# Petition — HIGH v. KEMP (No. 83-5148) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1641%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text RECEIVED JUL 2 8 183 OFFICE OF THE CLERK SUPREME COURT, U.S. 83-S/43 No.2 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 JOSE MARTINEZ HIGH, Petitioner, vs. WALTER D. ZANT, Warden, Georgia Diagnostic and Classification Center Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA BRADLEY S. STETLER, 419 Seventh Street, N.W. Suite 202 Washington, D.C. 20004 (202) 638-4798 Counsel for petitioner QUESTIONS PRESENTED 1. Does the infliction of the death penalty on a child under the age of 18 at the time of the offense constitute cruel and unusual punishment? 2. What standard of competency of defense counsel is required in capital cases to satisfy the Sixth, Eighth and Fourteenth Amendments? 4 ~ TABLE OF CONTEN Questions Presented hos se 6 ae eo & ee oe Oo ee i Table of Authorities a - os en & e 6. es, oe 6 ee. eee Opinion Below eS yr at See ee oe a i ee 1 Jurisdiction Cn easel e's @ 6 6: ‘oe 6 e l Constitutional Provisions Involved oe 4s 3 ww 2 Statement of the Case “oa he ee a a a a a oe Ye ee 2 How the Federal Questions Were Raised and Decided Below ae on a on oe Oe ee a ee 5 Reasons for Granting the Writ i er a or cat i! oe et oe Oe 6 I. This court should review the decision below to decide whether the infliction of the death penalty on a child under the age of 18 at the time of the offense constitutes cruel and unusual punishment “ie we ee a oe a oe 6 II. This Court should review the decision below to decide what standard of competence of counsel is constitutionally required in capital cases kill. This pre- ed. | further . shall not be pre- al intention but find such iften- the words, con- er circ'ymstances r which the ac-’ The burden is ve act alleged to minal act beyond r only the latter will review both. yrtiqn, the court ital presumption «| and discretion probable conse- » second portion, re @ person uses rdinary manner * presumes the umption may be , while not cre- ions, might be . in violation of r, this language ther with the repeated, that a med to act with riors of the facts on consideration neanor, and al! ted with the act cen prosecuted.” “(t}he burden is . HIGH v. ZANT Ga 66] Che os, Ga, 300 S.£.24 654 ‘ upon the State to prove the act alleged to be criminal is, in fact, a criminal act beyond @ reasonable doubt.” The court charged that intent is an element of the crime and that the burden is on the State to prove every element beyond a reasonable douht Finally, the court instructed the jury as to the presumption of innocence no less than five times, including the following: “I charge you that the defendant enters into the trial of this case with the presumption of innocence. The presumption of inno- cence is affirmative proof in behalf of one aceused of a crime and places upon the prosecution the burden of rebutting it by proof which shall satisfy the jury of the defendant's guilt beyond a reasonable doubt. The presumption of innocence re- fers to a substantive right \enich is in the nature of evidence.” Taking the-charge as a whole, we con- clude that no reasonable juror could have understood it to mean that any burden whatsoever was placed upon the defendant with respect to the elements of the crimes charged. The language employed merely created a permissive inference with resect to intent, and we find no reversible error Johnson v. State, 249 Ga. 621(1), 292 S.E.2d 696 (1982); Hosch v. State, 246 Ga. 417(3), 271 S.E.2d 817 (1980) {12) 14. High complains of remarks made by the prosecutor during his summa- tion to the jury in the guilt-innocence phase of the trial. They include references to the defendant as subhuman and the invoking of religious beliefs and familial sympathies. The habeas corpus court correctly concluJed that these remarks constitute “.. . conduct which is merely improper and universally condemned but not a denial of due process.” Easter v. Estelle, 609 F.2d 756, 760 (5th Cir.1980). To constitute reversible error in a habeas corpus proceeding, the alleged mis- conduct must be “...so prejudicial as to render a trial fundamentally unfair in vio- lation of the due process clause.” Id. [13] A more serious problem is present- ed by the prosecutor's reference’ to portions of High's incriminating statements which were not admitted into evidence and which implicated High in other crimes. See OCGA § 24-2-2. This amounte:! io an im- permissible introduction of facts not in evi- dence, as distinguished from false logic or rhetoric. See Powell v. State, 179 Ga 401(4), 176 S.E. 29 (1934); Houston v. Es- telle, 569 F.2d 372, 376-84 (Sth Cir.1978). However, defense counsel made no objec- tion to these remarks, aithough he did ob ject to other portions of the closing argu- ment, and thus the trial] court had no oppor- tunity to give curative instructions to the jury. See Whisman v. State, 221 Ga. 46017), 145 S.E.2d 499 (1965). In view of the over- whelming evidence against High, including his own incriminating statements and the eyewitness testimony of a victim who sur- vived an attempt on his life, we conclude that it is highly probable that the error did not contribute to the verdict. Juhnson 1 State, 238 Ga. 59, 60-61, 230 SE2d 869 (1976) {14} High contends that the following remarks, made by the prosecutor in his summation to the. jury in the sentencing phase of the trial, constitute improper com- ment upon the defendant's failure to testi- fv: “You know, if a week or two weeks or three wecks after this cruel and inhumane and defenseless little—this murder on a de- fenseless little 56 inch, 70 Ib. kid—if two or three weeks later they had come in and said, listen, I did it, I'm wrong—maybe God can forgive me and you try. That's one thing. But no—until this very day there has been no remorse shown. There hasn't been one single word that I've heard that has been uttered that this is something that shouldn't have happened.” This is not a comment which asked the jury to infer guilt from the defendant's failure to testify (see Jacobs v. State, 187 Ga App. 592(2), 224 S.E.2d 462 (1976)); rather, it asked the jury to infer a lack of remorse. We find no error. Marshall v. State, 239 Ga. 101(3), 236 S.E.2d 58 (1977). {15} Lastly, High complains of allegedly inflammatory remarks by the prosecutor in the sentencing summation. For example, “...] want you to think about a little elev- 662 Ga en year old boy—a little young fellow who didn't have a chance to live out his life - because of the vicious, mean, lowdown, un- lawful, illegal, immoral, conduct on the part of this man and two others” Assuming High to be guilty, which the jury had al- ready found, we find this to be an accurate, if ineloquent, assessment of High's deeds We have reviewed the entire summation and find no error of constitutional dimen- sions, nor any violation of stat law. Com- pare Hance v. Zant, 696 F.2d 940 (llth Cir.1983). See High, supra, at p. 295, 276 §.E.2d 5. {16} 15. The imposition of the death penalty is not cruel and unusual punish- ment per se simply because High was a minor at the time of the offense. Eddings ¥. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) 16. High contends that the imposition of the death penalty was not justified under OCGA § 17-10-30(bX7) because of a lack of serious physical abuse prior to death. This contention is without merit. High, supra, &t pp. 296-7, 276 S.E.2d 5. [17] 17. High contends that the sen- tence of death must be set aside due to the failure to instruct the jury sufficiently as to the meaning of OCGA § 17-10-30(b\7) This contention is without merit. Gilreath v. State, 247 Ga. 814(16), 279 S.E.2d 650 (1981) High contends that the tria! court's in- structions to the jury relative te their con- sideration of mitigating circumstances in fixing punishment were insufficient, citing Spivey v. Zant, 1 F.2d 464 (former 5th Cir.1981). With regard to the jury's deci- sion whether to impose a life sentence or the death penalty, the court gave these instructions: “In reaching this determina- tion, you are suthorized to consider all of the evidence received by you in open court in the trial of the case. You are authorized to consider al! of the facts and cireumstanc- es of the case including mitigating facts and circurnstances, if any, on behalf of the defendant.... | charge you, members of the jury, that if you find that.the State has ee 300 SOUTH EASTERN REPORTER, 2d SERIES proved one or more statutory aggravating circumstances beyond a reasonable doubt that you may recommend that the defend- ant receive a life sentence.” The sentencing instructions in this case were not subject to the defects disapproved in Spivey, supra. In Spivey, the jurors were told that they could consider all the facts and circumstances of the case in fix- ing punishment. Here they were told that they could consider all the facts and circum- stances, “ including mitigating facts and circumstances, if any, on behalf of the de- fendant.” In Spivey, the jurors were not instructed clearly as to the option to recom- mend a life sentence even though they might find aggravating circumstances Here, that option was set forth in unmis- takable terms. See Hawes v. State, 240 Ga $27(9), 240 S.E2d 833 (1978); Fleming v State, 240 Ga. 142(7), 240 S.E.2d 37 (1978) High