James Lee Spencer v. Ralph Kemp, Warden, Georgia Diagnostic & Classification Center, Respondent

SPENCER, James Lee

Petitioner-Appellant,

Ralph KEMP, Warden, Georgia Diagnos- Center,

tic & Classification

Respondent-Appellee.

No. 82-8408. States

United Court of Appeals,

Eleventh Circuit.

Jan.

I459 Athens, Ga., Tolley, Anthony Edward D. Amsterdam, Boger, G. John Charles Jack Nabrit, Greenberg, III, N. Joel Ber- James Fins, ger, Liebman, Deborah James S. New City, petitioner-appellant. York for Hill, Gen., Atlanta, Atty. William Asst. Ga., respondent-appellee. Sumner, Quintus Sibley, W. At-

William lanta, Ga., Lahiff, Jr., Skadden, Thomas M. Slate, Flom, Arps, Meagher & New York amicus-alpha City, for Otis O’Daniel Ste- phens. GODBOLD, Judge,

Before Chief RO- VANCE, TJOFLAT, HILL, FAY, NEY, JOHNSON, HENDERSON, KRAVITCH, CLARK, ANDERSON, HATCHETT, Judges. Circuit HILL, Judge: Circuit Spencer Lee was con Petitioner James to death and sentenced victed murder court in 1975.1 The Georgia state the conviction upheld appeal Spencer in 1976. sentence on State, S.E.2d denied, cert. Spencer filed relief, seeking petition evidentiary after an hear denied

which was affirmed decision was ing. That Hop Spencer v. Georgia Supreme Court. per, 243 Ga. Zant, 1564-65 Spencer v. are conviction

1. The facts that led to case, Cir.1983). panel opinion forth in the set petition now before this seek Right I. to an Evidentiary Hearing on ing a corpus writ of habeas under 28 U.S.C. the Constitutionality 2254, was filed district § court in 1979. Death Penalty The district found allega In his federal habeas petition, Spencer tions of deprivations to be alleges that Georgia administers its death merit, without and denied the writ. Mitch penalty statute in an arbitrary and discrimi- ell (S.D.Ga. F.Supp. natory manner in violation of eighth 1982). On appeal, panel of this court and fourteenth amendments to the United petitioner’s remanded two of claims to the States Constitution. Similar allegations district court for further evidentiary hear had rejected petitioner’s ap- ings. Spencer Zant, (11th 715 F.2d 1562 peal and in his state habeas proceedings. Cir.1983). We then determined to Specifically, rehear he contends that the death the case en penalty banc. Id. in Georgia We now is disproportionately ap- plied reverse the on the decision basis of the district race of court defendants and denying Spencer’s the race of victims. relief, federal habeas and we remand this case to the district On the district court Spencer to allow to raise and develop held a hearing to determine the necessity his claim that he was convicted of conducting an evidentiary hearing on drawn from an unconstitutionally com time, this issue. At that counsel peti posed array. proffered tioner significant sci social ence research analysis and pattern practice and imposition capital DISCUSSION in Georgia sentences had recently become Spencer raises five issues on appeal, available, and that this work had not been alleging that: available at the time of petitioner’s state (1) the trial court’s instruction at his hearing in 1977. Petitioner further hearing special on his plea insanity proffered that these studies showed racial process violated his due (2) rights; and geographic imposi arbitrariness jury array was unconstitutionally com tion of capital sentences based the race posed insofar blacks and women were of defendants and race of the victims. The underrepresented; (3) jurors certain district court denied an evidentiary hearing improperly were during dismissed voir and claim, dismissed the determining that dire in violation of the rule of Wither the claim was “effectively foreclosed” spoon Illinois, 391 U.S. 88 S.Ct. the decisions in Gregg v. Georgia, 428 U.S. 1770, 20 (1968); (4) L.Ed.2d 776 the trial 49 court’s instruction violated Sand Spinkellink Wainwright, F.2d Montana, strom v. 442 U.S. (5th Cir.1978), denied, cert. 2450, 61 L.Ed.2d 39 (1977), by relieving and the state of the proof burden of on an Balkcom, (5th Smith v. 660 F.2d 573 Cir. crime; element of the the Georgia 1981), Unit B modified, penalty death is arbitrary and discrimina B), Cir. Unit tory and therefore unconstitutional as Mitchell applied. v. Hopper, F.Supp. at 90-91. Spencer Zant, 715 F.2d at 1565. We subsequently Petitioner filed agree panel’s with the determination that Rule 59 motion to alter or amend the judg- one, three, issues provide four justi- no ment, alleging newly discovered evidence. for granting fication habeas relief. We motion, In this petitioner proffered fact therefore below address that Professor David C. just Baldus had claim that death penalty completed detailed statistical research unconstitutionally applied his challenge Georgia’s capital patterns. sentencing Ac- to the array from which his was cho- cording to the proffer, study the Baldus sen. and expanded reinforced upon evidence fencing system alleging system earlier racial discrimination identified being arbitrarily discriminatorily court denied the mo- was The district studies. petition- tion, concluding gist applied. study “the what the Baldus Since by petitioner determined as a prove has been contended is insuffi- er’s contention eighth the Eleventh Circuit of law” cient to or fourteenth matter Spinkellinlc operation and Smith. amendment Georgia system, petitioner is not enti- requests a remand appeal, petitioner On evidentiary hearing tled for the tak- hearing evidentiary in which for an ing evidence. did not of that Petitioner statisti- allowed to introduce the would allegations pur- raise of intentional or proffered the dis- reports cal data poseful against discrimination him in his allowed Whether he court. should trict sentencing; affirm the therefore dis- we hearing the issue evidentiary such an evidentiary trict court’s of an denial hear- rehearing granted en banc. on which we ing. peti argument, and at oral his briefs In primary reliance on the Bal- placed tioner Challenge Jury Array to the II. argued constitute study, which is to dus Spencer alleges that blacks and women study thorough sophisticated the most underrepresented on grossly were Georgia capital sen yet completed on the array County jury from which his Burke by proffered The evidence tencing system. drawn, causing by him to be jury was tried already been intro Spencer in this case had unconstitutionally jury that was com- record into the district court duced court posed. Because the district found (N.D. Zant, F.Supp. McCleskey v. challenge to Spencer’s have Ga.1984), argued en when this case was by pro- untimely and therefore barred been rendered its deci The district court banc.2 default, decide on cedural we must this argu oral McCleskey shortly sion permitted whether he should be appeal case, taken appeals were this ment present claim to the district court. to immediately. Because the evidence on be allowed to raise We hold that he should Spencer’s proffer would be which relied habeas, and we there- this claim on ap developed in the record on fully more to the district court fore remand this ease postponed our reso peal McCleskey, we permit do so. to him to pending en banc of this case our lution McCleskey. analysis and resolution of Procedural A. Factual Background point this Spencer’s contentions on day the first January On directly by our recent are now controlled trial, jurors prospective had F.2d McCleskey Kemp, decision After a de- for service. banc). subpoenaed (11th Cir.1985) In been that case {en plea Spencer’s special during lay which if the Baldus held that even this court considered, the trial resumed insanity was argued facts it study proved all the was counsel had an- January 7. After legally insufficient it would remain prove, proceed readiness nounced their eighth amend support fourteenth dire, jurors before the selection but challenge Georgia capital to the sen- voir ment Zant, omitted). McCleskey v. case of re- it clear that he The makes the evidence 2. Petitioner brief, {i.e., study) petitioner’s case as seeking present is the same ferred to in Baldus presented Kemp, McCleskey same evidence that was decided en banc this hearing during in the a two-week proffer district district court. court, McCleskey states in his brief case. As that he wished intro- indicated also en banc court: to this research Dr. William duce social science Bowers, petitioner proffered in George The evidence that Dix. This Pierce Glenn yet published April of has not late to warrant found insufficient material was length presented at in written form. was Kemp, evidentiary hearing in Ross v. McCleskey during v. Zant hear- two-week (en banc), (11th Cir.1985) and Mitchell August ing in (11th Cir.1985). Kemp, 762 F.2d 886 Petitioner-Appel- Supplemental Brief for First Banc, (footnote Rehearing En lant begun, Spencer had presented jury the trial was then sworn and the trial com- judge pro petition with a se for removal menced. allegedly which he had filed in federal conviction, After his Spencer did not court, seeking grounds removal raise the array issue appeal, on direct systematically

