Appendix — Peters v. Kiff

‘

‘

Bay

« %

:

= >

>

2

2

: : rs

ot

——

SS

2

ea ; rs Moe 3 PARE

aes 7k apis > ai. . a *

__ON WHIT OF CERTIORARI To THE UNITED STATES COUT OF

+ aprons Court of the Hated Baten

Rare <sehigs

‘i > «

: aan ms SE rs ‘. os

4 => a4 : ; a Z :

_ at *€3. ©

‘ es, =,

= Ce a.

; _ ON writ OF CERTIORARI TO THE UNITED STATES COURT OF

oe he APPEALS FOR THE FIFTH {| CIRCUIT ©

| ee

=e Record ‘tren the United States District Court for the Middle: :

. District of Georgia, Americus Division

Petition for writ of habeas corpus filed March 16, 1970_ : 1

Sa . ‘Exhibit A—Sentence and order of the: Muscogee

x ee _ Superior Court, No. 24927, dated December os rey

ee a 1966 ; senna ie 7

Motion to dismiss fi ari ae :

-__ Exhibit; A—Department of. Public . Safety, Georgia

ee ‘Bureau of a Sas and _finger-

: prints mit 13

Exhibit ‘B—Descriptive Report [ eg ee

e Order on ‘reapgndent’s” motion to dismiss, April 23,;:..

eA 7 a

fiat ice ah rene SEENON MORN BEC

F “oe 8 ia : or’ Lis: : Y 1 ; wee mi a ‘

Pte ote ne om a

Argument and submission. = ag

- Opinion, Morgan, J., March 11, ti 1S wo ee

_ Judgment, March 11, WS a - wae 22

Per Curiam Opinion on petition fo “rehearing : oe ee

‘Order granting petition for a wiit of certiorari —_ 5 TG a

=

t

a

°

s

a e

= ————— =

hs . 2

“was oe 2

‘ ( Rs \ ff

a 3 ; A * *

se Y had

j ” tar . Ss / e

..

ae : :

is Bo Sie . ’

r

: r*

°

. : ox

a

Ce aes UNITED STATES DISTRICT court -

"DISTRICT OF GEORG

Title 28, United S

~" Decem

= County, Georgia:

- MIDDLE DISTRICT OF GEORGIA —

: AMERICUS DIVISION | |

. . “

Civil Action No: 108 . ee gy

io [Filed- at 12:30 P.M., Mar. 16,1970 fe {Tage A

Deputy. Clerk, U- ” District ares eter

aap Di strict ; of ee: fe

ee

8. : Ge in ee Baie

“Ge P. Kirr, Warden, Macon Prison Branch,

‘Macon County, Georgia, RESPONDENT

TO THE HONORABLE. JUDGES OF. THE UNITED ie

- STATES DISTRICT COURT, FOR THE MIDDLE

J pe : |

Court is invoked pursuant to

es. Code, Section 2241 (c) (3), and- i

the petitioner seeks, by this action to obtain post-convie- ;

“The jurisdiction of thi

a ‘ tion review: ° his conviction for the offense of burglary,

_and sentence of ten (10) years rendered against him on

8,

1966, in Muscogee County Superior. a oe

The etitionise oe ‘not, exhausted his so-called state.

remedies, on the constitutional issues raised and objected

in this ‘petition, due to the fact that there exist circum-

‘ stances. rendering such process ineffective to protect the

; constitutional rights éf the petitioner. =

The precise constitutional issues that the petitioner is.

es now raising have. been presented to, and rejected by,. the a

Supreme Court of Georgia.

ay There is no utility in requiring the petitioner to ex-°

ae haust his ones state oe ‘since it is 8 evident. that

‘AMERICUS prey es

_.. . The petitioner is 37 years of age, and a citizen of the -.

~ United States of America; and “residing in Macon County, _

The petitioner is being unconstitutionally and illegally

restrained of his liberty by being confined in the Macon

_ Prison ‘Branch, Macon County, Georgia. The person il- _

es in the state cyrts of Georgia. =”

’* GP. Kiff’ Warden, Macon Prison Branch, Macon County,

Georgia. The cause or pretense for said restraint of peti-

tioner’s liberty is by virtue ‘of and under a: sentence is-

_sued and signed by Hon. JohnH. Land, Judge, Muscogee

Superior ‘Court, Chattahoochee Judicial Cireuit, dated

- December 8, 1966.. The. sentence and order of the court _

_. was. ten (10) years in confinement for the offense’ of

| - burglary. A ‘copy. of said sentence and order is attached - a0

"hereto, and marked as ‘Exhibit’ A” in’ this petition.

