Appendix — Linahan v. Machetti

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Order denying Petition for Rehearing from the

United States Court of Appeals for the

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Opinion of the United States Court of Appeals

for the Eleventh Circuit...............cec cece 5a

Order of the District Court denying habeas

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Order of the state habeas corpus court

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[U.S. Court of Appeals, Eleventh Circuit, Filed

August 24, 1982. Norman E. Zoller, Clerk]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-7614

REBECCA A. MACHETTI, a/k/a

REBECCA A. SMITH,

Plaintiff-A ppellant,

versus

L. Q. LINAHAN, Warden, Georgia Women’s

Correctional Institution,

Defendant-A ppellee.

Appeal from the United States District Court for the

Middle District of Georgia

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion June 25, 11 Cir., 1982, F.2d >,

Before INGRAHAM*, HATCHETT and ANDERSON,

Circuit Judges

PER CURIAM:

( X ) The Petition for Rehearing is DENIED and no

member of this panel nor Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en banc (Rule 35, Federal Rules of Appel-

late Procedure; Eleventh Circuit Rule 26), the suggestion

for Rehearing En Banc is DENIED.

( ) The Petition for Rehearing is DENIED and the

Court having been polled at the request of one of the

*Judge, 5th Circuit Court of Appeals, sitting by designation.

members of the Court and a majority of the Circuit

Judges who are in regular active service not having voted

in favor of it (Rule 35, Federal Rules of Appellate Pro-

cedure; Local Eleventh Circuit Rule 26), the suggestion

for Rehearing En Banc is also DENIED.

( ) A member of the Court in active service having

requested a poll on the reconsideration of this cause en

banc, and a majority of the judges in active service not

having voted in favor of it, rehearing en bane is DENIED.

ENTERED FOR THE COURT:

/s/ JoserpH W. HatcHett

United States Circuit Judge

REHG-6

Rebecca A. MACHETTI, a/k/a Rebecca

A. Smith, Plaintiff-Appellant,

L. Q. LINAHAN, Warden, Georgia

Women’s Correctional Institution,

Defendant-Appellee.

No. 81-7614.

United States Court of Appeals,

Eleventh Circuit.

June 25, 1982.

Habeas petitioner appealed from a decision of the United

States District Court for the Middle District of Georgia,

Wilbur D. Owens, Jr., Chief Judge, 517 F.Supp. 1076,

denying her petition. The Court of Appeals, Hatchett,

Circuit Judge, held that state jury selection procedure

that permitted any woman who did not wish to serve on

a jury to opt out merely by sending notice to the jury

commissioners deprived petitioner of her right to an im-

partial jury trial.

Reversed and remanded with directions.

1. Habeas Corpus 25.1(3, 4)

Generally, a federal court will honor a valid state pro-

cedural rule that a defendant’s failure to object to a grand

or petit jury before or during trial constitutes waiver of

that objection as a basis for habeas corpus relief. 28

U.S.C.A. § 2254.

2. Habeas Corpus 45.1(4)

Where state habeas court entertains federal constitu-

tional claims on the merits, the federal habeas court must

also adjudicate the merits. 28 U.S.C.A. § 2254.

3. Grand Jury 21%

Jury 33(1.1)

Constitutional guarantee of the right to an impartial

jury also embraces a right that grand and petit juries be

selected at random so as to represent # fair cross section

of the community. U.8.C.A.Const.Amend. 6.

4. Constitutional Law 213.1(1)

Prima facie case of an equal protection violation may

be rebutted by proving an absence of discriminatory pur-

pose or that such purpose did not have a determinative

effect. U.S.C.A.Const.Amends. 5, 14.

5. Jury 33(1.1)

Since systematic disproportion alone establishes a prima

facie claim that a jury did not represent a fair cross sec-

tion of the community, rebuttal evidence focuses on the

significant state interest which justifies the imbalance.

U.S.C.A.Const.Amend. 6.

6. Grand Jury 2%

Jury 33(1.5)

Evidence that the traverse jury list from which habeas

petitioner’s jury was drawn was composed of only 18 per-

cent women and that the grand jury list contained only

12 percent women, although the county’s population was

comprised of 54 percent women, constituted an adequate

prima facie showing that the jury did not represent a fair

cross section of the community. U.S.C.A.Const.Amend.

6; 28 U.S.C.A. § 2254.

7. Habeas Corpus 85.5(12)

Habeas petitioner’s proof sufficiently established that

the underrepresentation of women in the jury selection

process in her case was due to a state jury selection pro-

cedure that permitted any woman who did not wish to

serve on a jury to opt out merely by sending written notice

to the jury commissioners. Ga.Code, § 59-124 (Repealed);

U.8.C.A.Const.Amend. 6; 28 U.S.C.A. § 2254.