contends that the jurors should have been instructed io consider mitigating factors in mandatory terms, i.e., instead of “You are authorized to consider, .." the court should have said, “You must con- sider...." While mandatory language might be preferable, we do not believe a reasonable juror could have been misled by this variation. If the language had been construed as pureiy discretionary, the jurors might have concluded that they could im- pose the ultimate penalty without consider- ing any of the facts and circumstances. Such a construction is plainly contrary to the reasonable intendment of the charge as a whole, including the requirement that, prior to imposition of the death penalty, the jurors must find the existence of an aggra- vating circumstance beyond a reasonable doubt. High also argues that “mitigating cir- cumstances” should have been defined for the jury. Implicit in the charge is a defini- tion of the term, as the court referred to “.. mitigating facts and circumstances, if any, on behalf of the defendant.” (Empha- sis supplied). Thus, even if a juror did not understard the term “mitigating,” he or she could have construed it only in its broadest possible sense, to mean anything favorable to the a nition ' jury ‘er [18) to deat’ consis(.' napping and Co: nappiny’ The jur: cumsta’ 8b, 7) direct a} the dea High. «. contend: aggrava’ and 5 r consider. therefor Counts As vw tention and not | circur:' S.E.2d ! o ~¢euee circums: pelled ye whates:' to inflici require! before { and we death jx require ! 19. FF with be merged + and thu: for erin ously re): at pp. 29: 2. hi penalty is criminat. fail. Hig 21. sv death is prior caw 8 latu.ory aggravating a reasonabie doubt end that the defend- vince.” ructions in this case p defects disapproved | Spitey, the jurors ould consider all the sof the case in fix- they were told that the facts and circum- “miligating facts and on behalf of the de- the jurors were not the option to recom- even though ‘they ting circumstances set forth in unmis- wes v. State, 240 Ga. (1978); Fleming v. 240 S.E.2d 37 (1978) the jurors should » consider mitigating urms, i.e., instead of » consider, ..." the 4, “You must. con- \undatory language se do not believe a have been misled by . language had been tionary, the jurors that they could im- \y without consider- and circumstances. plainly contrary to unt of the charge as ‘ requirement that, # death penalty, the istence of an aggra- pyond a reasonable at “mitigating .cir- « been defined for « charge is a defini- * court referred to id circumstances, if fendant.” (Empha- 0 if @ juror did not itigating,” he or she only in its broadest anything favorable “aah . ~~. ar SABEL ¥. STATE Ga. 663 Che as, Ga, 300 $.E.24 463 to the defendant. Any more technica! defi- nition might tend unduly to restrict the jury's consideration {18} 18. High was originally sentenced to death on four counts, Counts 1] and 4 consisting of the armed robbery and kid- napping of Henry Phillips, who survived, and Counts 3 and 5 consisting of the kid- napping and murder of Bonnie Bulloch. The jury found that the aggravating cir- cumstance set out in OCGA § 17-10- 30(bX7) was present as to each count. On direct appeal, we reversed the imposition of the death penalty as to Counts 1 and 4 High, supra, at p. 297, 276 S.E.2d 5. High contends that the jury's consideration of aggravating circumstances as to Counts 3 and 5 may have been infected by their consideration of Counts ] and 4, and that therefore he should be resentenced as to Counts 9 and 5. As we have stated previously, this con- tention relates to the reduction of sentences and not the disallowance of an aggravating circumstance. High, supra, at p. 297, 276 S.E.2d 5. The jury was instructed to “., #tate and set forth the aggravating circumstances which caused you or com- pelled you to inflict the death penalty as to whatever count or counts you might see fit to inflict such penalty." The court's charge required the jury to focus on each count before fixing the penalty for that count, and we conclude that the reversal of the death penalty as to Counts 1 and 4 does not require resentencing as to Counts 3 and 5. 19. High contends that the kidnanping with bodily injury of Bonnie Bulloch merged with the murder of Bonnie Bulloch, and thus High was improperly sentenced for crimes which merged. We have previ- ously rejected this contention. High, supra, at pp. 294-5, 276 S.E.2d 5. 20. High's contention that the death penalty is imposed arbitrarily and in a dis- criminatory manner in Georgia also must fail. High, supra, at p. 296, 276 S.E-2d 5. 