Petition — JAMES E. MESSER v. WALTER D. ZANT (No. 82-5086)

: 1

RECEIV

J 1982

OF GCE OF THE

EME COURT, U.S.

IN THE Alexander L. Stevas, Clerk

SUPREME COURT OF THE UNITED STATES

NO. R2Q-5036

JAMES E. MESSER, JR.

vs.

WALTER D. ZANT, Warden, Georgia

Diagnostic and Classification Center

PETITION POR A WRIT OF CERTIORARI

TO THE GEORGIA SUPREME COURT

Howard J. Manchel

Counsel for Petitioner

101 Marietta Tower

Suite 3311

Atlanta, ae 30303

(404) 522-170

ee Se ee d ee eae

D eee

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

JAMES B. MESSER, IR.

vs.

WALTER D. ZANT, Warden, Georgia

Diagnostic and Classification Center

PETITION FOR A WRIT OF CERTIORARI

TO THE GEORGIA SUPREME COURT

The Petitioner, James E. Messer, Jr., respectfully prays that

a writ of certiorari issue to review the judgment and opinion of

the Supreme Court of Georgia entered in this proceeding on April

20, 1982.

QUESTION PRESENTED

1. Whether or not a confession taken from Petitioner follow-

ing a warrantless arrest based on less than probeble cause and

after ninety minutes of questioning subsequent to the arrest is

admissible into evidence in light of the Petitioner's rights under

the Fourth Amendment of the Constitution against illegal search

and veizure.

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TABLE OF CONTENTS

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OPINION BELOW

No written opinion was rendered by the Supreme Court of

Georgia. The opinion from the Superior Court of Butts County, the

habeas corpus court appears in the appendix hereto.

JURISDICTION

The judgment of the Supreme Court of Georgia was entered on

April 20, 1982. This petition for certiorari has been filed with-

in 90 days of that date. The jurisdiction of this Court is

invoked under 28 USC §1257(3).

CONSTITUTIONAL PROVISIONS

1. The Fourth Amendment Provides:

"The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable search and seiz-

ure, shall not be violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation, and particularly

describing the place to be searched and the person or thing to be

seized."

STATEMENT OF THE CASE

On February 13, 1979, young Rhonda Tanner, Petitioner's

niece, failed to come home from her school in Cedartown, Georgia.

Joyce Tanner, the child's mother, went to the school and was told

by the principal that a man who Rhonda appeared to know had picked

the child up at the mother’s request. (T-204) In the afternoon

of February 14, 1979, Rhonda Tanner's body was found by police in

a field near 01d Mill Road, badly beaten and stabbed.

2

Shortly after finding the body on February 14th, a witness

told police that on February 13th while driving on 01d Mill Road

near the railroad tracks she noticed a car parked on the side of

the road and saw a man walking up from the tracks to the car.

(T-229, 231, 232) Police took the witness by Petitioner's resi-

dence, and they identified the car by his home as being the same

make, model and color as they had seen on Pebruary 13th (T-236).

At approximately 6:00 p.m. on February 14, 1979, because of

the Petitioner's car being identified, three detectives, Georgia

Bureau of Investigation (GBI) Agent Longino, FBI Agent Leary and

Cedartown Police Officer Dean went to Petitioner's mobile home to

bring Messer in. (T-322, 298) Petitioner refused to go with the

officers indicating he wanted to wait until after Rhonda Tanner's

funeral. (T-322) However, the officers insisted that Petitioner

come to the Cedartown station immediately. (7-322, 350] While the

investigators allowed Petitioner and his wife to drive his own

automobile in to town they insisted that FBI agent Leary also ride

in the back seat of the car. The other agents followed. (T-351)

Once at the police station Petitioner was photographed, read

his Miranda rights, questioned and signed a waiver consenting to

the search of his home. (T-364) Petitioner was informed he was

not under arrest but no investigating officer was able to answer

the question of what they would have done if Petitioner tried to

leave the police station. (T-297, 324)

Petitioner was not told why he was being photographed.

