Opposition Brief — Vasquez v. Hillery

. -- Supreme Gourt, U.S

ORIGINAL Sigs

JAN 16 I985

NUMBER _ 84-836 ' ALEXANDER L S745

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IN THE =

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SUPREME COURT OF THE UNITED STATES 229

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OCTOBER TERM 1984 “2

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DANIEL VASQUEZ, the Warden of

San Quentin State Prison ,

Petitioner,

Vv.

BOOKER T. HILLERY, JR.,

Respondent.

MOTTON FOR LEAVE TO PROCEED

Iii) FORMA PAUPERIS

The respondent, BOOKEP T. HILLERY, pursuant to Rule

46(1), Supreme Court Rules, and Title 18 U.S.C. section

3O06A(d)(6), asks leave to file the attached Response to the

Petition for Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit without pre-payment of

costs, and to proceed in forma pauperis.

Petitioner qualified for appointment of counsel

under the Criminal Justice Act and attorney Clifford E.

Tedmon of the Law Offices of Tedmon and Tedmon was appointed

to represent him in the District Court and on appeal to the

United States Court of Appeals for the Ninth Circuit.

Attorney Clifford E. Tedmon has represented respondent at

all stages of the appeal proceedings against him and is

continuing to represent him under the Criminal Justice Act.

Respondent continues to qualify for appointment of counsel

under the Criminal Justice Act. . NUMBER 84-836 .

It is, therefore, respectfully requested that

t ’ ’ Pp y gq aon

be allowed to proceed in forma pauperis.

respondent be P peur SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

DATED: January 15, 1985

Respectfully submitted,

LAW OFFICES OF TEDMON AND TEDMON

* DANIEL VASQUEZ, the Warden of

San Quentin State Prison,

Petitioner,

By: - Tedmo

2277 Watt Avenue, Suite 304 Vv.

Sacramento, California 95825

Telephone: (916) 481-5042 BOOKER T. HILLERY, JR.,

Attorney for Respondent Respondent.

F -

RESPONSE TO THE PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

The respondent, BOOKER T. HILLERY, respectfully prays

that the Petition for Writ of Certiorari requested to review

the judgment of the United States Court of Appeals for the

Ninph Circuit entered on May 14, 1984, and the subsequent

~ denial of the petition for rehearing and suggestion for

rehearing en banc entered on September 12, 1984, be denied.

DATED: lanuary 15, 1985

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LAW OFFICES OF TEDMON AND TEDMON

, Clifford E. Tedmon

2277 Watt Avenue, Suite 304

Sacramento, California 95825

Telephone: (916) 481-5042

Attorney for Respondent

iii

ii

NUMBER 84-836

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

f

DANIEL VASQUEZ,the Warden of

San Quentin State Prison,

Petitioner,

Vv.

BOOKER T. HILLERY, JR.,

Respondent.

RESPONSE TO THE PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

LAW OFFICES OF TEDMON AND TEDMON

Clifford E. Tedmon

2277 Watt Avenue, Suite 3064

Sacramento, California 95825

Telephone: (916) 481-5642

Attorney for Respondent

NUMBER _ 84-836

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

DANIEL VASQUEZ, the Warden of

San Quentin State Prison,

Petitioner,

Vv.

BOOKER T. HILLERY, JR.,

Respondent.

RESPONSE TO THE PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

RESPONSE TO THE QUESTIONS PRESENTED FOR REVIEW

1. The District Court properly applied settled law

in finding reversible error once the State failed to rebut

Respondent's prima facie case of discrimination in the grand

jury selection process.

2. The simple mathematical calculation presented to

the District Court did not change the evidentiary basis of the

claim presented to the state courts.

PARTIES TO THE PROCEEDINGS

Besides the parties named in the captions, the State

of California, as the Real Party in Interest, is the only

other party to the proceeding.

ale

TABLE OF AUTHORITIES

TABLE OF CONTENTS

CASES

CONTENTS

7 Pages

Pages Alexander v. Louisiana

x = 12

MOTION FOR LEAVE TO PROCEED yore

IN FORMA PAUPERIS i Brown v. Allen [

RESPONSE TO THE PETITION FOR (is cpegamiiianans -

WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE castaneds os Parise Ss. 482 12

NINTH CIRCUIT iii a

RESPONSE TO THE QUESTIONS Chapman ETE 18 ro]

