781 F.2d 1458 | 11th Cir. | 1986
Lead Opinion
Petitioner James Lee Spencer was convicted of murder and sentenced to death in Georgia state court in 1975.
DISCUSSION
Spencer raises five issues on this appeal, alleging that:
(1) the trial court’s jury instruction at his hearing on his special plea of insanity violated his due process rights; (2) his jury array was unconstitutionally composed insofar as blacks and women were underrepresented; (3) certain jurors were improperly dismissed during voir dire in violation of the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (4) the trial court’s jury instruction violated Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1977), by relieving the state of the burden of proof on an element of the crime; and (5) the Georgia death penalty is arbitrary and discriminatory and therefore unconstitutional as applied.
Spencer v. Zant, 715 F.2d at 1565. We agree with the panel’s determination that issues one, three, and four provide no justification for granting habeas relief. We therefore address below only petitioner’s claim that the Georgia death penalty is unconstitutionally applied and his challenge to the array from which his jury was chosen.
I. Right to an Evidentiary Hearing on the Constitutionality of the Death Penalty
In his federal habeas petition, Spencer alleges that Georgia administers its death penalty statute in an arbitrary and discriminatory manner in violation of the eighth and fourteenth amendments to the United States Constitution. Similar allegations had been rejected on petitioner’s direct appeal and in his state habeas proceedings. Specifically, he contends that the death penalty in Georgia is disproportionately applied on the basis of the race of defendants and the race of victims.
On January 26, 1981, the district court held a hearing to determine the necessity of conducting an evidentiary hearing on this issue. At that time, counsel for petitioner proffered that significant social science research and analysis of the pattern and practice of the imposition of capital sentences in Georgia had recently become available, and that this work had not been available at the time of petitioner’s state habeas hearing in 1977. Petitioner further proffered that these studies showed racial and geographic arbitrariness in the imposition of capital sentences based on the race of defendants and race of the victims. The district court denied an evidentiary hearing and dismissed the claim, determining that the claim was “effectively foreclosed” by the decisions in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), and Smith v. Balkcom, 660 F.2d 573 (5th Cir. Unit B 1981), modified, 671 F.2d 858 (5th Cir. Unit B), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982). Mitchell v. Hopper, 538 F.Supp. at 90-91.
Petitioner subsequently filed a timely Rule 59 motion to alter or amend the judgment, alleging newly discovered evidence. In this motion, petitioner proffered the fact that Professor David C. Baldus had just completed detailed statistical research on Georgia’s capital sentencing patterns. According to the proffer, the Baldus study reinforced and expanded upon the evidence
On appeal, petitioner requests a remand for an evidentiary hearing in which he would be allowed to introduce the statistical data and reports proffered to the district court. Whether he should be allowed such an evidentiary hearing was the issue on which we granted rehearing en banc.
In his briefs and at oral argument, petitioner placed primary reliance on the Bal-dus study, which is argued to constitute the most thorough and sophisticated study yet completed on the Georgia capital sentencing system. The evidence proffered by Spencer in this case had already been introduced into the district court record in McCleskey v. Zant, 580 F.Supp. 338 (N.D.Ga.1984), when this case was argued en banc.
Spencer’s contentions on this point are now directly controlled by our recent decision in McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) {en banc). In that case this court held that even if the Baldus study proved all the facts it was argued to prove, it would remain legally insufficient to support an eighth or fourteenth amendment challenge to the Georgia capital sen-fencing system alleging that the system was being arbitrarily and discriminatorily applied. Since what the Baldus study is contended by petitioner to prove is insufficient to support an eighth or fourteenth amendment challenge to the operation of the Georgia system, petitioner is not entitled to an evidentiary hearing for the taking of that evidence. Petitioner did not raise any allegations of intentional or purposeful discrimination against him in his sentencing; we therefore affirm the district court’s denial of an evidentiary hearing.
II. Challenge to the Jury Array
Spencer alleges that blacks and women were grossly underrepresented on the Burke County jury array from which his jury was drawn, causing him to be tried by a jury that was unconstitutionally composed. Because the district court found Spencer’s constitutional challenge to have been untimely and therefore barred by procedural default, we must decide on this appeal only whether he should be permitted to present his claim to the district court. We hold that he should be allowed to raise this claim on federal habeas, and we therefore remand this ease to the district court to permit him to do so.
A. Factual and Procedural Background
On January 6, 1975, the first day of Spencer’s trial, 42 prospective jurors had been subpoenaed for service. After a delay during which Spencer’s special plea of insanity was considered, the trial resumed on January 7. After counsel had announced their readiness to proceed with voir dire, but before the selection of jurors
The next morning, January 8, before voir dire resumed, Spencer filed a pro se motion challenging the jury array. No evidence was produced to support the motion. The trial judge overruled the motion, finding that it had not been timely filed.
On January 15, 1975, immediately after the qualification of the jury was completed, the trial judge asked the district attorney if he was ready to proceed with the trial. The district attorney responded that the state was ready, but that they would argue the motion challenging the jury array if Spencer’s counsel insisted on the motion. Both the judge and Spencer’s counsel stated that they thought the motion had been disposed of. The district attorney then asked whether or not the accused insisted on the motion, to which Spencer’s counsel replied, “[n]ot while I’m under the impression that [it has] been disposed of.” The jury was then sworn and the trial commenced.