8. Jury 33(1.5)

State jury selection procedure that permitted any wom-

an who did not wish to serve on a jury to opt out merely

by sending written notice to the jury commissioners de-

prived habeas petitioner of her right to an impartial jury

trial. 28 U.S.C.A. § 2254: Ga.Code, § 59-124 (Repealed);

U.S.C.A.Const.Amends. 6, 14.

Appeal from the United States District Court for the

Middle District of Georgia.

Before INGRAHAM*, HATCHETT and ANDER-

SON, Circuit Judges.

HATCHETT, Circuit Judge:

This appeal requires a review of the principles of con-

stitutional law governing the fair cross-section require-

ment of jury composition. We hold that Georgia’s jury

selection procedure violated appellant’s sixth and four-

teenth amendment right to an impartial jury trial and

reverse and remand to the district court, 517 F.Supp.

1076, with directions to issue the writ of habeas corpus.

*Honorable Joe M. Ingraham, U. 8. Circuit Judge for the Fifth Cir-

cuit, sitting by designation.

I. BACKGROUND

Appellant, Rebecca Machetti, seeks federal habeas

corpus relief under 28 U.S.C. § 2254 (1977), from two

consecutive death sentences. The sentences were imposed

by the Superior Court of Bibb County, Georgia, follow-

ing her February, 1975, jury conviction for two murders.

On appeal, the Supreme Court of Georgia affirmed the

convictions and sentences and denied her petition for re-

hearing. Smith v. State, 236 Ga, 12, 222 8.E.2d 308, cert.

denied, Smith v. Georgia, 429 U.S. 932, 97 S.Ct. 339, 50

L.Ed.2d 302 (1976), rehearing denied, 429 U.S. 1055, 97

8.Ct. 771, 50 L.Ed.2d 772 (1977). The Bibb County

Superior Court denied Machetti’s petition for declara-

tory relief and/or a new presentence hearing and for a

stay of execution. After staying her execution pending

appeal, the Supreme Court of Georgia denied the appeal

and a motion for rehearing. Smith v. Stale, 238 Ga. 655,

235 S.E.2d 375, cert. denied, Smith v. Georgia, 434 U.S.

878, 98 S.Ct. 232, 54 L.Ed.2d 159, rehearing denied, 434

U.S. 961, 98 S.Ct. 496, 54 L.Ed.2d 323 (1977). Georgia’s

high court then issued remittitur to the Bibb County

Superior Court, which slated January 20, 1978, as the

date of Machetti’s execution. She then filed a habeas cor-

pus petition in the Superior Court of Baldwin County,

Georgia, which stayed the execution but later denied the

petition. In July, 1979, the Georgia Supreme Court de-

nied her application for a certification of probable cause

to appeal and denied her motion for reconsideration.

After exhausting her state remedies, Machetti filed a

petition for writ of habeas corpus in January, 1978, in

the district court for the Middle District of Georgia.

That court stayed her execution ‘‘until such time as her

action has been finally decided in the courts of the United

States.” After reference to a magistrate, the district court

denied Machetti’s petition. Machetti v. Linahan, 517

F.Supp. 1076 (M.D.Ga.1981).

Machetti was convicted on February 28, 1975, of two

counts of murder in the brutal slaying of her ex-husband,

Joseph Ronald Akins, and his wife, Juanita. Machetti

planned the murder so that her thre: teenage daughters

might reczive the benefits of their father’s insurance: pol-

icies. At the sentencing hearing, Machetti’s attorn»+y in-

troduced no new evidence but begged the jury to find

mitigating factors without suggesting any such cireum-

stances. The jury recommended death on both counts,

and the court sentenced Machetti to two consecutive

death sentences.

Evidence received at the state habeas hearing showed

that the triverse jury list from which Machetti’s jury

was drawn was composed of only 18% women, despite a

1970 census showing that women comprised 54% of Bibb

County’s adult population. The grand jury list con-

tained only 12% women. Thus, the absolute disparity

between the adult female population of Bibb County and

the grand jury list was 42%, and 36% with respect to the

traverse jury list.? Appellee, L. Q. Linahan, Warden of

the Georgia Women’s Correctional Institution, concedes

the accuracy of these statistics. At the time of jury s2lec-

tion, Ga.Code Ann. § 59-124 (repealed 1975) provided

that any woman who did not wish to serve on a jury

could ‘‘opt-out’”’ merely by sending written notice to the

' Appellant was convicted and sentenced by a twelve-member petit

jury which included one woman.

