Appendix — Strickland v. Zant

Application No. 2065

SUPREME COURT OF GEORGIA

Avtanta, May 25, 1982

The Honorable Supreme Court met pursuant to adjournment,

The following onder was passed:

ROBERT WILLIAM STRICKLAND 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 z

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK'S OFFICE, ATLANTA,

I certify that the above is a true extract from the minutes

of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

Neu. NE,

Appendix 2

1N THE SUPERIOR COURT OF BUTTS COUNTY

STATE OF GEORGIA

ROBERT WILLIAM STRICKLAND,

PETITIONER

vs. HABEAS CORPUS

FILE NO. 5353

WALTER O. ZANT,

WARDEN, GEORGIA

DIAGNOSTIC AND t

CLASSIFICATION CENTER,

RESPONDENT

ORODER

This habeas corpus challenges the

constitutionality of Petitioner's restraint and

the imposition of che: Seana penalty by the Superior

Court of Hall County. Petitioner was convicted

of three counts of murder and three counts of

aggravated assault. He was sentenced to death

for each of the three murders and to consecutive

ten year sentences for the three aggravated assaults.

His convictions and sentences were affirmed by the

Supreme Court. Strickland v. State, 247 Ga. 219

(1981). Certiorari was denied by the Supreme

Court of the United States.

The petition, as amended, contains 48

numbered paragraphs, of which 34 allege substantive

claims for relief. (11-18, 23-48). The Court will

address these claims for relief by paragraphs

corresponding numerically to the paragraphs la the

petition.

Appendix 8

10. L= 9 IL

cf DEP. CLERK

The record in this case consists of the

transcript of proceedings before this Court on

February 16, 1982; the affidavits of Edward H.

Eichler, Ph.0.; Or. Ilhan Ermutiu; Cardy Mae

Pass; Ora Bell Chambers; Clifford John Strickland;

Aaron Charles Sutton; Jessie May Cato; Clarence

Strickland; Clarence W. Pass; Maudine Tanner; and

Roy Lee Maney; and the record and transcript of

Petitioner's trial In the Hall Superior Court.

11-1

In paragraphs.11-15, Petitioner alleges

that the actions of the trial court in ordering

Petitioner to undergo a psychiatric examination

violated his Fifth Amendment rights. Specifically,

Petitioner complains of the denial by the trial

court of defense counsel's request to be present

during the exam and the omission of Miranda warnings

prior to the exam.

FINDINGS OF FACT

The Supreme Court has already decided that

the psychiatric exam was not @ “critical stage"

of the proceedings so that no error was committed

by denying counsel's request to be present.

Strickland v. State, supra at 220(1).

Defense counsel had ‘filed a special plea of

Insanity on January 21, 1980. (K. 17). At the

motion hearing on March 10, 1980, Counsel indicated

that he had agreed to « psychiatric evaluation of

Petitioner with the restriction that Counsel be

allowed to be presert during the evaluation. (T. 5).

The psychiatrist who was to perform the evaluation

testified that he preferred to conduct the exam

without elther side being present. (T. 10-14).

The trial court ordered the evaluation to be

conducted privately. (T. 15-21).

The psychiatrist and pavebotont és who

evaluated Petitioner testified that Petitioner

was incompetent to stand trial during the special

plea trial. (T. 198; 304). They also testified

in Petitioner's behalf during the guilt/innocence

phase of trial. (T. 993, 1029).

CONCLUSIONS OF LAW

Petitioner relies upon Estelle v. Smith,

u. 83. 1018. ct. 1866, 68 6. 24 359 (1981),

to assert that the denial of Counsel during the exam

and the absence of Miranda warnings prior to the

exam violated his Fifth and Sixth Amendment rights.

In Estelle, the defendant in a capital murder

trial had been ordered by the trial court to undergo

a psychiatric examination. Defense counsel had not

been notified in advance that the exam would encompass

the issue of the defendant's future dangerousness,

a death sentence would be imposed, so that the

defendant was unable to confer with his attorney on

the matter. The Court held that the prosecution's

one of three critical issues in determining whether

|

:

use of the psychiatrist's testimony In the sentencing

phase of trial to establish the defendant's future

dangerousness violated his privilege against

self-incriminetion and right to counsel.