After his conviction, Spencer did not raise the jury array issue on direct appeal, but sought to assert it in his 1977 state habeas petition. The Georgia Supreme Court affirmed the state habeas court's denial of habeas relief, finding that “Spencer’s jury challenge was not timely made in the trial court, was not supported by evidence in the trial court, was waived before the trial began, and was not urged on direct appeal.” Spencer v. Hopper, 255 S.E.2d at 4.
The federal district court found that the Georgia Supreme Court’s conclusions that the challenge was not timely filed and had been waived by failure to pursue it on direct appeal were “well supported by the evidence and are binding on this court.” 538 F.Supp. at 95. Furthermore, the court held that Spencer had not made a sufficient showing of cause to excuse his procedural default and permit federal habeas review under the “cause and prejudice” test of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977).
B. General Principles
There can be little doubt that, if the timeliness of petitioner’s challenge were evaluated according to federal procedural requirements, the claim Spencer seeks to make would be found to have been raised too late to preserve the issue for consideration on collateral attack.
C. Analysis
Under Georgia law, a criminal defendant must raise a challenge to the jury array at or before the time the jury panel is first “put upon” him (unless he has been prevented from doing so); if he does not object at that time, he waives his right to raise such a claim later at trial or on direct appeal. Holsey v. State, 235 Ga. 270, 219 S.E.2d 374, 376 (1975); Young v. State, 232 Ga. 285, 206 S.E.2d 439, 442 (1974); Cobb v. State, 218 Ga. 10, 126 S.E.2d 231, 239 (1962), cert. denied, 371 U.S. 948, 83 S.Ct. 499, 9 L.Ed.2d 497 (1963). Most prior Georgia cases applying this rule involve defendants who waited until after trial to challenge the jury array. Georgia statutes and case law indicate, however, that a jury is “put upon” a defendant at the time that the jury array is seated and voir dire commences.
The applicable sections of the Georgia Code provide that:
*1464 The clerk shall make out three lists of each panel and shall furnish one to the prosecuting counsel and one to the counsel for the defense. The clerk shall then call over the panel and it shall immediately be put upon the accused.
O.C.G.A. § 15-12-161 (formerly Ga.Code § 59-802); and that:
The accused may, in writing, challenge the array for any cause going to show that it was not fairly or properly impaneled or ought not be put upon him. The court shall determine the sufficiency of the challenge at once. If sustained, a new panel shall be ordered; if not sustained, the selection of jurors shall proceed.
O.C.G.A. § 15-12-162 (formerly Ga.Code § 59-803). This has long been the law in Georgia. See Whitworth v. State, 155 Ga. 395, 117 S.E. 450 (1923); Felker v. Johnson, 53 Ga.App. 390, 186 S.E. 144 (1936).
More recently, the Georgia Supreme Court held that a claim by a state habeas corpus petitioner that his jury was improperly drawn “should have been, but was not, raised by a timely challenge to the array before the jurors were put upon him and his failure to do so amounts in law to a forfeiture of that right.” Buxton v. Brown, 222 Ga. 564, 150 S.E.2d 636, 637 (1966). The court in Buxton cited in support of its holding one of its earlier decisions in which the court stated that an objection to the traverse jury array in a criminal case “must be raised by a challenge to the array at the earliest opportunity the defendant has to avail himself of that right.” Cobb v. State, 126 S.E.2d at 239. These cases indicate to us that, in order to avoid waiving any right to challenge the composition of a traverse jury on appeal, a defendant must raise such a challenge prior to the commencement of voir dire.
The requirement that defendants first make such challenges before voir dire begins is not an unduly burdensome one.
Further, the Georgia rule is rooted in sound policy. It prevents a party from tentatively accepting a jury array while reserving any challenge he thinks he may have until he has begun to explore how he might fare in jury selection. The efficient administration of justice would be obstructed if a defendant could accept the array for purposes of commencing jury selection, while reserving a challenge to the array to be exercised at a later time.
Petitioner's motion to challenge the jury array was not raised in the state proceedings until voir dire was well under way.
In our evaluation of this asserted procedural bar, however, we find ourselves confronted with a somewhat peculiar statute enacted by the Georgia legislature in 1967 to govern certain waiver questions in state habeas corpus proceedings. The statute (hereinafter “the 1967 statute”), enacted as part of the Habeas Corpus Act of 1967,
*1466 Rights conferred or secured by the Constitution of the United States shall not be deemed to have been waived unless it is shown that there was an intentional relinquishment or abandonment of a known right or privilege which relinquishment or abandonment was participated in by the party and was done voluntarily, knowingly and intelligently.
1967 Ga.L. 835, 836 (codified at Ga.Code § 50-127(1)) (amended 1975). The statute was amended by an act approved April 24, 1975, to exempt from the blanket non-waiver rule challenges to the composition of grand or traverse juries.