. The petitioner is serving also, another burglary: sen-. ;

tence of ten (10) years consecutively to his present sen- |

. tence of. teri.(10) years. (emphasis supplied) The peti- . —

-tioner is challenging only the first conviction, sentence-

- and: judgment thereupon for the offense of burglary, and

bie this is the sentence that the petitioner is presently serv-

* ‘The petitioner has not: knowingly, intentionally, intel-

_” Jigently or voluntarily waived, abandohed or relinquished: _

"any of his rights or privileges granted or nares

-him by the Constitution of the’ United States of America..

-: Petitioner-shows unto the court that his attorney for the.

- eonviction which is being challenged in ‘this petition ‘was

- disbared as an attorney in the State of Georgia, subse- .

~ quent to petitioner’s trial and conviction. In addition, any. -

= : b +e Nig ‘ :

s s J , 4 ° ‘ ,

° . ‘ ~ ; 4

. . 5 ad , Pari of > >

. Lua ’ Wk ed

g - 2 . ¢ 3 Ss .

Z * ts $ \ sy z *,

% * \*% e =

\ .

PS : Teese st

‘ choke or. décision sali ie petitluner’s attorney was ie.

‘ _ ° “without prior consiltation with” petitioner, ‘nor did peti--

tioner participate in any. decisions to pre-ar-

a or ee: sata 7 oe me

in chief, |

Ax & 7

4 The petitioner was indicted by: a Sisioriegs Connity

‘grand jury on June 6, 1966, indictment #24927, and

petitioner’s: original conviction upon this indictment was _ :

. . shortly ‘thereafter. Petitioner appealed. his original con-

2 viction on the burglary charge to the Court of Appeals -

“-” of Georgia, and his original burglary conviction was Te

a versed and’remanded for. re-trial.. (Peters v. State, 114

Ga. App. 595) Upon re-trial,-petitioner. was convicted on

< *s. December 8 1966, with a sentence of ten (10) years..

: ~ conviction was affirmed by that court.

° +

-<

_ This conviction was appealed to the Court of’ of :.

-- Georgia, and thé conviction was affirmed. ( v.

- State, 115 Ga. App. 743) A motion for rehearing was |

me denied by the Court of Appeals of Georgia.

6° On June 12, 1967, petitioner filed a petition for writ

of halleas corpus, and’ an evidentiary hearing pursuant -

, thereto, in the United States ‘District Court for the: Mid- -

‘dle District’ of ‘Georgia, Columbus -Division. On July 5,

‘ 1967, petitioner was denied an evidentiary hearing upon

his petition by the United States District Court for the

Middle District of Georgia, Columbus Division, and and his :

Subsequent to ‘the denial: of the writ of. habeas: é corpus

~and the evidentiary hearing pursuant thereto, petitioner. *

- appealed to the United States Circuit Court of Appeals |

for the Fifth Circuit.. The United States Circuit Court ‘

of Appeals for the Fifth Circuit affirmed petitioner's.

: cofiviction. on the exclusive and limited grounds that the

Corpus Act of 1967, by the General: Assembly of Georgia. |

: ———— supplied)

———

ms vee oe

The petitioner oo been denied: “equal - colpittons of - |

aS law” and “due process of law’ undex the Fourteenth

: Amendment to’ ae Constitution of the nited States of

vs

eek

5

shetiga es:

\ beet: ta: that. the: pene jury “which. indicted ‘him,

‘and the traverse/petit jury - which tried, convicted and ‘ aa 3

sentenced him ‘to ten (10) years were unconstitutionally ae

and illegally composed and ‘drawn from se jury.

boxes in-that: ~

(a): ‘The laws of. Georgia, : in: ‘effect, at the time “ef peti-

> Bemer’p indictment by a Mt ‘County grand jury on

te

~ June 6, 1966, which controled and governed the selection - -

of grand jurors namies to be placed | in the grand jury.

’ box by the juty commissioners,.and the ensuing venires,

_ drawn by, thé Superior” Court judge fromsthe grand jury ~

~ box, one of such venires which resulted in the grénd

jury .that indicted’ petitioner, were unconstitutional - in

« their: application :in - that they: *(1) systematically ex:

“anded Negroes from grand jury sérvice; and, (2) abso-_ ;

-Tutely, intentionally and totally. excluded from grand jury,

* Service all non-property . owners, or. the lower ‘socio-eco-

-ngmic non-property owning class, of, which petitioner is.

a member.