(T-162) The police, now in possession of a picture of Petitioner,

started calling in school officials to see if Messer had been to

the school on February 13th. (T-193)

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Initially during the interrogation, Petitioner denied killing

Rhonda. (1-304) But when confronted with the fact that certain

witnesses were identifying him from the photograph just taken, he

broke down, started crying and confessed to the murder. (7-307)

After the confession, he was informed that he should consider him-

self under arrest. The confession was made about ninety minutes

into the interrogation. (T-313)

Petitioner was indicted by a Polk County grand jury for the

crimes of murder and kidnapping with bodily injury. {(R-3) Peti-

tioner at the trial sought to suppress his confession and identi-

fication by motions to suppress which were denied. (R-17, 453

T-328) James Messer was convicted of murder and kidnapping and +t

the sentencing phase the jury returned a verdict of death in the

electric chair. (R-74, 75)

Petitioner appealed his conviction to the Georgia Supreme

Court which held on March 3, 1951, that Petitioner's confession

was voluntary and affirmed his conviction and denied a motion for

a rehearing. Messer v. State, 247 Ga. 316, 276 882d 15 (1981),

Messer then filed a Petition for a Writ of Certiorari in this

Court but was denied, Messer v. Georgia, 102 8 Ct. 367 (No. 80-

6877).

On Remittitur from the U.S. Supreme Court and the Georgia

Supreme Court, the Superior Court of Polk County set the date for

Messer's execution to be on January 8, 1982. However, Petitioner

filed a Motion for Stay of Execution, Petition for Habeas Corpus

and an Affidavit of Poverty in the Butts Superior Court on January

4, 1982. A stay of execution was granted but the Superior Court

turned down the Habeas Corpus Petition on February 23, 1982. In

said petition Messer raised the question of his illegai arrest,

but the Habeas Court, Judge Crumbley, ruled that because findings

made by the Georgia appellate courts are binding upon the habeas

court for purposes of review the allegation of error was without

.. (See appendix p. 3)

After the denial of the habeas corpus petition, Mr. Messer

filed an application for a certificate of probable cause with the

Georgia Supreme Court which was denied April 20, 1982. (See

appendix p. 1) This question is now presented to this Court

timely and properly raised.

REASONS FOR GRANTING WRIT

This case presents a clear question of constitutional signif-

icance under the Fourth Amendment of the United States Constitu-

tion. The question is whether the Petitioner's confession and

other evidence gained through the illegal detention should have

been suppressed as the fruit of an illegal arrest. The tria

court held that the evidence was properly admitted on the basis

that the confession was voluntary, because it was given after

Miranda warnings; this ruling and the Georgia Supreme Court's

affirmance thereof fail to take into account the holding of Brown

v. Illinois, 422 US 590, to wit, that the warning required by the

Miranda decision, alone and per se, cannot make a confession

following an illegal arrest sufficiently a product of free will to

break, for Fourth Amendment purposes, the causal connection

between the illegal arrest and the confession.

The facts show clearly that Petitioner was arrested when

three detectives came to his home and insisted that he accompany

them to the stationhouse for questioning. Petitioner, at first,

declined to go but the police demanded and permitted Petitioner to

Grive his own car to the stationhouse provided another police

officer rode with him. The agents were acting solely on the

statement of a witness who reported seeing a car similar to the

Petitioner's near the crime scene. Because there were insuffi-

cient facts to get a warrant, the police made an arrest based on

mere suspicion, which cannot justify an arrest. Petitioner sub-

mits that the arresting officers knew probable cause was lacking

and acted independently and without legal authority when they

detained the Petitioner. The resulting investigatory exploration

was detailed and with specific design. Following his arrival at

the station Petitioner was quickly photographed, given Miranda

warnings, interrogated and asked to consent to a search of his

home.

Petitioner under complete and total control of the police

confessed after ninety minutes of interrogation. The confession

came after the Petitioner was told that someone had identified his

photograph out of a photo lineup. The confession, the photograph

and the resulting identifications must be suppressed as the fruit

of an illegal arrest consistent with this Court's rulings in

Taylor v. Alabama, 0.8. 31 Cr L 3118 (June 23, 1982);

Dunaway v. New York, 422 U.S. 200 (1979); Brown v. Illinois, 422

U.S. 590 (1975); and Davis v. Mississippi, 394 U.S. 721 (1969).