21. High contends that the sentence of death is disproportionate when compared to prior cases. This contention is also succes- 10a sive. High, supra, at pp. 297-8, 276 S.E.2d 5 [19] 22 High argues that the death penalty is excessive as the evidence shows he was only an aider and abettor to the murder of the victim. The evidence, includ- ing High's own statements, clearly supports an inference to the contrary, and Enmund v. Florida, ——- U.S. ——-, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), is distinguishable on its facts. (20) 23. Electrocution is not cruel and unusual punishment as compared to other possible methods of carrying out the death penalty Judgment affirmed All the Justices concur SABEL et al., , v. The STATE. No. 39132. Supreme Court of Georgia. March dd, 1983. Defendants were convicted in the State Court, Fulton County, John A. Bruner, J., of failure to disperse, and they appealed. The Supreme Court, Bell, J., held that: (1) statute requiring dispersa] of gatherings upon request or order of peace officer or firemen, in interest of public safety, was neither unconstitutionally vague nor over- broad; (2) defendants’ arrests and convic- tions did not violate their First Amendment rights; (3) defendants were not selectively prosecuted; and (4) trial court did not abuse its diserstion in denying motion for mistrial. Judgment affirmed. —- ee ae | —<—- ——=— _- STATE OF GEORGIA JOSE MARTINEZ HIGH, Petitioner, : CIVIL ACTION VS. , FILE NO. 5585 WALTER D. ZANT, WARDEN, HABEAS CORPUS GEORGIA DIAGNOSTIC & CLASSIFICATION CENTER, Respondent. The matter now pending before this Court is a Petition for Writ of Habeas Corpus in a death penalty case. The Petitioner, Jose Martinez High, is currently serving two death sentences imposed by jury at trial in the Superior Court of Taliaferro County. Petitioner was convicted of the offenses of murder, two counts cf kidnapping with bodily injury, are! robbery, possession of a firearm during the connission Of a crime, and aggravated assault and was sentenced to death for the murder, armed robbery, and both counts of the kidnapping with bodily injury. On direct anneal the Supreme Court of Georgia affirmed the convictions for armed robbery, murder and two counts of kidnapping with bodily injury but set aside the convictions for possession of a firearm and aggravated assault holding these crimes merged into the crimes of armed robbery and kidnapping with bodily injury. The Court also affirmed the death penalty in two of the four counts for which Petitioner was sentenced to death setting aside the death sentences for the armed robbery conviction and one count of kidnapping with bodily injury conviction where the victim did not die. High V. State, 247 Ga. 289 (1981). Sub- sequently, a Petition for Writ of Certiorari was denied by the United States Supreme Court on January 25, 1982 with a petition for rehearing denied on March 22, 1982. ° : Following these rulings a new execution date was set for July 6, 1982. On June 24, 1992 Petitioner filed a Motion for Stay of Execu*ion lla SE a and a Petition for a Writ of Habeas Corpus in Butts County Superior Court. The Motion for Stay of Execution was denied by this Court on June 25, 1982. On appeal the Supreme Court of Georgia granted a Stay of Execution and remanded the case to this Court for a determination of the Petitioner's applicaion for Writ of Habeas Corpus by an evidentiary hearing on Petitioner's contention of ineffective assistance of counsel and other pertinent evident- iary matters on issues raised. On Auoust 12, 1982 an evidentiary hearing was held with Petitioner present and represented by his counsel, Bradley S. Stetler. The Respondent was represented by Virginia H. Jeffries, Staff Assistant Attorney General. At the hearing Petitioner limited his evidence and argument to the issue of ineffective assistance of counsel during the penalty phase of Petitioner's bifuricated trial. However, the Petitioner, High, has raised twenty-six grounds for granting relief in his habeas petition, each of which will be addressed by this Court. In rendering this decision the Court has considered not only the evidence presented at the hearing, but the complet’ ‘transcript of Petitioner's trial in Taliaferro County and numerous affidavits submitted by counsel for Petitioner. A substantial number of the allegations listed in the petition have previously been ruled on by appellate courts. Allegations concerning Witherspoon violations, restricted voir dire, state paid expert assistance, application of the doctrine of merger of crimes, the admissibility of certain tangible evidence such as photographs and fingerprints and whether the death sentence was arbitrarily imposed on the Petitoner have