blacks were excluded from sought but it in assert his 1977 state County jury Burke petition The rolls. did petition. not mention having been Court affirmed the state habeas court's court, made the trial as none had been relief, denial of habeas finding “Spenc- made. attorney The district posi- took the er’s timely was not made in tion that the petition removal had not been court, the trial was not supported by evi- court, filed in federal and the trial court dence in the trial was waived before jurisdiction. ruled that it retained After began, the trial urged and was not on di- ruling, began voir dire and nineteen appeal.” rect Spencer jurors tentatively qualified by the end S.E.2d at 4. day. The federal district court found that the morning, next before voir Georgia Supreme Court’s conclusions that resumed, Spencer dire filed a pro mo- se timely filed and had tion challenging array. No evi- been waived pursue failure to it on produced dence was the motion. appeal supported were “well by the judge motion, The trial overruled the find- evidence and are binding on this court.” ing that it had not been F.Supp. Furthermore, filed. at 95. the court Spencer held that had not made a sufficient 15, 1975, On immediately after showing of cause procedural to excuse his qualification completed, was default permit federal habeas review judge the trial asked the attorney district if under the prejudice” “cause and test of he ready was proceed to with the trial. Wainwright 72, 87, Sykes, v. 433 U.S. 97 The district attorney responded that 2497, 2506, S.Ct. (1977).3 53 L.Ed.2d 594 ready, state was but they argue that would appeals Petitioner ruling. from this the motion challenging array if B. Principles General Spencer’s counsel insisted on the motion. judge Both the Spencer’s counsel stat- that, There can be little doubt if they ed that thought the motion had been the petitioner’s timeliness of disposed of. The attorney district then were according evaluated proce to federal asked whether or not the accused insisted requirements, dural Spencer claim motion, on the to Spencer’s which counsel seeks to make would be found to have been replied, while I’m impres- under the “[n]ot raised too to preserve late the issue for sion disposed been of.” The [it consideration on has] collateral attack.4 In this 3.The district court stated appeal. that: any proffered In the absence of rea- this, go son for need Spencer Court not so far as to has showing ... no made of cause. purposeful relinquishment label it a issue, of the subject His hearings silence on the at the certainly petitioner’s but requires before silence this Court on reliance on the is, least, the issue at uphold record a for evidence failure to of cause. The record placed by Wainwright offers the burden petitioner no on him for the in this v. regard. Sykes. Spencer challenges filed his late. rely right For cause he repre- F.Supp. must Mitchell v. to at 538 ignorance sent himself and his of the law States, 233, requiring 4. See Davis v. timely challenges United 411 U.S. juries. How- ever, 1577, (1973) (waiver provi S.Ct. may right while he L.Ed.2d have had the to file motions, 12(b)(2) pro appointed se sions of Rule he had a of Federal Rules of also court Crimi attorney applicable postconviction to use as a nal Procedure resource to advise him re legal proceeding pursuant 2255); effect of lief these motions. That to 28 U.S.C. he § States, 341, declined procedural Mfg. to do so and effectuated a Shotwell Co. v. United 371 U.S. 448, default as a result is "inadvertence" 83 S.Ct. (timing in the L.Ed.2d sense 12(b)(2) discussed provisions above. This Court apply will not waiver of Rule to con regard Additionally, it as sufficient challenges cause. petit grand stitutional not, challenge, timely pursued arrays; or provisions relief from those will not be however, procedural federal standards of waiver or proceeding, corpus federal habeas Newsome, v. 420 U.S. constitutionality default. challenges the petitioner Lefkowitz 283, 886, 95 S.Ct. is therefore court conviction. of a state mind, principles these we With basic controlling Supreme according duty, our Georgia pro- turn to examination the timeli to evaluate precedents, applicable cedural law that is determine claim and ness challenge. oc has any procedural default whether rather than curred in accordance Analysis C. law, as as state law long federal law, adequate pro Under a criminal defendant independent and furnishes an jury array at state must raise decision of the ground for the cedural jury panel the time the is first or before the relief not to grant courts (unless pre “put upon” he Allen, has County he seeks. Ulster so); object if he doing does not vented 140, 147-54, 2219- 442 U.S. time, right at that waives his to raise Thus, (1978).5 if a state 60 L.Ed.2d trial such a claim later at on direct or adequate independent and possesses an State, 270, 219 appeal. 235 Ga. Holsey criminal requires a procedural rule (1975); State, Young S.E.2d in a manner object defendant Ga. 206 S.E.2d Cobb trial, failure to asserted defect State, ordinarily timely objection will make such denied, 371 U.S. de claimed preclude consideration prior Geor Most absent proceeding, in a fect rule defend gia applying involve prejudice. cause and Wain showing of to chal ants who waited until trial wright Sykes, jury array. statutes lenge the (1977); Francis v. Hender indicate, case law son, at the that the “put upon” a time defendant (1976).6 Conversely, law concern and voir dire com jury array is seated in state preclusion of claims ing waiver mences. for federal may effectively provide applicable sections federal constitutional review of collateral provide that: under Code not asserted that could claims begins, or the voir dire examination cause "before granted has shown defendant not where States, days the discover- defendant U.S. within seven prejudice); v. United 335 and 497, Frazier discovered, by 201, (1948) exercise of (objection the could ed or have 93 L.Ed. 187 therefor, grounds during diligence, whichever selecting jurors the first raised method of 1867(a). untimely § and 28 U.S.C. properly overruled earlier.” voir dire as by contemporaneously tendered unsupported require- significance meaning and 5. The (6th Hoffa, F.2d 20 proof); States v. 349 United ground procedural constitute the 408, ment that Cir.1965), 17 aff'd, U.S. 385 87 the state independent adequate for basis 12(b)(2), (under mo- Rule given ground is before the state court decision array day strike raised first trial tions are discussed preclusive on federal habeas effect jurors jurors petit when 76 prospective 1470-72. at awaiting voir dire sitting courtroom were properly infra untimely, defendants where as denied apply their mo- to make themselves decline sufficient information 6. If the state courts had trial). day address the opening bar and before available tions claim, petitioner's the merits of case has jury in a federal criminal the Where not thereby presented and addressed the issue jury a local accordance with selected in by of the oth- precluded in virtue implemented pursu- plan devised selection procedural bar. applicable state law erwise Act of Jury and Service Selection ant to the Rather, the state courts entertained where "the seq., et a constitutional § U.S.C. merits, a federal on the federal claims jury composition of the challenge to racial merits of the determine court must also compliance in strict must be made Henderson, applicant’s Newman claim.” raising of governing the provisions of that Act Cir.1976) (5th (quoting Green, 742 F.2d States v. Lefkowitz claims. United such Newsome, 292 n. Cir.1984). provides that The Act (1976)). challenge n. may raise such a criminal defendant The clerk shall Brown, make out three lists of Ga. panel each shall furnish one The court in sup Buxton cited in prosecuting counsel and one to the coun- port holding of its one of its earlier deci sel for the defense. The clerk shall then sions in which the court stated that an panel call over the and it shall immediate- objection to the jury array traverse in a ly put upon the accused. criminal case by “must be raised a chal lenge array at opportuni the earliest O.C.G.A. (formerly 15-12-161 Ga.Code § ty the defendant 59-802); has to avail himself of that: § right.” State, Cobb v. 126 S.E.2d at may, writing, The accused challenge 239. These that, cases indicate to us array for going cause to show order waiving to avoid any right to chal that it was fairly properly impan- lenge a traverse ought put eled or not be upon him. The appeal, a defendant must raise such a chal court shall sufficiency determine the lenge prior to the commencement of voir sustained, at once. If dire. panel ordered; new shall be if not sus- tained, the jurors pro- selection of shall requirement that defendants first ceed. challenges make such before voir dire be- (formerly O.C.G.A. 15-12-162 gins is unduly § Ga.Code not an burdensome one.8 59-803). long This has been the law in § Defendants and their attorneys ample have Georgia. State, See Whitworth v. 155 Ga. opportunity acquaint themselves with 117 S.E. 450 Felker v. John- upon information which to base a decision son, Ga.App. (1936).7 186 S.E. 144 jury. abide or general attack Under law, names in the recently, More box are Georgia Supreme every years, revised Court held that two a claim a O.C.G.A. 15-12- state habeas § 40(a), corpus petitioner and those public that his names are improp- record in erly been, not, drawn the office of the superior “should have clerk of the but was court. raised array O.C.G.A. 15-12-43. Well in advance of a § jurors put before the upon were term the venire for that term is his failure to do so amounts in law to a judge drawing selected names from forfeiture of right.” box, Buxton v. in open court.9 O.C.G.A. 7. The court in Felker procedure described remedy, may array.” sole —he challenging jury array State, for failure potential Ivey supra. to con requisite tain the jurors number of Johnson, Ga.App. Felker v. 186 S.E. at follows: (emphasis added). cases, felony In the trial of “The clerk shall imposes 8. We note that the rule a time- panel, make out three lists of each and fur- requirement rigorous liness is no more counsel, prosecuting nish one to the and one imposed by analogous than that federal rule. to the counsel for the defense. clerk supra note 4. panel, shall then call over the and it shall be immediately put upon the accused." Code of court, 9. At the open close of each term of challenge 59-802. there § is no to the If court, superior judge the jur- array juror clerk, selects trial each is then called the ors for the next term of calling juror court. O.C.G.A. and in each he should be 15-12-120, box, jury §§ 15-12-62. A presented trial to the accused in such a manner as and then counsel for seen, placed which distinctly containing have been he can be tickets all eligible list, jurors the names may of trial challenge on the the accused or the State placed upon State, statutory grounds. is in the the courtroom. O.C.G.A.