CONCLUSION

For the foregoing reasons, a Writ of Certiorari should issue

to review the judgment of the Supreme Court of Georgia and the

Superior Court of Butts County, Georgia.

Respectfully submitted,

2 2 MANCHEL

— Marietta Tower

suite 3311 a

Atlanta, Georgia 30303

(404) 522-1701

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

JAMES B. MESSER, JR.

vs.

WALTER D. ZANT, Warden, Georgia

Diagnostic and Classification Center

PETITION FOR A WRIT OF CERTIORARI

TO THE GEORGIA SUPREME COURT

APPENDIX

Opinion of the Supreme Court of Georgia 4%

App

Opinion of the Superior Court of Butts County App. 2

“Application No. £202.

SUPREME COURT OF GEORGIA

attanta, Avril 20, 1982

The Honorable Supreme Court met pursuant te adjournment.

The following onder was passed:

JAMES E. MESSER, JR. V. WALTER D. ZANT, WARDEN

Upon consideration of the application for a certificate of

probable cause to appeal filed in this case, it is ordered that it

be hereby denied

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK’s OFFICE, ATLANTA,

certify that the above is a true extract from the mi

of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto at:

the day and year last above written.

Sf

IN THE SUPERIOR COURT OF BUTTS COUNTY

STATE OF GEORGIA

JAMES EK. MESSER, X.,

PETITIONER

vs. HABEAS CORPUS

FILE NO. 5383

WALTER D. ZANT,

WARDEN, GEORGIA

DIAGNOSTIC AND

CLASSIFICATION

CENTER, 5

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RESPONDENT

This habeas corpus challenges the constitutionality

of Petitioner's restraint ard the imposition of the

death penalty by the Superior Court of Polk County.

Petitioner was convicted of murder and kidnapping

with bodily injury and received a death sentence.

The Supreme Court affirmed the convictions and sentence.

Messer v. State, 247 Ga. 316 (1981). Certiorari was

denied by the Supreme Court of the United States.

The petition, as amended, contains 14 numbered

counts which allege substantive claims for rellef.

The Court will address these claims for relief by

paragraphs corresponding numerically to the counts

in the petition.

The record in this case consists of the

affidavits of David Pasley; Bunny Sue Pasley; Rev.

William McCullough; Ricky Nixon; R. L. Hicks;

“ 3

Mildred Hicks; Charlie Cottle; Geraldine F. Nixon;

Dorothy Sue Key; Essie Messer; Josephine Bohannon;

‘ Lettie Peters; Loule Peters; Esther Stephens; Willie

F. Stephens; Oliver Smith; Lorene Davis; Myrtle Nixon;

James Nixon; Mildred R. Smith; Reuben T. Mester;

and Janet P. Manchel; and the record and transcript

of Petitioner's trial in the Polk Superior Court.

4

in count 1, Petitioner alleges that the

admission into evidence of his confession violated

his Fourth, Fifth, and Fourteenth Amendment rights.

Specifically, Petitioner challenges the legality of

his arrest.

FINDINGS OF FACT

The Supreme Court has already decided that

Petitioner's confession was admissible. Messer ».

State, supra, at 319(2). In so ruling, the Court

reviewed the evidence submitted to the trial court

at the Jackson-Denno hearing. The Court found that

Petitioner had voluntarily accompanied officers to the

police station, was given Miranda warnings, signed

@ waiver form, confessed to the crime and was then

errested. 14.

CONCLUSIONS OF LAW

Findings of the appellate courts are binding

upon this Court for the purposes of review. Elrod v.

Ault, 231 Ga. 750 (1974).

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In that the Supreme Court found the“

Petitioner's arrest followed his confession, this

Court finds there was probable cause for the

arrest.

Accordingly, this allegation is found to

be without merit.

2

in count 2, Petitioner asserts that he was

denied his right to effective assistance of counsel

as guaranteed by the Sixth, Eighth, and Fourteenth

Amendments and the Georgia Constitution.