Although no official legislative history of the Habeas Corpus Act of 1967 exists, the Act by its terms leaves little doubt concerning its purpose:
Section 1. Statement of Legislative Intent and Purpose. The General Assembly finds that expansion of the scope of habeas corpus in federal court by desi-sions [sic] of the United States Supreme Court, together with other decisions of said court (a) substantially curtailing the doctrine of waiver of constitutional rights by an accused and (b) limiting the requirement of exhaustion of state remedies to those currently available, have [sic] resulted in an increasingly larger number of state court convictions being collaterally attacked by federal habeas corpus based upon issues and contentions not previously presented to or passed upon by courts of this State; that such increased reliance upon federal courts tends to weaken state courts as instruments for the vindication of constitutional rights, with a resultant deterioration of the federal system and federal-state relations; that to alleviate said problems, it is necessary that the scope of state habeas corpus be expanded and the state doctrine of waiver of rights modified. The General Assembly further finds that expansion of state habeas corpus to include many sharply-contested issues of a factual nature requires that only the superior courts have jurisdiction of such cases.
1967 Ga.L. 835.
Thus it seems quite likely that, as others have concluded,
The 1967 statute addressed habeas corpus, not direct appeal. The Georgia courts continued to hold consistently that a defendant’s failure to raise a timely constitutional challenge to the composition of a grand or traverse jury array constituted a waiver of the right to raise such a claim later on direct appeal. See, e.g., Tennon v. State, 235 Ga. 594, 220 S.E.2d 914 (1975), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976), Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976); Holsey v. State, 235 Ga. 270, 219 S.E.2d 374 (1975); Young v. State, 232 Ga. 285, 206 S.E.2d 439 (1974); Williams v. State, 232 Ga. 203, 206 S.E.2d 37 (1974); Simmons v. State, 226 Ga. 110, 172 S.E.2d 680 (1970); Miller v. State, 224 Ga. 627, 163 S.E.2d 730 (1968). In state habeas corpus proceedings, however, petitioners were usually permitted to raise constitutional jury composition claims in spite of any failure to object in a timely manner at trial. See, e.g., Mitchell v. Smith, 229 Ga. 781, 194 S.E.2d 414 (1972); Johnson v. Caldwell, 228 Ga. 776, 187 S.E.2d 844 (1972). But see Atkins v. Martin, 229 Ga. 815, 194 S.E.2d 463 (1972) (waiver found; no mention of habeas statute); Ferguson v. Caldwell, 233 Ga. 887, 213 S.E.2d 855 (1975) (under 1967 statute, voluntary and intelligent waiver apparently found). Other constitutional claims were also generally entertained on state habeas despite the petitioner’s failure to lodge a timely objection at trial. See e.g., Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339 (1975); Anthony v. Hopper, 235 Ga. 336, 219 S.E.2d 413 (1975); Parrish v. Hopper, 238 Ga. 468, 233 S.E.2d 161 (1977).
Unfortunately, in no case has the Georgia Supreme Court addressed directly the important questions of fundamental fairness raised by such a retroactive application of the waiver provision of the amended statute to cases tried before the amendment went into effect. Several federal court decisions interpreting and applying the Georgia habeas corpus statutes indicate, however, that federal courts should generally determine questions of procedural default according to the habeas waiver law in effect at the time of the asserted waiver, and that retroactive effect should not be given to such statutes.
It might be argued that federal courts should determine questions of waiver and procedural default on federal habeas in accordance with state law rules governing such issues on direct appeal, ignoring entirely the waiver law applicable in state habeas proceedings. Where state law waiver rules are more lenient on state ha-beas than on direct appeal, however, we do not consider it appropriate to hold federal habeas petitioners to the more rigorous state law standards applicable on direct appeal. To do so would render state habe-as rules like the non-waiver provision of the 1967 statute “trap[s] for the unwary.” Lefkowitz v. Newsome, 420 U.S. at 293, 95 S.Ct. at 891. Such a view of the appropriate state procedural law to invoke on federal habeas is neither mandated nor suggested by the applicable Supreme Court case law, and we decline to adopt it in this case.
It might also be argued that federal ha-beas courts need not concern themselves with questions of fundamental fairness raised by state court findings of waiver or procedural default under state law, as federal courts do not sit to correct errors made by state courts in the interpretation and application of state law. It is established federal law, however, that a state court’s rejection of a federal constitutional claim will only bar consideration of that claim on federal habeas if the state court’s ruling rests on “independent and adequate” state grounds. County Court of Ulster County v. Allen, 442 U.S. 140, 148, 99 S.Ct. 2213, 2220, 60 L.Ed.2d 777 (1979); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). See generally Francois v. Wainwright, 741 F.2d 1275, 1281-82 (11th Cir.1984). We must therefore examine the Georgia Supreme Court’s finding that Spencer is barred by Georgia procedural law from raising the claim he seeks to raise here to determine whether it would constitute an independent
In doing so we are guided by a series of decisions of the Supreme Court suggesting bases on which an asserted state procedural ground will not be considered independent and adequate for purposes of insulating the state court’s rejection of federal claims from federal review.