PRESENTED FOR REVIEW l eg

PARTIES TO THE PROCEEDINGS 1 Conn t 2ennsen 8

TABLE OF CONTENTS 2 Gideon v. moitWE] int

. . 5 a

TABLE OF AUTHORITIES 3 ' ' a

Guice v. Fortenberr

OPINION BELOW 4 (1981) 661 F.2d 496 12

STATEMENT OF JURISDICTION 4 Hobby v. United States

(1984 i FF 18,

CONSTITUTIONAL AND STATUTORY PROVISIONS 4

Mata v. Sumner

STATEMENT OF THE CASE 4 =< (1981) 644 F.2d 713 12

Payne v. Arkansas

( ) 6 U.S. 560 9

REASON FOR DENYING THE PETITION |

STATEMENT OF FACTS 5

FOR THIS WRIT 8 People v. Hiller

(1965) a Cal.2d 692 ll

CONCLUSION 12

People v. Hiller

(1967) a Cal.2d 795 6

Rose v. Mitchell

( 43 U.S. 545 ve)

Townsend v. Sain

(1 ve 6.8. 26 12

Tumey v. Ohio

(1927) 273 U.S. 5180 9

STATUTES, CODES AND OTHER AUTHORITIES

18 United States Code

Section 3006 (A) i

28 United States Code

Section 1254 (1) 4

Section 1257 (e) 4

Section 2254 5

United States Constitution

Amendment Five 4

Amendment Fourteen 4,

Supreme Court Rules

Rule 46(1) i

efe

OPINION BELOW

Respondent accepts the “Opinion Below" statement as

reported in petitioner's Petition and incorporates those

opinions as though fully set forth herein.

STATEMENT OF JURISDICTION

Respondent asserts that this court has jurisdiction

under 28 United States Code section 1254(1) and not under 28

United States 1257(e), as stated in petitioner's Petition.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Respondent accepts petitioner's statement of

constitutional and statutory provisions and incorporates them

as though fully set forth herein.

STATEMENT OF THE CASE

refpondent makes the following additions to

petitioner's statement of the case, which statement it

incorporates herein, as though fully set forth.

On January 31, 1979, the District Court, per Judge

MacBride, issued an order to show cause, finding that

petitioner's, (respondent herein), allegations were sufficient

to state a prima facie case of systematic exclusion (CR 2).

See footnote 1 of Petitioner's petition at page 4 for an

explanation of the reference nomenclature used herein.

The term “prima facie" has been used in two contexts

in the instant case. In its first context, this term refers

to the sufficiency of the allegations of the petition for a

writ of habeas corpus and the court's decision as to whether

to issue an order to show cause. Used in this context, the

test is whether petitioner's allegations and the evidence

offered in support thereof warrant issuing an order to show

cause. An order to show cause will be issued where petitioner

has made a prima facie showing in support of his claim for

abe

relief.

Secondly, the term “prima facie case" has a more

specialized meaning within the body of jury discrimination

law. Here, “prima facie case” refers to the ability of the

party claiming systemati: exclusion to meet his burden of

proof by showing that there has been such exclusion. If the

state is unadle to rebut the “prima facie case", the writ

should be granted if the trial court, upon reviewing all the

evidence, feels that petitioner has established systematic

excius‘on.

Respondent's return to the order to show cause was

filed on March 22, 1979. (CR 4) In that return Respondent

(petitioner herein) acknowledged that petitioner (respondent

herein) had exhausted his state remedies as to the claims

presented in the petition but denied that he was entitled to

relief.

On April 23, 1979, petitioner (respondent herein)

filed a traverse to the return to the order to show cause. In

his traverse, he requested an evidentiary hearing. (CR 5)

On March 27, 1980, the District Court, per Judge

Karlton, issued an order vacating that portion of the original

order to show cause which held that the allegations of the

petition were sufficient to establish a prima facie case of

discrimination. The parties were directed to supplement and

clarify the record under rule 7a of Title 28 United States

Code section 2254. (CR 8).

STATEMENT OF FACTS

Respondent first raised the issue of the systematic

exclusion of Blacks from the grand jury which indicted him in

1962, prior to his trial.

He raised the issue again both by way of direct appeal

of his conviction and by habeas corpus in the state courts.

In all of the above proceedings he was denied relief.

He filed a petition for writ of habeas corpus in the

oS

United States District Court making the same plea for relief.