Estelle is readily distinguished from

Petitioner's case. Contrary to the facts in Estelle,

Petitioner raised the Issue of his competency and

requested an evaluation, (H.T. 26). Petitioner

was not denied the opportunity to confer with his

attorney prior to the examination as was the

defendant In Estelle. Neither was Petitioner's

right to assistance of counsel violated by the

dental of defense counsel's request to be present

during the evaluation, Estelle did not hold that

a defendant is entitled to have his lawyer present

during @ psychiatric exam. See Estelle v. Smith,

supra, 68 l. (4. 24 at 374 mn. 14. Secondly, the

results of the competency evaluation were not

used against Petitioner by the prosecution. Rather,

Petitioner introduced the results of the evaluation

in the trial on the special plea and called the

members of the evaluation team as defense witnesses

during the case~in-chief. Petitioner has not shown

that his psychiatric evaluation exceeded a routine

inquiry into competency or that he was compelled

to be a witness against himself.

Accordingly, this claim for relief is found

to be without merit.

Jane e

16-26

In paragraphs 11-26, Petitioner claims he was

denied his right to effective assistance of counsel

as guaranteed by the Sixth Amendment and the Georgia

Constitution.

FINDINGS OF FACT

Petitioner was represented at trial and on

appeal by John N. Crudup, an attorney in Gainesville,

Georgia. (u. T1. 22, 38). Counsel has practiced

law for 27 years and has handled "thousands" of

criminal cases. He estimated that he has represented

defendants in 3 dozen capital felony cases. This

was the first death penalty case he has lost. He

has also represented defendants in many non-capital

murder cases.

Counsel testified that Petitioner first

called him after the Incident. (H.T. 23). Counsel

saw Petitioner but said the meeting was futile

because Petitioner did not know why he was in jail.

id. Within two or three weeks Counsel was appointed

to represent Petitioner. 14.

Counsel testified that it was obvious to him

that Petitioner would need a psychiatric examination

because Counsel had known of Petitioner's mental

condition from its inception. (M. T. 23-24). Counsel

filed a special plea of Insanity. (A. 17-19). He

moved for a psychiatric examination of Petitioner,

and the motion was granted. (H.T. 26).

$e oN ay he ml, cu of

Counsel testified that the trial judge

refused to recognize the contents of the psychiatric

report and ordered Petitioner to stand trial on

the special plea. (H.T. 29). The Supreme Court has

found that the report did not unequivocally declare

Petitioner Incompetent to stand trial. Strickland

v. State, supra at 220(2). See Report of the

Forensic Team, p. 3, par. 5.

At the trial on the special plea of insanity,

408 made an opening statement though it was not

recorded (T. 184); presented seven witnesses, including

the two Forensic Team members and Counse! himself

(T. 185; 209; 259; 274; 283; 298; 325); moved for

a directed verdict in his favor (T. 258); cross-examined

State's witnesses (T. 358; 373; 392); and gave 9

closing argument though it was unrecorded (. 423).

The jury returned a verdict against Petitioner's

spectal plea of Insanity. (R. 54).

Counsel testified that the jury that witnessed

Petitioner's outburst was the sentencing Jury. (H.T. 33-

34). Petitioner's outbursts (T. 228; 406) occurred

during the trial on the special ples (T. 49-430).

(See List of Trial Jurors on Special Plea of Insanity,

R. 53; List of Trial Jurors, K. 74).

At the main trial, Counsel reserved his

opening statement (T. 644); cross-examined Stete's

witnesses (T. 666; 687; 690; 736; 752; 807; 825; 847;

882; 942; 1014); made motions (T. 731; 746; 1113; 120 1123

1124); presented seven witnesses in Petitioner's behalf

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during the guilt/innocence phase, including three

psychiatrists and one psychologist (T. 913; 929; 943;

963; 993; 1004; 1029); gave closing argument in

the gullt/innocence phase (T. 1050-1067); relied

on the evidence already presented for the sentencing

phase (T. 1128); and gave closing argument during

the sentencing phase. (T. 1147-1151).