* Absolute disparity is one method used to calculate disparity. Ab-

solute disparity measures representativeness by the difference between

the proportion of the population and the proportion of the underrep-

resented category in the jury box. Kairys, Kadane & Lehoczky, Jury

10a

jury commissioners.* Potential women jurors in Bibb

County automatically received cards allowing them the

opportunity to exempt themselves from service.

II. ISSUE

We must decide whether appellant was indicted and

convicted by juries drawn from a venire which unconsti-

tutionally exeluded and underrepresented women.

Ill, JURY COMPOSITION

[1,2] Machetti’s counsel first raised the jury compo-

sition issue at the state habeas corpus hearing.‘ She con-

tends that the operation of section 59-124 systematically

excluded women from the venire; and therefore, she was

indicted by a grand jury and convicted by a traverse jury

drawn from jury boxes in which women were unfairly

underrepresented. Machetti thus contends that the Geor-

gia jury selection procedure deprived her of her right to

Representativeness: A Mandale for Multiple Source Lists, 65 Cal.L.

Rev. 776, 790 (1977).

§ Ga.Code Ann. § 59-124 (1965) (repealed 1975) provided:

Exemption of women who do not desire to serve.—Any woman of

this State who does not desire to serve upon juries shall notify the

jury commissioners of the county in which she resides in ge to

that effect, and thereupon the jury commissioners shall not place

the name of such woman in the jury box for said county. 1953 Ga.

Laws Nov.Sess., pp. 284, 288 (repealed 1975).

4 Generally, a federal court will honor a valid state procedural rule

that a defendant’s failure to object to a grand or petit jury before or

during trial constitutes waiver of that objection as a basis for habeas

corpus relief. Francis v. Henderson, 425 U.S. 536, 541-42, 96 S.Ct.

1708, 1711, 48 L.Ed.2d 149 (1976); Stewart v. Ricketts, 451 ¥'.Supp.

911, 913-14 (M.D.Ga.1978). A Georgia decisional rule force at the

time of appellant’s trial in February and March, 1975, mandated that

result. Where, however, the state habeas court entertains the federal

constitutional claims on the merits, as in the instant case, the federal

habeas court must also adjudicate the merits. Lefkowitz v. Newsome,

420 U.S. 283, 292 n.9, 95 S.Ct. 886, 891 n.9, 43 L.Ed.2d 196 (1975);

Newman v. Henderson, 539 F.2d 502, 504 (5th Cir. 1976).

lla

a fair trial by jury of a representative segment of the com-

munity. The district court upheld the selection process.

[3] Fundamental to our system of justice is the prin-

ciple that the sixth amendment grants criminal defen-

dants the right to an impartial jury. This guarantee also

embraces a right that grand and petit juries be selected

at random so as to represent a fair cross-section of the

community. Taylor v. Louisiana, 419 U.S. 522, 527-30, 95

S.Ct. 692, 696, 42 L.Ed.2d 690 (1975); United States v.

Perez-Hernandez, 672 F.2d 1380, at 1384 (11th Cir. 1982).

Also relevant to our inquiry is the notion that

the two sexes are not fungible; a community made up

exclusively of one is different from a community com-

posed of both; the subtle interplay of influence one on

the other is among the imponderables. To insulate the

courtroom from either may not in a given case make

an iota of a difference. Yet a flavor, a distinct quality

is lost if either sex is excluded. The exclusion of one

may indeed make the jury less representative of the

community than would be true if an economic or racial

group were excluded.

Ballard v. United States, 329 U.S. 187, 193-94, 67 S.Ct.

261, 264, 91 L.Ed. 181 (1946) (footnote omitted). More-

over, as the Supreme Court more recently stated, “[w|han

any large and identifiable segment of the community is

excluded from jury service, the effect is to remove from

the jury room qualities of human nature and varieties of

human experience, the range of which is unknown and

perhaps unknowable.” Peters v. Kiff, 407 U.S. 493, 503,

92 S.Ct. 2163, 2169, 33 L.Ed.2d 83 (1972).

In Taylor, the Supreme Court held unconstitutional

a state “opt-in” statute which automatically excluded

women from the jury list unless they chose to be included

by filing a written request for jury service. Taylor estab-

12a

lished that the “jury wheels, pools of names, panels, or

venires from which juries are drawn must not systemati-

cally exclude distinctive groups in the community and

thereby fail to be reasonably representative thereof.’’ 419

U.S. at 538, 95 S.Ct. at 702, quoted in Smith v. Balkcom,

660 F.2d 573 (5th Cir. 1981). In contrast to the statute

involved in Taylor, Ga.Code Ann. § 59-124 was an “opt-

out” statute that automatically included women unless

they opted not to serve. The Georgia legislature repealed

this statute shortly after the Court decided Taylor,

In January, 1979, one year after the filing of Machetti’s

federal habeas corpus petition, the Supreme Court in

Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d

579 (1979), held unconstitutional a state opt-out statute

which also exempted women from jury service on request.