Contrary to the position urged by Spencer before this court, the Georgia Supreme Court’s retroactive application of the 1975 amendment to the Georgia habeas statute was not novel, nor has the amended statute been only sporadically applied to cases like his. It is a dominant theme of the Supreme Court case law just described, however, that a federal habeas petitioner shall not be denied federal review of a federal constitutional claim on the basis of an asserted state procedural ground that is manifestly unfair in its treatmeiit of that claim.
We therefore REVERSE the decision of the district court on this issue and REMAND the case to the district court for an
. The facts that led to Spencer’s conviction are set forth in the panel opinion in this case, Spencer v. Zant, 715 F.2d 1562, 1564-65 (11th Cir.1983).
. Petitioner makes it clear that the evidence he is seeking to present {i.e., the Baldus study) is the same evidence that was presented to the district court during a two-week hearing in the McCleskey case. As petitioner states in his brief to this en banc court:
The evidence that petitioner proffered in late April of 1982 has not yet been published in written form. It was presented at length during the two-week McCleskey v. Zant hearing in August 1983.
First Supplemental Brief for Petitioner-Appellant on Rehearing En Banc, at 19 (footnote omitted). The case of McCleskey v. Zant, referred to in petitioner’s brief, is the same case as McCleskey v. Kemp, decided en banc by this court. In petitioner’s proffer to the district court, he also indicated that he wished to introduce social science research by Dr. William Bowers, Glenn Pierce and George Dix. This material was found insufficient to warrant an evidentiary hearing in Ross v. Kemp, 756 F.2d 1483 (11th Cir.1985) (en banc), and Mitchell v. Kemp, 762 F.2d 886 (11th Cir.1985).
.The district court stated that:
Spencer has ... made no showing of cause. His silence on the subject at the hearings before this Court requires reliance on the record for evidence of cause. The record offers no support for the petitioner in this regard. Spencer filed his challenges late. For cause he must rely on his right to represent himself and his ignorance of the law requiring timely challenges to juries. However, while he may have had the right to file pro se motions, he also had a court appointed attorney to use as a resource to advise him on the legal effect of these motions. That he declined to do so and effectuated a procedural default as a result is "inadvertence" in the sense discussed above. This Court will not regard it as sufficient cause. Additionally, the challenge, timely or not, was not pursued on appeal. In the absence of any proffered reason for this, the Court need not go so far as to label it a purposeful relinquishment of the issue, but certainly the petitioner’s silence on the issue is, at the least, a failure to uphold the burden placed on him by Wainwright v. Sykes.
Mitchell v. Hopper, 538 F.Supp. at 97.
. See Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973) (waiver provisions of Rule 12(b)(2) of Federal Rules of Criminal Procedure applicable to postconviction relief proceeding pursuant to 28 U.S.C. § 2255); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963) (timing and waiver provisions of Rule 12(b)(2) apply to constitutional challenges to petit and grand jury arrays; relief from those provisions will not be
Where the jury in a federal criminal case has been selected in accordance with a local jury selection plan devised and implemented pursuant to the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq., a constitutional challenge to the racial composition of the jury must be made in strict compliance with the provisions of that Act governing the raising of such claims. United States v. Green, 742 F.2d 609, 612 (11th Cir.1984). The Act provides that a criminal defendant may raise such a challenge "before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier.” 28 U.S.C. § 1867(a).
. The meaning and significance of the requirement that the state procedural ground constitute an independent and adequate basis for the state court decision before the state ground is given preclusive effect on federal habeas are discussed infra at 1470-72.
. If the state courts themselves decline to apply an available procedural bar and address the merits of the petitioner's constitutional claim, the issue thereby presented and addressed is not precluded in federal court by virtue of the otherwise applicable state law procedural bar. Rather, where "the state courts entertained the federal claims on the merits, a federal habeas court must also determine the merits of the applicant’s claim.” Newman v. Henderson, 539 F.2d 502, 504 (5th Cir.1976) (quoting Lefkowitz v. Newsome, 420 U.S. 283, 292 n. 9, 95 S.Ct. 886, 891 n. 9, 43 L.Ed.2d 196 (1976)).
. The court in Felker described the procedure for challenging a jury array for failure to contain the requisite number of potential jurors as follows:
In the trial of felony cases, “The clerk shall make out three lists of each panel, and furnish one to the prosecuting counsel, and one to the counsel for the defense. The clerk shall then call over the panel, and it shall be immediately put upon the accused." Code of 1933, § 59-802. If there is no challenge to the array each juror is then called by the clerk, and in calling each juror he should be presented to the accused in such a manner as he can be distinctly seen, and then counsel for the accused or the State may challenge him upon the statutory grounds. Whitworth v. State, 155 Ga. 395 (117 S.E. 450). In felony cases "If a panel of less than forty-eight jurors is put upon the prisoner and he does not challenge the array, but proceeds with the selection of the jury, he can not thereafter, as a matter of right, demand the filling of the panel.” Ivey v. State, 4 Ga.App. 828 (62 S.E. 565). "If the panel does not contain the requisite number of jurors when it is put upon the defendant, the law prescribes, in Penal Code, § 972, his sole remedy, — he may challenge the array.” Ivey v. State, supra.
Felker v. Johnson, 53 Ga.App. at 394, 186 S.E. at 146 (emphasis added).