The first judce (The Honorable Thomas J. MacBride) to review

his petiticn in Federal Court believed he had made out a prima

facie case of discrimination and issued an order to show

cause. The second judge (The Honorable Lawrence K. Karlton)

to review his petition set aside the order to show cause,

without denying the petition, and requested an expansion of

the record to provide more information on which to base a

decision. His reasons for requestin: a1 expansion of the

record were as follows:

i. To detertine if there were Blacks eligible to

be Grand Jurors at the times in question and,

2. If there were Blacks eligible for Grand Jury

service, did they constitute a statistically

Significant percentace of the County's

population.

Prior to this request, the California Supreme Court in

People v Hillery, (1967) 62 Cal.2d. 795, cert. den. , 87

S.Ct. 958, found that the People did not dispute the

allegation that no Negro had served on a Kings County grand

jury since 1893, the year the county was formed. Finding

further that the people introduced official census records

showing that in 1960 Negroes constituted 5.1% of the total

population of Kings County and that there had been Negroes on

petit juries in that county.

From 1893 to the time of the indictment of respondent

herein, in Kings County (1962), California, there was only one

Superior Court Judge sitting at a time. The grand juries were

always selected by the Superior Court Judge sitting at the

time. Judge Wingrove took the Bench in 1956 and was the

sitting Superior Court Judge at the time the indictment was

handed down by the Grand Jury selected by the same Judge

Wingrove.

At the hearing in the United States District Court, in

response to the District Court Judge's request, Respondent

herein (petitioner in the District Court), called witnesses

who testified that there were cligible Blacks in the county at

times relevant to the case at bar and that to their knowledge

none had ever served on a Kings County Grand Jury. They

further testified that Blacks had qualified and served on

petit juries at times relevant to the case at bar. In

addition to the witnesses heretofore mentioned, respondent

herein called an actuary to testify as to what the statistical

probability would be that no Blacks would appear on a grand

jury between the years 1900 and 1962. He based his analysis

on official census data relating to Kings County during those

years. He concluded that it would have been virtually

impossible to have selected all non-biack grand juries, on a

random selection basis, during those years. He further

testified that the probability that random selection would

produce non-black grand juries for the years 1956 to 1962 (the

years Judge Wingrove selected the grand juries) was

approximately 2/l@ths of 1 percent.

The State cross-examined the witnesses called by the

respondent herein but did not call any witnesses to refute

their testimony and the cross-examination did not change that

testimony. The State called the actuary who had testified as

petitioner's (respondent herein) expert as its own witness but

was unable to elicit a change in his original testimony. The

State produced no evidence nor any witnesses, either lay or

expert, to refute the evidence produced in support of the

claim of discrimination.

Based on the evidence presented by petitioner,

(respondent herein), without any evidence or testimony

produced by the State to refute or ae that evidence, the

District Court found that there was purposeful discrimination

in the selection of the grand jury-which indicted respondent

herein and on that basis, in accordance with settled law,

issued its order granting the petition for Writ of Habeas

Corpus.

That District Court decision has been upheld b: the

United States Court of Appeals for the Ninth Circuit.

we

REASON FOR DENYING THE PETITION FOR THIS WRIT

This court has previously ruled that discrimination in

the selection and makeup of grand juries is violative of

constitutional rights requiring a reversal. There does not

seem to be any ruling case law which is in conflict with that

premise and therefore the law on that issue is settled iaw.

Petitioner has presented no evidence to this court

that there is any conflict between the various circuits, on

this issue, that would suggest a review of this case is

necessary.

Respondent has no information to suggest that there

are any other cases in this court at this time, on this

particular issue, which would indicate a review of this case

is necessary. Further, petitioner has presented no evidence

of any other cases on this issue, currently before this court.

This case does not present issues which are new,

unusual or of such novelty as to require an examination by

this court.

Pe:itioner argues that the trial court committed error

in applying a rule of per se reversible error in a case of

discrimination in the selection of a grand jury when evidence

of guilt at the trial is overwhelming. When petitioner takes

this position he concedes that discrimination occurred and

that the trial court's finding on that issue is correct.

Therefore, the issue of whether discrimination occurred or not

is not before this court. Petitioner then cites several

holdings which he believes support his position that the

discrimination is harmless error. However, an analysis of

those case holdings clearly demonstrates that his position is

not correct and that the District Court and the Appellate

Court properly applied the existing settled law.