‘(b). The laws of. Georgia, in effect at. “ time of peti-

” loners trial by jury.on December 8,:1966, and’ his sub

‘sequent conviction and sentence pursuant: thereto, and

- Judgment thereupon,. which controlled. and governed the

, Selection of: :tPaverse/petit jurors*names~to be placed ‘in

’ the’ Muscogee County, | Georgia, traverse/petit jury box ~~

_ by. the jury commissioners, and the ensuing venires,

drawh by the Superior Court fu dge from the traverse/

petit jury box, one of such verlires which resulted in the

traverse/petit jury which tried, gonvicted and set the ten

(10) ‘years sentence of. patiGians: were urconstitutional

in. their application in that they: . (1) systematically ex-

cluded’ N . from traverse/petit jury service; and,

(2) absolutely, intentionally and totally excluded from: |

» traverse/petit jury service’ all non-property owners, or -

the lower socio-economic nhon-property . owning class, of

- which the — is a member.

ees | | 8, ~ °. ,

The jury commissioners of ‘Muscogee County, Georgia,

_ prior to-and at the time of petitioner’s indictment, were . |

directed bath Title 59, — Code Annotated, Section ts

: * , 4 i 2 °

ad . J : . .

. ° .

- ‘ : p 2 . F

A F

o to select . the- names at persons. eligible for eine and:

traverse/ petit jury: service from the ‘county tax: digests .

ich were maintained and organized on the basis of .

or. color pursuant to. Title 92, Georgia Code Anno _

tated; Section 6307. -

The jury commissioners of. ‘Muni County, Georgia, i

prior te and at the time of petitioner’s- trial: by jury, x 3

_. did in fact gelect the names. “of persons, from which the

grand and traverse/petit jurors were drawn, that in-

dicted, .tried, convicted and set sentence upon the’ peti-.

tioner, from ‘the tax digests which were in fact organized mn

: and maintained on the basis of race or color.

For. these reasoris contdined‘within this paragraph, the °

.. petitioner has been denied “equal protection of. the law” ,

- . and “due process of the law” as is’ guaranteed unto him

by the Fourteenth Amendment to the Constztution of the

‘United States of America. :

- WHEREFORE, ——— prays | unto the Court as |

- follows:

(a) That: the writ’ of habeas corpus issue. sesanadiadaly

to the Respondent, and ‘that ‘the Petitioner - be-

7 brought immediately before the .court;

(b) That the court inquire into the illegality of the

-* petitioner’s conviction, sentence,and detention, and |

_- that the fetitioner’s Federal Constitutional claims.

be sustained;

“(e). That the court seta ‘time, date and place certain »

in order that the. Respondent may .show .cause,.if

any, as to why the petitioner should not be re-

_ “+ leased from. Respondent’s custody; and, . _.

‘(d) That the Court grant petitioner any further rélief

', that the court deems, to. be ‘in the interest of ol

tice in this cause. °

This 16th ang of. March, 1970.

SY: Edward. a M. Garland

‘\\. Epwarp T. M. GARLAND

yrney o the. rane

-229 Candler Building * a

Atlanta, Georgia

mw

: e,

- e .

<c: . .

‘ % 1,

+ ss:

a

‘ . '

io

ae GEORGIA, MACON COUNTY.

Personally sppeared before me, ‘- undersigned officer,

duly authorized to administer oaths for and in said State

and County, Dean Rene Peters, on behalf of himself, who.

after. being first duly. sworn, on oath deposes and says

that he is the petitioner in this petition for writ of -

habeas corpus and. that the allegations contained in the

— petition : are B tue and correct. .

Pe A ees: “/s/ Denir. Rene’ Piters

) ry Beso. tue Se

v we Sf

Syn to: and. subseribed to before me, this 5th pony. of 2"

March, 1970.