. We note that the Georgia rule imposes a timeliness requirement that is no more rigorous than that imposed by the analogous federal rule. See supra note 4.
. At the close of each term of court, in open court, the superior court judge selects trial jurors for the next term of court. O.C.G.A. §§ 15-12-120, 15-12-62. A trial jury box, in which have been placed tickets containing all the names of eligible trial jurors on the jury list, is placed in the courtroom. O.C.G.A. § 15-12-42(a). At the judge's direction, the box is unlocked, the seal broken, and the judge draws one ticket, upon which is recorded one name, from the box. O.C.G.A. §§ 15-12-120, 15-12-62. The ticket is returned to the box, but in a compartment separate from the one from which it was drawn, not to be subject to further drawing until all slips in the first compartment have been used. O.C.G.A. §§ 15-12-42(a), 15-12-120, 15-12-62. As each ticket is drawn, the name
. As the Georgia Supreme Court stated in denying habeas relief to Spencer: "To permit such a challenge to be pursued now would simply mean that no one would make a jury challenge until after they were convicted and that conviction was affirmed on appeal.” Spencer v. Hopper, 255 S.E.2d at 4.
. It may be argued that, as a matter of Georgia law, the petition for removal Spencer presented to the trial court on January 7 constituted a statutorily sufficient motion to challenge the jury array under O.C.G.A. § 15-12-161 (formerly Ga.Code § 59-802). Finding that "the pro se motion to challenge the jury was in fact filed on January 8, 1975,” however, the state habeas court obviously did not consider the removal petition legally sufficient to raise the jury challenge for purposes of determining its timeliness. The Georgia Supreme Court specifically approved this finding of the habeas court when it affirmed the judgment of that court in its entirety. Spencer v. Hopper, 255 S.E.2d at 3. Although we do not agree with the conclusion of the Georgia courts that Spencer’s challenge is procedurally barred, see infra at pp. 1470-72, we see no reason to disregard the judgment of the Georgia courts that Spencer's removal petition did not constitute a legally sufficient motion to challenge the jury array.
. In support of its decision affirming the habe-as court’s decision not to consider the merits of Spencer’s claim, the Georgia Supreme Court also found the jury challenge barred because it "was not supported by evidence in the trial court, was waived before the trial began, and was not urged on direct appeal.” Spencer v. Hopper, 255 S.E.2d at 4. Our analysis of the significance of the untimeliness of petitioner’s challenge for purposes of federal habeas applies to these findings as well, so we do not discuss them here in detail.
. The Act may be found at 1967 Ga.L. 835. The history and purpose of the writ of habeas corpus in Georgia and the Habeas Corpus Act of
. See 1975 Ga.L. 1143, 1143-44. The language quoted above was modified to read as follows:
Except for objections relating to the composition of a grand or traverse jury, rights conferred or secured by the Constitution of the United States shall not be deemed to have been waived unless it is shown that there was art intentional relinquishment or abandonment of a known right or privilege which relinquishment or abandonment was participated in by the party and was done voluntarily, knowingly and intelligently. The right to object to the composition of the grand or traverse jury will be deemed waived under this section, unless the person challenging the sentence shows in the petition and satisfies the court that cause exists for his being allowed to pursue the objection after the conviction and sentence has [sic] otherwise become final.
Id. (codified at O.C.G.A. § 9-14-42).
. See Stewart v. Ricketts, 451 F.Supp. 911, 915 (1978); Wilkes II, supra note 13, at 41-53.
. The impact of the cited cases on Georgia law and their likely effect on the relationship between the federal courts and Georgia courts were prominent subjects of speeches and articles appearing in 1964 and 1965. See Wilkes II, supra note 13, at 50 (providing examples).
. Compare the waiver provision (quoted previously) with the following language from Fay v. Noia:
The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464 [58 S.Ct.1019, 1023, 82 L.Ed. 1461]-"an intentional relinquishment or abandonment of a known right or privilege” — furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits — though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant’s default.
372 U.S. at 439, 83 S.Ct. at 849.
. Citing Stewart v. Ricketts, 451 F.Supp. 911 (M.D.Ga.1978), the state argues that with the enactment of the 1967 statute Georgia did not alter its law concerning waiver of constitutional
The state also argues that we should not apply the 1967 statute in this case because it constitutes an impermissible attempt to prescribe federal standards for waiver of federal constitutional claims in state court. This view of the legitimacy of the non-waiver provision of the 1967 statute was expressed well by Justice Hall of the Georgia Supreme Court in 1977:
What shall be effective to waive federal constitutional rights is a federal constitutional question. This court and not the legislature is entrusted with the interpretation of the Federal Constitution, (Const. Art. VI, Sec. II. par. IV; Code Ann. § 2-3704 (Rev.1973)), and our decision on this point is directed ultimately by rulings of the United States Supreme Court. An attempt by the legislature, such as we have here, to take one such ruling and enshroud it in statutory concrete to prevent any further modification by further court rulings, must fail.