CONCLUSIONS OF LAW

The Sixth Amendment right to counsel means

. . not errorless counsel, and not counsel judged

ineffective by hindsight, but counsel reasonably

likely to render and rend 00 reasonably effective

assistance." MacKenna v. Ellis, 280 F.2d 592

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

Counsel here easily meets the test. He

was experienced in the trial of criminal cases. He

prepered for and advocated Petitioner's cause In a

reasonably effective manner. The effort he put

forth was certainly reasonably effective within the

meaning of the standard.

Petitioner has claimed that Counsel was

ineffective for failing to call Charles Sutton.

Petitoner claims, on the basis of Sutton's affidavit,

that Sutton had the most contact with Petitioner while

he was Incarcerated and could have tipped the balance

in Petitioner's favor.

The record reflects that Counsel vigorously

pursued the matter of the special plea. At the

trial on the special plea, Counsel presented

-7-

seven witnesses, Including the two members of

the Forensic Services Team. The Court finds it

highly speculative whether the testimony of

Sutton would have made any difference in the

jury's verdict on the special plea and does not

find Counsel ineffective for this reason.

' Petitioner has also claimed that Counsel

was Ineffective in failing to present any witnesses

in mitigation during the sentencing phase. Petitioner has

presented ten affidavits of family, eee and

Drs. Ermutiu and Eichler of the Forensic Team (some

of whom testified at trial) in support of his claim

that mitigating evidence was available but not

Investigated or presented.

During the guilt/innocence phase Counsel

presented seven witnesses: three family members

(T. 913; 929; 1004); two psychiatrists who had

previously treated Petitioner (T. 943; 963);

and the psychiatrist and psychologist of the

Forensic Services Team who had conducted the court-

ordered evaluation of Petitioner (T. 993; 1029).

These witnesses testified at length as to Petitioner's

background and mental condition. Counsel did attempt

to recall the Forensic Team members as witnesses for

the sentencing phase. (See paragraphs 31-34).

Decisions on which witnesses to call are the,

exclusive province of the lawyer after consultation

with his client. Reid v. State, 235 Ga. 378 (1975).

Given the prior testimony of the witnesses in the

guilt/innocence phase, the Court cannot conclude

Counsel was ineffective for not presenting them

in the sentencing phase. Effectiveness is not

measured by how another lawyer might have handled

the case. Estes v. Perkins, 225 Ga. 268 (1968).

Accordingly, the claim for relief in paragraphs

16-26 is found to be without merit.

27-28

The Supreme Court has already concluded that

the "death penalty opposition responses of the

venire persons who were excused for cause met the

requirements of Witherspoon v. Itilinois, 391 U.S.

510 (88 $.C. 1770, 20 L.€d.2d 776) (1967)...."

Strickland v. State, supra at 227 (29).

29-30

In paragraphs 29-30, Petitioner alleges that

the failure of the trial court to direct a verdict

in his favor on the special plea of insanity violated

his Fifth, Sixth, Eighth and Fourteenth Amendment

rights.

FINDINGS OF FACT

The Supreme Court has already decided this

issue adversely to Petitioner. Strickland v. State,

supra, at 220(3).

CONCLUSIONS OF LAW

Findings of the Supreme Court are binding upon

4 r 1.

200

this Court for the purposes of review. Elrod v. Ault,

231 Ga. 750 (1974).

Petitioner has claimed that his evidence

unequivocally showed that he was Incompetent to

stand trial and that the Supreme Court, in passing

upon this Issue, took a statement out of context

to find that an issue of fact as to Petitioner's

competency had been created. (M. . 30, 38).

However, a reading of the transcript of Petitioner's

trie on his special plea, (T. 49430), Indicates

otherwise.

Petitioner's own witness, Or. root lu,

testified as to the results of his evaluation of

Petitioner, and the statement of which Petitioner

complains was @ part of Or. Ermutiu's findings.

(T. 195-196). Subsequent responses by the psychiatrist

Indicated that Petitioner's intellectual level was

sufficient to understand the charges against him

and that Petitioner had the capacity to relate. (T. 197).