Petitioner cites Connecticut v Johnson (1983)

__U.S.___, 103 S. Ct. 969, for the doctrine of “harmless

error", as it applies to criminal prosecutions. However,

respondent contends that a full reading of Johnson compels

the conclusion that it cannot be used in analysis of the error

in this case because the Johnson case involves jury

instructions which invade the decision-making process of the

jury. That process is a separate and distinct problem

uniquely related to the trial phase and not the charying phase

of a criminal prosecution. Incorporated in the discussion of

the Johnson case, petitioner includes references to other

cases as follows:

Chapman v California (1967), 386 U.S. 18, 87

S.Ct.824, 17 L. Ed. 2d. 705.

Gideon v Wainwright (1963) 372 U.S. 335.

Payne v Arkansas (1958) 356 U.S.56@.

Tumey v Ohio (1927) 273 U.S. 516.

In each of the cases cited above, by petitioner, the

court was dealing with a problem which occurred during the

trial phase of the proceedings and was analyzing the impact of

that error on the jury decision-making process. Therefore,

respondent's position is that these cases cannot be used as

“bootstrap” arguments for the premise that there can be

harmless error when there has been a discriminatory selection

of an indicting grand jury.

Petitioner attempts to minimize the impact of

Rose v Mitchell (1979) 443 U.S. 545, where this court held

that discrimination in the selection of a grand jury foreman

in a state court proceeding is reversable error. Such an

attempt must fail because the Rose court was examining the

very problem presented in the case at bar, i.e. where the

court itself becomes the discriminator. In Rose , supra, the

members of the grand jury were selected by three jury

commissioners from a list of qualified jurors on a random

chance basis whereas, the foreman or forewoman was handpicked

by the judge of the court having criminal jurisdiction. If

the respondent in the Rose case had been able to make out a

prima facie case of discrimination there can be no doubt that

the conviction would have been overturned by that court. In

the case at bar the Superior Court Judge selected all of the

grand jurors on a personal basis and based on the evidence

presented at the hearing on the matter a Prima facie case of

discrimination, in the selection of the greud jury has been

made out and stands unrebutted. The District Court properly

applied Rose to the case at bar because the Superior Court

itself, through Judge Wingrove, became the discriminator.

Petitioner cites Hobby v United States (1984)

U.S. » 104 S.Ct.3093, in an attempt to distinguish the

instant case from Rose , supra, by minimizing the role of the

California grand jury in relation to the Tennessee grand jury

discussed in Rose . Chief Justice Burger, in delivering the

opinion of the court in Hobby begins by Stating that the

reason for granting Certiorari was to resolve a conflict

between the circuits as to:

+++ whether discrimination in the selection of

federal grand jury foremen, resulting in the under-

representation of Negroes and women in that position,

requires reversal of the conviction of a white male

defendant and dismissal of the indictment against

him.” p. 3094

Here again, the court was not examining the entire

makeup of the federal grand jury, but was merely looking at

the foreman and his function in that federal grand jury when

it stated:

".+..the federal foreman, unlike the foreman in

Rose , cannot be viewed as the Surrogate of the

judge. So long as the rand itself is

roperly constituted , there is no ris that the

appointment of any one of its members as foreman

will distort the overall composition of the array

Or otherwise taint the operation of the judicial

Process." p. 3098 (emphasis added)

Chief Justice Burger further emphasized the

distinction between the selection of the grand jury foreman

and the selection of the grand jury itself when he stated at

page 3096:

“Discrimination in the selection of the grand jury

foreman- as distinguished from discrimination in

the selection of the grand jury itself - does not

in any sense threaten the interests of the de-

fendant protected by the Due Process Clause.

Unlike the grand jury itself , the office of

the grand jury foreman is not a creature of

the constitution; instead, the post of fore-

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ava eo. sail

man was originally instituted by statute for

the convenience of the court." (emphasis added)

It appears to respondent that the message of the

Court, in all of the cases, is crystal clear; that message

being that, where a court itself becomes the discriminator or

discriminating influence in the selection of the grand jury,

an indictment handed down by that grand jury cannot stand and

any conviction obtained, which follows that judicial taint, is

“per-se" reversible error.

Petitioner's second issue contends that "Respondent

failed to exhaust his available State remedies since he

Significantly changed the evidentiary basis of his claim for

relief without ever Presenting this new evidence to state

courts. *

In order to determine if respondent truly faided to

exhaust his state court remedies, it is necessary to examine

the state court record of proceedings.

