Grigsby v. Mabry

637 F.2d 525

• Court: Court of Appeals for the Eighth Circuit
• Decided: November 6, 1980
• Docket: Nos. 80-1262, 80-1286
• Status: Published

Opinions

LAY, Chief Judge.

Petitioner Grigsby was convicted of capital felony murder in Franklin County Circuit Court for the State of Arkansas. In 1978, Grigsby filed a petition for a writ of habeas corpus in district court, alleging, among other grounds, that the determination of his guilt by a “death-qualified” jury deprived him of trial by a fair and impartial jury.¹ The district court held “that the refusal of the trial court to allow a continuance so that the petitioner could attempt to make the evidentiary showing suggested in Witherspoon,2 of the guilt proneness of ‘death-qualified’ juries so seriously denigrated his constitutional right to an impartial jury that the denial amounted to an abuse of discretion.” Grigsby v. Mabry, 483 F.Supp. 1372, 1388 (E.D.Ark.1980). The district court ordered that the state grant Grigsby an evidentiary hearing on his constitutional claim and allow him to appeal the decision or retry him. Both Grigsby and the state appealed.

I. The Constitutional Issue.

This court can entertain an application for a writ of habeas corpus only on' the ground that the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). Grigsby’s constitutional claim is that he was denied a trial by an impartial jury. We deem this constitutional issue distinct from the question whether the trial court abused its discretion in refusing to grant a continuance so that Grigsby could present his constitutional claim. Jones v. Swenson, 469 F.2d 535, 537 (8th Cir. 1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2756, 37 L.Ed.2d 156 (1973); United States v. Leach, 429 F.2d 956, 963 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971); Johnson v. United States, 291 F.2d 150, 153 (8th Cir.), cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961); Davis v. Alabama, 545 F.2d 460, 466 (5th Cir.), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). If the district court had decided the abuse of discretion issue against Grigsby, rather than for him, his constitutional claim would nevertheless have survived because he attempted to present that claim to the state court and subsequently exhausted his state remedies. 483 F.Supp. at 1376. Traditionally, the matter of a continuance is within the discretion of the trial court. Jones v. Swenson, 469 F.2d at 537. See also Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). In some circumstances, however, the trial court’s refusal to grant a continuance may deny a defendant effective assistance of counsel or be so arbitrary as to violate due process rights. See Davis v. Alabama, 545 F.2d at 466-67. But whether, in this case, there occurred any abuse of discretion is independent of the petitioner’s right to an evidentiary hearing on his claim that he was denied trial by an impartial jury.

The record demonstrates that Grigsby did not receive a full and fair evidentiary hearing in state court on three factual issues: (1) whether death-qualified jurors are more likely to convict than jurors selected without regard for their views on the death penalty, (2) whether death-qualified jurors are more likely to convict of a higher degree of murder than jurors selected without regard for their death penalty views, and (3) whether the jurors in this case were in fact death-qualified. These questions must be answered because if they are answered in the affirmative, Grigsby has made a case that his constitutional rights have been violated and he would be entitled to a new trial.

In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the Supreme Court stated:

Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.

Id. at 312-13, 83 S.Ct. at 756.

The district court found the petitioner’s evidence sufficient to raise a serious question whether a death-qualified jury is more likely to convict than a jury selected without regard for jurors’ scruples against the death penalty.³ 483 F.Supp. at 1387. See Hovey v. Superior Court, 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301 (1980). Grigsby’s counsel indicated at oral argument before this court, given the opportunity for a full evidentiary hearing, that there exists additional evidence which will be produced to supplement the record. Thus, the record is not complete for our review to determine whether petitioner will prevail or not on the merits. Under the circumstances, we find no error in requiring a further evidentiary hearing.

II. The Appropriate Forum.

The district court remanded this case to the state trial court for an evidentiary hearing on Grigsby’s constitutional claim. We conclude, however, the nature of the habeas corpus remedy and the jurisdictional threshold of exhaustion of state remedies makes the district court a more appropriate forum for the required evidentiary hearing. The district court found that Grigsby had exhausted the state remedies on his claim but decided to allow the state courts another opportunity to rule on Grigsby’s claim, even though the state had three times previously denied his request for a hearing. 483 F.Supp. 1376. The Supreme Court has stated that Congress did not intend section 2254 “to require repetitious applications to state courts.” Brown v. Allen, 344 U.S. 443, 449 n.3, 73 S.Ct. 397, 403 n.3, 97 L.Ed. 469 (1953); Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971). Nor does the mere possibility of success in additional state proceedings bar federal relief. Roberts v. LaVallee, 389 U.S. 40, 42-43, 88 S.Ct. 194, 196, 19 L.Ed.2d 41 (1967). The district court’s opinion reflects extensive research into the record, the psychiatric evidence on death-qualified jurors, and the relevant case law. Since Grigsby exhausted his state remedies, we conclude the district court should have reached the merits of his claim rather than holding that the trial court abused its discretion in refusing to grant a continuance. The Fifth Circuit has addressed the propriety of remanding a petitioner’s constitutional claims for a state court hearing and requiring further appellate proceedings in the state court. In Dixon v. Beto, 472 F.2d 598 (5th Cir. 1973), the court stated:

The exhaustion of state remedies doctrine, ... is based on principles of comity to afford the state courts the first opportunity to pass on the claims of state prisoners that they were deprived of federal constitutional rights in connection with their restraint. Once state remedies are exhausted, it is the duty of the federal courts to pass on such claims. The federal courts are not empowered to order the state courts to make remedies available nor are they authorized to dictate the type of hearing which is to be conducted by the state courts.