§ 15-12- Whitworth v. 42(a). direction, (117 450). judge's felony At the 155 Ga. 395 S.E. the box In is un- locked, broken, panel judge forty-eight jurors a of the seal less than the draws "If ticket, put upon upon name, prisoner is one the and he which does not chal- is recorded one 15-12-120, lenge array, proceeds the but with the the box. O.C.G.A. selection §§ 15-12- jury, thereafter, box, the 62. The can as a ticket is returned matter to the but a right, filling compartment panel.” Ivey separate demand the the from the one from which of v. State, (62 565). drawn, Ga.App. S.E. subject "If the it was not to be to further draw- panel requisite ing does not slips contain the compartment number until all in the first have defendant, jurors put upon 15-12-42(a), 15-12-120, when it is the been used. O.C.G.A.§§ Code, prescribes, drawn, law Penal § 15-12-62. As each ticket is the name 15-12-120, 15-12-62; 15-12-42, see Petitioner's challenge motion to §§ State, array was not raised in the proceed- 220 Ga. 141 S.E.2d Blevins ings until voir dire was well (juries way.11 under must be drawn According long-established law, Georgia court). open jurors The list of drawn is Spencer’s challenge appears thus not to upon the minutes of the clerk entered timely court, have been filed in the trial public may a record which and this clearly pre- untimeliness would perused by all with interest in it. See clude review of his constitutional claim on 15-6-61(2) challenge A O.C.G.A.§ appeal from his Finding conviction. jury array may selected be filed at Spencer’s lodge failure to a chal- parties time until commence selec- lenge to the composition jury array delivered, tion of a from the list right to constitute a waiver of his to raise 15-12-161, provided in O.C.G.A. 15-12- §§ date, such a claim Georgia at a later 162. courts also declined to reaeh the merits of Spencer’s claim in proceed- his state habeas Further, Georgia rule is rooted in ing.12 Georgia argues The state of on this policy. prevents sound party from appeal that the imposed bar tentatively accepting jury array while Spencer in the state courts on state habeas reserving any challenge he may thinks he should respected also be in this court on begun explore have until he has how he habeas, urged itas to constitute might fare in selection. The efficient independent adequate proce- justice administration of would be obstruct ground dural rejection petition- for the ed if accept a defendant could array for er’s claim. purposes commencing jury selection, In proce- our evaluation of this asserted reserving while array bar, however, dural find we ourselves con- be exercised at a later time.10 See Wil peculiar fronted with a somewhat statute State, liams v. Georgia legislature enacted in 1967 219-20 remanded reconsidera govern questions certain waiver in state tion, 99 L.Ed. corpus proceedings. The statute aff'd, 211 Ga. 88 S.E.2d 376 (hereinafter statute”), “the 1967 enacted as 1967,13 part Corpus of the Habeas Act of proceedings 100 L.Ed. such provided list, apparently by thereon is recorded on a judgment affirmed the of that court in its entire- 15-12-42(a). clerk of the court. O.C.G.A. ty. Spencer § 255 S.E.2d at 3. Al- drawing until continues a sufficient num- though agree we do not with the conclusion of jurors ber of have been drawn for the term of Spencer’s challenge courts that court. barred, 1470-72, procedurally pp. see infra disregard judgment we see no reason to Georgia Supreme deny 10. As the Court stated in Spencer's peti- courts that removal ing Spencer: permit habeas relief to "To such a legally tion did not constitute a sufficient mo- pursued simply to be now would jury array. tion to jury challenge mean that no one would make they until after were convicted and that convic affirming of its decision the habe- appeal.” Spencer Hop tion was affirmed on as court’s decision not to consider the merits of per, 255 S.E.2d at 4. claim, Georgia Supreme jury challenge also found the barred because it that, may argued 11. It as a matter of supported by "was not court, evidence in the trial law, petition Spencer presented for removal began, was waived before the trial to the trial court on 7 constituted a urged appeal.” Spencer was not on statutorily sufficient motion to analysis 255 S.E.2d at 4. Our of the jury array (former- under O.C.G.A.§ 15-12-161 significance of the untimeliness of 59-802). ly Finding pro Ga.Code § that "the se purposes applies for of federal habeas motion to was in fact filed on well, findings to these so we do not discuss 8, 1975,” however, the state habeas them here in detail. obviously court did not consider the removal petition legally sufficient to raise the chal- lenge may purposes determining 13. The Act for of found at 1967 Ga.L. its timeliness. 835. Georgia history Supreme specifically ap- purpose The of the writ of habeas proved finding corpus Georgia Corpus this in habeas court when it and the Habeas Act of sembly expansion scope finds Rights by conferred or secured the Con- corpus by in of habeas federal court desi- of not be stitution the United States shall Supreme sions of the United States deemed to have been waived unless it is [sic] Court, together other decisions shown that there was an intentional re- (a) linquishment substantially curtailing court or abandonment of a known said right privilege relinquishment of waiver of or which doctrine participated by (b) or was rights by limiting abandonment in an accused and party voluntarily, and was done requirement of exhaustion of state reme- knowingly intelligently. available, currently those have dies to larger increasingly resulted in an [sic] (codified at 1967 Ga.L. Ga.Code being number of state court convictions 50-127(1)) (amended 1975). The statute § collaterally by attacked federal habeas by approved April an act was amended corpus upon based issues and contentions exempt from the blanket non-waiv- previously presented passed to or challenges composition er rule to the State; upon by courts of this that such grand juries.14 or traverse Petitioner was upon reliance federal courts increased January, tried in when the 1967 stat- as instru- tends to weaken state courts Georgia ute was still effect. The courts ments for the of constitution- vindication applied nonetheless amended version of rights, resultant deterioration al with a Spencer’s peti- the statute to state habeas system of the federal and federal-state tion, thereby failing to accord the bene- relations; problems, that to alleviate said provision fit of the non-waiver of the 1967 necessary scope it that the of state applicability statute. Because the corpus expanded and the state corpus to this 1967 statute federal habeas rights doctrine of waiver of modified. proceeding was considerable concern to Assembly The General further finds that us and had not addressed counsel expansion corpus to in- of state habeas argument, in their briefs or at oral many sharply-contested clude issues of a requested supplemental briefing requires only the factual nature su- Having this issue. received and considered perior jurisdiction courts have of such briefs, those we are now able resolve cases. finally this issue and decide 1967 Ga.L. appeal. that, likely as others quite Thus it seems Although legislative history no official concluded,15 legislature have exists, Corpus Act of 1967 Habeas directly responding was to the decision byAct terms its leaves little doubt concern- Fay the United States ing purpose: its Noia, subsequent interpretations Legislative Section 1. Statement Ap by the Fifth Circuit Court of As- thereof Purpose. The General Intent and Wilkes, relinquishment or abandon- A New art intentional in detail in are considered right privilege ment of a known or which Ancient Writ: Postconviction Habeas Role for (Part I), partici- relinquishment Ga.L.Rev. or abandonment Corpus Relief Wilkes, party pated done voluntar- Role and was A New for intelligently. right Corpus ily, knowingly Re- Habeas Ancient Writ: Postconviction (Part II), grand object or 9 Ga.L.Rev. 13 lief See also Wilkes, Corpus traverse will be deemed waived under Postconviction Habeas section, person challenging the Georgia: the Habeas unless the A Decade After Relief Act, petition and satisfies sentence shows in the Corpus 12 Ga.L.Rev. being al- the court that cause exists for his language 1143-44. The Ga.L. 14. See 1975 objection pursue the convic- lowed to read as follows: quoted above was modified become tion and sentence has otherwise [sic] relating composi- objections Except final. jury, rights grand con- traverse 9-14-42). tion of a (codified § Id. at O.C.G.A. the Constitution of or secured ferred Ricketts, F.Supp. 15. See Stewart v. deemed to have shall not be United States II, supra at 41-53. Wilkes note that there was it is shown been waived unless