FINDINGS OF FACT

Lamar Gammage and Joe Anderson were initially

appointed to represent Petitioner. At their request,

John E. Sawhill, tit, was appointed to replace t hen.

(Non-Jury Hearing, May 22, 1979, 9 3-5).

Among the pre-trial motions Counsel filed

were motions for: a change of venue (R.5); to

challenge the arrays of grand and traverse Jurors

(A. 8, 10); to suppress identification testimony

(a. 15); to suppress Petitioner's confession (K. 17);

for disclosure of photographs to be used in evidence

and those used in previous photographic arrays (A. 19);

for an Independent psychiatric examination (K. 22);

for reconsideration of the denial of an independent

psychiatric exam (R. 25); » renewed motion for change

of venue (R. 37) and supplementary materials (rR. 53);

and for individual, sequestered voir dire (. 6).

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At trial, Counsel cross-examined witresses

(7. 174; 182; 186; 211; 221; 260; 295; 315; 323;

407; 410); made motions (T. 6; 8; 13-14; 373; 498;

526); gave closing argument in **e guilt/innocence

phase (T. 482-484); presented one witness (T. 501)

and gave closing argument in the sentencing phase. i

(7. 516-519).

CONCLUSIONS OF LAW

The ‘Sixth Amendment right to counsel means

„. . hot errorless counsel, and not counsel judged

ineffective by hindsight, but counsel reasonably

likely to render and rendering reasonably effective

assistance.” MacKenns ». Ellis, 280 F. 24 592 (Sth

Cir. 1960); Pitts v. Glass, 231 Ga. 638 (1974).

Counse! here easily meets the test. He

prepared for and advocated Petitioner's cause in a

reasonably effective manner considering the difficulty

of the case caused by Petitioner's admission of guilt.

The effort he put forth was certainly reasonably

effective within the meaning of the standard.

Petitioner has claimed Counse! was ineffective

for failing to pursue and present effectively the

special plea of insanity and an Insanity defense.

Contrary to Petitioner's assertions, Counsel vigorously

attempted to discover evidence to support such a

defense but was unsuccessful. Cf. Messer v. State,

supra, at 319(1). The decision whether to have

cross-examined witnesses about Petitioner's behavior

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on the day of the crime is a trial tactic which falls

within the exclusive province of the lawyer after

consultation with his client. Reid v. State, 235 Ga.

378 (1975). Effectiveness is not measured by

how another lawyer might have handled the case. Estes

v. Perkins, 225 Ga. 268 (1968).

Petitioner has also claimed Counsel ineffectively

presented his motions challenging the arrays of grand

and petit jurors. At the hearing on the motions Counsel

withdrew his challenges because the new grand Jury

which re-indicted Petitioner appeared to meet the

requirements as to percentages of classes represented.

(Motion to Challenge Array of Grand Jurors, Dec. 4, 1979,

p. 14) Petittoner bes made no showing that Counsel's

conclusions were erroneous or that elther challenge

could have succeeded. Thus, the Court cannot conclude

Counsel! was ineffective for withdrawing his challenges.

Petitioner has also alleged that Counsel

Ineffectively conducted the voir dire examination by

failing to correct the Impression that Petitioner

would have to produce evidence to establish his innocence.

The trial court instructed the Jurors on the presumption

of innocence. (I. 85-86). The three jurors who thought

Petitioner would have to prove his Innocence were excused

for cause. (T. 88; 107-108; 129). Petitioner has

made no showing that Jurors who served on the case

thought he would have to prove his innocence. As @

result the Court cannot conclude Counsel wus ineffective

4

for not requesting an Instruction on Petitioner's right

to remain sitent.

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ö 8 Petitioner has also asserted the Counsel

ineffectively presented the motion to suppress

Petitoner’s confession. In that Petitioner has not

demonstrated the confession was inadmissible (see

paragraph 1), the Court cannot find Counsel

ineffective for this reason.