already been ruled on by the Supreme Court of Georgia on direct appeal. The Supreme Court has also ruled on other issues not raised in the habeas petition such as certain jury instructions, ruling on an in camera inspection in the presence of the jury, violation of the rule of sequestra- tion, introduction uf a statement by Petitioner, and the refusz’ to suppress the testimony of witness Phillips. High V. State, supra. Findings of appellate courts are binding on this Court for purposes of review. Elrod v. Ault, 231 Sa. 750 (1974). As each of the above named allegations have previously been raised and ruled upon those findings are birding on this l2a Court and those allegations are found to be without merit. Additionally, the Georgia Supreme Court has ruled upon whether the High case violated the principle of law set out in Godfrey V. Georgia, 446 U. S. 420 (1985). The Court held that a death sentence based on a Ga. Code Ann. §27-2534.1 (b) 7, aggravating circumstance, i. e. that a murder, armed robbery or kidnapping was outrageously or wantonly vile, horrible and inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim was justified under the facts of the case and not a violation of Godfrey. Evidence of psychological abuse by the defendant to the victim before death where it is shown to have resulted in severe mental anguish to the victim in anticipation of physical harm may amount to serious physical abuse (i. e. torture to the victim) and will support a finding of depravity of mind of the defendant. Hance V. State, 245 Ga. 856 (1980). This issue as well as the allegation that Petitioner's death sentence constitutes cruel and unusual punishment because of his age at the time of sentence were raised in the Petition or Writ of Certiorari to the Supreme Court of the United States. Therefore, this Court finds no merit in either of these allegations. Petitioner has made several general allegations regarding the constitutionality of the death penalty. Specifically, Petitioner alleges that the death penalty is unconstitutional as cruel and unusual punishment and that the means of execution in Georgia is harsh and outmoded. Georgia's death penalty statute has been upheld by the United States Supreme Court. Gregg v. Georgia, 428 U. S. 153 (1976). Petitioner has presented no evidence or advanced any argument which would lead this Court to change this position. ‘According, these allegations are without merit. Petitioner alleges that the exclusion for cause of prospective jurors unequivocally opposed to the death penalty denied him his right to an impartial jury. This argument has been rejected in Smith ©. Balcom, 660 F. 2d. 573 (1981) and is, therefore, found to be without merit. The Petitioner challanges Ga. Code Ann. §59-905, the preemptory strike statute, as unconstitutional. The Petitioner alleges the state used its preemptory strikes to systematically exclude blacks from the jury. On direct appeal the Supreme Court of Georgia has held the defendant was l3a not denied due process of law by the preemotory striking of some black potential traverse jurors. High v. State, supra. Petitioner has presented no new evidence to show his death sentence was the result of any intentional discrimination nor has he convinced this Court that Ga. Code Ann.359-905 violates his constitutional rights. The Court finds this allegation to be without merit. The Petitioner alleges that the venue of his trial should have been changed due to extensive pre-trial publicity. The test as to whether unfavorable newspaper (or other media publicity) has so prejudiced a case against one accused of a crime that a fair trial cannot be had is whether the jurors summoned to try the case have formed fixed opinions as to the guilt or innocence of the accused from reading such unfavorable publicity. Jarrell v. State, 234 Ga. 410 (1975). After a careful review of vior dire this Court finds that the jurors selected had no fixed opinion as to either the guilt or innocence of the Petitioner based on media accounts of the crime and that a change of venue was unnecessary. This Court also finds that Petitoner's specific allegations regarding six propective jurors who were not struck because of their exposure to pre-trial publicity did not deny Petitioner his right to a fair trial. 