# Appendix — Strickland v. Zant > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1295%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 459 U.S. 960 ## Text 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 © 8 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 © Cc 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). -17- * ‘ 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 © © 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 * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1295%3A2. Public record. Not legal advice.