1467 a consistently that to hold continued courts Supreme the Fay v. Noia peals. timely consti a failure raise to only defendant’s could court habeas a federal held of a the to tutional a merits federal the reach to decline array constituted grand or traverse proce grounds of asserted on the claim right raise such claim to of the waiver amounted default the where default dural See, v. e.g., Tennon appeal. on direct later remedies. of state bypass deliberate to a 594, 220 State, 914 S.E.2d 235 Ga. 438-39, 849. The S.Ct. at 83 at U.S. 372 908, 2231, 48 denied, cert. directly concerned court the before case State, 235 v. Sanders 833 of state of exhaustion doctrine only (1975), 425, 768 219 S.E.2d Ga. prop had remedies, petitioner there as the 2177, 976, 96 S.Ct. 48 U.S. 425 failed but at trial his claim presented erly State, 270, 219 v. 235 Holsey (1976); Ga. v. Applying Fay it thereafter. appeal State, 232 Ga. Young v. (1975); 374 S.E.2d Fifth cases, to other Noia v. (1974); Williams 285, 439 206 S.E.2d a new announced it to have found Circuit (1974); State, 203, 37 206 S.E.2d 232 Ga. of waiver constitutional federal standard 110, State, 172 S.E.2d v. Ga. 226 Simmons for deter basis appropriate as the rights State, 224 Ga. (1970); Miller v. 680 habeas the federal only mining not whether habeas (1968). In state 730 S.E.2d 163 exhausted adequately petitioner had however, petitioners proceedings, corpus be held he could remedies, also whether but to raise constitu- permitted usually were rights fail federal his forfeited to have spite of composition claims tional objection proper timely raise ing to at timely in a manner object any failure to Balkcom, v. sentencing court. Whitus Smith, 229 Ga. See, v. e.g., Mitchell trial. de cert Cir.), (5th 496, 500-01 F.2d 333 v. (1972); Johnson 414 194 S.E.2d nied, 844 S.E.2d Caldwell, 187 Ga. 228 Balkcom, 339 v. also Cobb See 343 Martin, 229 Ga. Atkins v. But see Cir.1964); Whippler v. (5th F.2d found; (1972) (waiver 815, 194 S.E.2d Cir.1965) 388, 391 Balkcom, statute); Ferguson v. of habeas no mention are the that these (dictum). conclusion The S.E.2d Caldwell, Ga. Act Corpus the Habeas to which decisions statute, voluntary and (under is bol respond intended 1967 was found). Oth- apparently intelligent waiver decisions notoriety of those by the stered generally claims were also er constitutional mid-1960’s16 in the legal Georgia circles pe- despite the habeas on state entertained terms similarity of the striking objection lodge a titioner’s failure 1967 statute provision the waiver Hopper, Blaylock v. e.g., trial. at by the language used (1975); Anthony 504, 212 S.E.2d 339 Ga. Fay v. Noia.17 holding in its describe 468, 233 S.E.2d Hopper, Ga. habeas Parrish addressed statute The (1977).18 The appeal. not direct corpus, seeking his federal vindicate privilege of Georgia law cases on impact cited 16. courts, for strate- whether the state relationship claims be- likely effect their tactical, can other reasons gic, or courts courts federal tween by-pass- deliberate fairly as the described arti- subjects speeches and prominent were open II, then it procedures, ing of state 1965. See Wilkes appearing in 1964 cles deny all relief habeas to court examples). federal (providing at 50 supra note to entertain refused courts the state if previ- (quoted provision though of Compare the waiver claims federal merits— Fay language following ously) has satis- with course itself, hearing some holding or Noia: fied bearing upon means, facts waiver enunciated definition other classic Zerbst, S.Ct. 464 [58 U.S. default. applicant’s Johnson intentional at 849. 1461] L.Ed. - "an aof known relinquishment or abandonment Ricketts, F.Supp. 911 18. Citing controlling Stewart privilege” right or —furnishes argues with the (M.D.Ga.1978), consul applicant, after If a standard. did statute otherwise, of the 1967 enactment competent counsel tation concerning waiver its law alter knowingly forewent understandingly and 1468 After the enactment of the 1975 amend (1976). S.E.2d 629 But see Hop Smith v. ment exempting jury composition per, chal 93, 240 Ga. 239 S.E.2d 510 cert. lenges from the blanket nonwaiver denied, rule of 950, 436 U.S. 2859, 98 S.Ct. 56 statute, however, Georgia (1978); L.Ed.2d 793 House Stynch generally courts giving ceased combe, effect 222, 239 Ga. 353, 236 S.E.2d cert. statute, in denied, even involving peti cases 975, 533, 98 S.Ct. tioners tried and convicted while that stat (1977).19 Consistent with its force, ute was still applied instead prior practice, usual the Georgia Supreme the statute as it had been amended in 1975. applied Court the amended version of the e.g., Zant,