Dr. Ermutiu also testified that Petitioner had told

the psychiatrist of his attempt to commit sulcide

while he was im jail. (. 202). Or. Ermuttu

relayed this to Dr. Elchier, and they agreed that

Petitioner was sulcidel upon the basis of this

incident and previous attempts. (T. 317-318).

The State presented seven witnesses at the

competency hearing. Three witnesses, Including the

physictan who treated Petitioner in the emergency

room, testified about Petitioner's alleged sulcide

attempt at the jail. (T. 350; 353; 360). The

physician found no evidence of pills Petitioner

claimed to have taken. (T. 359). The eller, who

ts qualified to give his lay opinion as to r

testified that In his opinion Petitioner was feigning

Incompetency. (T. 365). One law enforcement officer

testified as to his contact with Petitioner the

night of the Incident. (. 379).

Thus, the State presented ample evidence to

rebut. Petitioner's evidence and 476000 an lesue of

fact as to Petitioner's competency to stand trial.

Petitioner has not shown the Supreme Court's holding

wes in error.

Accordingly, this allegation is found to be

without merit.

N

In paragraphs J-, Petitioner alleges that

he was dented the right to present evidence of his

mental condition In the sentencing phase In violation

of his constitutional rights. Specifically, he

claims he was denied (1) an examination by an

Independent psychiatrist of a revevaluation by the

Forensic Services Team; (2) the right to re-subpoens

the two Team members for the sentencing phase; and,

(3) the opportunity to Introduce Into evidence the

Forensic Team report of Petitioner's evaluation.

FINDINGS OF FACT

During the gullt/Innocence phase of trial, two

1

Lingo v. State, 224 Ga. 333, 342 (1968); Dix v. State,

NN 7

psychiatrists who hed previously treated Petitioner

F. 943; 963) as well os Ors. Eichler and Ermutiu

of the Forensic Services Team (T. 993; 1029) were

among the witnesses testifying in support of

Petitioner's Insanity defense. (M. T. 39).

The Supreme Court has already concluded

that Petitioner's second allegation lacked "a

factual foundation in the tender los of proceedings."

Strickland v. State, supra at 226(25). The Court held that

the trial court's refusal to grant Petitioner a second

continuance to have Ors. Kraut le and Cichler present

was no manifese abuse of discretion. Id. (For a

factual account of events preceding and occurring

during the sentencing phase, see Strickland v. State,

supra, at 226(25), and T. 119-1128).

After the trial court denied defense counsel's

request for a psychiatric re-evaluation of Petitioner

by the Forensic Team, counsel asked the prosecutor

"to stipulate their findings In that evaluation,

and simply submit that, in lee of calling them as

a witness.” (I. 1119). The prosecutor refused.

CONCLUSIONS OF LAW

The appointment of experts is a matter within

the triel court's discretion, Westbrook v. State,

242 Ga. 151 (1978); Crenshaw v. State, 244 Ge. 430 (1979).

Petitioner has not shown that any request was ever

made for an Independent psychiatric exem. either

wil 1 *. ö \ 1 195 1

* eee reren 1

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has he shown the trial court abused Its discretion

in denying his request for a re-evaluation.

Thus, Petitioner's first allegation Is found to

be without merit.

As to Petitioner's second claim that he was

denied the right to recall Ors. Kraut te and Eichler,

the Supreme Court has already 0060600 this Issue

adversely to Petitioner. However, Petitioner charges

that the recent decision of Eddings v. Oklahoma,

No. 80-5727 (U.S. Jan, 19,1982), compels this Court

to reach a different result.

In Eddings, the defendant in a capital

murder caso presented testimony about his violent

background during the sentencing phase of his trial.

The sentencer, „ trial judge sitting without a jury,

held that es @ matter of law he was unable to. consider

Eddings’ background as evidence In mitigation, The

Supreme Court noted that, “In this Instance, It was

as if the trial judge had Instructed a Jury to

disregard the mitigating evidence Eddings proffered

in his behalf." Eddings, supra (30 Crim. L.Rep. 3047,

3050). The fourt held that a sentencer “may determine

the welght to be given relevant mitigating evidence,"

but the sehtencer “may not give it no welght by :

excluding such evidence from thelr consideration.” Id.