Petitioner has also claimed Counsel was

ineffective for failing to object to the allegedly

inadmissible testimony of Retha Wood and to the

e reference to this testimuny in his

closing argument. The Court has concluded this

testimony was admissible (see paragraph 3). As to

the prosecutor's characterization of Petitioner as

“stalking” Ms. Wood (T. 476), Petitioner admitted in

his statement that he had tried to pick her up. (T. 369).

Thus, the prosecutor's comment was not a reference to

facts not in evidence and not improper. Wheeler u.

State, 220 Ga. 535, 537 (1965); Leutner v. State,

235 Ga. 77, 84 (1975). The Court does not find Counsel

ineffective as to these allegations.

ms Petitioner has also contended that the jury

charge on i-tent and malice were impermissibly bur den-

shifting so that Counsel's feilure to object was

inefféctive. The Court has examined the charge

complained of (T. 484-497) and Sound that the

presumptions or inferences created as to intent were

permissible ones and, therefore, not Improper. Ulster

County Court v. Allen, 442 U.S. 140, 99 8. ct. 2213,

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.

60 1. 60. 2d 777 (1979); Skrine v. State, 244 Ga. 520

(1979). Petitioner's challenge to the malice

instruction was rejected In Burney v. State, 244 Ga.

| 33(6) (1979). Thus, the Court does not find Counsel

ineffective for failing to object to proper jury

Instructions.

Petitioner has also claimed Counsel was

ineffective for not objecting to the trial court's

failure to charge the jury on the outburst of the

victim's father. The trial court ordered the jury

to go to the jury room and had the father removed :

from the courtroom. (T. 372). Counsel Immediately

moved for a mistrial. id. The trial court deferred

ruling on the motion but had the jury brought in

and instructed them on the outburst. (T. 378-379).

Counsel twice renewed his motion for a mistrial and

was overruled. (T. 498; 526). The Supreme Court

affirmed the denial of a mistrial. Messer v. State,

supra, at 323 (6). Petitioner's allegation is without

Welt.

Petitioner has also complained that Counsel

rendered ineffective assistance in the sentencing

phase by presenting only one witness, Petitioner's

mother. Petitioner has presented affidavits of

twenty-one relatives and friends in support of his

claim that other mitigating evidence was available

but not Investigated or presented. Given the nature

of this case, tha Court finds it is highly speculative

whether such testimony could have made any difference.

-7-

# 8

For this reason the Court cannot find „ ineffective.

Finally, Petitioner has claimed Counsel failed

to present effective closing arguments in both the

guilt/innocence end sentencing phases. Current

counsel's disagreement with Mr. Sawhill's decisions

on what to argue cannot provide the basis for ineffective

assistance. Estes v. Perkins, supra; keid v. State,

supra.

Accordingly, the Court finds this claim for

relief to be without merit.

4

in count 3, Petitioner contends he was deprived

of his right to a fair trial by the admission into

evidence of testimony concerning other acts of alleged

sexual misconduct which were irrelevant and impermissibly

placed his character in issue.

FINDINGS OF FACT

The tourt has reviewed the testimony of Retha

Wood. (T. 164-178, 197-200). Ms. Wood testified as

to her three encounters with Petitioner, two of

which occurred on the day of the crime, and of her

identification of him. Id. She did not testify as

to any acts of sexual misconduct but that he had made

her nervous and suspicious of his motives. td. cf.

Messer ». State, supra, at 316-317.

CONCLUSIONS OF LAW

The testimony of Ms. Wood was relevant to show

33 motive and the state of mind of Petitioner on the day

of the crime. Evidence „ to the Issues of

the case does not become inadmissible merely because

it incidentally puts @ defendant's character in Issue.

Whippler ». State, 218 Ga. 198(3) (1962); Hoses v. State,

245 Ga. 180(4) (1980). Further, any inferences the

jury may have drawn from the testimony as to Petitioner's

conduct were supported by his own admission that he

had tried to pick her up that dey. (T. 36%).

Accordingly, this allegation is found to be

without merit.

‘ 4 4

The Supreme Court hes already decided the trial

court did not err in denying the motion for a mistrial

after the outburst of the victim's father in the

courtroom. Messer v. State, supra, at 323(6).