In setting forth the elements of a prima facie violation of

the fair cross-section requirement, the Court required the

defendant to show

(1) that the group alleged to be excluded is a “‘distinc-

tive” group in the community; (2) that the represen-

tation of this group in venires from which juries are

selected is not fair and reasonable in relation to the

number of such persons in the community; and (3)

that this underrepresentation is due to systematic ex-

clusion of the group in the jury-selection process.

439 U.S. at 364, 99 S.Ct. at 668.

In this case, the magistrate suggested that Machetti

met the first two criteria required by Duren. The magis-

trate further suggested, however, that Machetti failed to

satisfy the third requirement of establishing that the un-

derrepresentation of women was due to their systematic

exclusion in the jury selection process. Nevertheless, the

magistrate stated that the operation of Georgia’s opt-out

l3a

statute caused the disproportionate representation of

women in Machetti’s case. The magistrate suggested that

Machetti had failed to satisfy the third prong because it

was not until 1979 that the Supreme Court in Duren de-

clared that states could not constitutionally permit all

women to opt out from jury duty solely on the basis of

sex. He thereby implied that the Duren holding that Mis-

souri’s opt-out statute constituted ‘‘systematic exclusion”

was not retroactive. Alternatively, we read this finding

to assume that the opt-out statute alone is insufficient

prima facie evidence of systematic underrepresentation.

The magistrate thus stated that Machetti failed to pre-

sent any other evidence establishing that the sexual im-

balance in Bibb County’s venire was due to systematic

exclusion of women in the jury selection process.

The district court held that Duren could not be applied

retroactively on collateral review and that Machetti was

therefore not entitled to relief. The court noted that be-

cause Duren is not applicable to Machetti’s collateral

attack, that it was not necessary for the magistrate to

consider whether the circumstances of this case satisfied

the Duren requirements. Although declining to adopt the

magistrate’s recommendations on this issue, the district

court adopted the magistrate’s suggestion that Machetti

failed to show that anything other than Georgia’s opt-

out statute contributed to the underrepresentation of

women on the jury list. The court thus implicitly acknowl-

edged that Machetti demonstrated that section 59-124

caused the unconstitutional exclusion of women.

Machetti argues that the district court erred because

Duren, decided some four years after her trial, must be

applied retroactively to her case. In Lee v. Missouri, 439

U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979) (per

l4a

curiam), the Supreme Court held that Duren is retro-

actively applicable to a jury sworn after the decision in

Taylor because Duren did not establish any new princi-

ples of constitutional law not already settled by Taylor.

439 U.S. at 462, 99 S.Ct. at 711. Appellee concedes that

Lee requires the retroactive application of Duren to this

collateral attack. Appellee, however, requests this court

to remand the instant case to the district court for con-

sideration of whether the facts herein meet the three-

prong test of Duren.

We find no just reason for a remand under the present

circumstances. Machetti has remained on death row for

seven years pending the resolution of these legal proceed-

ings. Appellee has admitted that no questions of fact

remain, that no additional relevant factual evidence exists,

that no evidence controverts the facts established by Ma-

chetti, and that the statistics presented are accurate. The

only questions remaining are whether, as a matter of law,

the disparity herein violates the sixth amendment and

whether the operation of Ga.Code Ann. § 59-124 consti-

tuted “systematic exclusion.’”’ We thus examine whether,

as a matter of law, Machetti established a prima facie

fair cross-section claim based on the exclusion of women.

[4-6] It is undisputed that women are a recognizable,

distinct class under the first element of the prima facie

case. There is no doubt that the relevant statistics satisfy

the second criteria of unfair underrepresentation. The

absolute disparity between the percentage women in the

general adult population (54%) and on the 1975 petit

jury list (18%) is 36%, whereas a 42% disparity existed

with respect to the percentage of women on the grand

jury list (12%).* The Supreme Court has never fashioned

5 Although the census figures relied on were five years old at the

time of appellant’s trial, the Supreme Court has previously accepted

lda

precise mathematical standards for gauging systematic

exclusion. See Alexander v. Louisiana, 405 U.S. 625, 630,

92 S.Ct. 1221, 1225, 31 L.Ed.2d 536 (1972). Neverthe-

less, Supreme Court and Fifth Circuit precedent provide

some guidance as to the magnitude of disparity needed

to establish a prima facie cross-section claim. The vari-

ance here is sufficiently disproportionate to fall within the

approximate boundaries delineated in cases holding that

the statistical disparities established prima facie viola-

tions.* See, e.g., Duren, 489 U.S. at 360, 99 S.Ct. at 666

(88%); Turner v. Fouche, 396 U.S. 346, 90 8.Ct. 532, 24

L.Ed.2d 567 (1970) (23%); Hernandez v. Texas, 347 U.S.