See Smith v. 645, 250 Ga. state habeas to statute jury com (1983); S.E.2d 32 Mitchell v. Hopper, position challenge despite the fact that he 781, Ga. 239 S.E.2d 2 denied, cert. raised the constitutional claim found to 937, 1513, 435 U.S. precluded under the amended statute sev York, Fountain 784, 237 Ga. eral months preclusive before the amend- argues claims. The state that because the stat by modification rulings, further court must only ute's Georgia intent was to allow courts to fail. and adjudicate hear collateral attacks on state Hopper, Parrish v. 238 Ga. at 233 S.E.2d at court convictions to the same extent that the (1977) (Hall, J., concurring specially). This federal courts would such hear claims on feder untenable, plainly contention seems light habeas, al it should not be found to have altered Supreme of the rejection Court’s clear aof the usual waiver of claims rules for closely (and analogous perhaps stronger) even purpose. plain other language of the 1967 argument 283, Newsome, 420 U.S. Lefkowitz doubt, however, statute can leave little about the (1975). 43 L.Ed.2d 196 See id. accuracy Georgia Supreme of the Court’s con (White, J., at ("[Sjince 95 S.Ct. at 895 dissenting) clusion "expanded that the statute scope applicable law in this case is feder- corpus state habeas and modified the state doc al, us, it is for and not the New York State rights.” trine of waiver of McCorquodale v. Legislature, say to whether Fourth Amendment Stynchcombe, 239 Ga. 236 S.E.2d claims as such those involved here will or will not be guilty plea.’’) waived Decisions of the United Supreme States Court effectively in the 1970's 19. Smith v. 240 Ga. overruling much of the case law to which the Stynchcombe, House 1967 statute respond was may intended have S.E.2d both untimely challenges involved longer rendered the statute necessary no to ac juries traverse jurors from which had been ex- complish original purpose. its But we cannot cluded cause Witherspoon grounds. for ignore such a statute simply case because Illinois, Witherspoon by respecting might it we legisla not serve the In Smith the Geor- purpose tive that stimulated its enactment. To gia Supreme appeared apply the cause so do would violate the principles same of fun requirement of the 1975 amendment to deter- damental fairness that we find were violated mine whether the could raise Supreme when the applied retroactively despite claim on state habeas provision lodge his failure to waiver of the 1975 amend timely objection ment to the in the habeas trial court Spencer's when statute case. was however, January, tried 1975. The court argues stated state also that we apply should "[bjecause this is penalty a death the 1967 statute in this case because it consti- case, we will deciding assume impermissible without tutes an or find- attempt prescribe fed- ing objections that there eral cause allow these standards waiver of federal constitu- tional legitimacy claims in state traverse This court. view the convictions and provision sentences have non-waiver otherwise be- expressed come statute final.” 239 well S.E.2d at 510-11. The Justice Hall Georgia Supreme proceeded then Court in determine 1977: Smith's claim on House, What shall be effective to waive merits. federal con- decided almost contem- rights poraneously Smith, stitutional question. is a federal with the court considered petitioner's This court legislature and not the merits of the claim without even entrusted the interpretation discussing Feder- habeas statute. The court thus Constitution, (Const. VI, al may par. Art. II. have Sec. reached the merits in House IV; Code (Rev.1973)), Ann. § 2-3704 because penalty our it was a death case as well. point decision rulings ultimately on this is directed appear Both of these purely to represent of the United discretionary States departures Court. practice from the usual attempt by legislature, An such we have apply courts to the waiver rule in here, to ruling one take such and enshroud it effect at the time the case is decided habeas statutory prevent any concrete to further rather than rule in effect at trial. might argued federal Hopper, 255 Spencer v. law. ment became questions courts should determine of waiv S.E.2d at er and default the Geor- Unfortunately, in no case has govern in law rules accordance state directly the gia Supreme Court addressed appeal, ignoring ing such issues on direct fair- fundamental important questions of entirely applicable law in state the waiver applica- by such a retroactive ness raised proceedings. Where state law habeas provision of the amended waiver tion of the are on state ha- rules more lenient waiver tried before amend- statute to however, do appeal, direct we beas than on federal into effect. Several ment went to hold appropriate not consider it federal applying interpreting and decisions court rigorous petitioners to the more habeas corpus statutes indi- Georgia habeas applicable state law standards on however, cate, federal courts should that would render state habe- appeal. To do so procedur- questions of generally determine provision of as rules like the non-waiver waiver according to the habeas al default unwary.” “trap[s] the 1967 statute for the of the asserted in effect at the time law Newsome, 420 U.S. at 95 v. Lefkowitz effect should waiver, that retroactive appropri Such S.Ct. at 891. a view statutes.20 See given to such not be invoke on feder procedural ate law to state Ricketts, n. F.2d 682 Lumpkin v. 551 suggest nor al habeas is neither mandated (5th Cir.), U.S. applicable Supreme case by ed (petitioner L.Ed.2d 316 S.Ct. law, case. adopt we decline it statute; of tried before enactment ha- might argued that federal trial It also be held, in effect at time of law decisional themselves need not concern issue); Hopper, beas courts Dixon v. waiver controls fundamental fairness questions of (M.D.Ga.1976) (petitioner with F.Supp. findings of waiver or by 1970; held, raised state 1975 amendment convicted law, as fed procedural default under state applied be retroac will not 1967 statute errors do not sit to correct eral courts selection bar tively to interpretation by courts in the during tri made state not made before procedures of law. is estab Ricketts, application state F.Supp. 911 al); v. Stewart law, that a state 1971; lished federal (M.D.Ga.1978)(petitioner convicted federal constitutional rejection applied, but court’s time in effect at law trial of that consideration claim will bar de procedural barred due claims held if the court’s statute). state claim federal habeas provisions of despite fault ade “independent and ruling rests 548 F.2d 589 But see Dennis 1969; grounds. County Court quate” state Cir.1977) (5th (petitioner convicted 140, 148, Allen, 442 County v. U.S. mentioning Georgia Ulster held, without 2213, 2220, 60 L.Ed.2d 777 statute, to raise failure 72, 87, 97 Sykes, Wainwright waiv grand jury constitutes composition of (5th Ricketts, F.2d 1243 er); Tennon Wainwright, held, 1970; Francois generally Cir.1978) (petitioner indicted Cir.1984). We 1275, 1281-82 Georgia Su court bound federal habeas Su di examine decision on therefore preme must Court’s barred Spencer is from chal finding he barred appeal that rect Court’s preme raising grand jury because composition of law lenging procedural by claim here determine he seeks to raise in claim his to raise the before he failed independent constitute whether it would dictment). Georgia Supreme to allow Court not we sio.. the state law The state concedes that provision Spencer benefits the nonwaiver time apply in effect the state law should re- preclude alia, federal statute should of the 1967 argues, inter decision of trial but corpus, examine we claim view of his on habeas to address state courts not adequacy independence and for its operate that decision nonetheless the merits should claim on apparent spite concession might the state's deny to which benefit ap- not have been should statute amended the 1967 statute. the plied. entitled under otherwise thereby argues deci- that the the state Because adequate procedural state ground permitted for to thwart review in this court rejection our applied for who, those in justified re habeas. upon prior liance decisions, seek vindication in state courts of their federal constitution doing so guided are we rights.” al 457-58, Id. at 78 S.Ct. at series of decisions of quoted in NAACP v. Alabama ex rel. suggesting bases on which an asserted Flowers, procedural ground will not be con 1310, 12 (1964) (further L.Ed.2d 325 pro independent sidered and adequate pur ceedings case); in same Wright Georgia, poses insulating rejec state court’s 284, 291, 1240, 1245, tion of federal claims from federal rev See also James v. example, iew.21 For Kentucky, 341, 466 U.S. 1830, 104 S.Ct. rule that facially is valid and has been 1835, 80 (1984) L.Ed.2d 346 (only “firmly consistently followed the state courts established and regularly followed state will not preclude review of federal claims practice prevent can implementation of fed where its application particular in a case eral constitutional rights”); Barr Co does not satisfy constitutional require lumbia, 146, 149, 378 U.S. 1734, 84 S.Ct. ments of process due of law. Reece v. 1736, 12 (1964) (“We L.Ed.2d 766 have of Georgia, 85, 167, U.S. 76 S.Ct. ten pointed out procedural that state re (1955).22 L.Ed. 77 expressly Without find quirements which are not strictly regu or ing state procedural rules to be unconstitu larly followed deprive cannot us of the applied, tional Supreme as Court has on right review.”). of several occasions found such rules to