: Ay [Tilegible]

Notary Public

“Macon County, Georgia

[NOTARY’S SEAL]. 8 ” a

: My commission expires: |

‘16th day of March, 1974 -

" EXHBrr :

koe GEORGIA, MUSCOGEE COUNTY’

eae MUSCOGEE | SUPERIOR COURT

. December Term, 1966

“3:

: BURGLARY

No. 24927 and Verdict of Guilty

. 8 ear ee THE STATE

| v8. Anas

‘DEAN RENE PETERS

ae WHEREUPON, it is ‘ordered and adj judged byt the Court

that the Defendant DEAN RENE PETERS be taken

from the bar of this Court to the jail of Muscogee County,

- and be there safely kept until a sufficient guard is sent

- for him from the Georgia Penitentiary, and be then de-

livered to, and be by said guard taken to said Peniten-

tiary, or such place as the Director of Corrections may '

direct, where he, the said defendant be confined at labor

for the full term of not less than ten years, to be com- :

oe according to law. , |

This the. 8th day of December, 1966.29 |

. Js/ one H. tend |

_.- Judge Superior ‘Court

ee,

Examen “A”

s STATE OF GEORGIA °°

_ COUNTY OF MUSCOGEE -

IN THE. SUPERIOR COURT OF SAID COUNTY,

-JUNE. TERM. 1966 THE GRAND JURORS. selected,

—: and sworn for the county of: menogee be wit:

ere ‘Mose C. Cooper, — is es

2. James Pearce Powér - 13. William C: Pease III

3. -Norvell R. Boyd, Jr. _ , 14. Fred D. Faulkenberry

- 4. Robert J. Flournoy, Jr. 15. .W. Demar McEathern

- B: Sal: V. Aglialoro 16. Richard W.. Summerlin:

6. Glenn K. Albright, Sr. 17. Hadley Murrah -

7. Ronald L. Green *- 18. Eugene C. Alford’ ~~

8.- Cecil L. Andrews _- 19. Charles C. Bagwell, Sr.

* 9) Julian-P. Goolsby ’. 20. A. Curtis Walker

10. Irvin Rosenburg ‘ - 21. Richard H- Bickerstaff, Sr. -

11... John R. Bannister 22, James C: Metcalf

12. “Geo. W. Mendenhall . . 23. Gerald B. Saunders

in the name and behalf. of the citizens of Georgia, chargé

‘and accuse Dean Rene Peters with the offense of:— -.

Burglary for that said accused, in the county of Musco-

gee and State of Georgia, did on the 6th day of March,

1966 with force of arms, did unlawfully break and enter

the storehouse and place of business-of H. Rothschild, .

’ Inec., a corporation, the same being a place where -valu-

able goods were contained, with intent then and there.

. to commit a larceny, contrary to the laws of said mate,

the good order, anal and: dignity thereof. |

“NX oo - Ww. B. ‘SKIPWORTH, es

. 3 | Solicitor General

: Special Presentment

The Defendant _.._* "_._- Waives Copy

. of Bill of indictment, and list of witnesses sworn before

the Grand Jury, ‘and — been arraigned pleads. not.

¥ guilty.

i eh at raat ia! eek ‘Solicitor laecsl :

a ee een Deft’s. Attorney

The. Defendant Dean Rene Petes Waives opy of Bill . |

- of indictment, and list of witnesses sworn . re ca ;

Grand J ury, and b eaemcteh and — not eee

gg Frank K, Martin i

Solicitor General

: /s/ [Iegible] ‘

bie Deft’s. Attorney ©

(Min, 10, Folio sil

ia 24927

- 2 {Min 9, Folio 506)” | ;

Sol’s No. = Clerk’s No. aa ee

‘ “MUSCOGEE SUPERIOR COURT.

Fs

THE Stare

vs.

_——-

Ne ae

DEAN RENE PETERS” ale ye

a Sf Bictpwoleie ‘JR | “ie ,

Solicitor General - 3

"0 SNRUB GREE? “=,

see yy MEG. Cover -

Me Foreman . ©

v2 LL sum. '6, 1966.

Special Presentment

: ~

°

ee vy

9

We the jury Find the Defendant Guilty as Charged and is

- . fix the punishmen _at 10 years. :

This the 8th day of December, in the year 1966.”

Spek ees Y - /s/ [Ilegible]_

: ea) : Se _Foreman

te ee aS - Qin, 10, Folio 98)

_. ifGertificate of aa (Omitted in Printing)].__

. SP

. .

