*1 27461. REESE v. AULT. Justice. petitioner appeals
Jordan,
an
denying
order
and remanding
custody.
him to
his petition he
that he was held under concur-
rent
life sentences
for two convictions of
robbery
Thomas
Superior
violation
his constitutional
as
rights
juries
follows: 1. The
for indictment
and trial
were from
compiled
lists
from a racially designated tax
2.
digest.
He
was forced
participate
line-
up
subjected
without counsel. 3. He was
police interrogation
and held incommunicado without
benefit
counsel for
"by
hours
the Monticello
Sheriff Department of
County
Jefferson
Florida.” 4. He
an
and
illegal arrest
search of
per-
son, car, and
suitcase. 5. He was
returned
from Florida by
County
Thomas
law enforcement officers
legal
without
extradition.
He was
and
forced
intimi-
illegal
dated into
an
of nolo
plea
contendere
capital offense
his appointed attorney without know-
ing
meaning of
plea.
sought, among
He
other
things,
the assistance
counsel
in the
prosecution of his petition, and a
subpoena
the jury
clerk
commissioners of Thomas County, requir-
ing them to
with the 1966
appear
Before the scheduled
the respondent moved to dis-
miss, citing
Code Ann.
at the
submitted
corpus proceed-
ings.
3,
An
1969,
order dated April
5672,
in Case No.
Court,
Tattnall
Superior
discloses
determination
none of the
rights
violated,
and that he
serving
was then
concurrent
life sentences imposed
on October
and Novem-
ber
hearing judge
also specifi-
cally
petitioner extradited and that his rights were not vio-
interrogation.
lated in
An order dated Novem-
Action No.
United States
in Civil
ber
Thom-
District of
District Court for the Middle
record
Division,
review of the
complete
discloses
asville
Superior
in Tattnall
proceedings
resolved in
Court,
merits were
conclusion
and that
the action
hearing,
the Tattnall Superior
*2
his
before
petition
taken
that court was authorized.
extra-
illegally
he
that he was
the district court
custody
dited, that he was held
bail,
he
held in-
was
of counsel
without benefit
Monticello,
48 hours
communicado
without benefit
interrogation
counsel, that his arrest
search
of requested
the material seized
illegal, that
his
and car were
person
him, that he was
against
illegally
used as
adequate
pre-
time
with counsel who had
not provided
that he
rights,
his
a
and advise him of
defense
pare
without benefit
coun-
line-up
placed
peti-
to file a
motion
leave
sel. On
his
April
by the United States
was denied
tion of habeas
Smith,
From a comparison clear the other is proceedings, that of ceeding in the present is novel only contention which a from ra- selection is with (Ga. L. statute cially designated (10)), 838; provides Ann. Code pp. §50-127 for writ application that "a subsequent specifically . . . unless be entertained . . . need not alleges predicated application . . . hearing application adjudicated on the court is satisfied and unless deliberately withheld earlier application not on the again ruled time and It has been asserted newly illegality attacking in habeas that a enti- for a crime pursuant sentence detention se appeared pro The petitioner counsel. tled at in the court below clear from that he conceded contention new was his attack selec- purported tion. It also appears fully he was apprised of Code Ann. but there is total any explanation absence of on his to afford the part trial for a judge any basis determination that he had not pre- viously deliberately withheld this ground. Under the circumstances here shown the and rec- pleadings
ord authorize the action the trial judge is without merit.
Judgment concur, the Justices except Hawes affirmed. Gunter, JJ., who dissent. September 9, 1972. 12, 1972 pro se.
James X. Bolton, General, Arthur K. Attorney N. Harold Executive Assistant Attorney Courtney Wilder Stan- *3 ton, Bartee, Jr., William F. Assistant Attorneys for Justice, dissenting. I agree with the majority
Gunter, that the "new contention” raised in applica- this third by tion appellant the for a writ of habeas is that corpus the appellant’s present confinement is constitutionally imper- missible because it is on an by grand based indictment and a jury verdict a petit jury Negroes from which were excluded by reason of their race. All other contentions raised the present application satisfactorily were adversely appellant previ- two corpus actions, ous habeas one in the State court and one in the United States District Court.
This third application for habeas now review, raised this "new contention” with to the unconstitutional grand jury the that in- petit dicted him and the jury pres- that convicted him. The ent application review also the tax prayed clerk, digest, jury jury three commissioners County, subpoenaed be these support because "stated documents witnesses will set forth the facts in this petition.” At corpus hearing the habeas sum- State moved for mary judgment ground on the all contentions made been ad- present application previously decided versely to the two appellant previous habeas corpus proceedings with the exception the one "new contention” made concerning composition juries. And on this lat- ter it State contended that could have made and should have been made in one or appel- both previous corpus proceedings. lant’s habeas connec- this (10). tion the State relied on Code Ann. 50-127 IAs understand this Code a subsequent applica- section tion application alleges need be entertained unless the predicated upon adjudicated in ear- lier habeas action or unless satisfied has not on the applica- tion "deliberately withheld the It is conceded here that the previ- "new contention” has not been ously to adjudicated; is difficult me understand how a court can decide that the applicant with- deliberately held in the a contention genuinely that he now to incar- present believes make constitutionally ceration illegal. grand
The present application alleges jury petit unconstitutionally were selected assembled. application sought show documents and wit- sought subpoenaed. nesses be The record shows that was cut appellant showing. off It seems me that in this the State situation was incumbent in- show *4 dicted him and convicted him were not infected with this infirmity alleged. claim that appellant’s of the the tribunals essence him were in a indicted convicted constituted manner that the "law of the land” as set prohibited forth Constitution and the United States Georgia is entitled decision I think that he
Constitution.
(87 SC
U. S. 545
Whitus v.
that claim. See
(92
599),
Kiff,
I
dissent.
v. THE STATE.
POLLARD
Appeals
jurisdic
Justice. The Court of
Undercofler,
law
questions
appli
tion to
of
involve
decide
sense,
unambig
cation,
general
unquestioned
of
of
given
of
Constitution to
state
uous
facts
that do
involve construction
some consti
ei
directly
question
doubtful
provision
tutional
or
ther under its own terms
decisions
or
Georgia
Court of
Supreme
Supreme
App.
City
v.
Bd.
United States. Howle
Personnel
Point,
East
Transferred October Pollard, pro se. Napoleon Ralph Self, Attorney,
Earl B. District William