be inadequate preclude to federal review of Contrary position to the urged constitutional claims procedural where the by Spencer before this the Georgia requirement has been novel or sporadically Supreme Court’s retroactive application of applied. In NAACP v. Alabama ex rel. the 1975 amendment to habeas Patterson, 449, 1163, U.S. 78 S.Ct. novel, statute was not nor has the amended the Court held that a statute sporadically applied to procedural bar, state “although it may now like his. It is a dominant theme of appear retrospect part to form of Supreme a con case just described, Court law pattern sistent procedures of ap however, to obtain that a federal review,” pellate would not be considered shall not be denied federal review of a independent adequate where the crimi federal constitutional claim on the basis of nal defendant “could fairly be deemed an procedural asserted ground state that is to apprised have been of its existence. manifestly unfair in its treatmeiit Novelty procedural requirements cannot claim.23 The element of surprise unfair 21. Most indepen case law which the day until after he was indicted. Reece v. adequate dent and ground 89, state doctrine is Georgia, 350 U.S. at 76 S.Ct. at 170. In a based consists appeals in direct decisions companion Reece, case to Supreme from the state principles courts. The derived process that the stated test due in such a case cases, however, applicable those are as given whether the defendant was "a reason- federal collateral review aof state court convic opportunity able have the issue as to the they tion as appeal. are on direct Francois v. right claimed heard and determined the state Wainwright, 1275, 741 F.2d Cir. Louisiana, 91, 93, court.” Michel v. 350 U.S. 1984). Wainwright 87, Sykes, 433 U.S. at 158, 160, S.Ct. 100 L.Ed. (quoting (citing 97 S.Ct. Henry at 2506 v. Mississippi, 379 Illinois, 571, 574, Parker v. U.S. U.S. 13 L.Ed.2d 408 (1948)). 92 L.Ed. 886 case appeal, decided on direct of its finding independent adequate state surprisingly, 23. Not involving in cases novel or ground). unevenly applied rules, procedural state the Su preme accepted Reece the frequently Court has also stated with general validity apparent significance rule requiring proce that the asserted challenges grand that indictment, requirement be made before dural would “force resort application but found form,” its meaningless to violate arid ritual of finding thus process due where a legitimate "semi-illiterate" defendant no state interest rule itself. mentality” "of provided low was not counsel Kentucky, James 466 U.S. fering deprivation imposed.24 it We applied sporadically renders novel interpretation such an of Geor- cannot find inadequate grounds state independent gia procedural law to be an of federal constitu- review preclude federal ground adequate sufficient case as well. present tional claims preclude federal court consideration amendment, in this applied Bouie Spencer’s claim.25 merits of Cf. retroactively to render case, operated Columbia, 347, 354-55, City to raise a Spencer’s failure (1964). 1697, 1703, 12 L.Ed.2d 894 S.Ct. jury array a waiv- so, right to do of his REVERSE the decision of the fact We therefore er RE- attempt court on this issue and opportunity to district affording him no MAND the case to the district court for an suf- provision before comply with the new Hill, Wright Trust & Co. v. Sav. 451, See also 80 L.Ed.2d 346 Brinkerhoff-Faris 1240, 1245, Georgia, S.Ct. S.Ct. 74 L.Ed. [50 U.S. Baxley, 1107], similarly Staub v. 10 L.Ed.2d 349 state- When unforeseeable 277, 281, of a statute is court construction criminal timing obviously not the case here. The Such retroactively subject person applied found under courts rule Spencer's which conduct, liability past the effect criminal too late to have been raised deprive process law in the is to him of due legitimate inter- important serves an est, v/arning contemplated sense of fair that his abstract. It is our considered in the when Applicable to constitutes a crime. conduct legit- view, any apparent a lack of that statement in either situation is this Court’s procedural rule interest in the imate state Brinkerhoff-Faris, supra, “if the result that adequate independent and state issue in the ground by an exercise of above stated were attained essen- discussed was not we have power, transgression legislative the the State’s holdings analyses in those and to the Court's tial process due clause Fourteenth of of Supreme itself indicated The cases. obvious," vio would be and “The Amendment Columbia, City 378 U.S. in Bouie much of less clear that result is lation is none the when (1964), a case 12 L.Ed.2d 84 S.Ct. involving judiciary accomplished the state in constitutionality of a retroactive construing an otherwise valid ... of course There judicial expansion a criminal statute. of Id., state statute.” at 679-80 S.Ct. at [50 principal- we are to the cases the court referred 453-54], ly as follows: concerned with 354-55, S.Ct. at 1703. Id. at concept process basic involved The due often which the has the same as that applied opinion suggest no in this We to view mean holding and that an unforeseeable concerning amended applicability of the ques- a unsupported decision on state-court petitioner, while the 1967 a convicted statute to procedure does not constitute tion of state effect, whose to failure statute was re- ground preclude this adequate Court’s jury grand composition or traverse of his e.g., Wright question. of a federal view beyond long past trial or well his continued Georgia, S.Ct. [83 373 U.S. Alabama, A volun- of the 1975 amendment. 349]; enactment N.A.A.C.P. 10 L.Ed.2d 1168-69, intelligent tary such a claim waiver of S.Ct. [78 456-58 Columbia, 1488]; statute City terms the 1967 accordance with the Barr v. variety ante, p. may stances, a wide of circum- be found under [84 [378 U.S.] of state decision- intend standards decision 766]. we do not with this consistency judging ade- applicable ability al quacy of the courts restrict the to limit or ground applicable, are a also state in future cases find such a this waiver Circuit think, determining whether a we corpus stat- involving the 1967 habeas was of a criminal statute construction court’s ute. deprive the defendant as to unforeseeable so warning which the Constitution of the fair intelligent voluntary, knowing waiver 25. No situations, “a federal him. In both entitles right jury compo- right by Spencer of his raise a upon as of the status of state law turns appears now he seeks to raise sition exactly, past or, more given moment in the — findings of in this case. Thus in the record status of the appearance to the individual claim Court moment....” of that state law as untimely, it was not because was barred a state supra, at n. 34. When U.Pa.L.Rev. supported evi- it "was not but because also a consistent line court overrules before the the trial waived dence in deny- effect of with the retroactive decisions ing ap- urged began, not and was trial case, it hearing pending litigant in a 4, also S.E.2d at peal,” Spencer process of law thereby deprives of due bar review of considered sufficient cannot be opportunity to be primary sense of "in its federal habeas. claim right.” substantive [his] and to heard defend evidentiary hearing on the Spenc- merits of presented in the context of a formal mo er’s tion, accompanied by brief, challenging array petit from which his jury was chosen. array.1 again, Once the trial judge declined to address the merits TJOFLAT, Judge, Circuit specially con- petitioner’s contention, ruling that the mo curring, in which CLARK, HATCHETT and tion was not timely. Following his convic Judges, join: Circuit tion, petitioner sought to raise his I concur in Part I majority’s opin- challenge before the state habeas court. ion its decision adhere to the Supreme Court affirmed the panel’s one, three, treatment of issues court’s refusal to address the four, see ante at 1460. For the rea- merits of claim it because had below, expressed sons I agree with the asserted in the trial court. result reached in Part II of the majority’s Spencer v. Hopper, opinion, is entitled to present to the district his challenge L.Ed.2d 116 Petitioner then the constitutionality selection brought petition seeking a writ of ha- process utilized in his trial. corpus. beas The record in this that, case indicates There question is no the district January 7, 1975, prior to the commence- court had the power to peti entertain dire, ment of voir petitioner presented the tion in a case such as this. See Francis v. trial judge with a petition written inform- Henderson, 536, 538, ing the court that the State was about to 1708, 1710, 48 How impanel drawn from an array from ever, because of the important valid and which excluded, blacks were systematically policy involving considerations comity and in violation of the United States Constitu- the orderly justice administration of which Admittedly, tion. petitioner’s challenge are delineated in Wainwright Sykes, was in the form petition of a removal ad- 72, 88-90, U.S. 2497, 2507-08, 53 dressed to the federal district The court. and Francis v. Hender unconstitutionality of jury the selection son, 539-42, 425 U.S. at 96 at S.Ct. 1710- process, was cited grounds as the II, federal courts frequently removal, must enforce fully apprising the judge trial contemporaneous state’s objection petitioner’s of the rule contention that the State and was decline power about exercise their violate his to en- rights. address, application Rather than tertain for a even ex- writ of habeas plore, petitioner’s the merits corpus. A objection, reading careful Sykes and the trial court merely determined that it important Francis discloses two goals jurisdiction retained case, over the because by state contemporaneous served objection the federal district had not received First, rules.2 such rules allow the trial the petition, removal proceeded and tenta- judge possible to correct errors in the most tively qualify jurors by nineteen the end timely and fashion, efficient the evi- when day. dence the freshest. In a case such as this, objection Before the where the proceed- commencement of must be made at ings day, the petitioner next outset of the again proceedings, an directed error can the trial judge’s prior attention to his be remedied to incurring claim that the burden jury State’s process selection expense and violated of trial and jeopardy before time, Constitution. This his was claim attaches. comity Considerations of are judge's 1. Given trial poraneous treatment of objection his remov- State, Young rule. See v. petition, petitioner’s al 285, 439, formal motion made was (1974); 232 Ga. 206 S.E.2d 442 Wil possibly soon as could expected State, 665, have been 217, liams 210 Ga. 82 S.E.2d 219- under the (1954), circumstances. 