475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (14%); Porter v,

Freeman, 577 F.2d 329 (5th Cir. 1978) (20.4%); Preston

six-year-old data as adequate proof of the percentage of the distinctive

class in the community. Duren v. Missouri, 439 U.S. 357, 365 & n.24,

99 S.Ct. 664, 669 & n.24, 58 L.Ed.2d 579 (1979); Alexander v. Louisi-

ana, 405 U.S. 625, 627, 92 S.Ct. 1221, 1223, 31 L.Ed.2d 536 (1972).

Furthermore, no evidence exists in the record to indicate that the

1970 census data “significantly distorted” the percentage of women

in Bibb County at the time of vrial so that the figures were of ques-

oe relevance. Duren, 439 U.S. at 357, 99 8.Ct. at 664, 58 L.Ed2d

Joi.

* Some of the cases relied on for establishing the benchmark per-

centages to raise a prima facie claim of discrimination in jury selec-

tion involved equal protection challenges. The standard for proving a

prima facie violation is virtually identical under both the fair cross-

section and equal protection analyses. United States v. Perez-Hernan-

dez, 672 F.2d 1380, at 1384 n.5 (11th Cir. Apr. 15, 1982).

Different evidence, however, is relevant to rebutting each challenge.

A prima facie case of an equal protection violation may be rebutted

by proving an absence of discriminatory purpose or that such pur-

e did not have a determinative effect. Castaneda v. Partida, 430

8. 482, 493-95, 97 S.Ct. 1272, 1279-1280, 51 L.Ed.2d 498 (1977).

Discriminatory purpose is irrelevant toa fair cross-section claim which

focuses solely on the composition of the venire. Since systematic dis-

proportion alone establishes a prima facie cross-section claim, the

rebuttal evidence focuses on the significant state interest which

justifies the imbalance. Duren v. Missouri, 439 U.S. at 367-68 & n.26,

99 8.Ct. at 670-671 & n.26.

l6a

v. Mandeville, 428 F.2d 1392 (5th Cir. 1970) (13.3%). We

hold that appellant’s statistical evidence constituted an

adequate prima facie showing for the purpose of estab-

lishing a fair cross-section violation.

As to the third requirement, the magistrate’s recom-

mendation stated that Machetti failed to establish that

the underrepresentation of women in the final pool was

due to their systematic exclusion in the jury selection

process. As noted above, the magistrate impliedly based

this finding on the erroneous premise that the declaration

in Duren that states could not constitutionally permit all

women to opt out from jury duty solely on the basis of

sex did not apply to this case. The magistrate conducted

a Duren analysis, yet refused to apply its holding on the

ground that Duren is not retroactively applicable. The

magistrate also distinguished Taylor, decided one month

prior to appellant’s trial, which involved a statute that

automatically excluded women from jury lists because

they failed to opt-in whereas this case involved an opt-

out statute, as in Duren. Lee, however, indicates that

Duren merely clarified Taylor and that the constitutional

standards enunciated in Taylor retroactively apply here,

even though Duren was decided approximately four years

after Machetti’s jury trial.

Moreover, the magistrate explicitly found that ‘‘[t)here

can be no doubt that the underrepresentation of women in

{Machetti’s] case was caused by Ga.Code Ann. § 59-124.”

In stating that the magistrate need not have decided the

constitutionality of the jury composition under Duren

because it was not retroactively applicable to this collat-

eral attack, the district court never repudiated this pro-

posed finding. In fact, the court implicitly agreed that

Machetti met the third-prong in Duren by adopting the

portion of the magistrate’s proposed finding that Ma-

17a

chetti “failed to show that anything other than Ga.Code

Ann. § 59-124 contributed to the underrepresentation of

women in said jury boxes.” 519 F.Supp. at 1080. Not

only did the district court agree that the disparity result-

ed solely from the operation of Georgia’s opt-out statute,

but at oral argument appellee concurred in this view,

conceding that no further evidence exists of the cause of

the disproportionate representation of women.

(7, 8] We hold that the Machetti’s proof sufficiently

established that the underrepresentation of women re-

sulted from their systematic exclusion in Georgia’s jury

selection procedure. Her undisputed showing that this

significant disparity occurred over a period of twenty

months, from February, 1974, through September, 1975,

unmistakably indicates that the cause of the imbalance

was inherent in the jury selection procedure under Ga.