4 complete review of the vior dire questioning of these six jurors revealed no fixed opinions. These allegations are thus without merit. Similarly, Petitioner's alleoation that his voir dire questioning was erroneously restricted by the Court and that the Court erroneously allowedthe indictment to be read to the jury panel are also without merit. - Concerning the Petitioner's allegation that he was denied the right to a speedy trial. The record indicates that his trial was delayed by successful chall nges to the composition of the grand jury. These challenges were instigated by the Petitioner and it was due to these challenges that Petitioner did not go to trial sooner. Given these circumstances this allegation is without merit. Petitioner next presents several allegations under a heading entitled denial of a fair trial. These allegations include failure of the Court to require the state to produce certain evidence, violation of the rule of sequestration, restriction of vior dire, failure to suppress l4a the testimony of witness, Henry Phillions, and the admission of prejudicial evidence. After a review of these allegations this Court concludes that most of these points have already been ruled on adversely to Petitioner in High v. State, supra. Petitioner presented no evidence or argument in favor of his position and this Court finds no merit in any of these alleged errors. The Petioner alleges that the trial Court erred in failing to transcribe bench conferences between the Court and counsel after a Motion for Complete Recordation of the Proceedings was made by Petitoner's trial counsel. The burden was on the Petitioner to have the record completed according to the provisions of Ga. Code Ann. §5-805 (f). Petitioner has presented no evidence that his trial counsel was negligent in failing to get these conferences recorded or that such conferences occurred and were not recorded. There is, therefore, nothing for an appellate court to review, Neal v. State, 161 Ga. App. 77 (1982) and this allegation is without merit. Petitioner also alleges that he has a right to state paid assistance for habeas corpus purposes. There is no requirement that the State assist Petitioner with funds, contrary to his assertion. Failure to assist the Petitioner is not ‘ constitutional deprivation of rights. Harris v. Hopper, 243 Ga. 244 (1979). Accordingly, this allegation is without merit. The Petitioner's next enumeration of error is that the trial Court's instructions on presumption of intent were improperly burden shifting in violation of Sandstrom v. Montana, 442 U. S. 519 (1979). This Court has examined the jury charge in question and finds that the charge complained of was not improper and that the presumptions and inferences created were permissive ones. Ulster County Court v. Allen, 442 U. S. 140 (1979(. This Court has also examined other instructions given during the guilt innocence phase of Petitioner's trial and finds no error. The Petition for Habeas relief contains two separate allegations of improper prosecutorial comments and argument during both the guilt 15a ome - ae. innocence and sentencing phase of Petitioner's trial. A review of the trial transcript has revealed no prejudice by these remarks which amounts to a denial of constitutional due process in light of the strength of the evidence against the Petitioner. There is a distinction between conduct which is merely improper and condemned from that which constitutes a denial of due process. This Court finds the prosecutor's comments fall into the former category and are thus not so prejucicial as to render the trial fundamentally unfair in violation of the due process clause. Easter v. Estelle, 609 F. 2d. 756 (5th Cir. 1980). Cobb v. Waimyright. 609 F. 2d 756 (5th Cir. 1989). The Petioner also alleges that his death sentence was unconstitu- tionally imposed because after the Supreme Court vacated the two death sentences for armed robbery and kidnapping with bodily injury, High v. State, Supra., the Court failed to remand the case for resentencing on the other death convictions. The Petitioner argues the failure to do so is in violation of Stephens v. Zant, 631 F. 2d. 397 (5th Cir. 1989). Contrary to this assertior, Stephens is not applicable to Petitioner's case and this allegation is without merit. As to mitigating circumstances the trial Court adequately instructed the jury about considering mitigating evidence and this Court finds the charge comports with Spivey v. Zant, 661 F. 2d. 464 (1981) . | The final and most important allegation of the Petitioner is that trial counsel for Petitioner rendered ineffective assistance of counsel in that this attorney failed to produce any witnesses or other mitigating evidence in the sentencing phase of trial. Claims of ineffective assistance of counsel must be judged by the standard that the right to counsel means the right to effective counsel and not errorless counsel or counsel judged ineffective by hindsight but counsel reasonably likely to render and rendering reasonably effective assistance. Pitts