Petitioner claims that, as in Eddings, the sentencer

was unable to consider evidence offered in mitigation

because of the rulings of the trial judge. However,

such is not the case. The trial court denied Petitioner

@ second continuation to have Ors. Ermutlu and Eichler

present, which the Supreme Court found was not an

abuse of discretion. Ors. Ermultlu and Eichler had

testified at length as to Petitioner's mental condition

in support of his Insanity defense during the guilt/

innocence phase of thats (T. 993; 1029). Or. Eichler

testified that they had found Petitioner incompetent

to stand trial. (T. 995). In addition, two psychiatrists

who had previously treated Petitioner testified as to

his mental disorders in the guilt/innocence phase.

(r. 943; 963). Thus, ample evidence of Petitioner's

mental condition was presented to the jury. The

trial court's denial of the continuance did not

preclude the jury from considering any mitigating

evidence. N

Finally, Petitioner's allegation that the

trial court refused to allow Petitioner to introduce

the report of the Forensic Team as mitigating evidence

is without a factual basis.

Accordingly, the claims for relief in paragraphs

31-34 are found to be without merit.

35-38

In paragraphs 35-38, Petitioner claims that

the jury instruction on Intent created an impermissible

presumption which relieved the State of its burden

of proving an essential element of the offense,

thereby violating his right to due process of law.

FINDINGS OF FACT

The trial court charged the jury:

"I charge you that every

aths

person is presumed to

be of sound mind and

discretion, but

this presumption may

be rebutted. 1!

charge you that you

may infer that the

acts of a person of

sound mind and discretion

are the product of his

will, and you may infer

that a person of sound

mind and discretion

Intends the natural and:

probable consequences of

his act. Now, whether or not

you make any such inference

is a matter solely within

the discretion of the jury."

(T. 1097).

CONCLUSIONS OF LAW

Petitioner relies upon Sandstrom v. Montana,

442 U.S. 510, 99 S.Ct. 2450, 61 1. 64.2% 39 (1979),

and the recent decision of Mason v. Balkcom, No. 80-7344

(Former Sth Cir., March 1, 1982), to assert that

the charge on intent in this case was impermissibly

burden-shifting.

Sandstrom and Mason are readily distinguished

upon the ground that la neither case was the jury

told that the presumption could be rebutted. Here,

the jury was clearly told the presumption could be

rebutted. Additionally, the Jury in Petitioner's case

was told that whether to make any such inference was

@ matter solely within the jury's discretion. Thus,

the presumption created was a permissive one which

the jury was free to apply or reject. Ulster County

Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 . 6. 20

777 (1979).

When viewing the charge as a whole, Patterson

v. State, 239 Ga. 409, 415 (1977), a reasonable juror

could not have Interpreted the charge as conclusive

or burden-shifting. Ulster County Court v. Allen,

supra.

Accordingly, this claim for relief is found

to be without merit.

32

in paragraph 39, Petitioner claims his Eighth

and Fourteenth Amendment rights were violated by

insufficient jury instructions in the sentencing

phase of trial. Specifically, he alleges that the

charge failed to define statutory aggravating

circumstances and mitigating circumstances adequately,

failed to explain the weighing of aggravating and

mitigating circumstances, and failed to instruct

the jury they could recommend life even if they

found a statutory aggravating circumstance to exist.

FINDINGS OF FACT

The Court has examined the Instructions to

the jury in the sentencing phase of Petitioner's trial.

(T. 3352-8357).

The Supreme Court has already concluded that

the charge was not subject to the defects dealt

with in Fleming ». State, 240 Gea. 142 (1978), and

Hawes v. State, 240 Ga. 327 (1978).

CONCLUSIONS OF LAW

The trial court defined mitigating circumstances

416.

to the jury and told them they could recommend

a life sentence even If they found the existence

of one or more aggravating circumstances. Thus,

the charge comports with Spivey v. Zant, 661 F.2d

464 (1981).

Accordingly, this allegation is found to

be without merit.

40-43

‘In paragraphs 40-43, Petitioner contends

his constitutional rights were violated by the

State's use of non-statutory aggravating circumstances.