Parrish v. Hopper, 238 Ga. at 472, 233 S.E.2d at 164 (1977) (Hall, J., concurring specially). This contention seems plainly untenable, however, in light of the Supreme Court’s clear rejection of a closely analogous (and perhaps even stronger) argument in Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975). See id. at 301, 95 S.Ct. at 895 (White, J., dissenting) ("[Sjince the applicable law in this case is federal, it is for us, and not the New York State Legislature, to say whether Fourth Amendment claims such as those involved here will or will not be waived by a guilty plea.’’)
. Smith v. Hopper, 240 Ga. 93, 239 S.E.2d 510, and House v. Stynchcombe, 239 Ga. 222, 236 S.E.2d 353, both involved untimely challenges to traverse juries from which jurors had been excluded for cause on Witherspoon grounds. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Smith the Georgia Supreme Court appeared to apply the cause requirement of the 1975 amendment to determine whether the petitioner could raise the claim on state habeas despite his failure to lodge a timely objection in the trial court when he was tried in January, 1975. The court stated however, that "[bjecause this is a death penalty case, we will assume without deciding or finding that there is cause to allow these objections to the composition of the traverse jury after the convictions and sentences have otherwise become final.” 239 S.E.2d at 510-11. The court then proceeded to determine Smith's claim on the merits. In House, decided almost contemporaneously with Smith, the court considered the merits of the petitioner's claim without even discussing the habeas statute. The court thus may only have reached the merits in House because it was a death penalty case as well. Both of these cases appear to represent purely discretionary departures from the usual practice of the Georgia courts to apply the waiver rule in effect at the time the case is decided on habeas rather than the rule in effect at trial.
. The state concedes that the state law we should apply is the state law in effect at the time of trial but argues, inter alia, that the decision of the state courts not to address Spencer’s claim on the merits should nonetheless operate to deny him any benefit to which he might otherwise be entitled under the 1967 statute. Because the state thereby argues that the deci-sio.. of the Georgia Supreme Court not to allow Spencer the benefits of the nonwaiver provision of the 1967 statute should preclude federal review of his claim on habeas corpus, we examine that decision for its independence and adequacy in spite of the state's apparent concession that the amended statute should not have been applied.
. Most of the case law on which the independent and adequate state ground doctrine is based consists of decisions in direct appeals from the state courts. The principles derived from those cases, however, are as applicable on federal collateral review of a state court conviction as they are on direct appeal. Francois v. Wainwright, 741 F.2d 1275, 1281 (11th Cir.1984). See Wainwright v. Sykes, 433 U.S. at 87, 97 S.Ct. at 2506 (citing Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), case decided on direct appeal, in support of its finding of independent and adequate state ground).
. In Reece the Supreme Court accepted the general validity of the Georgia rule requiring that challenges to the grand jury be made before indictment, but found its application to violate due process where a "semi-illiterate" defendant "of low mentality” was not provided counsel until the day after he was indicted. Reece v. Georgia, 350 U.S. at 89, 76 S.Ct. at 170. In a companion case to Reece, the Supreme Court stated that the test of due process in such a case was whether the defendant was given "a reasonable opportunity to have the issue as to the claimed right heard and determined by the state court.” Michel v. Louisiana, 350 U.S. 91, 93, 76 S.Ct. 158, 160, 100 L.Ed. 83 (1955) (quoting Parker v. Illinois, 333 U.S. 571, 574, 68 S.Ct. 708, 709, 92 L.Ed. 886 (1948)).
. Not surprisingly, in cases involving novel or unevenly applied state procedural rules, the Supreme Court has also frequently stated with apparent significance that the asserted procedural requirement would “force resort to an arid ritual of meaningless form,” thus finding no legitimate state interest in the rule itself. James v. Kentucky, 466 U.S. 341, 104 S.Ct. 1830,
The basic due process concept involved is the same as that which the Court has often applied in holding that an unforeseeable and unsupported state-court decision on a question of state procedure does not constitute an adequate ground to preclude this Court’s review of a federal question. See e.g., Wright v. Georgia, 373 U.S. 284, 291 [83 S.Ct. 1240, 1245, 10 L.Ed.2d 349]; N.A.A.C.P. v. Alabama, 357 U.S. 449, 456-58 [78 S.Ct. 1163, 1168-69, 2 L.Ed.2d 1488]; Barr v. City of Columbia, ante, [378 U.S.] p. 146 [84 S.Ct. 1734, 12 L.Ed.2d 766]. The standards of state decisional consistency applicable in judging the adequacy of a state ground are also applicable, we think, in determining whether a state court’s construction of a criminal statute was so unforeseeable as to deprive the defendant of the fair warning to which the Constitution entitles him. In both situations, “a federal right turns upon the status of state law as of a given moment in the past — or, more exactly, the appearance to the individual of the status of state law as of that moment....” 109 U.Pa.L.Rev. supra, at 74, n. 34. When a state court overrules a consistent line of procedural decisions with the retroactive effect of denying a litigant a hearing in a pending case, it thereby deprives him of due process of law "in its primary sense of an opportunity to be heard and to defend [his] substantive right.” Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 678 [50 S.Ct. 451, 453, 74 L.Ed. 1107], When a similarly unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair v/arning that his contemplated conduct constitutes a crime. Applicable to either situation is this Court’s statement in Brinkerhoff-Faris, supra, that “if the result above stated were attained by an exercise of the State’s legislative power, the transgression of the due process clause of the Fourteenth Amendment would be obvious," and “The violation is none the less clear when that result is accomplished by the state judiciary in the course of construing an otherwise valid ... state statute.” Id., at 679-80 [50 S.Ct. at 453-54],
Id. at 354-55, 84 S.Ct. at 1703.