: pes

»

ie ‘* ‘ * g

. <

oe o

-

UNITED STATES DISTRICT T COURT»

-MIDDLE. DISTRICT OF GEORGIA -

: _ AMERICUS: DIVISION | e

Civil Action. No. “709

[Filed at 8:30 AM. i 8, 1970 oy Pearl Wilkes, Z

Deputy Clerk, U. S. District Courf] =

DEAN RENE PETERS, PETITIONER |

, cae sey ees :

“Morton TO Dismiss

Now « comes C. P. Kiff, ‘the sahdas | in re ‘abo |

styled case, and . before’ pleading to the merits of the —

2 ‘petition *s application for writ of habeas corpus; files

this motion to dismiss pursuant tq rule 7B. .

e respondent moves. the Court to dismiss said. mS

pliéation ‘because: sie Spee 3 a cas

Le oe

- The merits of sitetuntinity the same jssues were de-

termined ‘adversely. to petitioner by virtue of order and.

judgment of the Honorable J. Robert Elliott, Judge of .

: _ the United States District Court for the Middle District

-of Georgia, Columbus Division, entered ‘in civil. action

number 1233 on July 5° 1967 and affirmed -by United .

ie — Court of — Fifth Circuit, on * une 6, cas

ae

* Petitioner failed properly t to exhaust his available State -

a

“\ + BP: O, Address:¢

es

a Petitioner: failed to set forth a cause of action upon

which relief can ‘be. x crane. ee

/s/ ‘arte K. Bolton -

ar ARTHUR K. BOLTON .

VL gee a General.

Wy. Harold N. Hill,. Jr. es

Executive ‘Assistant

Attorney General

= “= O. Gordon

oe ON O. GORDON oS

Bess ‘Assistant Attorney General |

Ys - Wade V. Mallard, Jr.

— V. MALLARD, JR.

Ve on

| Please me OP. ee ee

_ WapE V. MALLARD, i.

182 Judicial Building:

40 Capitol

Atlanta, Georgia 30334

- [Certificate of Serviee (Omitted in Printing)

| : . . Wark:

. : : ; ge

NW ET@THxa

Wee

: : :

i he 22 *

ee “

7 ; Sry : ee ase.

. > cae eae

\ $ z o *

. . < ‘*. ie s ‘ > *° cil

‘ fi : . * - : > ~

Arg Me 4 2 . : ‘ z

“J r «

.* % be : ; S < ° : : . 2 : : . :

: me . a. . Bening : a , x ERS . : : : ’ - : : : . =)

¢ ® : ‘ ep, : > ; : 2 pone

: Rie oe eG A"

(s00y8 ayvundes uo P1004 aonjod puo huoseyy qe pourussa TDuorppo 112 isan 900912)

“eeoftdeaaoay

: ———éeaneres qeorven ;

——sarTo-o7 ary : 3

‘seeuTl} weppne Jo eve uy AMON A

OT tou att T TO". x c. for80,- OTeTIT 057

penne el

-

‘os oa. dll 2° OTQEFA, Odo; NTT Pee arwog ”

ae area Tp e2U9;U08 Jo 071

7 ehep= som ~~ark oouem

by

SII. OUP

e Sarena: : : ge ee acne

VISUOIS VINVILY. ‘Osh XOM 0 ‘d se ey

LINN NOLLVOMLLNAQI Ree es

eye 40 NVANNE VINO’) =

ee aS or hind do INAILLAVAEAC

ae ee | _MibuodD 40 aLvas © 3

fc, Sains | (}0q) | , 4 Y

oA ee 4 i te VIOUORD “wnzadiion

ree oe | ve Pt ae ttt “Foner NOSIud NOO WA ,

Gee a Pree _tgfoiy eos). 4 “ISTY "a .*9 : ay, a as -

Sa if ; ee | WZ Ge cr. a ) t0qe1 Tenueu Aue wojz0d 0} erqeun |

a 8 aed coe — “( ) aoqey penuew 3y877 ©

*(. ) dureo styj uy mm ATBUTPIO

e

© fe. ,

meojaee 0} e1ge 8} reefans Sty} woquydo Aw 4

-

9.10dexy- Ida 998 sor eothzeg snotaoad - — ? 3 SsTM 7M — ssaxppy ase

qetadeq "young jo Seetneie ei apedy a as uoRwONpr,

seg ee) Ce-6-6

siGaTOD he WV Apogee 7 sb TS ; Ayyjou AdueZ10Us Jo ase UT

“ snqEg [eyLLEy

~ & - Ueapryy

ON STC AO zene

-

uoyzedn90(:)