20 remanded sub nom. Williams v. Geor 375, gia, 814, 75 L.Ed. 99 1161 2. expressed State, The 173, courts have same Williams Ga.App. these 131, two underlying considerations as S.E. their contem- Second, fully con- tion rule were vindicated. trial in this manner. promoted also judge opportunity had the to correct prevent rules a de- temporaneous objection taking alleged error before of the burdens or “sandbagging,” fendant incurred, reserving expenses prior to the his of trial were jury verdict while chance on jeopardy, ver- attachment while the issue of an unfavorable in the event claim fresh, man- was and at the time when it would important considerations dict. These disruptive to the administration of decline to enter- be least that a federal court date justice. arguable peti even petitioner failed is not a claim where tain court, attempting sandbag present it to the trial tioner seasonably to seasonably can show cause for State. Because issue was unless the presented trial resulting squarely raising the claim earlier not contemporaneous objection the state rule prejudice. operate cannot to bar habeas review of instance, the trial petitioner made In this Estelle, petitioner’s claim. See St. John v. objection jury court aware of (en (5th Cir.1977) banc) 563 F.2d proceedings. He the outset of the array at denied, dissenting), cert. J., (Tjoflat, prior to the commence- the matter raised U.S. again in a formal ment of voir dire3 (1978).5 had occurred when all that motion at a time contempora- of some of Federal courts enforce state qualification was the tentative objection such rules policy considera- neous rules because jurors.4 All of the objec- important legitimate interests. contemporaneous serve of a tions favor undisputed con that a made for the first Curiously, courts that have none of the verdict, grips jury petitioner's come to time after a in a motion for a new claim have sidered context, January peti timely. of his 7 "removal trial the habeas is not with the effect or in contempora However, purposes light process not clear when the tion” it has majority opinion, objection begins rule. The putting neous on the defendant panel opinion, p. n. and the ante process cases when the ends. There are 8, expressly to address n. decline indicating "put upon” that a a defendant January petition. dire, the issue of the e.g., prior of voir commencement response to the removal trial court made no State, 221 Ga. 143 S.E.2d Britten petition than to conclude that it did other jurisdiction. the court’s The state affect Johnson, (1966); Felker v. to chal motion court "found” lenge Ga.App. as well as 186 S.E. but was in fact filed on indicating is included within that voir dire January 7 not address the effect of did petition. defendant, process putting on a Spencer Hopper, State, Ga.App. e.g., Walls 1, 3, denied, cert. 444 U.S. 255 S.E.2d Balkcom, see Pulliam 17-18 Georgia 62 L.Ed.2d 116 The S.Ct. Supreme 126-27, Ga. agreed with the state (1980) L.Ed.2d 1121 U.S. (must January 7 did not address the court and also challenge jury failure to cause for show may implication petition. The that Id. trial). found no I have at or before Georgia the the courts did not find drawn is that challenge was raised a case where satisfy legally petition sufficient to stages early voir dire in the for the first time rule, objection contemporaneous but no dis untimely. if the ma Even and was held to be point appears. cussion of this correct, jority's interpretation law is judge was is clear that the trial it majority opinion that it has determines 4. The objection prior petitioner’s to the made aware of "long Georgia” law in that a constitu- been the of voir dire. commencement challenge composition of the tional array prior dire to the time voir must be made completed peti in jury qualification was 5. After panel opinion p. Ante 1464. The commences. trial, prosecutor judge asked the tioner’s case, that, precise prior to this concluded ready proceed. The the State was whether raised has not a must be time such was, prosecutor responded it but would that Georgia law. 715 F.2d as a matter of been clear jury challenge if argue the merits of panel’s that the I would submit at 1569-73. This indi petitioner on the motion. insisted accurate summation is a more conclusion time, that, prosecutor believed at that cates Georgia law. requirement objection contemporaneous requires a undisputed law is minimum, or, the State a satisfied had been array prior made insisting upon compliance with it. was not "put upon” It is also is a defendant. time Where those fully interests have been vin- allowing race to part determine in who dicated, case, inas this enforcement of the will penalty. receive death state's bar “giving would be petitioner prove A can that a has effect to the contemporaneous-objection operated penalty death system its arbitrari- rule for its own sake” and would be to ly and capriciously proving without “ to an meaningless ‘resort arid ritual of agent intended to discriminate ” Henry v. Mississippi, 379 U.S. form.’ against petitioner against any other 443, 449, 564, 568, 13 L.Ed.2d 408 capital defendant in a case. A death penal- (1965) (quoting Staub v. Baxley, City of ty system arbitrary capricious if it 313, 320, 2 produces significantly results, inconsistent (1958)). I would therefore regardless of the intent agents. of state that, petitioner hold because presented Godfrey v. Georgia, 420, 433, objection seasonably to judge, the trial 1759, 1767, (1980) S.Ct. is entitled to federal habeas review of his (death penalty scheme provide must mean- claim. ingful way of distinguishing between those who receive death sentence and those who JOHNSON, Judge, concurring Circuit not); Harris, Pulley v. do part and dissenting part: (comparative In Part II of majority opinion proportionality required sys- review not if expressions many and observations not in- adequately tem ensures consistent and ra- volved this case and therefore not neces- results). tional sary for determining the under con- issue Eighth reason that an Amendment (See Analysis), sideration Section C. claim based on racial discrimination cannot Court holds that Spencer is not require proof of discriminatory intent procedurally barred from presenting his penalty the death heightens the need jury composition challenge to the federal for consistent and fair decisions while at respect II, district court. With Part as the same maintaining time the need Judge Warren Jones stated concurring discretion to judg- make individualized opinion an Judge written John R. ments. appellate An give court can only Fowler, Brown Wirtz 372 F.2d 315 searching review to the fairness con- (5th Cir.1966), “I concur in the and in result sistency a discretionary if decision it so opinion much of the supports employs evidence, effects since the discre- Id. at 335 (Jones, J., result.” concurring). tion of state decisionmakers makes evi- I dissent Part I of majority dence intent their difficult if not impossi- opinion, in which the majority holds that McCleskey v. Kemp, ble to obtain. Spencer’s proffer of the study conducted (11th Cir.1985) (Johnson, J., by Dr. David Baldus did not entitle him to dissenting). special Since the nature of the evidentiary hearing because facts penalty death calls for the use of effects allegedly proven by study legally are evidence, proffered by the evidence Spenc- Eighth insufficient or Four- er had preponderance to show teenth Amendment to the Geor- significant evidence racial influence gia capital sentencing system. peti- pattern sentences; on the of death his evi- prove purposeful tioner did not have to dence compel did not have to an inference against discrimination him in sentencing in purposeful discrimination. The Baldus claim; to support order even if he were Study could succeed under this standard required so, to do he would still almost and the district court refusing erred in view, certainly my succeed. the evi- hearing. hold a proffered by Spencer dence would establish grounds Eighth purposeful relief under Even if proof of discrimina- prove appropriate standard, Amendment because it would tion were the applied has its death penalty Study proffered by Spencer stat- Baldus would ute arbitrary in an capricious manner suffice to his constitutional claim. instances, circumstantial or statis In some racially disproportionate BUSBY,