FINDINGS OF FACT

The Supreme Court has already found that,

"No evidence in aggravation was offered by the

State during the presentence hearing. Rather,

the State relied on evidence submitted during the

gullit/innocence phase of the proceedings." Strickland

v. State, supra at 226 (24). The Court also found

that the State's notice of aggravating circumstances

complied with Ga. Code Ann. $27-2503. td.

CONCLUSIONS OF LAW

Georgia's death penalty statute requires

the sentencer to consider “any mitigating circumstances

or aggravating circumstances otherwise authorized.

by law and any of the following statutory aggravating

circumstances which may be supported by the evidence

Ga. Code Ann. $27-2534.1(b).

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* ‘ 4 Nn

The Supreme Court has noted that in the

presentence hearing, “all aspects of the crime, the

past criminal record or leck therefore, and the

defendant's general moral character" are relevant

to the trier of fact in determining the sentence

to be Imposed. Fair v. State, 245 Ga. 868, 873

(1980). “Any lawful evidence which tends to show

the motive of the defendant, his lack of

remorse, his genural moral character, and his

predisposition to commit other crimes is admissible

In aggravation, subject to the notice provisions of

the statute.” id. : *

Though no evidence in aggravation was

introduced by the State In the sentencing phase of

trial, Petitioner claims that the State's reliance

upon the non-statutory aggravating circumstances

and the trial court's charge thereon were

unconstitutional.

“In a capital felony presentence trial,

the State is not limited to the introduction of

evidence to support the particular statutory

aggravating circumstances it is relying upon."

Fair v. State, supra at 873-874.

Accordingly, the allegation in paragraphs

40-43 is found to be without merit.

5

1

44

In paragraph 44, Petitioner contends that

the trial court's refusal to charge the jury on the

lesser included offense of voluntary manslaughter

deprived him of his Sixth, Eighth, and Fourteenth

Amendment rights and corresponding rights under the

Georgia Constitution.

FINDINGS OF FACT

The Supreme Court, In passing upon the

refusal of the trial court to give specific

charges as requested by defense counsel, has

already concluded, "There was no factual basis for

@ charge on voluntary or involuntary manslaughter."

Strickland v. State, supra, at 225 (19).

CONCLUSIONS OF LAW

Findings of the Supreme Court are binding

upon this Court for the purposes of review. Elrod

v. Ault, supra.

Accordingly, this allegation is found to

be without merit.

45-47

Petitioner has made no showing that the

death penalty Is being arbitrarily or discriminatorily

applied. Neither has he shown that a lack of theoretical

justification for imposing the death penalty exists.

Accordingly, these allegations are found to

be without merit.

48

Petitioner's "prosecution-prone” argument

was rejected in Smith v. Balkcom, 660 F.2d 573

(1981).

WHEREFORE, after full consideration of each

and every ground offered in support of the petition,

the same is hereby denied.

This 2— day of April, 1982.

ALEX c

JUDGE SUPERIOR G9 0 2

FLINT JUDICIAL ClRACcU

APPENDIX C

STATUTES INVOLVED

Georgia Code Annotated Section 26-1101

Murder (a) A person commits murder when he unlawfully and

with malice aforethought, either express or implied, causes the

death of another human being. Express malice is that deliberate

intention unlawfully to take away the life of a fellow creature,

which is manifested by external circumstances capable of proof.

Malice shall be implied where no considerable provocation

appears, and where all the circumstances of the killing show an

abandoned and malignant heart,

(b) A person also. commits the crime of murder when in the

commission of a felony he causes the death of another human

being, irrespective of malice.

(c) A person convicted of murder shall be punished by death

or by imprisonment for life.

Georgia Code Annotated Section 50-127

Exclusive procedure for suing out a writ of habeas corpus

withstanding the other provisions o 8

following is the exclusive procedure for i 0 out a writ of

habeas corpus for persons whose 2 is being restrained by

le of a sentence imposed against them by a State court of

record:

(1) Grounds for writ.