2

Ths Supreme Court has already concluded the

denial of a change of venue was not error. lesser v-

State, supra, at 322(4).

6

In count 6, Petitioner claims that the exclusion

of jurors conactentiously opposed to the death penalty

violated his right to representative, impartial

jury as guaranteed by the Sixth, Eighth, and Fourteenth

Amendments and the Georgia Constitution.

FINDINGS OF FACT

Juror Rufus Mitchel! was excused for cause after

he Indicated that he could not vote for the death penalty

under any circumstances. (7. 54-56).

85 CONCLUSIONS OF LAW |

Under Witherspoon v. t!!inols, 391 U.S. $10,

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88 s ct. 1770, 20 . fd. 2d 776 (1968), a juror may be

excluded for cause where he indicates that he would

vote against the death penalty regardless of the

facts and circumstances that might emerge in the

course of the trial. The Court finds that the

juror was properly excluded under Witherspoon.

Petitioner's assertion that the exclusion

for cause of jurors unequivocally opposed to the

death penalty denied his right to an impartial jury

was rejected In Smith v. Balkcom, 660 F.2d 573 (1981).

Accordingly, this allegation is found to be

without merit. 2

2

In count 7, Petitioner alleges that the finding

of the Ga. Code Ann. $27-2534.1(b)(7) aggravating

circumstance Is unconstitutional because the jury

instructions were Insuffictent to channel the jury's

discretion or define mitigating circumstances.

FINDINGS OF FACT

The Supreme Court expressly upheld the finding

of the (b) (J] aggravating circumstance in light of

Godfrey v. Georgia, 446 U.S. 420, 100 8. ct. 1759,

64 l. 6d. 2d 398 (1980). Messer ». State, supra,

at 325-326.

CONCLUSIONS OF LAW.

Implicit in the finding that the (b) (7)

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aggravating circumstance was properly epplied is 4

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the conclusion that the charge suffictently channeled

the jury's discretion.

Contrary to Petitioner's assertion, there is

no requirement that the entire (b)(7) aggravating

circumstance be found; the terms aggravated battery,

depravity of mind, or torture are disjunctive.

Hance v. State, 245 Ga. 856, 861 (1980).

As to mitigating circumstances, the trial

court defined mitigating circumstances and explained

their function to the jury. The charge comports with

Spivey v. Zant, 661 F.2d 464 (1981).

Accordingly, this allegation is found to be

without merit.

8

Petitioner's challenge to the adequacy of

the Georgia provisions and practices governing

appellate review was rejected in Smith v. Balkcom,

660 F.24 573 (1981).

2

Petitioner's challenge to the use of electrocution

as the means by which his death sentence will be carried

out is found to be without merit.

10. 11, 12

tn counts 10, 11, and 12, Petitioner mounts ®@

general atteck against the conatitutionality of the

death penalty. Specifically, he claims that the death

penalty is being arbitrarily and capriciously administered;

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12

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that his death sentence is being exacted pursuant to

@ pattern of georgie authorities to discriminate on

the basis of race, sex, and poverty; and thar there

is no theoretical justification for the death penalty.

FINDINGS JP FACT

Georgia's death penalty statute has been held

constitutional. Gregg v. Georgia, 428 U.S. 153,

96 s. ct. 2909, 49 L.Ed.2d 859, reh den 429 U.S. 875,

97 S.Ct. 197, 198, 50 1. (4. 2d 158 (1976).

The Supreme Court has conducted its sentence

review and concluded Petitioner's death sentence was

not excetsive or disproportionate. Messer v. “State,

supra, at 326.

CONCLUSIONS OF LAW

With regard to Petitioner's second allegation,

he has not shown that his death sentence was the result

of any Intentional discrimination. Smith v. Balkcom,

supra.

Accordingly, these allegations are found to

be without merit.

13

Petitioner's “prosecution-prone” argument was

rejected in Smith v. Balkcom, supra.