tical evidence Marie Lancaster # strong compels so that it Petitioner-Appellant, impact may be purposeful racial discrimina inference of Partida, 430 tion. Castaneda HOLT, Warden; Kathleen B. Charles A. 1272, 51 L.Ed.2d 498 Smith Graddick, Attorney General Balkcom, Cir. 671 F.2d Alabama, Respondents-Appel State of B), Unit lees. (1982). The Bal- No. 84-7110. very begins of a Study dus with evidence showing disproportionate impact by large United States Appeals, Court of killers of penalty the death falls on Eleventh Circuit. more often than white victims eleven times Jan. Then, moving on killers of black victims. evi

beyond the usual confines of statistical

dence, dispropor study analyzes that strong, it is impact to show that

tionate purposeful

virtually irrefutable evidence regres The multivariate

discrimination. that the aver analysis

sion demonstrates signifi has a

age killer of a white victim receiving

cantly greater the death risk a non-white

penalty than does the killer of greater risk exists sole

victim and that the

ly of the race of the victim. because produced strong evi

Spencer has therefore disproportionate impact suffi

dence of a pur

ciently large compel an inference of

poseful discrimination. determined, wrong- has

While this Court view, my legal significance

ly Study, alive be-

Baldus the issue remains could take action

cause short- McCleskey Kemp, supra.

comings of this Court’s decision in McCles- together possibility it

key, binding precedent on the

may not stand as

issue, me to the evidence lead conclude that him to

proffered by Spencer would entitle corpus relief. I would reverse order it

judgment of the district court and evidentiary hearing.

to hold an

Case Details

Case Name: James Lee Spencer v. Ralph Kemp, Warden, Georgia Diagnostic & Classification Center, Respondent

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jan 23, 1986

Citation: 781 F.2d 1458

Docket Number: 82-8408

Court Abbreviation: 11th Cir.