Code Ann. § 59-124. Duren established that the existence

of an opt-out system, as embodied by statute, in conjunc-

tion with the resulting disproportionate and consistent

exclusion of women from the final jury pool was prima

facie evidence of systematic exclusion of women. 439 U.S.

at 366-67, 99 S.Ct. at 669-70. Moreover, appellee intro-

duced no evidence to rebut Machetti’s case. We there-

fore conclude that the Georgia jury-selection system in

effect at the time of Machetti’s trial deprived her of her

sixth and fourteenth amendment right to an impartial

jury trial.

Because the jury composition issue is dispositive, we

need not reach the additional issues presented.’

7 Machetti has also presented issues involving the effective assist-

ance of counsel at the sentencing phase; the validity of Georgia’s

death penalty statute as applied to appellant; and whether the death

penalty was applied arbitrarily and discriminatory on the grounds of

race and poverty.

18a

IV. CONCLUSION

We do not establish absolute limits on jury composi-

tion which would automatically authorize finding a con-

stitutional violation. We merely hold that the percentage

of women on the Bibb County jury lists should more

closely approximate the percentage of women in the adult

community and that 36% and 42% absolute disparities

resulting from the operation of Georgia’s opt-out statute

are unconstitutionally excessive. We therefore reverse and

remand to the district court with directions to issue the

writ of habeas corpus.

REVERSED AND REMANDED WITH DIREC-

TIONS.

19a

[Filed at 11:20 A.M., June 29, 1981, Helen F. Newberry,

Deputy Clerk, U.S. District Court,

Middle District of Georgia. |

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

REBECCA A. MACHETTI, a/k/a

REBECCA A. SMITH,

Petitioner, CIVIL

vs. ACTION

L. Q. LINAHAN, Warden, Georgia NO.

Women’s Correctional Institution, 79-210-MAC

Respondent.

OWENS, District Judge:

Petitioner seeks federal habeas corpus relief under 28

U.S.C.A. § 2254 (1977). She requests that this court grant

a writ of habeas corpus or, in the alternative, hold a full

evidentiary hearing on all issues which she has presented

and then grant a writ of habeas corpus.

This case has been under consideration in one form or

another by state and federal courts in excess of a total of

six years. Petitioner was convicted of two counts of mur-

der in the Superior Court of Bibb County on March 1,

1975. Following a jury trial she received two consecutive

death sentences. On direct appeal her sentences and con-

victions were affirmed by the Georgia Supreme Court.

Smith v. State, 236 Ga. 12 (1976), cert. denied, Smith v.

Georgia, 429 U.S. 932 (1976). A petition for rehearing was

denied on January 10, 1977. On January 13, 1977, peti-

tioner filed a petition for a declaratory judgment and/or

presentence hearing and stay of execution in the Bibb

County Superior Court. This petition was denied, and

the denial was affirmed by the Supreme Court of Geor-

gia. Smith v. State, 238 Ga. 655 (1977), cert. denied, 428

20a

U.S. 910 (1977), rehearing denied, 429 U.S. 87 (1977).

Petitioner, on January 9, 1979, then filed a petition for

a writ of habeas corpus in the Superior Court of Baldwin

County, Georgia. After a two-day hearing that petition

was denied on May 9, 1979. A notice of appeal was filed

by petitioner on May 30, 1979. Her application for a cer-

tificate of probable cause to appeal was denied by the

Supreme Court of Georgia on July 10, 1979, and a motion

for reconsideration was denied by that court on July 17,

1979. The petition under consideration was filed in this

court on August 30, 1979, and referred to the United

States Magistrate who issued proposed findings of fact

and conclusions of law on March 24, 1981. Thereafter

petitioner filed her objections to those proposed findings

of fact and conclusions of law.

The record before this court among other things con-

tains transcripts of the petitioner’s trial (over 1,200 pages)

and state habeas corpus hearing (over 300 pages); a

ninety-two-page order of the Honorable Joseph B. Duke

denying petitioner’s state habeas petition; various depo-

sitions and affidavits offered by petitioner as supportive

of her contentions; over 1,200 pages of a transcript of an

evidentiary hearing in People v. Moore; and, briefs of the

parties regarding the instant petition.

This court has carefully considered each contention

made by the petitioner. The record has been scrutinized

to determine if any of the elements of § 2254(d) ' which

1 28 U.S.C. § 2254(d) provides:

In any proceeding instituted in a Federal court by an application

for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court, a determination after a hearing on the

merits of a factual issue, made by a State court of competent juris-

diction in a proceeding to which the applicant for the writ and the

State or an officer or agent thereof ee parties, evidenced by a

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would overcome the statutory presumption of correctness

accorded the state court determination and entitle peti-

tioner to a hearing exists. The court has been unable to

find anything which would warrant such a hearing. Upon

review of the petition, the record before the court, and

the report of the United States Magistrate, the court finds

that the allegations of deprivation of constitutional rights

contained in the petition are of no merit.