Id. 472 F.2d at 599 (emphasis added).

Accord, Anderson v. Beto, 469 F.2d 1076, 1077-78 (5th Cir. 1972). This limitation on federal courts seems to have been modified to a preference that the evidentiary hearing be held in the district court rather than the state court, Lokos v. Capps, 569 F.2d 1362, 1363 (5th Cir. 1978); accord, Fitch v. Estelle, 587 F.2d 773, 778-79 (5th Cir.), cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 111 (1979), but once exhaustion has been shown the policies favoring a federal hearing remain the same. See generally Henson v. Wyrick, No. 79-1808 (8th Cir. April 29, 1980); Ross v. Wyrick, 581 F.2d 172 (8th Cir. 1978); Murrah v. Arkansas, 532 F.2d 105, 107-08 (8th Cir. 1976); Newman v. Henderson, 539 F.2d 502, 504 (5th Cir. 1976), cert. denied, 433 U.S. 914, 97 S.Ct. 2986, 53 L.Ed.2d 1100 (1977); Spratley v. Paderick, 528 F.2d 733 (4th Cir. 1975); Gibson v. Blair, 467 F.2d 842, 844 (5th Cir. 1972).

This court has recognized the broad discretion of the district court to “send a case back to the state courts to resolve issues more properly considered by the judge who experienced the trial first hand.” United States ex rel. McQueen v. Wangelin, 527 (8th Cir. 1975)⁴; see also Hart v. Eyman, 458 F.2d 334, 338-40 (9th Cir.), cert. denied, 407 U.S. 916, 92 S.Ct. 244, 32 L.Ed.2d 691 (1972). The issues in this case, however, are not of the kind more properly considered by the judge who experienced the trial first hand. Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109 (1964); Patterson v. Lockhart, 513 F.2d 579, 581 (8th Cir. 1975); United States ex rel. Fisher v. Driber, 546 F.2d 18, 22 (3d Cir. 1976). The issues here are (1) whether prospective jurors were disqualified because of their death penalty views, (2) if they were, whether the resulting death-qualified jury was more prone to convict Grigsby or to convict him of a higher degree of murder, and (3) if it was, what legal remedy should be accorded Grigsby. There are no special circumstances or relevant cases which indicate that the trial court is a more appropriate forum than the district court for resolution of these issues.

We conclude Townsend v. Sain entitles Grigsby to an evidentiary hearing on his constitutional claim, and the appropriate forum for such hearing is the district court. See McQueen v. Swenson, 537 F.2d 976, 978 (8th Cir. 1976).

The order of the district court is modified accordingly.

IT IS SO ORDERED.⁵

1 . Petitioner urges that the jury was “death-qualified” in that the state trial judge refused Grigsby’s counsel’s request not to exclude for cause from the jury any prospective venireman who possessed scruples against rendering the death penalty.

2 . Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The Court stated:

The data adduced by the petitioner, however, are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.

Id. at 517-18, 88 S.Ct. at 1774 (footnotes omitted).

3 . Several courts have declined to find there exists sufficient evidence available on the record before them to prove the conviction propensities of death-qualified juries. See Bumper v. North Carolina, 391 U.S. 543, 545, 88 S.Ct. 1788, 1789, 20 L.Ed.2d 797 (1968); Witherspoon v. Illinois, 391 U.S. 510, 517-18 n. 11, 88 S.Ct. 1770, 1774 n. 11, 20 L.Ed.2d 776 (1968); Spinkellink v. Wainwright, 578 F.2d 582, 593-95 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); United States ex rel. Clark v. Fike, 538 F.2d 750, 761-62 (7th Cir. 1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781 (1977); United States ex rel. Townsend v. Twomey, 452 F.2d 350, 362-63 (7th Cir.), cert. denied, 409 U.S. 854, 93 S.Ct. 190, 34 L.Ed.2d 98 (1972); Craig v. Wyse, 373 F.Supp. 1008, 1011 (D.Colo.1974).

4 . Ultimately, this court ordered the evidentiary hearing to be held in the district court rather than in state court. McQueen v. Swenson, 537 F.2d 976, 978 (8th Cir. 1976).

5 . We also vacate the district court’s finding that the defendant was not denied a jury composed of a cross-section of the community. Because the record is to be supplemented by further evidence and in view of the close relationship of petitioner’s claim on the cross-section issue to the guilt-proneness claim, the district court should, upon completion of all the evidence, enter its findings on both claims. In this way there can be a single appeal on both issues regardless of the outcome in the district court on either issue.