# Appendix — Peters v. Kiff > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0047%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1972 - **Citation:** 407 U.S. 493 ## Text ‘ ‘ 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 « : 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 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 . cae eae \ $ z o * . . *° cil ‘ fi : . * - : > ~ Arg Me 4 2 . : ‘ z “J r « .* % be : ; S ; : 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 ”£q 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