Except for the Magistrate’s suggestions as to whether

petitioner established a prima facie case of unconstitu-

tional jury box composition as delineated by the Supreme

Court of the United States in Duren v. Missouri, 439 U.S.

357 (1979), this court approves and adopts the Magis-

written finding, written opinion, or other reliable and adequate

written indicia, shall be presumed to be correct, unless the applicant

— establish or it shall otherwise appear, or the respondent shall

mit —

(1) that the merits of the factual dispute were not resolved in

the State court hearing;

(2) that the factfinding procedure employed by the State court

was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at

the State court hearing;

(4) that the State court lacked jurisdiction of the subject matter

or over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in

deprivation of his constitutional right, failed to appoint counsel

to represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate

hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law

in the State court proceeding;

(8) or unless that part of the record of the State court procced-

ing in which the determination of such factual issue was made,

pertinent to a determination of the sufficiency of the evidence

to support such factual determination, is produced as provided

for hereinafter, and the Federal court on a consideration of such

part of the record as a whole concludes that such factual deter-

mination is not fairly supported by the record.

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trate’s proposed findings of fact and conclusions of law

in their entirety. The court makes the following addi-

tional comments and findings as to the issues of (1) in-

effective assistance of counsel, (2) jury box composition,

and (3) application of the death penalty.

(1) Ineffective Assistance of Counsel

Petitioner contends in her objections to the “Proposed

Findings of Fact and Conclusions of Law” of the United

States Magistrate (Objections) that the state habeas

court’s decision as to the effectiveness of her counsel was

based on an invalid standard, and thus must be recon-

sidered in the light of a recent United States Supreme

Court case establishing the standard to be used in deter-

mining whether there was effective assistance of counsel.

Specifically, petitioner contends that the state habeas

court used the old standard which made a distinction

between retained and appointed counsel, with retained

counsel being subject to a less stringent standard. In

Cuyler v. Sullivan, 446.U.8. 335 (1980) the Supreme Court

stated that the use of different standards depending on

whether counsel was retained or appointed is improper;

retained counsel should be subject to as stringent a stan-

dard as appointed counsel. As petitioner has noted, this

standard has since been utilized by the Fifth Circuit in

Kemp v. Leggett, 635 F.2d 453 (5th Cir. 1981) (Objections

p. 12).

Even assuming that Cuyler applies retroactively to this

case, a careful reading of Judge Duke’s order in the state

habeas proceeding shows that his decision as to the effec-

tiveness of petitioner’s counsel was not based on the im-

proper dual standard. It is true that Judge Duke referred

to the dual standard which he stated was found in fed-

eral decisions. His decision however did not rest on these

cases or on the now disapproved of less stringent standard

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for retained counsel. Prior to making reference to this

practice in the federal courts, Judge Duke cited Pitts v.

Glass, 231 Ga. 638, 203 S.E.2d 515 (1974) as delineating

the standard in Georgia for determining the effective

assistance of counsel (‘‘counsel reasonably likely to ren-

der and rendering reasonably effective assistance”). He

then stated that the “Fifth Circuit Court of Appeals in

MacKenna v. Ellis, 286 F.2d 592, 599 (5th Cir. 1970),

interpreted this standard more fully to mean ‘not error-

less counsel and not counsel judged ineffective by hind-

sight, but counsel reasonably likely to render and render-

ing reasonably effective assistance.’’’ (Order of Judge

Duke at p.51). Both of these Fifth Circuit cases dealt with

appointed counsel, not retained counsel. As explained

supra, under the old dual system the standard for deter-

mining the effectiveness for appointed counsel was more

stringent than that for retained counsel. Consequently,

by citing Pitts and MacKenna as the applicable standard

for determining whether petitioner had effective assistance

of counsel, Judge Duke applied the harder ‘‘appointed

counsel” standard to Mr. Hawkins, even though Mr.

Hawkins was not appointed. If anything, this would tend

to militate in petitioner’s favor; thus, there can be no in-

ference that Mr. Hawkins “got off easy” by being

judged effective under a dual system subsequently dis-

credited by the Supreme Court of the United States.