Any person imprisoned by virtue of a sentence ree by a

State court of record who asserts that in the proceedings which

resulted in his conviction there was a substantial denial of his

rights under the Constitution of the United States or of the

State of Georgia or the laws of the State of Georgia may

institute a proceeding under this

APPENDIX C, p. 1

* _ Ry Pie a’ 1 *

Reer

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section. Except for objections relating to the composition of a

grand or traverse jury, rights conferred or secured by the

Constitution of the United States shall not be deemed to have

been waived unless it is shown that there was an intentional

relinquishment or abandonment of a known right or privilege which

relinguishment or abandonment was

participated in by the pa and was done voluntarily, .:

and intelligently. The Peg t to object to the composition of the

grand or traverse jury will be deemed waived under this section,

unless the person challenging the sentence shows in the petition

and satisfies the court that cause exists for his being allowed

to pursue the objection after the conviction and sentence has

otherwise become final.

(2) Petition and verification.

The petition shall identify the proceeding in which the

petitioner was convicted, give the date of rendition of the final

judgement complained of, and clearly set forth the respects in

which petitioner's rights were violated. The petition shall have

attached thereto affidavits, records, or other evidence

supporting its allegations or shall state why the same are not

attached, The petition shall identify any previous proceedings

that petitioner may have taken to secure relief from conviction.

Argument and citations of authorities shall be omitted from the

petition. The petition must be verified by the oath of the

applicant or some other person in his behalf.

(3) Jurisdiction and venue.

The petition must be filed in the superior court of the

county wherein the petitioner is being detained. The superior

courts of such counties have exclusive jurisdiction of habeas

corpus actions arising under this section.

(4) Service of the petition.

Service of the petition shall be made upon the person having

custody of the petitioner. If the petitioner is being detained

under the custody of the Board of Corrections, an additional copy

of the petition shall be served on the Attorney General; however,

if the petitioner is being detained under the custody of some

other authority other than the Board of Corrections, an

additional copy of the petition shall be served upon the

solicitor general of the county wherein the petition is filed.

ake upon the Attorney General or the solicitor general may be

1 a copy of the petition along with a proper

— 1 — service.

APPENDIX c, p. 2

O C:

(5) Custody of petitioner.

Custody and control of petitioner shall be retained by the

Board of Corrections or other authority having custody of the

petitioner and it shall be the duty of such

board or authority to produce the petitioner at such times and

places as the court may direct.

(6) Proceedings on petition.

Within 20 days after filing and docketing of the petition,

or within such further time as the court may set, the respondent

shall answer or move to dismiss the petition. The court shall

set the case for a hearing on the issues within a reasonable time

after the filing of defensive pleadings.

(7) Disposition in the trial court,

(a) The court may receive proof by depositions, oral

testimony, sworn affidavits, or other evidence.

(b) The taking of depositions — written questions, by

either party, shall be governed by the provisions of sections

81A-127 through 81A-132 and 81-137: Provided, however, that the

time allowed in section 81A-131 for service of cross-questions

upon all other parties shall be 10 days from the date the notice

and written questions are served.

(c) If sworn affidavits are intended by either party to be

introduced into evidence, the party intending to introduce the

affidavit shall cause it to be served upon the opposing party at

least five days in advance of the date set for a hearing in the

case. The affidavit so served shall be accompanied by a notice

of the party's intention to introduce it into evidence. The

superior court judge considering the petition for writ of habeas

corpus 4 resolve the 8 issues of fact upon the basis of

sworn affidavits standing by themselves.

(d) If the court finds in favor of the petitioner, it shall

enter an appropriate order with respect to the judgement or

sentence challenged in the proceeding and such supplementary

orders as to rearraignment, retrial, custody, or discharge as may

be necessary and proper. In all cases the court shall d spose of

the matter as law and justice require.

(8) Transcribing proceedings.

All trials held under this section shall be transcribed by a

court reporter designated by the superior court hearing the case.

APPENDIX C, p. 3

review ng eadings and ev 0 at the

trial of the case, the A of the superior court hearing the

case shall make written findings of fact and conclusions of law

upon which the judgement is based. Such findings of fact and

conclusions of law shall be recorded as part of the record of the

case.

rounds not claimed.

ef claimed by a of

habeas corpus shall be raised by a petitioner in his original or

amended petition, a grounds not so raised are waived unless

the Constitution of the United States or of the State of Georgia

otherwise requires, or any judge to whom the 1 is

assigned, on considering the subsequent petition, finds grounds

for relief asserted therein which could not reasonably have been

raised in the original or amended petition,

(11) Practice as to appeals.