. We mean to suggest no view in this opinion concerning the applicability of the amended statute to a petitioner, convicted while the 1967 statute was in effect, whose failure to challenge the composition of his grand or traverse jury continued long past his trial or well beyond the enactment of the 1975 amendment. A voluntary and intelligent waiver of such a claim in accordance with the terms of the 1967 statute may be found under a wide variety of circumstances, and we do not with this decision intend to limit or restrict the ability of the courts of this Circuit to find such a waiver in future cases involving the 1967 Georgia habeas corpus statute.
. No voluntary, knowing and intelligent waiver by Spencer of his right to raise the jury composition challenge he seeks to raise now appears in the record in this case. Thus the findings of the Georgia Supreme Court that Spencer’s claim was barred not only because it was untimely, but also because it "was not supported by evidence in the trial court, was waived before the trial began, and was not urged on direct appeal,” Spencer v. Hopper, 255 S.E.2d at 4, also cannot be considered sufficient to bar review of his claim on federal habeas.
Concurrence Opinion
specially concurring, in which HATCHETT and CLARK, Circuit Judges, join:
I concur in Part I of the majority’s opinion and in its decision to adhere to the panel’s treatment of issues one, three, and four, see ante at 1460. For the reasons expressed below, I agree with the result reached in Part II of the majority’s opinion, that the petitioner is entitled to present to the district court his challenge to the constitutionality of the jury selection process utilized in his trial.
The record in this case indicates that, on January 7, 1975, prior to the commencement of voir dire, petitioner presented the trial judge with a written petition informing the court that the State was about to impanel a jury drawn from an array from which blacks were systematically excluded, in violation of the United States Constitution. Admittedly, petitioner’s challenge was in the form of a removal petition addressed to the federal district court. The unconstitutionality of the jury selection process, however, was cited as the grounds for removal, fully apprising the trial judge of the petitioner’s contention that the State was about to violate his constitutional rights. Rather than address, or even explore, the merits of petitioner’s objection, the trial court merely determined that it retained jurisdiction over the case, because the federal district court had not received the removal petition, and proceeded tentatively to qualify nineteen jurors by the end of the day.
Before the commencement of proceedings the next day, petitioner again directed the trial judge’s attention to his claim that the State’s jury selection process violated the Constitution. This time, his claim was presented in the context of a formal motion, accompanied by a brief, challenging the jury array.
There is no question that the district court had the power to entertain the petition in a case such as this. See Francis v. Henderson, 425 U.S. 536, 538, 96 S.Ct. 1708, 1710, 48 L.Ed.2d 149 (1976). However, because of the valid and important policy considerations involving comity and the orderly administration of justice which are delineated in Wainwright v. Sykes, 433 U.S. 72, 88-90, 97 S.Ct. 2497, 2507-08, 53 L.Ed.2d 594 (1977) and Francis v. Henderson, 425 U.S. at 539-42, 96 S.Ct. at 1710-II, federal courts frequently must enforce a state’s contemporaneous objection rule and decline to exercise their power to entertain an application for a writ of habeas corpus. A careful reading of Sykes and Francis discloses two important goals served by state contemporaneous objection rules.
In this instance, petitioner made the trial court aware of his objection to the jury array at the outset of the proceedings. He raised the matter prior to the commencement of voir dire
Federal courts enforce state contemporaneous objection rules because such rules serve important and legitimate interests.
. Given the trial judge's treatment of his removal petition, petitioner’s formal motion was made as soon as could possibly have been expected under the circumstances.
. The Georgia courts have expressed these same two considerations as underlying their contemporaneous objection rule. See Young v. State, 232 Ga. 285, 206 S.E.2d 439, 442 (1974); Williams v. State, 210 Ga. 665, 82 S.E.2d 217, 219-20 (1954), remanded sub nom. Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161 (1955); Williams v. State, 31 Ga.App. 173, 120 S.E. 131, 132 (1923).
. Curiously, none of the courts that have considered petitioner's claim have come to grips with the effect of his January 7 "removal petition” in light of the purposes of the contemporaneous objection rule. The majority opinion, ante p. 1465 n. 11, and the panel opinion, 715 F.2d at 1571 n. 8, expressly decline to address the issue of the January 7 petition. The state trial court made no response to the removal petition other than to conclude that it did not affect the court’s jurisdiction. The state habeas court "found” that petitioner’s motion to challenge the jury was in fact filed on January 8, but did not address the effect of the January 7 petition. See Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1, 3, cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979). The Georgia Supreme Court agreed with the state habeas court and also did not address the January 7 petition. Id. The implication that may be drawn is that the Georgia courts did not find the January 7 petition legally sufficient to satisfy the contemporaneous objection rule, but no discussion of this point appears.