v. Glass, 231 Ga. 638 (1974). MacKenna v. Ellis, 280 F. 2d. 592 (5th Cir. 1960). The Petitioner was represented at trial by John Ruffin, an attorney of over twenty years experience. Ruffin devoted a substantial part of his practice to criminal trial work and had previously represented other l6a defendants in capital cases where the death penalty was sought. fir. Ruffin was retained counse] and personally spent over fifty hours in preparation for trial. Additionally, Ruffin was assisted by two legal interns (law Students) from the Southern Poverty Law Center. As a result of his efforts on Petition's behalf, Ruffin was able to successfully challenge the composition of the Grand Jury. At the habeas hearing, Ruffin was subjected to rigorous examination by Bradley Stetler, current counsel for Petitioner, about his handling of the sentencing phase of the trial. Ruffin testified that he tried to produce some competent witnesses to testify in mitigation but was unable to uncover any despite the efforts of both he and his legal assistants. Additionally, the defendant, High and his parents, who were actively supportive, were consulted and were unable to furnish help in this area. In regard to placing the parents themselves on the stand durina mitigation evidence Ruffin testified he made a conscious decision not to do so as part of his trial strategy. This Court is aware that Petitioner and his counsel have now produced a number of affidavits from people who now state they would have been willing to testify at trial during the sentencing phase. However, as Ruffin testified, it is not unusual ‘or potential witnesses to come forward after trial with offers of help and this this in fact did occur after the High trial was over. It should also be noted that counsel for Petitioner produced none of these potential witnesses at the habeas hearing ; for more revealing direct and cross examination. In view of the testimony ; that Ruffin was aware of the law and his obligation to produce mitigating evidence and made a diligent effort to find such witnesses, this Court finds that Petitioner was furnished with effective assistance of counsel and that this ground is without merit. Thus, after a thorough review of the petition for rit of Habeas Corpus, a complete examination of the trial record and consideration of all evidence presented, this Court finds that all of. Petitioner's enumerated errors to be without merit. Additionally, this Court has searched the record for other unenumerated errors and found none. 17a Therefore, this Petition for Writ of Habeas Corpus is hereby denied. This the /2 day of September, 1982. ZL. Oana | ys SAM L. WHITMIRE JUDGE, SUPERIOR COURT FLINT JUDICIAL CIRCUIT i! i! 18a ‘Saat Clerk’ ( fice, Supreme Court of oe a ATLANTA_=SL7 The motion for a rehearing -teas "ee today: Cue Meucttaad Bek Cin t Ward. CL tA__ Yours very truly, MRS. JOLINE B. WILLIAMS, Clerk 19a a (a RECEIVED Jo. © 8 1833 ry - _ - ‘ -s- "Ss IQY¥ OFFICE OF THE CLERK SUPREME COURT, USS. No. 82- IN THE SUPREME COURT OF THE UNITED STATES October Term 1982 JOSE MARTINEZ HIGH, Petitioner, vs. WALTER D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent. MOTION FOR LEAVE TO PROCEED IN FORMA PAIPERIS Comes now petitioner, Jose Martinez High, by counsel, in the above-styled action and moves this Court for leave to proceed in forma pauperis without first being required to prepay fees or costs or otherwise to give security therefore. In support of this motion, petitioner states that he has been permitted to proceed in forma pauperis at trial, on appeal to the Georgia Supreme Court and in his collateral attack in the state courts of his convictions and death sentence. Petitioner attaches hereto an Affidavit in support of this motion. Respectfully submitted, JOSE MARTINEZ HIGH, By Counsel Bnaoll 5. SA BRADLEY S. STETLER 419 Seventh Street, N.W. - Suite 202 Washington, D.C. 20004 (202) 638-4798 _ Counsel for petitioner * ' twelve months. RECEIVED vol & 8 1983 OFFICE OF THE CLERK SUPREME COURT, U.S. Cy qc) ‘ ’ ra . AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED ON APPEAL IN FORMA PAUPERIS a A I, Jose Martinez High, being first duly sworn, depose an state that I am the petitioner in the above-styied case; that r P " in support of my motion to proceec in forma peuperis, I stac th that because of my poverty I am unable to pay the costs oO said proceeding or tc give security therefore; anc that I believe I am entitled to redress. I further swear that the r “,°nses which I have made to the guestions and instructions below relating to my ability ' to pay the cost of prosecuting this appeal are truce. i. Are you presently employed? af