, oe _ weic cK ӣq pokorsuig

eo be ogee ae eTATSTA SuON

rer xag XppRI—— uorxerdusog) TT 8 8eAq JO 10]09

er ee Pung NZ 1u8TOm 13H " ot —STTUA 2082

a siBog

= peomemirin Tt =) : peouajueg aig : e “Saeay OT -2ouequey

a kzeyaimg omni | £qun09 oe p2yo;auoo Horus uy Ayunog

soi ~ ON est) —+——~ | 818LI5 "fon Te98 —

eg ee At RN nS Seary ; a [ae “Suara wrie owen

= Pr O s ee . , P

. . ? %, \

“WoIy Peataoor A¥p sq} sem Mopeq peweu t9eu0stad oy,

se ra ht ty ae i eee are cars, _* tueurepuay,

a a ac ee t = wEBrOdEy ‘eweny:

| os - . | ae i oS pe eitoae nat

Ay aaaraoay Naum WaNositia 10 NoILuIuosad So eee

are tae oe Sta ee

es aoa aAlLaniosaa oS oe

: a]

15

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

AMERICUS DIVISION -

| Civil Action” No. 709

| [Filed at 8:30 A.M. | Apr. 28, 1970, /s/ Pearl Wilkes

Deputy Clerk; v. S. District Court! te’

. ‘DEAN RENE: PETERS, PETITIONER |

- DM.

C.. P. , KirF; Warden, Macon Prison Branch,

Macon County, Georgia, RESPONDENT

ORDER ON RESPONDENT’ s MorIon TO Dios

The Respondent in the Shite styled. case has filed a

motion to dismiss: this petition for the writ of habeas. -

corpus and has supported the same by brief.

A review of thé file in. this matter shows:

(1) That the merits of ‘substantially the same issues

here raised were determined adversely to. Petitioner by

‘virtue of the order and judgment of this Court entered

~ in.Civil Action No. 1233, in the Columbus Division, on

July 5, 1967, and affirmed by the United Statés Court -

- of Appeals for the Fifth Circuit on June 6, 1968. Peters

vy. Rutledge, 397 F.2d 781.

(2) That the Petitioner has failed to exhaust his avail- |

able state remedies. ,

. (8) That the petition fails to set forth a cause of ac-

tion upon which relief can be granted. ~_-

' . For these reasons the Respondent’s motion to dismiss

is sustained and the petition is ordered dismissed.

This 22nd day of April, 1970.

Js/ J. Robert Elliott

United States District Judge ©

. 16-

: ‘Y hereby: cextity that I. have this date mailed a copy.

_ .of the within to. Mr. Edward T. M. Garland, 229 Candler:

Building, Atlanta, Georgia 30303, and Mr. ‘Wade V. Mal-

lard, Jr., Assistant Attorney General, 132 Judicial Build- .

ing, 40 Capitol Square, Atlanta, Georgia 30334.

This April 23, es

*

A Pearl.C. Wilkes

* PEARL C. WILKES

Deputy Clerk

{collabo

Form No. 12: Notice. of Appeal

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

- AMERICUS DIVISION oa 4

Civil Action » No. 7 09

” [Filed at 4:15 P. M. | May 18, 1970, /sf Illegible)

Pepaty Clerk, U.S. District Court,

‘Middle District of Georgia] .

DEAN RENE PETERS, PETITIONER © ne

_«. ¥. Kirr, Warden; RESPONDENT

TO: . Hon. anual K. Bolton, Attorney. General, State of

Hon. W. 8. Skipworth, Jr.; District Attorney, C:J.C..

Hon. C: P. Kiff, Warden, Macon Prison Branch

Attorneys for Respondent -

NOTICE OF APPEAL

Notice is hereby ‘given that Dean Rene Peters, - peti-

_tioner in the above-styled: case, -hereby appeals to the

‘United States Court of Appeals. for the Fifth Circuit

from’ an order of the United States District Court for

the Middle District of Georgia entered on the 22 day of

April, 1970, refusing the relief requested by his Petition

= a Writ of Habeas Corpus and for a stay of execution.

/s/ Edward T. M. Garland - |

~ . EDWARD T. M. GARLAND |

| _ Attorney for Petitioner

Suite 229 SS = 7

Candler Building — a? .

Atlanta, Georgia 30303 7s ©

CIVIL , Docker

“UNITED STATES DISTRICT COURT

| Jury demand date:

or ae

Seb ees | DEAN” RENE. PETERS | —_

eat Us.

a oe oe Kur, Warden, Macon Prison Branch,

Macon County, Georgia .

_ For plaintif: ts

Edward: T. M. Garant

229 Candler Building

Atlanta, Ga. 30303

+ For ditendant:

Wade V. Mallard, Jr.