. The majority opinion determines that it has "long been the law in Georgia” that a constitutional challenge to the composition of the jury array must be made prior to the time voir dire commences. Ante p. 1464. The panel opinion concluded that, prior to this case, the precise time such a challenge must be raised has not been clear as a matter of Georgia law. 715 F.2d at 1569-73. I would submit that the panel’s conclusion is a more accurate summation of Georgia law.
It is undisputed that Georgia law requires a challenge to the jury array be made prior to the time a jury is "put upon” a defendant. It is also undisputed that a challenge made for the first time after a jury verdict, in a motion for a new trial or in the habeas context, is not timely. However, it has not been clear when the process of putting the jury on the defendant begins and when the process ends. There are Georgia cases indicating that a jury is "put upon” a defendant prior to the commencement of voir dire, e.g., Britten v. State, 221 Ga. 97, 143 S.E.2d 176, 178 (1965), cert. denied, 384 U.S. 1014, 86 S.Ct. 1944, 16 L.Ed.2d 1035 (1966); Felker v. Johnson, 53 Ga.App. 390, 186 S.E. 144, 146 (1936), as well as cases indicating that voir dire is included within the process of putting a jury on a defendant, e.g., Walls v. State, 161 Ga.App. 235, 291 S.E.2d 15, 17-18 (1982); see Pulliam v. Balkcom, 245 Ga. 99, 263 S.E.2d 123, 126-27, cert. denied, 447 U.S. 927, 100 S.Ct. 3023, 65 L.Ed.2d 1121 (1980) (must show cause for failure to challenge jury composition at or before trial). I have found no Georgia case where a jury challenge was raised for the first time in the early stages of voir dire and was held to be untimely. Even if the majority's interpretation of Georgia law is correct, however, it is clear that the trial judge was made aware of petitioner’s objection prior to the commencement of voir dire.
. After jury qualification was completed in petitioner’s trial, the judge asked the prosecutor whether the State was ready to proceed. The prosecutor responded that it was, but would argue the merits of petitioner’s jury challenge if petitioner insisted on the motion. This indicates that, at that time, the prosecutor believed the contemporaneous objection requirement had been satisfied or, at a minimum, the State was not insisting upon compliance with it.
Concurrence in Part
concurring in part and dissenting in part:
In Part II of the majority opinion after many expressions and observations not involved in this case and therefore not necessary for determining the issue under consideration (See Section C. Analysis), this Court holds that petitioner Spencer is not procedurally barred from presenting his jury composition challenge to the federal district court. With respect to Part II, as Judge Warren Jones stated in concurring in an opinion written by Judge John R. Brown in Wirtz v. Fowler, 372 F.2d 315 (5th Cir.1966), “I concur in the result and in so much of the opinion as supports the result.” Id. at 335 (Jones, J., concurring).
I dissent from Part I of the majority opinion, in which the majority holds that Spencer’s proffer of the study conducted by Dr. David Baldus did not entitle him to an evidentiary hearing because the facts allegedly proven by the study are legally insufficient to support an Eighth or Fourteenth Amendment challenge to the Georgia capital sentencing system. The petitioner did not have to prove purposeful discrimination against him in sentencing in order to support his claim; even if he were required to do so, he would still almost certainly succeed. In my view, the evidence proffered by Spencer would establish grounds for relief under the Eighth Amendment because it would prove that Georgia has applied its death penalty statute in an arbitrary and capricious manner by allowing race to determine in part who will receive the death penalty.
A petitioner can prove that a state has operated its death penalty system arbitrarily and capriciously without proving that a state agent intended to discriminate against the petitioner or against any other defendant in a capital case. A death penalty system is arbitrary and capricious if it produces significantly inconsistent results, regardless of the intent of state agents. See Godfrey v. Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (1980) (death penalty scheme must provide meaningful way of distinguishing between those who receive death sentence and those who do not); Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (comparative proportionality review not required if system adequately ensures consistent and rational results).
The reason that an Eighth Amendment claim based on racial discrimination cannot require proof of discriminatory intent is that the death penalty heightens the need for consistent and fair decisions while at the same time maintaining the need for the discretion to make individualized judgments. An appellate court can only give searching review to the fairness and consistency of a discretionary decision if it employs effects evidence, since the discretion of state decisionmakers makes evidence of their intent difficult if not impossible to obtain. McCleskey v. Kemp, 753 F.2d 877, 909 (11th Cir.1985) (Johnson, J., dissenting). Since the special nature of the death penalty calls for the use of effects evidence, the evidence proffered by Spencer had only to show by a preponderance of the evidence a significant racial influence on the pattern of death sentences; his evidence did not have to compel an inference of purposeful discrimination. The Baldus Study could succeed under this standard and the district court erred in refusing to hold a hearing.
Even if proof of purposeful discrimination were the appropriate standard, the Baldus Study proffered by Spencer would suffice to support his constitutional claim.
While this Court has determined, wrongly in my view, the legal significance of the Baldus Study, the issue remains alive because the Supreme Court could take action in McCleskey v. Kemp, supra. The shortcomings of this Court’s decision in McCles-key, together with the possibility that it may not stand as binding precedent on the issue, lead me to conclude that the evidence proffered by Spencer would entitle him to habeas corpus relief. I would reverse the judgment of the district court and order it to hold an evidentiary hearing.