(a) Appeals In habeas corpus cases shall be governed by the

Appellate Procedure Act of 1965 (86-701 et seq), except that as

to final orders of the court which are adverse to the petitioner,

no appeal shall be allowed unless a justice of the Supreme Court

of Georgia shall issue of certificate of probable cause for such

appeal.

APPENDIX c, p. 4

0 C

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982 =

RECEIVED

No. 62 5830

Orie OF THE “4

40 SUPREME COURT, U

ROBERT WILLIAM STRICKLAND,

Petitioner,

8.

Supreme Court, U

Ve F IL E 1)

WALTER DL. ZANT, Warden, AUG 23 1982

Georgia Diagnostic Center,

Alexander L. Stevas, Clerk

Respondent

MOTION FOR LEAVE TO PROCEED

N IN FORMA PAUPERIS

Petitioner, Robert William Strickland, by his undersigned

counsel, asks leave to file the attached Petition for Writ of

Certiorari without prepayment of costs and to proceed in forma

pauperis. Petitioner's affidavit of indigency is attached to

this motion.

Atlanta, Ga. 303 3

(404) 688-8116

| N N he : 1 { * 8

Nr Se aN TA Vie Alene ks Mes,

ROBERT WILLIAM STRICKLAND,

Petitioner, AFFIDAVIT IN SUPPORT

v. OF REQUEST TO

WALTER b. ZANT, Warden, PROCEED IN FORMA PAUPERIS

Respondent RECEIVED

AUG 25 1982

Orr OF THE CLERK

COURT, U.S.

I, Robert William Strickland, being first duly sworn,

depose and say that I am the Petitioner in the above entitled

case; that in support of my motion to proceed without being

required to pre-pay fees, costs or give security therefor, I

state that because of my poverty I am unable to pay the costs of

said proceeding or to give security therefor; that I believe that

I am entitled to redress.

I further swear that the responses which I have made to

questions and instructions below are true.

1.

2.

Are you presently employed? Yes No 2

a. If the answer is yes, state the amount of your

salary or wages per month, and give the name and address

of your employer,

b. If the answer is no, state the date of last

employment and the amount of the salary and wages per

month which you received,

Feconhe- /?7 7 $3209 wer menrh

Have you received within the past twelve months any

money from any of the following sources?

a. Business, profession or form of self-employment?

g Yes No \~

b. Rent payments, interest or dividends? Yes

No

. Pensions, annuities or life insurance payments?

Yes No

d. Gifts or inheritances? Yes nin:

„ Any other sources? Yes uo

It the answer to any of the above is yes, describe each

source of money and state the amount received from each

during the past twelve months. ,

Yu 1 * }

Or savings account? Yes

(Include any funds in prison accounts). If the answer

is yes state the total value of the items owned,

_# 60.00

4. Do you own any real estate, stocks, bonds, notes,

automobiles, or other valuable property (excluding

ordinary housghold furnishings and clothing)?

Yes No 7

3. Do you own any cash, or wae Sati money in a checking

a. If the answer is yes, describe the property

and state its approximate value.

5. List the persons who are dependent upon you for support

and state your relationship to those persons,

eas.

I understand that a false statement or answer to an questions

in this affidavit will subject me to penalties for e

STATE OF GEORGIA

COUNTY OF BUTTS

rt am rickla

Sworn to and subscribed before me this Gray of August, 1982.

Pe "See

CERTIFICATE OF SERVICE

I hereby certify that I have served counsel for the

opposing party with a copy of the foregoing pleading by

placing same in the United States Mail with adequate

first-class postage attached thereon addressed to

Mr. Michael J. Bowers, Attorney General, State of Georgia,

132 State Judicial Bldg., 40 Capitol Square, S.W., Atlanta,

Georgia 30334.

This 23rd day of August, 1982.

Suite 831

Atlanta, Georgi

(404) 688-8116

de eS *