried.

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This additional information concerning

the racial composition of the grand and

petit jury list further convinces the court

that its ruling as to the incompetency of

petitioner's counsel is an appropriate

disposition of this case.

For all of the reasons set forth in

the court's ruling of April 1, 1975, and in

this further ruling, the writ of habeas corpus

must be granted.

IT IS THEREFORE ORDER, ADJUDGED and

DECREED that Petitioner's conviction be set

aside and that petitioner after this

judgment becomes final as a result of the

failure of defendant to ledge an appeal or

as the result of the issuance of a mandate

affirming this decision, whichever is

later, be retried within 60 days, failing

which this writ of habeas corpus without

further order shall be made absolute and

petitioner shall be released from custody.

SO ORDERED, this the 9th day of

April, 1975.

/s/ Wilbur D. Owens, Jr.

Wilbur D. Owens, Jr.

United States District Judge

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

NO. 75-

JOE S. HOPPER, Warden,

Georgia State Prison,

Petitioner,

Vv.

LUTHER HENRY ALLEN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CERTIFICATE OF SERVICE

I, B. Dean Grindle, Jr., Attorney of

Record for the Petitioner herein, and a

member of the Bar of the Supreme Court of

the United States, hereby certify that in

accordance with the Rules of the Supreme

Court of the United States, I served

three copies of the foregoing Petition

for Writ of Certiorari upon the

Respondent by depositing same in a

United States mailbox, with first class

postage prepaid, addressed to counsel

of record as follows:

Mr. Lamar W. Sizemore, Jr.

Attorney at Law

P. O. Box 993

Macon, Georgia 31202

This Lb aay of February, 1976.

B. DEAN GRIAD