‘Assist. Attorney General

132 Judicial Building

40 Capitol Square ~

. Atlanta, Georgia 80334

_ PETITION: FOR Wier OF HABEAS CORPUS .

‘ ase

————

a : = 2% . * . 4

DATE

1970 ee PROCEEDINGS . » Page No.

ny eee ee 0 iggy BO ee

. 3. 16 Filed Petition for Writ of Habeas, Corpus, issued

* summons and delivered to U.S. aac "2-12

: 3- 16 J.S.5 Report prepared. , |

3-30 Filed U. S. "Marshal’s Return showing that Mr. .

- Arthur K. Bolton was served personally at State

a Atlanta, Ga. on March 28, 1970: 18-14

P -@ :

a> icles hstaina ale otek a ecsabe Soe.

_--

- DATE | ieanee Si8 . :

+1970 _- PROCEEDINGS Page } No. .

8-30 ‘Filed U. S. Marshal's Return showing that C. P.

" Kiff, Warden, Macon’ Prison | Branch, Macon

‘County, Ga., was served personally at Macon © —

amet +. Prison | Branch « on March 27, 1970...

Ps 8 Filed Motion to Dismiss and N otice of Motion.

é served on March 24, 1970 at Columbus, Ga.

423 Filed Order of Judge J. Robert Elliott on Re

spondent’s Motion to Dismiss sustaining motion

to dismiss and dismissing ae

4-23 J.S. 6 Report prepared.

15

47-22

A 8 Filed U.S. “Marshal’s Return showing that Mr.

W. B. Skipworth, Sol. Gen., Columbus, Ga., was.

16

23-24 -

5-18 Filed Notice of: Appeal and Certificate of Service. 25-28

LA —

_ No. 30081 ;

DEAN RENE PETERS

versus

Cc P. Kerr, Warden, ‘Macon Prison Branch,

Macon County, Ga. se,

MINUTE ENTRY OF ARGUMENT AND Sumsiission—

January, 18, 1971

“On this day this cause was calléd, and after iigument

by Edward T. M. Garland, Esq., for appellant, and.

Dorothy. T. Beasley, -Asst. Atty. Genéral, ‘for appellee,

_ Was submitted to the Court.

. _ 7 .

‘al

IN THE UNITED STATES COURT OF APPEALS -

Res i THE. FIFTH CIRCUIT o

No. 30081

_ DEAN’ RENE Perens, PETITIONER-APPELLANT

-CO.P. Krrr, Warden, hen Prison Branch,

Macon County, Ga., sins he ana ila)

Sea aa

Jeol Frain \ the United States: District C Louet «

: ad ‘the Middle District of Georgia

~ (Mareh 11, 1971)

! _ Before RIVES, GOLDBERG and MORGAN,

varienas J judges

ay MORGAN, Circuit Jridge: In this oie a Georgia

state prisoner attacks the denial of his petition for the

-writ.of habeas corpus by the district court. We affirm.

- Dean: Rene Peters, a white man, asks that his convic-

tion for burglary be set aside because Negroés . were

_ systematically excluded from the grand and petit juries

. which indicted and convicted him. See Whitus v. Georgia,

1967, 385 U.S. 545. Peters was convicted on December.

8, 1966, and sentenced to a prison term of 10 years. On

appeal the’ Georgia Court of Appeals affirmed the con-.

viction. Peters v. State, 1967, 115 Ga. App. 743. Peters

then sought a writ of habeas corpus in-federal district -

court, claiming for the first time that his constitutional . -

rights were. violated by the exclusion of Negroes from=< >

‘jury duty. The district court denied relief and we Af-~. -

firmed its decision in Peters v. Rutledge, 5°Cir., 1 8 Bet

397 F. 2d .731, on the ground that Peters failed to OK 6 J)

* haust his available state remedies by presenting the ques-——-_-

tion of ymny discrimination to the state courts under the

newly enacted Georgia Habeas Corpus Act of 1967 (Ga.