I

In count 14, Petitioner alleges that his

conviction for kidnapping with bedily Injury is

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—— —— 2

unconstitutional because the trial court charged the

jury on simple kidnapping and thereby invalidates

the aggravating circumstance based upon kidnapping

with bodily injury.

FINDINGS OF FACT

In its charge to the jury, the trial court

read the substance of the Indictment as to kidnapping

with bodily injury, specifically stating that "said

accused did, then and there inflict serious and

grievous bodily injuries upon the said Rhonda Tanner,

said injuries resulting in her death." IT. 485).

The trial court later read the code sectinn defining

kidnapping. (T. 491).

CONCLUSIONS OF LAW

There is no code section expressly defining

kidnapping with bodily injury. Furthermore, there is

no requirement that the words “bodily injury" be

defined as it is a term of common usage. Smith v.

State, 236 Ga. 5 (1976). Thus, in light of the language

from the indictment and the statutory definition of

kidnappines. the jury was clearly instructed as to

e with bodily Injury end never told they could

elect to find Petitioner guilty of kidnapping.

The Court finds the conviction of nidnapping

with bodily Injury, and the aggravating circumstance

and sentence based thereon, to be proper.

Accordingly, this allegation is found to be

without merit.

-13-

146

WHEREFORE, the claims for relief in the

amended petition having been found to be without

merit, the petition, as amended, is denied.

So ORDERED, this 242 day of February, 1982.

JUDGE SUPERIOR COUR

FLINT JUDICIAL CHRCUIT

15

IN PON EE |

JUL 2 0 1982

OrFice OF THE Cttak

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

v0. FLASORC

JAKES E. MESSER, JR.

Vs.

WALTER D. ZANT, Warden, Georgia

Diagnostic and Classification Center

PETITION FOR WRIT OF CERTIORARI

TO THE GEORGIA SUPREME COURT

I hereby certify that on this . day of July, 1982, one

copy of the Petition for Writ of Certiorari was mailed, postage

prepaid to Ms. Mary Beth Westmoreland, Assistant Attorney General,

Law Department, 132 State Judicial Building, 40 Capital Square,

Atlanta, Georgia 30334; Counsel for Respondent. I further cert~

ify that all parties required to be served have been served.

„ MAN

Couflsel for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES —

OFFiCE OF THE N

SUPREME COURT, U.S

— nea „.

no. J - 5O86

JAMES E. MESSER, JR. topo de

ves JUL 16 1992

WALTER D. ZANT, Warden, Georgia

Diagnostic and Classification Center —

MOTION FOR LEAVE TO PROCEED

IN FORMA FaUPERIS

The petitioner, James E. Messer, Jr., who is now in the cus-

tody of Walter D. Zant, Warden, Georgia Diagnostic and Classifica-

tion Center, asks leave to file the attached Petition for a Writ

of Certiorari without prepayment of costs and to proceed in forma

pauperis pursuant to Rule 46.

The Petitioner's affidavit in support of this motion is

ke Peet

Cowhsel for Petitioner

101 Marietta Tower

Suite 3311

Atlanta, Georgia 30303

(404) 522-1701

attached hereto.

.

SUPREME COURT OF THE UNITED STATES

*

JAMES E. MESSER, JR.

WALTER D. ZANT, Warden, Georgia

Diagnostic and Classification Center

AFFIDAVIT

I, James B. Messer, Jr., being first duly sworn according to

law, depose and say, in support of my Motion for Leave To Proceed

without being required to prepay costs or fees: 1. I am the

Petitioner in the above entitled cause. 2. Because of my poverty

I am unable to pay the costs of said cause. 3. I am unable to

give security for the same. 4. I believe that I am entitled to

the redress I seek in said case. 5. The nature of said cause is

briefly stated as follows:

i was sentenced to death by electrocution by a Superior Court

Judge in Polk County, Georgia, on the charge of murder. The pre-

sent proceeding was commenced on a petition for habeas corpus

filed in the State Court on the ground that my arrest was illegal,

being without probable cause and that my subsequent confession was

obtained in violation of my constitutional rights.

Duly sworn and sworn to

before me, a Notary Public,

this /2 day of „ 1982.