The California Supreme Court, in reviewing

respondent's conviction, found that it was undisputed that no

black had ever served upon @ grand jury in Kings County from

its inception until the time of the Opinion. The Court

stated:

“here the record shows that affidavits in

Support of and in opposition to defendants

motion were filed, and a hearing was held at

which evidence was taken. Defendant sought

to prove that no Negro had served on a Kings

County Grand Jury since 1893, the year in

which the Couny was organized. The people

did not dispute this fact, but introduced

evidence based on official census records

that established that in 1966 Negros

constituted only 5.1% of the total

population of Kings County, and that prior

to World War II the proportion had been 1%

or less." People v Hiller , 62 Cal. 2d.

692, 709 (1965), cert denied 386 8.8.

938 (1967).

Petitioner argues that the Probability analysis used

dramatically changed the evidentiary basis of respondent's

claim after it was filed in the Federal Court. Petitioner

fails to realize that although the State Court factual

determinations are presumed to be correct, it is the Federal

ele

District Court's duty to independently apply the applicable

Federal law to the State Court factual findings.

Townsend v Sain , 372 U.S. at 318; Brown v Allen , 344 U.S.

443, 5@7 (1953); Mata v Sumner » 649 Fed. 2d. 713, 716 (9th

Cir. 1981). Respondent's Federal claim is based on his

allegation that Blacks were Systematically excluded from the

Grand jury which indicted him. In applying the applicable

Federal law and the Equal Protection Clause of the 14th

Amendment to such claims, the Supreme Court has observed that:

“the court has never announced mathematical stan-

Gards for the demonstration of *systematic’ exclu-

Sion of blacks but has, rather, emphasized that

a factual inquiry is necessary in each case that

takes into account possible explanatory factors."

Alexander v Louisiana , 495 U.S. 625, 638 (1972);

Castaneda v Partida , 430 U.S. 482, 496 n.17 (1977);

Guice v Fortenberry , 661 F.2d. 496, 585 (5th Cir.

1961).

Petitioner states at page 4@ of his Petition that “It

is sufficient if the new factual allegations are simply

"more compelling.” (emphasis added).

Respondent submits that there were no new factual

allegations presented to the Federal Court. Petitioner states

at page 39 of his petition that, "...-respondent now relies

upon what he claims is a sophisticated computer analysis of

the statistical probability that blacks would not have served

At no time has respondent ever stated that he relied

on a “sophisticated computer analysis" of any data. The

position of respondent has remained the same throughout all of

the proceedings; that blacks were Systematically excluded from

grand jury service in Kings County, California. An

examination of the method of analysis of the census data

reveals that it was merely a simple arithmetic calculation to

arrive at probabililty data. The fact that a computer was

used was merely a means to expedite the calculation.

CONCLUSION

Petitioner has failed to show any dispute between the

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Circuits on the issues raised herein which requires an

analysis by this Court. Purther, the issues themselves

present no new, unique or unusual Questions requiring

resolution by this Court. All of the issues raised by

Petitioner have been resolved at both the District Court and

Circuit Court levels in accord with settled law.

Based on the foregoing, it is therefore prayed that

the Petition for Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit be denied.

DATED: January 15, 1965

Respectfully submitted,

LAW OFFICES OF TEDMON AND TEDMON

D E. TEDMON

att Avenue, Suite 304

Sacramento, California 95825

Telephone: (916) 481-5042

Attorney for Respondent

o13- \

CERTIFICATE OF SERVICE

DANIEL VASQUEZ, the Warden

of San Quentin State Prison

Petitioner,

Vv. No. 84-836

October Term,

BOOKER T. HILLERY,

Respondent.

/

The undersigned hereby certifies that she is

1984

an

employee of the LAW OFFICES OF TEDMON & TEDMON and is a person

of such age and discretion as to be competent to serve papers.

On January 15, 1985, she personally served

@ copy of the attached MOTION FOR LEAVE TO PROCEED IN FORMA

PAUPERIS and RESPONSE TO THE PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

upon Petitioner by placing it in the UNITED STATES MAILS

addressed as follows:

UNITED STATES MAILS

JOHN K. VAN DE KAMP

Attorney General of the State of California

WILLIAM GEORGE PRAHL

Deputy Attorney General

1515 K Street, Suite 51ll

Sacramento, California 95814

BOOKER T. HILLERY, JR.

P.O. Box A-32262

Tamal, California 94964

pO

Noe. A 2 ker chem

LISA RICHARDSON