. L. 1967, pp. 835-839). Instead of returning to the Geor-

| gia courts for an adjudication of “his contention, Peters

' ,re-filed.a petition for ha corpus in federal district

. court and from its refusal to t. the desired relief the

- instant appeal was :

Appellant Peters is. quite eine ‘in odin that

he no longer has any available, state remedies which .

can be. exhausted. 28 U.S.C. § 2254.\ Subsequent to our —

: decision in Peters v. Rutledge, supra, the Georgia Su-

-preme Court has unequivocally held that. judicial review

of jury discrimination is foreclosed ‘when the accused

* offered no objection to the composition of the venire dur-

ing the trial and the ‘coff¥iction occurred prior to the

decision in Whitus v. Georgia, supra. Davis v).Smith, 5

Cir., 1970, 480 F. 2d. 1256; Strauss v. Grimes, 1967, 223 :

Ga. 834, 158 S.E. 2d 404, cert, denf 391 U.S. 903; Gres--

ham v. Smith, 1970, 226 Ga.‘ 290; Brawner v. ‘Smith, .

1969, 225 Ga. 296. The presence of both these factors

aa the case at hand obviates the —— of exhaus-

tion ofgstate remedies.

Turning to the merits of appellant’s contention, we

note t the identical issue was’ before this court in

a proposed rehearing. en banc in the case of: Salisbury v.

Grimes, 5 Cir., 1969; 406. F. 2d 50. Since the en banc

in the Salisbury case was dissolved, the law of this ° .

cuit stands as stated in.Mosley v. Smith, 5 Cir., 1968,

404 F. 2d 346, where we held that a white man is not

denied equal protection because he was indicted andcon-

victed by juries from which Negroes ‘were excluded.

- Fleming v. Kelly, 5 Cir., 1971, ——- F. 2d —— {[No,

(26,872, February 9, 1971}. The denial of the apr by. ee

the district court is . therefore

UNITED STATES/COURT OF APPEALS

‘FOR THE FIFTH CIRCUIT

October Tekp, 1970 +

No 30081. «=~.

ain v ©. Docket No; CA 709

- DEAN RENE PETERS <PON APPA

C. P. ‘KIFF, Warden, Macon Prison Branch;

Macon County, Ga., RESPONDEN -

‘Appeal from. the United States Di trict Court’.

sa for the Middle District of | Georgia U7,

Hee Before RIVES, GOLDBERG and MORGAN,

Circuit Judges |

_ Joven -

This: cause came on i be heard on. the transcript ote

the record ‘from the United States District Court. for the

Middle District of Georgia, ‘and ‘was argued by counsel ;

ON., CONSIDERATION WHEREOF, It is now here

ordered: and adjudged by this Court that the judgment o of.

- the said District Court i in: this cause be, and the: same is

— hereby, affirmed ;

-Tt-is further ordered that faite tat pay to = |

~ respondent-appellee, the costs ‘on appeal to be taxed ses

the Clerk of this Court.

March u, a

‘issued As Mandate: Apr. 21, 1971

.active service on the Court having requested that the

| 8

IN THE UNITED STATES. COURT OF APPEALS |

FOR THE ahi uy CIRCUIT ~ .

ne Nol BRB. sae fe ee

DEAN RENE, PETERS, PETITIONER-APPELLANT ener

C. P. ‘Hope. Warden, ten elatis cae,

Macon County, Ga., RESPONDENT. APPELLEE

_ . ‘Appeil from the United States District Court Be

se, ie ee District ins archer . ee

ON PETITION FOR REHEARING wad PErrrion 1

ay? FOR ° REHEARING EN BANC ae

“

(Opinion Mar. 11, 1971, 5 Cir, 1971, wwset WF, Od er

| Bae reoe

(April 13, sae

6

Before RIVES, GOLDBERG and’ MORGAN,

Circuit Judges.

” PER CURIAM: The Petition for Rehearhig is DE-

N IED and no member of this panel nor Judge in regular

‘Court: be polled on rehearing en banc, (Rule 35 Federal

Rules of Appellate Procedure;..Local Fifth : Circuit Rule. —

(12): the Petition for ae En Banc. is. DENIED.

ie :

“wh. ~

o

‘e

‘. .

2 .

aa e

6 f°

he i 6 ‘,: ‘ nthe

Sa ay “Tu. sf covernment printing orrice; 1971 453055 396

- ae

i st

ey |

SUPREME ( COURT OF THE UNITED STATES |

Noo "71-5078 |

[Filed, U. S. Court of Appeals, “Dec. 6, 1971, *

_ . Edward W. Wadsworth, — ae .s

DEAN a PETERS, PETITIONER

. ‘e.

C. P. ‘Kr, Warden

ORDER ALLOWING Centionant—Filed N ovember 22, 2, 1971

The petition. erein te a writ of enritersil to the

United: States Court of Appeals. for the Fifth Circuit is

_ ;