(2) Jury Composition

Petitioner alleged in Paragraph 90-92 of her petition

that she was indicted and convicted by grand and traverse

juries drawn from jury boxes from which women were un-

constitutionally excluded. The Magistrate suggests that

there is no merit to these claims. In her objections peti-

tioner contends that she was deprived of constitutionally

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adequate representation in said jury boxes of her peers—

women — because of a state statute allowing women to

opt out of jury service; she says that statutory procedure

was a “clear denial of Basic Due Process rights and the

right to a trial by a representative jury.”’ According to

petitioner, the fact that the relevant statute (Georgia

Code Ann. § 59-124, Repealed by Acts 1975, pp. 779, 780)

was not attacked prior to the U. 8. Supreme Court deci-

sion in Duren v. Missouri, 439 U.S. 357 (1979) does not

make that statute any less unconstitutional as to her and

said jury boxes. Finally, petitioner contends that Duren

“merely clarified’? Taylor v. Louisiana, 419 U.S. 522

(1975).

In considering petitioner’s contention as to the compo-

sition of the jury boxes —as far as women are concerned —

it is important to look at the chronology of events from

1975 to the present: In January of 1975, the United States

Supreme Court in Taylor held that a statute automat-

ically excluding women from jury service unless they opted

to be included by filing a written request for jury service,

was unconstitutional. In February 1975, petitioner was

tried and convicted, and on March 1, 1975, she was sen-

tenced to death. Georgia Code Ann. § 59-124 was re-

pealed by Acts 1975, pp. 779, 780. After exhausting her

avenues of direct appeal, petitioner on January 9, 1978,

filed a petition for writ of habeas corpus in the Superior

Court of Baldwin County. On January 9, 1979, the United

States Supreme Court in Duren decided that a state stat-

ute which allowed women by request to opt out of jury

service was unconstitutional.

As suggested by the Magistrate, Taylor —although de-

cided before this case came to trial—is not applicable

because it does not reach the question at issue here. The

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statute struck down in Taylor was an “opt-in” statute;

i.e. women were automatically excluded from the jury list

unless they opted to serve. Georgia Code Ann. § 59-124,

was an “opt-out” statute, meaning that women were au-

tomatically included unless they opted not to serve. It is

this “opt-out” type of statute which was held unconsti-

tutional in Duren. Consequently, the issue presented here

is whether Duren, decided approximately four years after

petitioner’s trial, will be applied retroactively to her case.

In determining whether or not Duren should be applied

retroactively to this case, the court need only look to a

case decided by the Supreme Court six days after Duren.

In Harlin v. Missouri, 489 U.S. 459, 58 L.Ed.2d 733, 99

S.Ct. 709 (1979) a case involving a statute like Ga. Code

Ann. § 59-124, Justice Powell in his opinion concurring

in the judgment expressed the view that the wisest ap-

proach in fashioning a satisfactory retroactivity doctrine

“contemplates ... that courts apply a new rule retro-

actively in cases still pending on direct review, whereas

cases on collateral review ordinarily would be considered

in light of the rule as it stood when the conviction became

final.”’ 439 U.S. at 460 (citation omitted).

In the present case the “new rule” is the Duren deci-

sion, which rendered invalid opt-out statutes like Ga,

Code Ann. § 59-124. It would apply to petitioner’s case

if her case was ‘‘still pending on direct review.” (emphasis

added). However, there can be no argument that peti-

tioner’s case is before this court on collateral review, and

it was in that posture at the time the ‘‘new rule’’ (Duren)

was made. As a result it must be considered “in light of

the rule as it stood when the conviction became final.”

439 U.S. at 460. When petitioner’s conviction became

final the rule was that although “opt-in” statutes were

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unconstitutional, “opt-out” statutes were constitutionally

sound.

Because Duren is not applicable to petitioner’s case it

was not necessary for the Magistrate to consider whether

or not the three elements of a prima facie case established

by Duren had been met. This court is in agreement with

and adopts the remainder of the Magistrate’s proposed

findings as to this contention, including the finding that

petitioner has failed to show that anything other than

Georgia Code Ann. § 59-124 contributed to the under-

representation of women in said jury boxes.

(3) Application of the Death Penalty

In his proposed findings and conclusions the Magis-

trate recommended that petitioner’s claims that the death

penalty as applied in her case is unconstitutional be de-

nied. Petitioner now contends that the Magistrate mis-

takenly relied on Spinkellink v. Wainwright, 578 F.2d 582

(5th Cir. 1978). Petitioner claims that “‘[t}hat case is no

longer good law but has been effectively overruled by

Godfrey v. Georgia, 446 U.S. 420 (1980)” which, accord-

ing to petitioner, ‘entirely destroys the legal premise

upon which Spinkellink was based.” A reading of both of

these cases does not call for the conclusion demanded by

the petitioner. Spinkellink is obviously in harmony with

Godfrey and consequently remains good law.